Notion of justice

THE Supreme Court’s judgment in Suresh Kumar Koushal and Another vs NAZ Foundation and Others on Section 377 of the Indian Penal Code (IPC) has been roundly criticised for being obscurantist and contrary to the Supreme Court’s own judicial “methods” of deciding cases. These methods include, among others, creative interpretation of constitutional rights and reliance on foreign judgments. The judgment makes giant leaps of reasoning without enlightening the reader of the link between the jurisprudence it cites and the conclusion it reaches.

At the heart of the controversy, however, is the consistency and predictability of the judiciary. While being more than activist on issues relating to the environment, red beacons on government vehicles, and so on, the Supreme Court attempted a textual, conservative approach in reaching its decision in the Suresh Kumar Koushal case.

Examples of this inconsistency are increasingly coming to light. Not long after the Suresh Kumar Koushal case, on December 14, the Supreme Court passed an order that directed the Railway Ministry to ensure that trains slowed down when they passed through dense forests. This was done to prevent elephants from getting killed or injured by running trains. So in the world of the Supreme Court, the protection of the rights of elephants requires judicial activism, while the protection of the rights of homosexuals ought to be denied on the grounds of judicial restraint. In August 2010, the Supreme Court asked the Central government to consider distributing foodgrains to the poor at a very low cost so that they do not just lie rotting in godowns. In doing so, it did not consider the consequent distortion of market prices, inflationary pressures, and other economic factors. Rather, its chief motivating factor was the prevention of wastage and the welfare of the poor. Again, these goals somehow necessitate judicial activism, but cases directly affecting the Fundamental Rights do not. While the concern of the Supreme Court in these cases is welcome, the inconsistency of judicial intervention is disturbing.

This phenomenon is in no way peculiar to the Supreme Court. Earlier this year, the Allahabad High Court, responding to a public interest petition, directly attacked the right to free speech and assembly. The Lucknow Bench of the Allahabad High Court banned all caste-based rallies in Uttar Pradesh. More remarkable was the fact that this decision was made through an interim order and not a final one. And subordinate courts in the country were routinely reducing sentences of convicted rapists on the basis of their marriage/offer of marriage to the victim before the Supreme Court mercifully directed otherwise in August.

All of these cases lead to a fundamental question: what overarching principles, if any, do courts use to dispense justice? Perhaps even more fundamentally, what is the judiciary’s notion of justice? A written Constitution in a democratic state requires that the notion of justice be a constitutional one. Justice should be done in accordance with the text of the Constitution and the laws made under it. If laws fall foul of the Constitution, they should be overturned. Modern constitutional government for the last 200 years has, therefore, required that the judiciary judge right and wrong based on written laws and constitutions, and not on vague notions of morality. A judge as an individual may lead his or her life through an individual sense of right and wrong. In court, however, a judge is supposed to live by a constitutional morality.

And yet, it is not uncommon to hear judges argue that “justice” should be done, whether the law provides for it or not. In all such cases where justice is done independent of any reference to the existing law, an individual judge is essentially formulating his or her own prescription of the malady for what he or she perceives to be an “injustice”. This has fairly logical consequences.

First, what is the legitimacy of a court that does justice without reference to law? In such instances, how is it different from a khap that also enforces social norms, albeit through an informal semi-institutional process? The difference is then more in the appearance of judging rather than in its content, and constitutional morality is effectively replaced by social and individual morality. The judges are no longer agents of the Constitution. They become their own agents, doing “good” where they think good needs to be done.

Second, when justice can be done without reference to law, there is no pressing need to know and understand the law. Judges routinely conflate concepts, just as the judgment in the Suresh Kumar Koushal case equates “intelligible differentia” with mere difference. It is right to say that homosexuals and heterosexuals are different. This, however, is not an intelligible differentia that is required to be established for a discriminatory treatment to be valid under Article 14. People with different sexual preferences are different to the same extent that men and women are different.

Code of Constitutional morality Constitutional morality, on the other hand, requires a deep understanding and engagement with the letter of the law. It requires a judge to justify why in this case Section 377 is a classification based on an intelligible differentia. Any law student can quote precedent blindly. Judges must do much more. Their role and legitimacy is contingent on their ability to establish a chain of reasoning so coherent that the outcome, no matter how “unjust”, is legitimised by the process of arriving at that outcome. Madhav Khosla sums it up aptly when he says, “The legitimacy of courts rests in guaranteeing processes that offer reasons for accepting outcomes.” (“The Courtly Way”, The Telegraph , December 17, 2013). As the debate on this case shows, the reasoning in this case is far from robust.

How do we get judges to abide by a code of constitutional morality? There are no easy answers. The departure from constitutional morality has been long-drawn and probably originates from the Supreme Court’s own failure to protect democracy during the Emergency, and itself after it. Scarred from its decision in the ADM Jabalpur case (where the Supreme Court held that the protection of due process and the right to life guaranteed in Article 21 could be suspended during a state of emergency), the Supreme Court embarked on a war to validate itself as the protector of democracy by enlarging the scope of locus standi (by inventing public interest petitions) and becoming much more activist in its functioning. At the same time, to protect itself from the executive during and after the Emergency, it gave a series of judgments altering the constitutional framework of appointing judges.

