End-of-term judgements

A Worrying Trend

Periods of transition at the Supreme Court from one Chief Justice of India (CJI) to the next are coming into focus for a particular trend that seems to be solidifying: Following the precedent set by his predecessors Justices TS Thakur, JS Khehar and Dipak Misra, CJI Ranjan Gogoi reserved landmark judgements and delivered them just before his retirement – the Ayodhya dispute, the Rafale review and the Sabrimala issue review, the ambit of the RTI Act with reference to the office of CJI, etc. Though this pattern of delivering judgements just before retirement may be celebrated in some circles, it has ramifications not fit for the justice delivery system in the country.

This practice of CJIs leads to a disruption of the normal flow of justice delivery and has its own implications, particularly with regard to public perception once the sudden spurt of judgements ceases and the slow pace of justice delivery – the normal -- resumes. In his research, constitutional law scholar Nick Robinson has shown that the judiciary has become so powerful due to the public confidence it enjoys and also due to parliament’s neglect of its role as the law-making body. For instance, it was the Supreme Court that in 1997 laid down guidelines to protect victims of workplace sexual harassment because there was a legislative void on the issue. The court made it clear that legislation could override the guidelines, but Parliament’s inaction on it is very clear from the fact that it was only in 2013 that these guidelines were superseded by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act.

To give a sense of the pervasiveness of the Supreme Court’s role in Indian public life, it is helpful to compare how the legislature, executive and the Supreme Court are covered in the Indian press. In every year from 2003 to 2007, more articles in The Hindu, for instance, mentioned the Supreme Court than either Parliament or Prime Minister Manmohan Singh. An online search of the daily’s metro editions retrieves ‘High Court’ even more than it does ‘Supreme Court’, showing the high profile of the higher judiciary in public life.

While the delivery of a bunch of judgements by CJIs toward the end of their tenures may have generally been received well by the public, they lead to a rise in public expectation of speedier justice dispensation. This expectation takes a hit when the court returns to functioning normally under the huge workload of cases and judgement delivery slows down again, in turn increasing the backlog further. This lowers the public image of the judiciary more than it would have had the public’s appetite for speedy justice not been whetted by big, end-of-term judgements.

One may recall the words of Justice AK Sikri, a former judge of the Supreme Court, “The judiciary, even without the sword or the purse, remains the guardian of the Constitution. Its sole strength lies in public confidence and trust.” The Supreme Court itself had warned, “Erosion of credibility of the judiciary in the public mind, for whatever reasons, is the greatest threat to the independence of the judiciary…every member of the judiciary must ensure that this perception does not receive a set-back consciously or unconsciously.”

The end-of-term judgements of recent CJIs puts at risk this public confidence.

Landmark judgements at the end of the tenure are also partly due to poor time management by judges. The ‘tradition’ of delivering landmark judgements also puts pressure on the CJI to expedite hearings of the cases which are perceived as ‘most important’, in turn, leaving other cases to be perceived as ‘less important’, and these ‘less important’ cases may receive less judicial attention than required.

As per the judgement of the Supreme Court in Anil Rai vs State of Bihar, if the case is not finally decided and if before delivering the judgement after having reserved it the judge retires, the case will need to be heard afresh. Therefore, given that a judge has only a limited amount of time, it imposes a very high opportunity cost upon the judicial system when for a particular case an enormous amount of time is devoted, perhaps to generate a heroic image of the retiring CJI, leaving aside other ‘not-so-important’ cases. Such an approach hampers the ability of the court to hear other matters.

It may also lead to a situation where certain cases are rushed for hearing because they are perceived as having great potential to boost the public image of the CJI. One may take the example of the Supreme Court’s approach in the Ayodhya dispute. While setting a timeline, at first blush, may seem to be in the interest of quick disposal of the case, when closely examined, it seems to reveal inherent problems with the fundamentals of the judicial process. The problem is at two levels: one, in terms of opportunity cost (as already discussed); the other, in terms of the quality of judicial reasoning.

At this stage, it would be apt to recall that the duty of judges is to ensure ‘fidelity to law’, as the great jurist Lon Fuller put it. Notably, this concept of ‘fidelity to law’ is also reflected in the ‘Restatement of Values of Judicial Life’, as adopted by the full bench of the Supreme Court on May 7, 1997, which prohibits judges from doing anything that could affect the public’s image of the judiciary. Therefore, this tradition of holding back or pushing for major judgements just before retirement should stop. The regular and credible functioning of the court should be put above the need to create one’s own public image.

(The writer is a student at Keshav Mahavidyalaya, Delhi University)