Historical context

The crisis in context

Print edition : February 16, 2018

Lawyers coming out of the Supreme Court of India. Photo: Monica Tiwari

Lawyers coming out of the Supreme Court of India. Photo: Monica Tiwari

The crisis in the judiciary is symptomatic of a wider crisis being felt in all significant constitutional institutions and requires introspection on a far wider scale than is assumed.

As India marked the 68th anniversary of the adoption of its Constitution on January 26, 2018, concerns were expressed about the overall health of the Republic. Much of this concern has focussed on the state of the Indian judiciary in particular. The Indian judiciary is widely and justifiably regarded as a pivotal institution that has sustained its constitutional order through perilous times. Although there were clear signs of tensions within the Supreme Court in recent months, matters reached a flashpoint when four of the most senior judges of the Supreme Court held a press conference on January 12, 2018.

This single event generated an enormous amount of controversy, speculation and media commentary. It also focussed attention on the internal workings of the Supreme Court and the Indian judiciary as a whole. This singular event has the potential of bringing an end to an unspoken agreement among the media and commentators to maintain a culture of discretion and secrecy about the workings of the judiciary. Given the increasingly prominent role played by the Supreme Court in Indian public life, this agreement may have ended on its own but the end has been hastened considerably by this event.

My principal aim in this essay is to place this complex institution in its wider historical and political context to contend, firstly, that the quickfix solutions suggested by some quarters may require greater reflection. A second purpose is to argue that the malaise within the judiciary that this episode points towards is a reflection of a widespread problem that afflicts constitutional institutions in the nation more generally. Any solutions that are devised for resolving the judicial crisis need to be informed by the historical context of institutional design that led to the creation of these institutions and the problems that afflict the polity as a whole in the contemporary period.

Historical context

The Supreme Court is currently a multi-member body with a sanctioned strength of 31 judges. When it began functioning in January 1950, it was an eight-member body. In 1950, the number of cases before the Supreme Court was 771. The website of the Supreme Court notes that as of November 2017, there were over 55,000 cases pending before it. There has thus been an expansion at many levels in the functioning of the Supreme Court.

The Supreme Court was conceived as a powerful institution by deliberate design. Alladi Krishnaswamy Ayyar, who played an influential role in drafting the provisions relating to the judiciary in the Constituent Assembly, described the Supreme Court as “having a wider jurisdiction than any superior court in any part of the world” ( Constituent Assembly Debates, Volume 8, page 569). Over time, many scholars have described the Supreme Court as “the most powerful court in the world”. While some have used this as a term of praise, many have wondered whether such a situation is desirable in a constitutional democracy which has struggled to grapple with many entrenched forms of elitism, privilege and undemocratic conduct. This latter category of commentators has included many judges, who have pointed out that the seeking of greater power by any wing of government will attract greater scrutiny and will necessarily lead to demands for greater accountability and transparency in its functioning.

While the framers emphatically wanted to create a powerful judicial institution, it is equally clear that they intended that institution to play a supplemental role to the executive and the legislature. These institutions are, in the scheme of the Constitution, the main drivers of policy.

As it has turned out, judges in India have come to play a much greater role in governance and policymaking than was envisaged for them. Two significant innovations of the Indian judiciary, among a host of other factors, need to be singled out.

The Indian judiciary has, through “creative” interpretation, wrested for itself the all-important and exclusive power to declare which constitutional amendments can pass muster. This was done through the “basic structure” doctrine in the Kesavananda Bharaticase (1973) despite the fact that there is no textual basis for this doctrine and the framers of the Constitution did not intend to bestow this high power on the judiciary. However, the legitimacy of this power was accepted by the political class over time, as it came to be seen as a pragmatic response to an overweening executive. The doctrine now stands as a bulwark against similar excesses of power by future executive authorities.

Around the same time, the Supreme Court laid the foundations of its vast jurisdiction through the medium of “public interest litigation”. This, too, is a jurisdiction that has no textual or “originalist” basis (the latter category refers to the original intent of the framers of the Constitution). Justices V.R. Krishna Iyer and P.N. Bhagwati, who led this innovation, extolled the virtues of “substantive” justice and identified an obsession with “formalism” and “proceduralism” as a vice that characterised Anglo-American jurisprudence and which the evolving Indian jurisprudence ought to avoid. This innovation, too, came to be accepted widely over time as several social activists and movements began to invoke it to remedy various ills of governance. However, as Anuj Bhuwania’s recent work argues, it remains controversial and calls for winding it up are frequently issued both by voices within the government and in civil society and academia.

