Restoring the stature of the Supreme Court | Analysis
Chief Justice SA Bobde has assumed the office of the Chief Justice of India (CJI). While wishing him all the best, it must be said that he has an unenviable task ahead, principally to restore the credibility and stature of what is incorrectly described as the most powerful court in the world. Unless this concern is urgently addressed, the cascading effect will be the death knell of the independence of the judiciary.
Theodore Roosevelt said of Justice Oliver Wendell Holmes Jr, after he decided against the view canvassed by the president, “I could carve out of a banana, a judge with more backbone than that.” A few recent judicial verdicts and administrative decisions seem to suggest that some of our judges need to show some backbone and spine, particularly in dealing with issues of personal liberty — no one can be thrown in jail without any effective remedy, and kept there because of information passed on to the judges in a sealed cover, or because there is no time (except perhaps to copy-paste), or because of misinformation, or because a person is safer in jail.
The Supreme Court and the high courts are sentinels on the qui vive, but so are all the courts down to the magistrates. If the transfer of judges of the constitutional courts can even be contemplated for their bona fide (maybe incorrect) understanding of the law in granting relief, what can an accused expect of a mere magistrate or sessions judge? Judges at all levels must, therefore, be given the confidence that they will not be “punished” for an honest decision, even if that decision is incorrect. Even the Supreme Court is fallible. The outgoing CJI stated in a press release: “I chose to belong to an institution whose strength lay in public confidence and trust earned not through good press, but through our work as judges on the bench.” The question to be asked is the cause of the erosion of public confidence and trust in the justice delivery system, and whether the citizenry can continue to have any confidence and trust in a judiciary that tends to bend, but not yet crawl?
Dispelling muted apprehensions within the legal fraternity, and the fear of raids and arrest of lawyers and the citizenry by a caged parrot and its first cousin, will infuse that confidence. Justice Bobde must also instil faith in all judges that they will be fully protected in the discharge of their duties, without fear or favour, and restore faith in “we the people”, that their personal liberty will be preserved and protected by the judges according to law and the Constitution.
An equally important task before the new CJI is to keep open the channels of communication between the judiciary and the lay public. Transparency is not a like a pendulum. Disclosures on appointment of judges through resolutions of the collegium swung from one end a few years ago to a virtual non-disclosure in the recent past. A balance has to be struck and a free and frank discussion must take place among the judges.
Soon after the transparency decision was taken, the CJI declined to entertain any discussion on the subject since he knew best, but later realised the need for circumspection. Transparent appointments are critical to the independence of the judiciary, and with the recent decision bringing the office of the CJI within the ambit of the Right To Information Act (and by necessary implication the office of the Chief Justice of every high court), careful thought must be given to the selection procedure and regulated disclosure, rather than a swing from being noisy judges to silent ones. Controversial administrative decisions by the collegium have disappointed many, and have led observers to believe that an unseen hand is behind some of them. Perhaps the appointment of a media adviser or a spokesperson might be necessary, and would also eliminate selective leaks and rumours.
Finally, the perennial problem of vacancies needs to be addressed. Let’s accept the fact that 400 vacancies in the high courts, and 4,000 vacancies in the district courts, can never be filled without compromising quality and continued violation of standards and benchmarks, as we have seen in the recent past. Do we really need so many judges? A few years ago, there was an across-the-board increase of 25% in the number of positions of high court judges. How was this percentage arrived at? Whatever be the analysis, the fact is that those vacancies have not yet been filled up with the overall vacancies hovering around 40%.
Nowadays, self-respecting lawyers are disinclined to accept an offer of judgeship for three reasons — delays in processes by the governments concerned, unpredictability in the decisions of the Supreme Court collegium, and the possibility of transfer for “the better administration of justice”, whatever that might mean. Doesn’t our justice delivery system deserve better? And can the new CJI deliver?
The new CJI has time on his hands and he should not let it slip by, but tackle these and several other issues with utmost urgency, dispassionately and with the assistance of all stakeholders. He will not get a second chance.
Madan Lokur is retired judge, Supreme Court of India
The views expressed are personal