The lack of any meaningful structural change demonstrates the bleak political economy of judicial reform.(Hindustan Times)
The lack of any meaningful structural change demonstrates the bleak political economy of judicial reform.(Hindustan Times)

The CJI and Supreme Court must walk their talk on transparency

That political parties still view judicial reforms through the lens of scoring party-political brownie points, reflects as poorly on the parties as it does on their constituents
By Arghya Sengupta
UPDATED ON JAN 14, 2019 01:45 PM IST

Today marks one year of the press conference by four senior judges of the Supreme Court, laying bare the improprieties in the highest echelons of the judiciary before the nation. The aftermath of the meeting was pregnant with possibility. Would Chief Justice Dipak Misra (now retired) resign? Would Parliament, which had been angling to pass a judicial accountability law, do so? Above all, would it mark a new beginning for the Supreme Court itself as an introspective institution, candid about its faults and open to being scrutinised by noisy journalists, as the judges at the press conference were?

One year on, none of these possibilities have come to fruition. While it would have been naïve to expect a structural transformation of the Supreme Court to take place overnight, the stasis that followed was equally unexpected. The basic grievance at the press conference — Justice Misra was not functioning independently — was not addressed in any meaningful way. His absolute discretion as master of the roster to allocate cases to different benches was not substantively reformed. While the collegium worked overtime in making several recommendations, this had much to do with the dynamics of the judges who comprised the collegium. With a different combination, there is little guarantee that such efficiency won’t unravel. An impeachment motion, hastily put together and ill-conceived, was nipped in the bud. With Justice Misra retiring, to many, the problems had solved themselves.

The lack of any meaningful structural change demonstrates the bleak political economy of judicial reform. It was apparent in the aftermath of the press conference that the Supreme Court was a divided institution. A stronger collective with greater zeal for restoring the public confidence in the judiciary would have spoken decisively in a single institutional voice and taken control of its own destiny. The full court of judges failed to do so then and continues to fail to proactively introduce any genuine reform measure. Absurdly short tenures of successive chief justices might have much to do with this seeming lack of institutional cohesion.

The government, like most governments before it, was content in observing the in-fighting of the judges from the sidelines. Serious questions of corruption and lack of independence of judges were sidestepped. This general inclination towards a convenient inertia was strongly espoused by influential voices of the Supreme Court Bar. Fali Nariman recommended to judges who gave the press conference to “lump it” and wait for the chief justice to retire. Soli Sorabjee accused them of squabbling like company shareholders. The status quo of an administratively creaking, functionally opaque institution with the possibility of nefarious dealings at the very top had to be lumped lest public in-fighting reduced the majesty of the institution and made it more transparent and, worse still, all-too-human.

The esprit de corps of the legal fraternity makes it near-impossible for genuine transparency and accountability reform to emanate from within the judiciary itself. This leaves us with Parliament. Although ever quick to unanimously condemn activist judges for their overreach, when the opportunity to enact judicial reform statutes presented itself after the press conference, Parliament squandered it.

That political parties still view judicial reforms through the lens of scoring party-political brownie points, reflects as poorly on the parties as it does on their constituents. Every right thinking citizen, irrespective of her views of the correctness or otherwise of Supreme Court judgments, cannot help but be concerned with devotees at Sabarimala physically preventing women from entering the temple, highway liquor shop owners reopening their shops and diesel taxis plying on the sly in Delhi. Cocking a snook at the Supreme Court is the surest sign of erosion of its credibility. The press conference gave us some insight into why this might be happening.

Chief Justice Ranjan Gogoi, in the interval between his participation in the press conference and taking over as chief justice, said in a public lecture that judges should be “on the front foot” because the judiciary didn’t need reforms, it needed a revolution. Despite a promising start, on the administrative front, the court seems to have retreated to its favoured back foot defence. If the press conference is to retain its significance as the seminal event ushering in an era of judicial transparency, accountability and independence, the chief justice and the Supreme Court must walk their talk. Otherwise it is neither reform nor revolution, but only public disillusionment that will ensue.

Arghya Sengupta is research director, Vidhi Centre for Legal Policy

The views expressed are personal

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