While Articles 124 and 217 of the Constitution state that the prerogative to appoint judges of the Supreme Court and the High Courts rests with the executive, the Supreme Court, in a series of landmark judgments, has subverted the meaning of the constitutional text.

The First Judges Case, or S.P. Gupta vs Union of India (1981), stated that the President (read Central government) has the power to refuse the advice of the Chief Justice of India (CJI). It upheld the executive’s primacy in the appointment of judges. However, the Supreme Court in Supreme Court Advocates-on-Record vs Union of India (Second Judges Case, 1993) held that (1) the proposal for the appointment of a judge must originate from the CJI, and (2) no appointment can be made without the concurrence of the CJI, and (3) a broad-based collegium for recommending appointments is preferable to a single appointing authority.

Pursuant to the judgment, a collegium of the CJI and two other Supreme Court judges was set up. This was expanded pursuant to the Supreme Court’s judgment in Presidential Reference: Under Article 143(1) of the Constitution of India (Third Judges Case, 1998). It firmly declared the primacy of the collegium over the executive in the appointment of judges.

The collegium system is seen to be non-transparent and with too high a reliance on seniority and diversity. The principle of merit has essentially been replaced by a principle of seniority while appointing judges. Importantly, in no other wing of the state does the wing recruit its own officials. The executive, for example, has the Union Public Service Commission (and State Commissions for State governments), which runs standardised tests. The judiciary is the lone existing anomaly to the elaborate system of checks and balances created by our constitutional framework. And the benefits of this anomalous system are far from clear.

The debate in Parliament on the recently introduced Constitution Amendment Bill to change the appointment mechanism saw some important points being made. Law Minister Kapil Sibal pointed to how the Right to Information Act does not apply to the appointment of judges. He also bemoaned the fact that High Court judges had lost their independence because they were looking over their shoulders at Supreme Court judges who could potentially appoint them to the Supreme Court. For a court that regularly preaches against corruption, this appointment structure creates the worst form of nepotism within its own ranks. Not surprisingly, merit has been a casualty.

N.G.R. Prasad, P.D. Nagasaila and V. Suresh (“The Costly Tyranny of Secrecy”, The Hindu , July 5, 2013), in their article, have referred to two incidents: the first, where 1,000 lawyers of the Punjab & Haryana High Court wrote that the recommendations of seven names by the High Court collegium for appointment were based on considerations other than merit and independence and that “nepotism and favouritism is writ large”.

In the other, the Madras High Court Bar Association wrote to the Chief Justice of the High Court stating that recommendations of 15 names put forward by the High Court collegium were proposed on “extraneous criteria such as caste, religion, office affiliations, political considerations and even personal interests…”. When large groups of lawyers themselves lose faith in the ability of the judiciary to deliver, society cannot be far behind.

There is thus an urgent need to revisit the framework for the appointment of judges. While this may not immediately bring more meritorious candidates to the fore, a transparent and more accountable framework of appointments is required to restore the fast-dwindling legitimacy of the courts. The Judicial Appointments Commission (JAC) Bill, 2013, currently pending in Parliament, seeks to evolve a consultative process of judicial appointments in tune with contemporary global standards. Along with the JAC Bill, the government has also introduced the Constitution Amendment Bill.

Under the JAC Bill, the JAC will consist of the CJI as the chairperson, the two next senior-most judges of the Supreme Court, the Union Minister of Law and Justice, and two eminent persons to be nominated by a “collegium” consisting of the Prime Minister, the CJI, and the Leader of the Opposition in the Lok Sabha. In recommending persons for appointment, the JAC has to ensure that the person recommended has ability, integrity and standing in the legal profession.

While this composite framework of the Constitution Amendment Bill and the JAC Bill sounds good, it is far from satisfactory. For one, the composition of the JAC is given in the JAC Bill and not in the Constitution Amendment Bill. This means that Parliament can easily change the composition of the JAC at any time with a simple majority vote. The composition of the JAC should be mentioned in the Constitution itself by way of an amendment.

Secondly, the Bill states that judges should be selected on the basis of ability, integrity and standing in the legal profession. While these are noble sentiments, they are hollow and vague legal principles that can be easily subverted. These terms must be clearly defined so that the JAC has clear guiding principles by which ability, integrity and standing can be determined.

The principle of separation of powers and system of checks and balances are not ends in themselves. When applied to the judiciary, they are meant to ensure that an independent yet accountable judiciary can deliver a consistent set of judgments, which, in the long run, can develop its own constitutional morality. In our quest for this goal, the recent report of the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice on the JAC Bill, released on December 9, should be read with care. It makes profound recommendations on the structure and functions of the JAC. Its careful consideration in the creation of an effective JAC will take us one critical step forward in consigning the Suresh Kumar Koushal case to the footnotes of history.

Anirudh Burman has an LLM from Harvard University and consults with the Centre for Policy Research and the National Institute of Public Finance and Policy.