Fali S. Nariman
The reach of India’s highest court is all-pervasive. The Supreme Court sits in final judgment over the decisions not only of the high courts in the states (there are 18 high courts for 28 states and Union Territories), but also tribunals, (Central and State) functioning throughout India; there are literally hundreds of them. And the law declared by the Supreme Court, including its pronouncements on the validity of enacted law, is binding (under the Constitution) on all other courts and authorities in the country.
There is virtually no area of legislative or executive activity which is beyond the highest court’s scrutiny. Its writ extends to all two million square miles of Indian territory, and over its (now) one billion inhabitants. Empowering itself with the trappings of modern technology, India’s Supreme Court has been performing a stupendous task with considerable distinction. But what of the future?
First, and always foremost, the judiciary as an institution needs to preserve its independence, and to do this it must strive to maintain the confidence of the public in the established courts. Independence of judges is best safeguarded by the judges themselves — through institutions and organisations that the law empowers them to set up, to preserve the image of an incorruptible higher judiciary that would command the respect of all right-thinking people.
In the United States, under the Judicial Councils Act, 1980, this task has been gladly undertaken by the judges. But regrettably, so far, there is no law in India to guide our judges, though there is a felt need for one. The 1980 US Act confers powers on bodies constituted of judges to take such action against a federal judge "as is appropriate, short of removal." Under this law, a committee of fellow judges had recently investigated complaints against a Federal District Judge, John McBryde.
The Judicial Council had reprimanded him and suspended him from hearing new cases for a year. McBryde argued that the 1980 law violated the judicial independence which the US Constitution had guaranteed to life-tenured federal judges. He said that it also interfered with the mechanism of Congressional impeachment that the US Constitution had established for removing judges. A one-year suspension from hearing new cases, (he argued), was nothing but a "temporary impeachment". But a US Court of Appeals rejected all these pleas. And a petition for certiorari was denied by the US Supreme Court: it accepted the argument of the Solicitor-General that judicial independence, protected by Article III of the US Constitution, was meant "to insulate judges from interference from other branches of government — not from oversight by other judges". An American judge once famously said: "some things will sometimes go wrong — in the judiciary".
In India in recent times, some things have gone wrong. And citizens need reassurance of a system of judicial accountability — a remedial mechanism which will protect the higher judiciary from some of its own members who have gone astray. Such reassurance can only be provided by enacting a law on the lines of the American model.
Other aspects of judicial reform are not lacking for want of ideas. We have been overwhelmed with innumerable reports of Law Commissions (nearly 200 of them!) on all aspects of judicial governance. And a bench of three Justices of the Supreme Court (through a judgment delivered by its Seniormost Puisne Judge on August 2, 2005) has drawn up a fine blue-print on case-management, on how to make recent amendments in our procedural laws work on the ground, and how to get more cases moving along in three different tracks: Fast Track, Normal Track and Slow Track.
The Justices have requested the high courts to implement this blue-print — they could not direct the high courts to do so because under our constitutional scheme the latter are autonomous constitutional bodies not subject to administrative directions of the Supreme Court. But it is in the high courts that there are the largest number of roadblocks and delays; in their administrative functioning the high courts are answerable to no one but themselves. This often enables the Supreme Court to plead helplessness: not a good augury for integrated court-management. It is time that the Supreme Court is entrusted with direct responsibility for the functioning of the high courts: only then can the highest court be an effective apex court, only then can the Supreme Court be made answerable (as it should be) for judicial governance for the entire country.
Judicial governance means that judges who are constitutionally entrusted with the responsibility of protecting the rights of citizens must also be seen to be persons of rectitude. They must make annual financial disclosure statements, not privately to their respective chief justices, but publicly. This is done by justices of the Supreme Court in the world’s oldest democracy, (the USA) and it is appropriate that such disclosure statements of its judges be also published in the world’s most populous democracy (India). In this land of The Bhagvadagita which says: "Whatsoever great men doeth, that other men also do; the standard they set up, by that the people go", judges must set an example for ministers, parliamentarians and higher officials of government to follow.
And what about the law’s delays? In a three-tier, precedent-bound system like ours cases go on far too long; and one of the primary reasons is too much time spent by lawyers citing case-law. Over the years, our law reports are filled with some useful, and many not-so-useful decisions. The Americans had the same problem but the surfeit of judicial opinions in the United States is now kept strictly under control by a simple judicial device known as "un-publication of opinions". "Un-publication" means that an opinion, (or judgment) because it is restricted to the facts of the case is (judicially) designated not fit for publication in the official law reports, and when this is put out on the website as an "un-published" opinion, it just cannot be cited in court. This has proved most effective: the rate of un-published opinions of federal courts in the United States is presently around 80 per cent! To introduce this system in India will require much spade work; thousands of judgments will have to be scanned and declared "un-published"; but it will be worth the effort. It will help reduce the law’s interminable delays.
