Judge Not Too Harshly

What judges at work say and do matters for the nation. They wield enormous powers over citizens and the state. Their judicial interpretation determines the contours of our freedom and the future of human rights as well as powers and structures of governance. They increasingly co-govern the ­nation, alongside Parliament and the executive. Their interpretation of the Constitution (jurisprudence) and powers of innovation to serve the people of India (demosprudence) have showcased for the world the wonder of constitutional democracy at work in India that is Bharat.

In this context, Justice J. Chelameswar’s recent public outpourings concerning the workings of the Supreme Court’s judicial collegium are noteworthy. His lordship is reported widely as expressing shock at how there is no room allowed for democratic consultation among the five justices who constitute the collegium; it seems only the Chief Justice of India (CJI) and the next seniormost justice confer, while the other collegium members are only asked to ­say yes or no to the proposed names.

We do not know exactly what the learned justice said in a three-page letter to the CJI, but he apparently voiced his profound apprehensions concerning the workings of the collegium. He deserves public gratitude for adding his powerful voice to “the fight for transparency”. In an interview to The Hindu (September 5), he said, “There is nothing personal in my stand. Let judicial appointments be made on some objective criteria. The judiciary should evolve a procedure for bringing in transparency in app­ointments after having rejected both the government’s arguments and rescinded a parliamentary law on NJAC (National Judicial Appointments Commission).”

The CJI, in a press comment, has said he will soon attend to the matter. But the litigating, and the general, public will never know how the matter is settled in-house. Unless incumbent judges say more in the future, rumours will persist as to how the matter was handled. But, given the state of judicial secrecy in India, this will never surface as official news in the public domain.

It remains unworthy to second-­guess the motives that animated the learned justice. He did not intend to question the collective wisdom of the court in the NJAC decision. Nor can any “fight for transparency” be solely in-house: Justice Chelameswar himself said, “Let there be a public debate about the issue. The public is the only stakeholder in judicial appointments. How can you keep the whole society out of it?”

Justices And Free Speech

The learned justice’s letter to the CJI and media reports raise not just some issues about the functioning of the collegium system, but also the equally important and weighty issues of the freedom of speech and expression incumbent justices have and ought to have. Outside of the power to dissent or partly concur in judicial opinions, should an incumbent justice raise questions about the functioning of administrative aspects of adjudicatory policy in public fora?   

It is a constitutional requirement that justices should be citizens of India; are they by that token entitled to freedom of speech and expression as citizens? Is, or should, that freedom be unlimited, though subject to ‘reasonable restrictions’ prescribed by law made by Parliament? Will, or should, the court test such restrictions on the ground of their adversely affecting the basic structure of judicial review powers and process? Is there a notion of responsible free speech within institutions and should all its members be bound by collectively mandated self-discipline, even when it circumscribes constitutional freedoms and the right to dissent? And how far should the judicial oath be made to extend for superannuated justices, not all of whom always speak up for the integrity and independence of the judiciary?

The UN General Assembly Resolutions 40/32 of November 29, 1985, and 40/146 of December 13, 1985, endorsed the ‘Basic Principles on the Independence of the Judiciary’ articulated by the now famous ‘Bangalore Principles of Judicial Conduct’, and enshrines independence, impartiality, integrity, propriety, equality, competence and diligence as cardinal principles. Principle 1:6 states: “A judge shall exhibit and promote high standards of judicial conduct in order to reinforce public confidence in the judiciary, which is fundamental to the maintenance of judicial independence.”

Is even a partial disclosure of a communication to the Chief Justice violative of the principle of reinforcing ‘public confidence’ in an independent judiciary? Is this merely a matter of propriety or also of collective institutional integrity? Or may it be argued that each incumbent justice may act in the context of ‘public confidence’ and judicial independence? Further, would a parliamentary affirmation of these principles violate judicial independence or the basic structure?

The Preamble to the Bangalore Principles clearly states that the “implementation of all the other rights ultimately depends upon the proper administration of justice”. It is this context that elaborates further the value of judicial independence.

Limits To Transparency

No matter how we may think or feel about the subject, three constraints need to be acknowledged. First, the NJAC decision is the law declared by the highest court in the land and the executive and Parliament have gracefully acknowledged this fact. That decision leaves it open to Parliament to enact, if it so wishes, another constitutional amendment and a law in accordance with the judicial decisions. Hard work, indeed; but that is what sovereign governance under constitutional discipline is all about. It is not proper to subvert judicial decisions through a mere MoP. There is no justification for the violation of the elementary canon of the rule of law: “What cannot be done directly may not be done indirectly.”

Second, there is no known human way to eliminate discretion in appointments, judicial or any other. Ultimately, a choice has to be made among a large number of equally qualified and eligible candidates. Vast disappointment greets any appointment. All that transparency may mean is the wise and fair management of that discretion.

Third, the growing public desire that we “move beyond the collegium system” ignores the fact that whatever procedure is adopted, ordinary citizens will remain equally in the dark. The disappointed justices and the leaders of the Bar apparently know how the judicial collegium works and, for the most part, they rely on internally shared information or even knowledge of how justices are appointed or elevated. The narratives of veniality of the collegium are important but are partial, fragmentary and often amount to gossip or articulations of embittered disappointment.

A Yen For Reflexive Course Correction

In this situation, one way is to enlarge the circle of those who would officially know­—whether attorney-­general or advocate-generals, or chairpersons of the Bar Councils, some leaders of the Bar, a sprinkling of retired justices or chief justices. This good suggestion may not make elevations ‘transparent’ to the consumers of the administration of justice or the people at large.

Interactions (a euphemism for interviews) are not unkn­own in Indian judicial history. Perhaps, a more public process (like putting it live on websites) may bring some transparency. Seniority-cum-merit is also suggested; this is already operative as a constitutional convention with regard to the CJI and one may argue that it prevails in the collegium for the most part.

If full transparency may never be achieved, should we not aim at partial transparency and the best possible ways to achieve this? If ‘accountability’ is a “greengrocer’s conception” (as Karl Marx described it), does ‘responsibility’ fare any better? It is already menacingly appropriated by corporations; now, in the land of the Bhopal catastrophe, we hear of “corporate social responsibility”, even in the new Companies Act, 2013!

Jacques Derrida proposed instead the notion of ­‘response-ability’. Far from living in denial, the court has developed the ability to respond. We may have many differences with this or that process or outcome, but few would say the court has not learnt the difficult virtues of reflexive course correction. Should we trust the court to render the collegium more transparent or pursue this magnificent obsession in other ways that overcome judicial autonomy and freedom from the state and the market?

(The author is a legal scholar, professor of law at the University of Warwick and former vice-chancellor of South Gujarat University and Delhi University.)