Judicial Winter: Whatever Happened to the Issues Raised by Four Supreme Court Judges?

We the People have begun to doubt the idea of idealism and a better State. Unless we make the demand for a fairer justice system,  we will continue to suffer a dysfunctional judicial system, says SHAILESH GANDHI, Former Central Information Commissioner.

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In January 2018, four senior judges of the Supreme Court, Justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph – held an unprecedented press conference in the capital.  At that time Dipak Misra was the Chief Justice of India, and the four judges highlighted mainly two problems afflicting the highest court of the country.

They raised two major concerns – first, regarding the way Chief Justice of India Dipak Misra was constituting benches for important cases and allocating them, and second, regarding finalisation of the Memorandum of Procedure (MoP) for the appointment of judges which was still pending with the government.

Nearly three years have passed after this press conference. Nothing has changed; nor is the issue being pursued!

The key problem identified was with the allocation of cases and constitution of benches which has conventionally been the prerogative of the Chief Justice.

SERIOUS CHARGES

It appeared to have been alleged that in certain important matters the allocation of cases was done in a manner that could lead to desired outcomes.

If true, this was a profoundly serious charge.

There has been no change in this and the allocation is still being done by the Chief Justice at his own sweet will with no rational or transparent method.

There is still no transparency in the selection of judges.

The press conference by the judges was a historic first in the history of the judiciary anywhere in the world. It yielded no result and got reduced to a mere publicity event.

The four judges had claimed that they were discharging their duty to the nation by drawing public attention to an undesirable practice. The nation thought the agitation of the four judges was against arbitrariness and injustice. A profoundly serious matter had been raised but was not taken to any logical conclusion and has ended as a farce.

PROBLEMS NOT ADDRESSED

The problem of selection of judges has also not been addressed. Citizens believed this issue only reflected the fact that there is too much arbitrariness in the ways of our judicial functioning.

There is arbitrariness in the way the Higher Judiciary is selected, with India being the only country where only judges can select other judges.

There is no transparency or a logical, justifiable process. The arbitrary collegium system of judges appointing judges started in 1993.

It is worth noting that this system of selecting judges was never mentioned in the constitution or any law of parliament. Yet, the Supreme Court ruled that this was the constitutional intention!

This was meekly accepted by the executive and parliament and should have been questioned.

Effectively, the Supreme court had amended the constitution by a judicial order! Parliament and 20 State assemblies passed the 99^th Constitutional amendment to correct the Supreme Court's diktat in 2014 to constitute a National Judicial Appointments Commission. The Supreme Court ruled this was not in consonance with the constitution!

There is a reluctance in the judiciary's decisions to interpret the law as passed by Parliament or laid out in the constitution.

DIFFERENT SPINS

There is a great propensity to give different spins to many cases and justify deciding these on a 'case to case basis'. With the arbitrary selection of judges and a propensity to interpret laws in different ways is coupled unbridled arbitrariness in listing and deciding cases.

It is a common experience that cases of a similar nature that would have been initiated in the same court may be decided even at a gap of ten years.

Article 14 of the Indian Constitution guaranteeing equality before the law is violated each day in the courts of India. So also, the fundamental right to speedy justice, which the Supreme Court has ruled is a fundamental right of citizens.

To give just one example of arbitrariness: The Supreme Court has ruled that citizens have a right to knowing about the assets of those who want to become public servants (stand for elections).

Subsequently, in RTI cases the Supreme Court has ruled that citizens do not have the right to know about the assets of those who are public servants! This is like saying that if a girl and boy want to get married they must disclose certain information about each other. If they get married, then the same information does not need to be shared! There are many such instances.

Defence of arbitrariness is being passed off as a requirement for judicial independence and maintaining the dignity of the institution!

STORM IN A TEACUP!

The four-judge earth-shaking press conference appears to be a storm in a teacup because of some egos, instead of being an issue of saving democracy. It is reported that it has been resolved over a cup of tea.

The people and the nation would have gained if the scourge of arbitrariness in deciding cases, listing them, appointing judges, and allotting cases amongst others had been decidedly reduced. It is easy to devise a computer program to allocate cases to judges and also for listing by computer programs. The cause list is prepared in many courts by a computer program, but these are overruled so regularly that effectively, it continues to be arbitrary. The limit of courts overriding the computerised listing should be limited to five percent cases only.

Alas, this dawn seems far right now.

This four-judge press conference made a promise which it did not fulfill. We the People have begun to doubt the idea of idealism and a better State.
Unless we make the demand for a fairer justice system,  we will continue to suffer a dysfunctional judicial system.

Citizens and the media should discuss these to bring change. We highlight events but do not move towards solutions.

(Shailesh Gandhi is a former Central Information Commissioner. The views are personal.)