Next, take the business of judging — everyone knows that it is not easy. Judging, like lawyering, is a technique — it requires experience and expertise. And the most important, and yet the most deficient aspect, in the judging of cases — in many of our High Courts today — is the lack of will on the part of some of its judges to push cases along towards either a speedy settlement or a speedy resolution. The judge in India — unlike the modern judge in England and in the US — still functions like an umpire in a cricket match: he will not declare you out until either side makes an appeal.
Pushing cases can be unpopular. But once the bar recognises that a particular judge sitting in a particular courtroom has made up his mind to go through his list, and will not countenance lawyer’s pleas for adjournments, the bar in turn takes note, and cases somehow get decided more effectively and in a more satisfactory manner than in other courts. Why? Not because the judge sitting in that courtroom is necessarily a person of greater erudition than the one sitting in the next — but simply because he or she never forget the she when speaking about judges) is practical and pragmatic, and gently but firmly moves cases along towards a conclusion, disregarding what the lawyers may want.
Fear of costs
And then, one outstanding failing in our system of judicial governance is that although mandated by law, costs hardly ever follow the event. The fear of costs is what the courts must instil into the dilatory and speculative litigant including, I would plead on the litigant who undertakes a PIL (public interest litigation). Projects and programmes devised by popularly elected governments are held up for years in the high courts (and in the Supreme Court) at the instance of persons who have no direct interest, but on some suspicion of corruption or the like — and when at the end of a tortuous judicial process such PILs are ultimately dismissed, the loss in economic terms to the community at large is never compensated. In India there is hardly any court decision where costs are made to follow the event.
Then, take the problem of vacancies of judges in the superior judiciary — they keep piling up. An action plan to prevent this is not one which requires a high degree of sophistication or planning. It requires only some elementary co-ordination between the Justice Ministry and chief justices: of high courts and of the Supreme Court. We all know that judges in high courts retire at 62 and in the Supreme Court at 65. So there need be no unfilled positions: dates of birth are recorded, and anticipated vacancies can always be filled in time; if there is the will to do so.
And the imbalance in the retirement age of judges of high courts and of the Supreme Court should have been rectified years ago. The ages of retirement of all members of the higher judiciary — whether a judge of the Supreme Court or of a high court — must be uniform, if only to prevent the degrading spectacle of judges, when they reach 61, anxiously looking upwards, waiting to be picked up and moved to the highest court — and so gaining three more years on the bench. So what do they do? Some (not many, I am proud to say), only some, take to sycophancy, and since (as a Harvard Law Professor once told me) "great men enjoy the genuflections of other men", flattery does help, sometimes!
The present woeful method of selection of members of the higher judiciary by the judges themselves, can only be remedied by Parliament, since it has been mandated by judicial diktat, not by the Constitution or by law. Judges of the high court and the Supreme Court can be trusted to decide cases that come before them — but they cannot be trusted to make absolutely binding recommendations for appointments to the higher judiciary.
In the end, reform is not merely about cases and the speed with which they are decided. The judiciary of the 21st century needs to set an example in exemplary self-discipline: discipline in its approach to legal, and more often, political-cum-legal, problems that fall in its lap. There is also need for greater transparency in the lifestyle of the justices, and an abiding tolerance of public criticism. Litigants no longer accept judge’s decisions as they used to in the past. The mystique of the judiciary — the "awesome Majesty of the Law" as it used to be called — is no longer a sufficient protection. The job has become harder. Judges are seen less as the impersonal agents of a system and regarded more as human beings responsible for the failure of the losing party; the attacks have shifted from the ball to the player! Hence the need for ethics — and some guidelines from the top, which "the top" too must scrupulously observe!
In a country like ours, and in times like these, it is not enough for the judiciary to be independent of the executive and of all other external influences. The Judges, because of the high office they hold and the plenitude of powers they exercise, must be seen to have qualities of excellence — of mind and of heart. Above all they must be men and women of courage. Nobility and courage in the highest court begets nobility and courage all down the line. In this country the judiciary because of its prime importance needs both the Biblical exhortation, and the Biblical warning that follows it: Ye are the salt of the earth; but if the salt loses its savour wherewith shall it be salted"?
— The writer is an eminent jurist and a Member of Parliament.