Courts & governance

THE Supreme Court must take credit for provoking Madhav Godbole, a former civil servant, to write the highly informative book The Judiciary and Governance in India. In 2004, Godbole and his former colleague in the civil service, E.A.S. Sarma, filed a public interest petition in the Supreme Court seeking measures to retain the apolitical character and independence of the civil service, and to improve its efficiency, integrity, morale and public image.

Their petition urged the court to declare good governance and an apolitical and independent civil service a part of the basic structure of the Constitution, and the right to good governance a fundamental right under Articles 14, 19 and 21. When it came up for preliminary hearing, the court dismissed it as not necessary and observed that if there was a specific case of grievance, the court could look into it but that it could not rewrite the Constitution or run the administration.

The court was also not in favour of declaring good governance a fundamental right as this would mean that the court would have to look into every aspect of governance. The dismissal disappointed the petitioners who saw the public interest litigation (PIL) as the last resort in view of the failure of the executive and the legislature to deliver on governance.

Godbole, while referring to this episode in the chapter Government by Judiciary, shows that the judiciary is actively addressing issues of good governance through PIL petitions all over the country. As if to buttress his contention, the author has provided in Appendix V an illustrative presentation of the ever-expanding horizon of PIL in its second phase from the 1990s. He has classified PIL into six major categories: 1) protection of the interests of the poor, oppressed, downtrodden and marginalised; 2) protection of the environment; 3) public grievances; 4) cleansing of public life; 5) policy issues; and 6) recommendation by courts for enactment of new laws and amendment of existing laws.

The author contends that his 2004 PIL petition did not intend to sanctify government by the judiciary. On the contrary, he hoped that a declaration of the right to good governance as a fundamental right by the court would empower citizens to insist on greater accountability and transparency in governance. Answering the Supreme Courts concern that it would open a Pandoras box if the plea of the petitioners was granted, Godbole suggests, citing another legal expert, that apprehension of a spate of petitions is an irrelevant consideration for judicial review and can never be relied on in arguments on fundamental rights.

Indeed, confronting the Supreme Court with hard facts on PIL is one of the achievements of this book. The author has found that the rules for listing cases for hearing are far from clear and not in the public domain. For instance, the PIL petition pertaining to strike by lawyers, which was filed in 1989, was decided only in 1995. The petition pertaining to discretionary quota for Members of Parliament has been pending before the court for over a decade. The PIL on police reforms languished for a decade before it was decided in 2006.

Godbole has also challenged the Supreme Courts oft-repeated assertion in its judgments that PIL is different from adversary litigation. Using the results of his survey of PIL petitioners, he points out that PIL petitions have often met with stiff resistance from the government and its agencies.

He also underlines the repeated adjournments of hearings in PIL cases, frequent observations by the courts expressing their frustration at the officers lack of interest and their lukewarm response, and the non-implementation of decisions in PIL matters. The PIL petition filed in 1995 by Common Cause, a citizens organisation, seeking appointment of Lok Pals and Lok Ayuktas was finally adjourned sine die, on September 12, 2003, after 29 hearings, as none was ready with the matter to make submissions.

At a time when the Supreme Court itself is seized of the issue of laying down proper guidelines to be followed in admitting PIL matters, Godbole must be complimented for carrying out a survey on the efficacy and impact of PIL petitions. The results of the survey notwithstanding the poor response to his questionnaire from civil society must be an eye-opener. Godbole considered the outcome of 16 PIL petitions 13 filed by respondents to his survey and three others initiated on the basis of published data. In almost all these cases, the problem is non-compliance by the authorities with the Supreme Courts orders.

According to Godbole, the founding fathers of the Constitution did not envisage the courts having a hand in running the government as it is done now. By unleashing the PIL innovation, the judiciary started to ride a tiger which it does not know how to dismount from, he says.

The thrust of the higher judiciary, he suggests, must be on laying down ground rules for good governance rather than the court itself redressing public grievances, formulating development schemes and monitoring them, and so on. He points out that the Supreme Courts decision that made it obligatory for every candidate contesting an election to provide information about his or her financial assets and criminal background has made a lasting impact on the governance of the country.

Therefore, Godbole believes, the judiciarys concern must be to direct the creation and strengthening of an institutional framework for good governance, which will uphold the rule of law, command public respect and will be independent and sensitive to the sufferings of the people.

