How organisations become institutions

This column is not about the Supreme Court and the merits of what lies at the heart of the current crisis of confidence.  For a practising lawyer, discussing such subjects is fraught with the risk of being misread as being a commentary on the merits of who is right and who is wrong, with potentially grave consequences at the hands of the fraternity (and sorority).  In fact, even the usage of the word “crisis” can be an emotive issue.

Instead, this column is about institutions and societal expectations that lie at the heart of how “organisations” transform into “institutions”. When the organisation is the one that sits at the apex of justice delivery, there is an unstated requirement of credibility beyond interpreting law, that lies at the core of societal acceptance of its decisions.  

Constitutionally and legally, the Supreme Court is always right because it is final. It is not final because it is always right.  Decisions by any institution can be open to being perceived as either right or wrong. That dispute has to end somewhere and that road ends at the Supreme Court. However, like any other organisation, it has to be manned by human beings. A core essential feature of being human is being fallible — we are liable to make mistakes, and can go quite wrong. And therefore all controversies and disputes end there. Society accepts that ending not just because our Constitution (also man-made law) says so, but also because society builds an acceptance of its conduct due to the court’s pristine credibility.  

It is credibility that converts an “organisation” into an “institution”. It is not for nothing that it is said that justice must not only be done but must also be seen to be done. There are judges from whose courts, the party given an abject defeat would leave with a sense of satisfaction of having been heard well. And there are judges from whose courts, the party with a fabulous victory would leave with a sense of relief that luck favoured her, with no real satisfaction of having had a deserving win. All of this is because, it is only humans who can run the system.

Illustration: Ajay Mohanty

Where humans function, there will be differences of opinion. There can be bickering. There can be healthy debate.  There can be false and genuine allegations of wrongdoing. There can be acute unfairness perceived in how decisions on human resources are taken —  it is an essential feature of any organisation. How these differences of opinion are handled, how the bickering is resolved, and how allegations are handled in the organisation, are what define whether an organisation is an institution. 

For any institution to have long-standing credibility, how its own people and the people who come to it are treated, is a vital feature. Censoring differences of opinion or beating up the messenger can come easy in an organisation that is not an institution. A real institution would factor in dissent, differences of opinion, and be transparent about it. Justice Ginsburg and Justice Scalia of the US Supreme Court have had views diametrically opposite to each other — the former a “liberal” and the latter a “conservative” —  but they were the best of friends and aired their differences in approach to law and justice through their judgements.  

Cut to a different constitutional functionary — the Election Commission which sits at the apex of conduct of elections in our country. We now learn that one of the Election Commissioners has been dissenting on its recent decisions but the anxious majority of two has been taking up technical and specious arguments to suppress the dissenting views by arguing that the decisions are only administrative decisions.  

The Election Commission’s views on right and wrong, however differently they may be perceived, are vital for the smooth running of elections. Elections will indeed take place and the results will by and large bind society (there will indeed be challenges to its decisions). But at the end of the polls, for the entire nation to feel that it has had “free and fair” polls, the credibility of how the Election Commission conducted itself would point to whether the Commission was merely an organisation that organised polls, or if it was an institution that presided over the sacred task of running the process of letting people decide who should serve them and rule their destiny. The Supreme Court must not be seen merely as an organisation that handles the last and final appeal on disputes and must remain being seen as the institution that presides over the sacred task of justice delivery.

The author is an advocate and independent counsel. Tweets @SomasekharS