What having three CJs means for the judicial reforms process

The Constitution or conventions do not prescribe a minimum tenure for the chief justice of India. Therefore, some of them get several years in the top judicial post and one of them got only 17 days. The period is determined by seniority and the senior-most becomes chief justice when the incumbent retires at the age of 65. Some years see three chief justices as the current one.

This is one of the reasons why a chief justice, who is the administrative head of the judiciary, is unable to make surgical changes in the system, which cries for reforms. The present Chief Justice T S Thakur, the 43rd since 1950, is retiring on Tuesday after one year in the post. The next senior-most judge, Justice Jagdish Singh Khehar, will succeed him, but his term lasts for only eight months. He will be followed by Justice Dipak Misra, who has just over one year. 

There is hardly any time to devise or implement reforms. CJs’ have confessed that due to short tenures they could not do many things they wanted to do. Owing to this handicap, chances of tweaking the conservative system from within the judiciary is bleak. The judges might be envying their political counterparts who have a fairly stable term of five years.

The one notable improvement made in the working of the judiciary in recent times is the introduction of information technology. Judges cannot claim credit for this great leap forward, because the IT wave had already enveloped every sector and it could not be avoided. Even in this field, the courts are lagging behind for years. Judges have no computers in front of them, though some lawyers open laptop while arguing. The promise of paper-less courts is still a dream. In the Supreme Court corridors, one could be run over by trolleys stacked with tons of briefs and law books.

The websites of many high courts are often name-sake and hardly helpful to the public. The Gujarat high court site opens with a dispiriting disclaimer: “Contents of this site should not be relied upon in making (or not making) any decision.” The Supreme Court E-committee, supervising all these, has done little on this front. It is not that funds are not available. At least once in the recent past the fund had lapsed due to non-utilisation. 

Though it is within their powers, judges have not done anything over the past decades to curb long adjournments, interminable arguments and extended vacations. The deterioration of discipline in the courts is not exposed to the public like that in parliament because cameras are not allowed half a kilometre inside. But we have the word of Chief Justice Thakur himself that it could be compared to that of a “fish market”. If these, and other comparatively simple issues, could not be solved by chief justices who enjoyed longer tenures, one could hardly expect short-term ones to remedy them.

Moreover, Justice Khehar will have his hands full with the collegium controversy, which he will inherit from Justice Thakur. There are seven vacancies (out of 31) in the Supreme Court itself and hundreds in the high courts. The strife between the government and the judiciary has stalled appointments and the new CJ’s energy is likely to be fully exhausted while negotiating this crisis. Ironically, Justice Khehar was the presiding judge on the constitution bench that upheld the collegium system by which the judges choose judges. The government is peeved at this; it wants a dominant role in the selection. It would require Solomon’s wisdom to steer clear of confrontations like those that marred Indira Gandhi’s relationship with the judiciary.  The following months will unravel how the two future chief justices tackle issues within judiciary and those with the executive.