Through the use of many other techniques and strategies, the Indian judiciary began to exercise an unprecedented level of authority during the 1989-2014 period. This period also coincided with the phase in Indian politics when coalitions were in charge of the Central government. As scholars of comparative law and politics have noted, such an expansion of judicial power during times of weakened executive and legislative power is quite common across several countries.

Not surprisingly, therefore, when the Narendra Modi government came to power in May 2014 with a strong majority for the Bharatiya Janata Party (and the National Democratic Alliance coalition as a whole) in the Lok Sabha, there was an expectation that the executive and the legislature would seek to wrest back some of the powers that had been ceded to the judiciary.

The convoluted saga of the enactment of the 99th constitutional amendment to constitute the National Judicial Appointments Commission and its striking down by the Supreme Court in 2015 can be viewed as the playing out of this struggle. The issue of who has control over the appointment of judges to the superior courts in the country has a long history dating back to the early years of India’s founding, but has become particularly contested and vexed in the present era. It is yet to be resolved and was one of the issues highlighted by the four judges in the letter they shared at the press conference.

Expanded role

Several observers have noted that the expanded role of the Indian judiciary has, over time, gained legitimacy and credibility among the wider public and the political and governing classes. This is partly attributable to a sense that superior court judges have gained the trust of the public in ways that the political and bureaucratic classes have not. The Supreme Court consistently ranks high in surveys conducted to assess the levels of trust in Indian public institutions. It is for this reason that many citizens are understandably concerned about the great divide among the most senior judges that the press conference drew attention to in unambiguous terms.

A contributing factor to the growing prestige of the judiciary has no doubt been the fact that the inner workings of the judiciary have not been open to the public in a manner similar to the workings of the political and bureaucratic machinery, thanks largely to the consistent efforts of the press and the electronic media. The judiciary has been quite sensitive to this dimension, and in recent years, aggressively used its contempt powers to stave off scrutiny by the media into its functioning.

The aggressive stance used by the judiciary has raised legitimate criticism that the standards of openness and transparency that the judiciary has set for all other public institutions in India should be applied to itself. What is deeply worrying is that the judiciary has actively used its contempt power to curb legitimate attempts by the media to probe allegations of corruption, illicit conduct and acts of sexual harassment by judges in the country.

Chief Justice Dipak Misra is the 45th man to hold the office of the Chief Justice of the Supreme Court since its creation in 1950. At the time of writing, we know who the future Chief Justices of India (CJI) until November 2024 will be (all are men and no woman is likely to be the CJI in the foreseeable future). Especially in its recent phase, the tenures of the CJIs have been short, with three men having held that office in 2017 alone. This was not always so; some CJIs had fairly long tenures. Chief Justice B.P. Sinha served for just over four years (1959-64) while Chief Justice Y.V. Chandrachud served for a little over seven years (1978-85). The recent trend is an offshoot of strict adherence to the “seniority” principle which has, for historical reasons that may be quite unique to India, come to be viewed as necessary to maintain the independence of the Indian judiciary.

The roots of the present crisis are partially attributable to this constant shifting of heads of the judiciary since the early 1990s. Between 1950 and 1990, the Supreme Court had 20 Chief Justices. By contrast, the 1990-2017 period saw 25 Chief Justices, with some holding the office for just a few weeks.

Although the allegations against Chief Justice Dipak Misra, which some political parties are now asserting may lead them to move an impeachment motion against him, are serious, similarly grave assertions were made against his predecessors in recent years. The very serious allegations made against Chief Justices Y.K. Sabharwal, K.G. Balakrishnan and Altamas Kabir were never investigated and, while still fresh in public memory, have no realistic chance of being explored. The strange and unregulated manner in which the Supreme Court has recently witnessed a spate of judicial recusals demonstrates that the judges do not have clear rules about conflicts of interest and how to manage them.

