Justice Chelameshwar Has Exposed SC Collegium As Vain, Inefficient

The higher judiciary’s house in not in order. Supreme Court Justice J Chelameshwar’s outburst published in a leading English daily today, lashing out at the malfunctioning collegium system, is sufficient example that the Hon’ble judges are at war – with the executive and among themselves.

This begs the question: Shouldn’t Chief Justice of India TS Thakur be shedding some tears at the pathetic and lamentable state of affairs in an institution which he is supposedly in command of?

Justice Chelameshwar’s motivation to expose the opaque manner in which the collegium functions may have been guided purely by altruistic purposes, but his denunciation of his brother judges bespeaks not just his frustration at the clubby and cabalistic nature of the higher judiciary, but also his colleagues’ determination to oppose the executive by putting up a veneer of judicial independence.

In venting anger against his own tribesmen, Justice Chelameshwar has also uncovered how his brother judges seek to cling to the trappings of power.

• Justice J Chelameshwar’s outburst against the Supreme Court collegium has exposed its opaque ways of functioning.
  
• Since the NJAC was struck down as unconstitutional, judiciary and executive have been at loggerheads.
  
• Preoccupied with so-called external threats to its independence, judiciary is not fully accepting accountability for its own performance.
  
• A staggering 2.29 crore cases remain pending across courts in India. In June, the figure was 2.18 crore.
  
• As of March 2015, the number of cases pending in the Supreme Court stands at 61,300.
  
• The judiciary has failed to demonstrate that it can manage its own affairs properly and efficiently.
  

No Solution to Problem

Ever since the judiciary and the executive under the Narendra Modi government locked horns over the National Judicial Appointments Commission, no attempt has been made to arrive at a mutually acceptable solution on a mechanism to appoint judges to the Supreme Court and the high courts. The executive’s move was described by the judiciary as the government’s mission creep to ultimately erode the independence of the judiciary.

One of the unfortunate outcomes of the NJAC episode is that attention has focused on the so-called unfair attacks, levelled on judges in the normal pursuit of greater judicial accountability.

A section of India’s legal luminaries was outraged at the Modi government’s efforts to have greater say in the appointment of judges, saying it was an assault on judicial independence. They said efforts to achieve judicial accountability in ways that unnecessarily or unduly interfere with judicial independence are inappropriate.

Unsatisfactory Performance

While the high priests of India’s judiciary have taken on their counterparts in the executive, they appear to have lost focus on much more dangerous threats that result from their unsatisfactory performance.

Over the years, the higher judiciary has become so preoccupied with so-called external threats to its independence that it is not ready to fully accept accountability for its own performance. Apparently not interested in honest self-examination, the judiciary has so far failed to demonstrate the courage and ability to improve its own performance even when it is clear that it has been found to be insufficient.  

A few statistics will demonstrate how the judiciary has failed to keep its house in order. As of today, data published by the National Judicial Data Grid show that a staggering 2.29 crore cases remain pending across courts in India.

In June the figure was 2.18 crore, which means more cases have piled up over the last two months. The number of cases pending in the Supreme Court stands at 61,300 (as of March 2015). Clearly, the Supreme Court has singularly failed to govern and manage its own affairs.

Co-Equal Government Branch

When judges speak of judicial independence as if it is an end in itself, or as if it is unlimited, or intended merely for their own benefit rather than that of litigants, they risk creating the impression that they regard themselves as above the law or as being less accountable for their performance than other government officials are for theirs.

The judiciary is neither superior nor inferior to the executive or the legislature; it is a co-equal branch of government.  

The claim to judicial independence does not in any way excuse the judges from compliance with appropriate standards of accountability.

Judiciary’s Intense Hostility

While the higher judiciary’s opposition to accountability is marked by intense hostility, it is critical that the judges themselves define and communicate the standards with which their performance may properly be judged.

Until and unless they do so, they will continue to be judged by standards – inappropriate or otherwise – fashioned by others.

The judges must define and communicate to the government and Parliament not only what the public does not have a right to expect from them but also what the people and the other branches of government do have the right to expect.  

Indians have the right to expect that the judiciary will run efficiently and in a professional manner and not in the lethargic and often tyrannical ways that judges in the higher judiciaries operate.

The public not only has the right to expect that every person will be treated fairly and equally, it also wants judges to be competent, knowledgeable about laws, and willing and able to behave in accordance with the highest ethical standards.  

Sadly, most judges in the Supreme Court and the high courts lack all or most of these characteristics.

Honest and Fair Judiciary

The single-most important factor that greatly influences people’s perception of equitable delivery of justice is whether they see judges as honest and fair. Left unaddressed, legitimate criticism of the judiciary – and the Indian judiciary is certainly not among the most efficient branches of government – is a far greater threat to judicial independence than the executive’s moves to encroach its territory.

When democracy is a system of checks and balances, how can the judiciary expect other branches of government to defer to its perceived independence when the judges cannot demonstrate that they can manage their own affairs properly and efficiently?

Breaking the Nexus

One of the ways to usher in urgent reforms to reverse the rot in the judiciary is to strengthen the state judicial services and make them attractive enough – by way of decent salaries and perks of office – for young men and women to join them.

Second, it is imperative to break the stranglehold of the bar by gradually putting an end to the elevation of lawyers to the bench. This will not just break the unholy nexus between members of the bar and the bench but curb corrupt practices among judges and insulate them from external pressures.

Third, the government must now do everything in its power to swiftly legislate into law the long-pending Judges Standards and Accountability Bill. The surest path to true independence is that of judicial accountability.