Godboles concerns on PIL petitions are valid, but his conclusions are off the mark. In the chapter Confrontation: Parliament and Executive, he suggests that the judiciary has become not just the central pillar but the only pillar of our democracy and that no great wisdom or foresight is necessary to see the instability of this architectural marvel. He says the gap between the judiciary and Parliament on the one hand and the executive on the other in understanding and appreciating each others position is widening.

While one would agree with him that the public spectacle of continuous sniping at each other is undermining the image and standing of all the three organs of the Indian state, his prescription to the President to seek an advisory opinion from the Supreme Court under Article 143 of the Constitution (Power of the President to consult Supreme Court) does not appear to be the right remedy. One would assume that such tensions between these organs of the state are a sign of the health of our democracy.

Indeed, Godbole suggests several other areas where he thinks there is no clarity and where he believes a presidential reference to the Supreme Court can help, if only to obviate the possibility of the constitutional amendment being struck down later by the Supreme Court. Constitutional pundits, however, will differ from him on the point that one of the objectives of Article 143 was to give immunity to a constitutional amendment from being struck down by the Supreme Court. Godboles account of the experiment with judicial reform in India is one of disappointment and dejection, which he attributes to a lack of will on the part of the authorities.

The Asia Pacific Judicial Reform Forum (APJRF), however, as the second book under review shows, is optimistic about such experiments succeeding. Contributors to this volume identify the strengths and weaknesses of the reform programmes in their countries, which include Cambodia, India, Indonesia, Nepal, the Philippines, Sri Lanka and Vanuatu.

The APJRF is a network of 49 superior courts, justice sector agencies, and judicial education institutes in the Asia-Pacific region. It came about as a result of the Manila Declaration on Judicial Reform in 2005. The APJRF works in partnership with the United Nations Development Programme Regional Centre in Bangkok, and the present study was funded by the United Nations Democracy Fund.

Contributors to the APJRFs volume find proactive leadership of the judiciary central to the success of their reform endeavours. Among the country-specific studies, it may be of interest to look at the Indian reform experience.

The essay, written by Mohan Gopal, head of the National Judicial Academy in Bhopal, acknowledges the complexity in India right in the beginning. Some 12,000 judges (against some 15,000 judicial positions) handle over 45 million cases a year on an average, disposing of some 18 million cases each year. The judicial system, he admits, is still plagued by many challenges, including chronic delay, inadequate infrastructure, and a shortage of judges.

However, he adds, in the last three decades, the Indian judiciary has substantially reformed itself to become a model to the world for its innovative and proactive justice jurisprudence, with its public-interest-based decisions now being emulated.

Within India, the judiciary has emerged as one of the most trusted organs of the state. The judiciary has reformed processes for judicial appointment so as to significantly enhance judicial independence, says Mohan Gopal, with whom many observers, including Godbole, will disagree. As one reads further, it becomes clear why Mohan Gopal marvels at the Indian judiciary.

He classifies its history into two distinct 30-year periods, since Independence. He finds it remarkable that the reform initiative transformed the role of the Indian judiciary from being seen as the conscience keeper of the status quo (in the first three decades) to being seen as the conscience keeper of justice (in the following three decades), and that this reform was conceived, developed and implemented by the judiciary itself.

Critics like Godbole will disagree with this assessment precisely because the latter period has nothing to show in terms of a successful judicial reform agenda.

Mohan Gopal admits that the symptoms of judicial delay and arrears are yet to be fully addressed. Yet, he boasts that the judiciary has transformed itself into a key force promoting not only democracy, human rights and sustainable development but also economic investment and growth. Obviously, these are debatable claims.

Even as Parliament is grappling with the Bill to set up a National Judicial Council (NJC) in order to take disciplinary action against erring judges of the higher judiciary, Nepals experience with a similar council since 1991 may be instructive.

The essay on Nepal, written by Hari Phuyal, an advocate in the Supreme Court of Nepal, suggests that mere constitutional structures are not sufficient to create an independent, impartial and accountable judiciary though they can arrest further deterioration. He believes that planning and visionary leadership are instrumental for meaningful and lasting changes to take hold. Simply taking action against a few judges is not adequate. The NJCs impact on ethics, integrity and accountability should be capable of objective verification, he says.

These two books help us understand how different observers look at the interrelated issues of judicial reform and good governance from dissimilar perspectives.