Needed: political activism

"Protest beyond the law is not a departure from democracy;it is absolutely essential to it." - Howard Zinn

The extra-constitutional mechanism of the 'collegium', which is essentially a judicial creation, is a failed Indian experiment. The four judges who spoke to the nation last month have, in a way, demonstrated its breakdown. The letter which the senior judges placed in the public domain on January 12, has not, unfortunately, led to any serious political discourse on our courts. The Centre said that it is unconcerned with the "internal affairs of the judiciary" and the fissure among the judges was not its business. This is a sad state of affairs.

The tragedy is that judicial reform has never been part of a political programme in India. In an ideal situation, the issue of roster, the pattern of allocation of different categories of cases to different benches in the court, should not be a serious concern. Since all the judges are supposed to deal with the matters placed before them fairly, impartially, objectively and judiciously, the roster cannot, on its own, impact judicial conclusions. But the very assumption behind the four judges' protest - that the roster in itself could be determinative of judicial outcomes - is a serious matter warranting public discourse.

The complaint in the letter was that "there have been instances where cases (having) far-reaching consequences for the nation and the institution had been assigned by the chief justice (of the Supreme Court) selectively to the benches 'of preference' without any rational basis for such assignment". The letter thus posed serious question on the quality of justice in the Supreme Court.

The question of quality is, however, inseparable from the age-old problem with Indian judiciary - the problem of judicial selection and accountability. The reference in the letter to the nine-judge bench decision in Re CS Karnan [(2017) 7 Supreme Court Cases 1] to say that there is a "need to set up appropriate legal regime to deal with situations where the conduct of a judge of a constitutional court requires corrective measures, other than impeachment" is, therefore, not accidental. It is, in fact, the crux of the letter.

The Canadian message

Judicial reform has to be a dominant component of Indian political praxis which, at the same time, should be segregated from the temptations of party or power. This is an extremely difficult, though not impossible, task. In 2016, Canadian Prime Minister Justin Trudeau evolved a mechanism for judicial selection that enabled the qualified lawyers and judges of that country to apply for appointment as judges of its SC.

The Advisory Board for selection to the top court consists of a retired judge nominated by the Canadian Judicial Council, two lawyers nominated by the Canadian Bar Association and one by the Federation of Law Societies of Canada, a legal scholar nominated by the Council of Canadian Law Deans, and three members nominated by the Minister for Law and Justice, out of which a minimum of two should be laymen, that is, non-lawyers.  

In Canada, the lack of domination of either the political executive or the judiciary is a remarkable feature which is antithetical to India's collegium system or even the pre-collegium device. Even the proposal for the National Judicial Appointments Commission (NJAC) in 2015, which would have facilitated political domination of the process of judges' appointment, lacked the kind of statesmanship that helped materialise the Canadian reforms.

The striking feature in Justin Trudeau's design is the equality of opportunity that it offers in the process of judicial selection. A press release by the Justice Department of Canada says that in 2017 alone, the Minister of Justice made 100 appointments which, in itself, is a record. Out of it, half are women, which a country like India can hardly imagine. There is adequate representation for minorities and the differently-abled.

The Indian Bar has not so far responded to the crisis with the sense of urgency and critical intelligence that the episode demanded. The Bar Council and the Bar Associations across the country should have had a firm and clear argument for reforms in the system, since the independence of the judiciary is a constitutional imperative.

As Robert A Leflar said, "the ultimate responsibility, we well know, in a society which includes an established legal profession, lies not upon the judges merely, nor even upon the people, but upon the organised Bar". It is however dispiriting to see that the lawyers, as a class, are yet to take stock of the situation in a meaningful and effective manner.

One would recall what Franz Kafka bemoaned in The Trial: "(The lawyers) didn't even dare to complain, as it's far from being the lawyers' job to introduce any improvements in the court system, or even to want to...but one significant point is that almost every defendant, even very simple people, begins to think of suggestions for improving the court as soon as his proceedings have begun..."

The nation is yet to grasp the serious 'political' message that has been conveyed to it by the four judges. It essentially underlines the need for a comprehensive and innovative legislation touching at least three key areas: one, selection and appointment to the higher judiciary; two, measures to ensure judicial probity and to check corruption; and three, internal management in the higher judiciary.

Apart from Canada, there are better judicial models from different nations, ranging from the UK to South Africa. Genuine judicial reform has always been the outcome of organic political decisions. Given the central government's intellectual sterility, it is for the progressive political parties in the country to initiate a movement for an egalitarian judicial culture, by separating themselves from narrow partisan interests.

(The writer is a Supreme Court lawyer and author of Rethinking Judicial Reforms: Reflections on Indian Legal System)