Talking over a law

Talking over a law

Context

There should be a frank public conversation on the judiciary — an internal patch-up is not enough

Lack of transparency

The immediate trigger for the press conference was the apparent arbitrariness of the Chief Justice of India (CJI) in allocating benches for disposal of cases

Question arises

Assuming such credence, the question that any well-wisher of the judiciary, whether inside or outside it, must ask is this: What is the institutional design that facilitated such seemingly arbitrary decision-making?

Possible answers

Opaque internal structure: One possible answer lies in the opaque internal structure of the judiciary founded on a combination of unquestioning trust in the office of the CJI along with an instinctive distaste for any interference by Parliament or government in judicial functioning.

Ambedkar warned against supreme position of the CJI

• At the time of the formulation of the Constitution, B.R. Ambedkar warned that no matter how upright the CJI might be, like any other mortal he too would have frailties. Thus no absolute power should be vested in him
• Admittedly, Ambedkar was speaking about not giving the CJI a veto power in appointing judges; but the same sentiment rings true in case of the convention of allocating benches as well

Fears of politicisation

The second premise justifying complete judicial insulation that makes arbitrary decision-making in the judiciary possible is the fear of politicization

Legitimate fear

This is undoubtedly legitimate — a politicised judiciary might well suffer from a lack of public confidence

But comes in the way of genuine judicial reform

Whenever any move towards reforming the judiciary is made by politicians, commentators are quick to hark back to the Emergency and the supersession of three judges for the CJI that preceded it.

A misdirected fear

• Equally critically, this fear of politicisation is misdirected, being based on a naïve view that overt parliamentary law is the sole method of interference with the judiciary
• Other nefarious methods exist and thrive in opacity

Need a ‘Supreme Court Act’

While internal resolution might be a palliative (of a medicine or medical care) relieving pain without dealing with the cause of the condition) to tell the world that all is well with the Indian judiciary, it will, at best, be a band-aid solution

Press conference showed that there is no space for internal resolution

Instead, what is needed now is a Supreme Court Act to be passed by Parliament after an open public discussion involving all stakeholders — civil society, the judiciary, the Bar and members of all shades of political opinion.

Entry 77 of List I of the Seventh Schedule

• As a precursor to such reform, it is important to clarify that the Constitution envisages the powers and jurisdiction of the Supreme Court to be the possible subject matter of a parliamentary law
• This is clear from Entry 77 of List I of the Seventh Schedule which makes the aforementioned a legitimate subject of law-making
• Passage of such a law is critical to rectify the discourse of any parliamentary law relating to the judiciary being anathema (something or someone that one vehemently dislikes.).

What’s needed in the act

Restructuring of the SC

The substance of a proposed Supreme Court Act must be the restructuring of the Supreme Court itself

• It is vital that a court of 31 judges, if it is to function as an apex court, must develop some degree of institutional coherence
• Such coherence is impossible when the court sits in benches of two judges each
• Further this structure allows the CJI to become the master of the roster, vested with the absolute discretion of allocating judges to particular cases, leading to crises like the present one

Three divisions

An antidote to both the aforementioned problems is a restructuring of the Supreme Court into three divisions: Admission, Appellate and Constitutional

Admission division

• All special leave petitions under Article 136 ought to be first considered by the Admission division
• The division will comprise five randomly selected judges who for one quarter every year will deal only with admission cases.
• Like the Supreme Court of the United States, making this process work by circulation and without oral hearing needs to be strongly considered

Constitution Division

• The Constitution Division should be a permanent Constitution Bench of the five senior-most justices of the Court
• They will hear all matters of constitutional importance and authoritatively pronounce the Court’s views on it.

Appellate division

• The Appellate division should comprise the remaining 21 judges (on the basis of the sanctioned strength of 31) with seven three-judge benches
• They will hear all matters admitted by the Admission Division and any other writs or appeals which lie as a matter of right to the Supreme Court.

Advantages of the above restructuring

Such restructuring will have three advantages

More coherence: It will yield more coherent jurisprudence, particularly in constitutional matters, taking us closer to certainty and the rule of law

Careful contemplation: It will allow for more careful contemplation of which matters actually deserve admission to India’s apex court

Reduce the discretion of CJI: It will reduce the discretion available to the CJI to select benches, since this will be limited to the appellate division alone

A public conversation

• At this point of time, the proposed law is critical to start a frank public conversation around what the judiciary needs to restore public confidence
• Such a public conversation is necessary to underline that the judiciary is part of a republican constitutional framework, not the preserve of lawyers and judges alone
• An internal resolution will be its antithesis, which might defuse the present crisis, but will exacerbate the deeper wound.