Over time, thanks in part to the strictures of Justices Iyer and Bhagwati against the vices of proceduralism, Indian judges have carried forward a scepticism towards the law’s tendency to prioritise “procedural” values. This tendency is, arguably, also at the root of the present crisis.

Anyone raising the need for such regulation is denounced with the tag of being a “formalist” or a “proceduralist”. In a very real sense, the law is all about form and procedure. It is the legal form of the Constitution that elevates it from any other ordinary legal text in the land; it is proceduralism, and an insistence on the supermajority rules for amending it, that sustains its higher status as a foundational text. Rejecting formalism in all its dimensions is not to be progressive. It is to be ignorant of the basic processes and methods by which the law operates.

Multiple challenges

The Supreme Court faces tremendous challenges on multiple institutional fronts. Its workload has increased by many multiples of its original caseload, and far exceeds that of any comparable judicial institution in the world. The types of cases it has taken on have changed dramatically. After avoiding cases involving “political questions” in its initial years, the Supreme Court, often at its own instance, became embroiled in political battles with high stakes. It has had to adjudicate upon questions involving political corruption at the highest levels of government (the Jain hawala cases in the 1990s), has taken on cases involving deeply held religious beliefs and religious disputes of long standing (the Ayodhya reference from the early 1990s and the pending case over Ram’s birthplace in Ayodhya), and has interpolated itself into contested debates over social and economic policy in issues such as reservation, gender equality, and the legal validity of policies of economic liberalisation.

It must be emphasised that in several of these instances, the judiciary was merely responding to constitutional claims brought forward by individual citizens, civil society groups and social movements. In taking on these cases, the judiciary was fulfilling its constitutionally prescribed role. Indeed, focussing on individual citizens and civil society organisations which courageously raise these issues in the form of cases before the courts would correct the tendency to attribute too much to the judiciary and too little to the ordinary people who bear the names of important cases. These courageous individuals, by grasping at the potential for a constitutionalised egalitarianism that the founding document holds out for them, do at least as much as the judges who uphold their claims to entrench the spirit of Indian constitutionalism.

However, in an increasing number of cases, it was also clear that the court, or at least individual judges on the court, was taking on cases and disputes that were not properly before it or that it could easily have avoided taking on by citing conventional judicial norms and practices. It has also done so by neglecting its role as a final court of appeal, which explains the large number of languishing appeals in its backlog.

In responding to these multiple pressures, the track record of the Indian judiciary in building a coherent, cohesive jurisprudence has not been encouraging. Traditionally, the judiciary has maintained its credibility and legitimacy by relying upon the strength of the reasoning it offers in its judgments.

Unlike other branches, which rarely provide reasons for their actions, the judiciary’s entire claim to its power and authority stems from its ability to provide a reasoned elaboration of its decisions.

As the legal scholar Gautam Bhatia has noted, the naturally constraining factor of precedent has become fractured in recent years for a number of reasons. As the membership of the court has grown from seven to 31, it has functioned in increasingly larger benches of two or three judges. So, on any given day, the Supreme Court is actually a court of eight to 12 different courts where benches of two or three judges hand down multiple orders and judgments, some of which contradict each other on a daily basis. The types of cases the Supreme Court has taken upon itself lend themselves to greater degrees of interpretive flexibility and judicial subjectivity.

A disproportionate number of judgments issued in the recent past were prompted not by a careful process of reasoning using logic and objective criteria but by the knee-jerk impulses of judges, resulting in weakly argued, incoherently articulated judgments that declare results without working towards them logically. To be fair, judges face huge burdens of backlog and delay and are provided little by way of research and infrastructural support, all of which contribute to the malaise.

As a consequence, in recent years the judgments of the Supreme Court have drawn far more ridicule and controversy for bizarre formulations, acts of plagiarism, sheer carelessness and basic errors (of logic and even addition) than praise for their erudition. There have been exceptions, such as the Right to Privacy (2017) case, but these have been few and far between. The Supreme Court has also faced near-constant criticism over its own backlog and delay and that of the rest of the Indian judiciary, which has been burgeoning incessantly. In an otherwise federal structure, the Indian judiciary is by design a unitary body and the Supreme Court has less of an excuse to offer for the malfunctioning of its subordinate institutions.

