Why our court system is not in good health

Judiciary's "independence" and "fearlessness" have been converted into partisanship and sycophancy

Although it’s not uncommon it’s also not often that senior lawyers criticise the judiciary. They may do so amongst themselves but only infrequently in public. I guess there’s an esprit de corps that stops them. So when one of India’s most highly-regarded — and, more importantly, most highly-paid! — lawyers hits out at the judiciary the rest of us must pay close attention.

This is what Abhishek Singhvi has done. Tucked into a brief five-page conclusion of his forthcoming book From the Trenches, are astonishingly forthright comments about judges and the sort of justice they deliver. Singhvi’s overall conclusion is pithy: “Our Court system is not in good health.”

He begins at the lowest tier. “The infrastructure of our trial Courts is inadequate and the quality of trial judges is generally poor.” This means that at the first point of contact with the judicial system Indians can’t be certain of getting justice. Often they don’t.

It doesn’t get much better at the High Court level. Here it’s not the infrastructure or the quality of judges that Singhvi questions but the volume of work. “A High Court judge has to handle fifty matters a day — and it requires a superhuman effort for a judge to keep track of so many hundreds of matters a week, to remember the facts, to hear arguments and ultimately to write a well-thought-out, reasoned order which balances the rights and does justice.” Worse, adjournments are easily and frequently granted. In fact, “there is a tendency to decide hard questions by adjourning them”. So, once again, the odds are loaded against a fair and proper judgment. Often delays in justice amount to a denial of justice.

It’s when Singhvi addresses the problems at the Supreme Court level that he is both most candid and most critical. I imagine he’s not just writing from experience but also expressing his own disillusionment.

He begins simply. “The Supreme Court in the past few years, in matters where there are great stakes involved, has shown a reluctance to act against the government.” Although he doesn’t cite these examples, Chief Justice of India (CJI)
refusing to hear the Citizenship Amendment Act cases until the protests stop or former CJI Ranjan Gogoi repeatedly deferring the Article 370 cases on the grounds the court can always “wind the clock back” are obvious illustrations of his point. 

And let’s not forget the repeated refusal to hear habeas corpus cases without giving any explanation whatsoever.

Next is a brief analysis of the Court’s delay tactics. “Even where it appears the government has erred, the Court has shown a pattern of deferring, adjourning and otherwise leaving the issue aside until it has lost the importance it had.” Surely, the Kashmir cases are heading in this direction? 

How depressingly different this is to the speed with which the British Supreme Court heard the constitutional challenge to Boris Johnson’s prorogation of parliament.

Finally, the damning conclusion: “My fear is that the judiciary has lost some of its independence and the fearlessness that it needs to check the executive and the legislature.” Singhvi could not have foretold that even before these words are published, Justice Arun Mishra would confirm his fears.

When Justice Mishra publicly called the Prime Minister an “internationally claimed visionary” and a “versatile genius” he converted "independence" and "fearlessness" into partisanship and sycophancy. 

So far Singhvi hasn’t commented but an equally eminent colleague, who’s also President of the Supreme Court Bar Association, Dushyant Dave, has: “The damage his statement has caused is incalculable.”

This is an instance where a Supreme Court judge has behaved improperly, unethically and in defiance of the Supreme Court’s own judgments as well as its 1997 Charter of Judicial Values. The 1981 judgment says: “Judges should be stern stuff and tough fire, unbending before power, economic or political...” The Charter says: “Every judge must at all times be conscious that he is under the public gaze and there should be no act or omission by him which is unbecoming of the high office he occupies and the public esteem in which the office is held.”

Will Singhvi accept it’s not just at the trial level that the quality of judges is “poor”? It applies to the Supreme Court too.