Debate needed for judicial reforms

A bench of the Supreme Court on 9th May, 2018, through Justice Arun Mishra, flayed the lawyers participating in television debates and criticising the judges.  According to Justice Mishra, “every judge (in the Supreme Court) is targeted.” He added that such lawyers are “destroying the institution”.

Justice Mishra’s comments came out at a time when the unprecedented crisis faced by the Indian judiciary is widely debated. The media may often show the characteristics of an institutionalised anarchy.There are discussions in T.V.channels and newspapers — sometimes serious and sometimes frivolous. There are organic and analytical debates as well as partisan and superfluous talk shows.  Still, as Justice Louis Brandeis put it, “unlimited discussions” often form part of political duty shared by the citizenry.

For the “argumentative Indian”, the happenings in the court are public affairs and   topics of great significance. In an adversarial open court system, discussion is the rule and censorship is not even the exception. The judge’s implication that the institution is being destroyed should be a matter of serious concern for all. Jerome Frank, in his classic work said — “The best way to bring about the elimination of (the) short comings of our judicial system which are capable of being eliminated is to have all our citizens informed as to how that system now functions.  It is a mistake, therefore, to try to establish and maintain, through ignorance, public esteem of courts”. (Courts on trial: Myth and reality in American Justice – Princeton University Press,  1973).

Debating Systemic issues. The year 2018 would, indisputably, remain as a great divider in the history of Indian judiciary.

It is not a repetition of a phenomenon of the committed judiciary emerged at the time of the national emergency.  The press conference by the judges on January 12, 2018 revealed certain foundational deficits in the system, which the politicians or the lawyers as a class, or even the judges at large, failed to address.  Very often the individual centric discussions created artificial binaries among the judges and the lawyers.

The systemic issues were sidelined or even ignored. In the matter of elevation of Justice K.M.Joseph to the Supreme Court, the notorious system of collegium attained an undue legitimacy. In fact, it so happened not on account of the collegium’s virtue, but due to a more deteriorated and aggressive executive.

Since the press conference, the question of roster is widely debated. Even the challenge against the Rajya Sabha Chairman’s order rejecting the impeachment motion against the Chief Justice ultimately got focussed on the creation and composition of the bench, as evident from Kapil Sibal’s objection to the administrative order that constituted the bench.  In India, “forum shopping” (wilful selection of judges for hearing a particular case) by a lawyer is seen as an instance of professional misconduct.  The underlying idea is that all the benches and judges are equally fair, judicious and balanced and even an indication to the contrary could be abominable. It should be so, in an ideal system.  As umpires of democracy, the judges should exercise their jurisdiction fairly, objectively and dispassionately. Justice is fairness, as John Rawls famously put it. But the roster concerns, shared by the bench and the bar, in a way, exposed and demystified the country’s legal system. It substituted hard realism for soft romanticism.

Need for Radical reforms
In the Indian context, therefore, the only way to tackle the present credibility crisis is to radically revamp the process of selection of judges. Unless and until we get rid of the present opaque system where lobbying determines the outcome, we won’t be able to eradicate the judicial and executive intransigence in the matter of appointment to the constitutional courts.  Justice Chelameswar recently said that judicial selection to the top courts in India is often a kind of “barter system”. He also said clearly that persons are chosen as per the “impression” and not “evaluation”.   Selection to the constitutional courts in India still remains as “one of the best kept Secrets in the country”, as bemoaned by Ruma Pal, a former Supreme Court judge of high repute.

Justin Trudeau, the Canadian Prime Minister recently visited India which was celebrated in the media. The unique kind of judicial reforms which he brought out in his country were however, hardly discussed in the Indian Media. It was in answer to the public outcry, articulated though the mainstream media that he introduced a new device in 2016 by which any qualified lawyer in Canada can apply for appointment as a judge in the constitutional courts of that country.  An independent Advisory Board for selection of judges by transparent means, with representatives of the Bar, Bench, the political executive, the academia and the civil society is a striking feature of Trudeau’s design. About one hundred judicial appointments were made in 2017 alone, through this mechanism that democratised the whole process.  Minorities and differently abled persons are adequately represented on the bench. There are equally good models of judicial selection in the U.K and the South Africa.  Unless India follows suit, the future of our judiciary can only remain bleak – as it is   now.  All these best models in other jurisdictions were evolved by constant critique of the deficits of the erstwhile system, where the media – both modern and conventional — played a significant role.

Only a deliberative democracy can have the potential for systemic changes, the relevance of which has been always reiterated by the apex court as well.

But even when the best are selected, there is a need to constantly watch and publicise the happenings in court. Judicial behaviour also cannot escape public scrutiny. Simon Rifkind said, “The court room, sooner or later, becomes the image of the judge.  It will rise or fall to the level of the judge who presides over it”.  Therefore, not just the orders pronounced by the court, but even the oral observations and gestures by the judges attain public importance where the citizen has a right to know.  More than 50 years ago, the Supreme  Court has referred to the observations of  Bentham quoted in Scott v. Scott (1911) All  ER  1, in Naresh Shridhar (1966) — “In the darkness of secrecy sinister interest, and evil in every shape,  have full swing.  Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate.  Where there is no publicity, there is no justice.  Publicity is the very soul of justice.  It is the keenest spur to exertion and the surest of all guards against improbity.  It keeps the judge himself while trying, under trial”.

Global trends
The remarks by the bench lag far behind the recent global trends in the media — judiciary relation.  A report published in 2005-2006 by the European Network of Councils for the judiciary (ENCJ) shows the establishment of “media offices with experienced journalists” by the Spanish judiciary.  In Sweden, a journalist is free to directly talk to the judges.  The report also shows the situation in Netherlands where there are press judges whose exclusive job is to speak to the press.  In the U.K, this writer had occasion to watch live telecast of the proceedings in the U.K Supreme Court dealing with important constitutional matters.  Brazil also has started live broadcasting of important proceedings before the Supreme Tribunal Federal, the county’s top court. In South Africa, live telecast of the interviews with the judicial candidates is a practice that ensures transparency in the selection process. More significantly, even our Supreme Court is now considering the plea for live telecast of the arguments in the important constitutional cases.

Subject to the existing laws relating to sub-judice, contempt, copy right and defamation, the affairs of and in the judiciary need to be under constant and vigilant public gaze. Also there is a strong case for improving the quality of discourse.  

At any rate, the judges too are public officials, if not public servants, as Justice Krishna Iyer was usually to say.

Lord Hailsham put it correctly-“As long as you do not find your private home invaded or your personal privacy intruded upon, do not treat the press as your enemy. What goes on in court is public property and it is not merely their right but their duty to report and it is their right and often their duty to comment. Private Justice is almost a denial of justice.”(Presidential address-1971, 27 the Magistrate, 185,186).

The author is a Supreme Court lawyer and the author of the book Rethinking Judicial Reforms:  Reflections on Indian Legal System