The supreme ideal

INDEPENDENCE & ACCOUNTABILITY OF THE HIGHER INDIAN JUDICIARY
 

Arghya Sengupta
 

Cambridge University Press
 

Rs 795, 342 pages

The Supreme Court is undoubtedly going through one of the worst phases in its history. While the 1975 Emergency was traumatic for judiciary, it did not last long enough to destroy the institution.  The current tribulations tend to corrode slowly. The court has tried to defend its independence by three constitution bench judgments, devising a collegium to buffer against government interference in appointment and transfer of judges. But this mechanism itself is under severe attack. Conflict broke out within the camp itself when four senior judges came out in public last year, warning against threats to the independence of judiciary from within. The most unexpected development is the running debate on the efficacy of the in-house mechanism contrived by the court when a judge is accused of misbehaviour. This also appears to have divided the judges. Linked to all this is the accountability of the institution to the public.

The book under review, Independence & Accountability of the Higher Indian Judiciary, goes straight into the heart of the matter which is likely to remain a topic of debate for a long time to come. It is a monograph based on author Arghya Sengupta’s doctoral work at Oxford. Naturally it is no easy read, unlike the recent books on the Supreme Court such as Fali Nariman’s God Save the Supreme Court, Abhinav Chandrachud’s Supreme Whispers or Arun Shourie’s Anita Gets Bail.  This academic work delves deep into various episodes in the Supreme Court and its judgments dealing with the two seminal aspects of higher judiciary and the author gives his own suggestions to clear the cloudy field.

The founding fathers did not envisage the current imbroglio in appointments and transfers caused by recurring confrontations between the judiciary and the government. Nor the question of accountability. Therefore, they did not lay down a procedure for selection of judges and a mechanism when judges themselves are accused of misbehaviour.  Impeachment has been proved to be ineffective. Therefore opaque conventions developed involving chief justices, chief ministers and investigation reports.  In appointments, seniority and competence were prominent but due to the vastness and diversity of the country, considerations of region, religion and caste also crept in.  Indira Gandhi’s scheme to pack the court with “committed judges” was mercifully junked but could be revived by another strong leader.

Mr Sengupta devotes a large part of this 300-page book on the complexity of the process of selection of judges and how the constitution benches attempted to settle the issues unsatisfactorily. He assails the collegium system on various counts. The author suggests an alternative system towards the end of the book. It might sound a little complex and need constitutional amendments. 

Mr Sengupta has narrated several instances where the court has failed in asserting its independence and accountability. In fact, he disclosed at a recent conclave that the unsavoury Justice Dinakaran episode of 2009 prompted him to take to the legal field. This led him to become the Research Director at Vidhi Centre for Legal Policy, a think tank.

Independence of the judiciary is an accepted concept, but the judiciary is accused of being the only arm of the state with no accountability to the people. This has become a new point of accusation, mainly by those in the government. The word of the Supreme Court is final, though it is not infallible. It is not answerable to anyone and what it interprets is the law.  Even when the conduct of individual judges comes under the scanner, there is no clear remedy and what the judges choose to do is final even if they are knee-jerk reactions.

An interesting section is on post-retirement jobs accepted by judges. It contains a detailed chart naming judges who took up government assignments, sometimes without even conferring on themselves a few days of well-deserved rest. Most of them have headed commissions. Judicial talent is scarce and there are scores of tribunals and government bodies which need it. If judges are kept out of them, retired civil servants will be delighted to wear the judicial hat. The Supreme Court has repeatedly foiled their efforts to head tribunals by cleverly drafting laws. 

If the talent of retired judges is not utilised for public purposes, they would serve the corporations by taking to arbitration and gather lucre which they missed while sitting on the bench and watching lawyers getting richer by the minute.  Mr Sengupta is critical of judges taking up government posts because post-retirement offers would colour their judgments. It is famously said that loyalty and ambition are the main threats to judges’ independence. He suggests a three-year cooling off period before taking up such posts. The trouble is that within that period they might have found consultation and arbitration more attractive than the demands of public office. His proposal for raising the retirement age of judges from 65 years to 70 will find support from the legal fraternity.

The book has come at a time when the country is expecting sea-changes in the political field. The problems of the judiciary have been ignored by successive governments leading to the present stalemate.  Many of the author’s suggestions call for urgent attention of the new government. The erosion in the dignity and respect commanded by the judiciary in the past must be restored and this book is a cry from the heart of a young academic.