The present crisis

These broader factors have a direct impact on the current crisis and the manner in which it will be addressed. Even as many commentators have asked for matters to be resolved by the judiciary internally, there are many obstacles to a multi-member body being able to resolve the underlying issues when it does not have control over many of the causal factors.

Also, the four men who will become CJI between now and November 2024 have to be involved in these discussions and how they will conduct themselves in future will be a critical factor. These matters involve considerations of institutional integrity, personal ambition, personal integrity and the capacity to coordinate action among colleagues in the larger public and institutional interest, while gaining the respect of one’s peers and officials in other wings of government.

One of the many problems of the seniority principle is that it does not assess whether a candidate has the leadership potential essential to manage such a wide range of responsibilities and expectations. While the Bar has in the past been an avenue for resolving problems within the judiciary, it is not clear that the leaders of the Bar at present have either the stature or the statesmanship to be constructive interveners.

The commentators who have suggested that matters be resolved through parliamentary intervention are either woefully naive or motivated by dangerous designs. To some observers at least, the root cause for this crisis is the attempted intrusion into the functioning of the courts by other wings of government. To then allow them to “resolve” matters runs the risk of further aggravating the institutional crisis, leaving the judiciary as toothless as the courts in some South-East Asian nations have become. A case in point is the judicial crisis in Malaysia in 1988, which is a textbook case of how dissension among judges can be exploited by a populist leader to completely disempower a reasonably powerful judiciary that is yet to recover from the blow, nearly three decades on. (For a succinct account of the Malaysian crisis, see Andrew Harding’s The Constitution of Malaysia: A Contextual Analysis, Hart Publishing, 2012, pages 207-16.)

Whatever be the ills of the current Indian judiciary, those calling for reforms must avoid a situation that results in a similar tragedy in India. Calls for reining in an over-extended institution, which are motivated in many quarters by an abiding concern for its sustenance, should not become a tool in the hands of those who would dismember it completely.

We are at a moment in our Republic’s history where all public institutions face grave challenges of the sort that this essay has sought to highlight for the judiciary. A recent work which similarly highlights problems in every major institutional context in India is Rethinking Public Institutions in India (ed. Devesh Kapur et al, Oxford University Press India, 2017).

The governments that have held power in Delhi since at least the turn of the century have systematically adopted policies that have imperilled the strength of India’s constitutional institutions. Such a trend has arguably reached unprecedented levels under the current government, but they have been in evidence at least for the last quarter century.

Since 2014, changes of personnel in the Election Commission, the office of the Comptroller and Auditor General, the Central Bureau of Investigation, the Chiefs of Staff in the Army, Air Force and Navy, in privately owned media companies and in public universities and academic bodies, as well as in India’s many regulatory authorities, have drawn attention and controversy. The perception is that persons who are amenable to the current government’s political agenda are being appointed without due consideration of the requirements of the institution in question.

Collectively, these experiences remind us that all institutions remain susceptible to the power of personality cults, populist leaders and movements. The crisis in the judiciary, and the rhetoric being employed by principal actors, is symptomatic of a wider crisis being felt in all significant constitutional institutions. If the crisis induced by or reflected in the January 12 press conference calls for introspection, it is required on a far wider scale than is assumed.

Arguably, the judiciary should be considered the “first among equals” in this process of collective introspection. But, as the four senior judges reminded us, we need to probe beyond what is immediately evident to obtain a fuller sense of the health of our constitutional order. That order will remain stable if there is a balance of power between different constitutional institutions, with no single institution gaining a monopoly over political power and authority for an extended period of time.

Our constitutional order relies upon a multiplicity of institutions functioning collectively and in tandem with each other to maintain stability.

The judiciary is a vital part of that equation and its present crisis deserves our focussed attention. But we must bring to bear an awareness of the many other forces that have an impact on this crisis in order to find a way out of this impasse.

Arun K. Thiruvengadam is a professor of law at the School of Policy and Governance, Azim Premji University. His most recent book, The Constitution of India: A Contextual Analysis (Bloomsbury India, 2017, Rs.299), was released in December 2017.

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