The judiciary needs to introspect

Source: Hindustan Times dated 18.10.2019

-- Prashant Jha
The SC is held in the highest regard and must live up to its legacy by making necessary corrections

It is an irony of Indian democracy that citizens have more faith often in unelected institutions than elected representatives. Surveys have shown that faith in the armed forces and institutions such as the Election Commission often surpasses the faith citizens have in the legislature or the executive. But if there is one institution that has a special place, in both constitutional design as well as popular sentiment, it is the judiciary.

Our founders carefully constructed a system of checks and balances, and separation of powers. Aware of the dangers of populism, and of the temptation of the political leadership to bypass the law, India’s constitution designed a judiciary meant to be truly independent. The institution, to its credit, has lived up to this faith. Even at the most difficult of times, such as the Emergency, during which the role of the Supreme Court (SC) has been legitimately questioned as having aided the subversion of fundamental rights, it is instructive to remember that at least some within the institution sought to uphold the law.

That is why recent events must cause concern to all those who care about the health of Indian democracy and institutional integrity. Four features of the judiciary, particularly the SC’s, recent actions merit attention.

The first is what the legal scholar Gautam Bhatia has termed as “constitutional evasion”. One of the starkest examples of this is the court’s treatment of petitions related to the Centre’s moves on Jammu and Kashmir. At stake here are two issues — the constitutionality of the government’s push in August, endorsed by Parliament, to nullify Article 370, bifurcate the state and make it a Union Territory (UT); and the restrictions and detentions which have affected fundamental rights.

Irrespective of one’s views on the desirability of the government’s decision on the constitutional changes, once the issue reached the court, it was incumbent on the SC to take it up urgently. This is because the issue is time-sensitive. The administrative implications are playing out; the formalisation of the UT status will happen soon. The decision to first put off the issue till October, and then postpone it till November, will almost present the court with a fait accompli. The citizens of the Valley — who enjoy equal rights as citizens elsewhere — have also had to live with (now partially lifted) restrictions. This too is in abeyance in court, though it did ask the government on Wednesday to present reasons for such moves.

Another example of this evasion was during the controversy regarding the Central Bureau of Investigation (CBI) at the end of last year. Once again, one can have distinct views on whether the government’s decision to end the then director Alok Verma’s term before his stipulated term was correct or not. But once he approached the court, the SC sat on the issue till his tenure was about to end, and he would retire. The issue became almost infructuous.

It may be instructive here to look at the example of the United Kingdom Supreme Court, which declared PM Boris Johnson’s decision to prorogue Parliament as null and void. Lady Brenda Hale, the president of the court, categorically said that the decision to prorogue was “unlawful” because it undermined the Parliament’s role. The hearings continued for three days; the order was delivered in a week; and the legislature was back to doing what it was meant to do.

The second issue is the expansion of the sealed envelope jurisdiction. India’s judicial system is adversarial. One side presents its evidence and arguments, and the other side, which has access to this evidence, then counters it and vice versa. It is then, based on the legal merits of the evidence and arguments offered, that the court takes a considered call. To be sure, the use of sealed envelopes is justified — especially for sensitive information which should not be a part of open record. But over the past few years, in multiple cases, from Rafale to the latest instance of the arrest of P Chidambaram, courts at different levels have accepted evidence in a sealed envelope — with the other side not quite knowing what is being presented. In such cases, even if the court is taking the best decision, it leaves room for doubt.

Unfortunately, this has also coincided with courts, including the apex one, moving away from the usual practice of bail being the norm, and not an exception. Together, sealed envelopes and the emerging notion on bail have only served to threaten and erode the rights of individuals.

The third issue is the collegium. There is substantial literature to suggest that the collegium system in itself has not worked adequately. The SC itself acknowledged this even as it scrapped a suggested alternative, the National Judicial Appointments Commission. The bedrock of judicial independence is appointments without interference from other branches. Even if this system needs reform, it cannot be anyone’s case that the executive wields disproportionate influence. This is so for a simple reason. The judiciary is often sitting in judgement on executive actions; the state is a party to many cases; and both independence and the appearance of independence is crucial. As the retired SC judge Madan Lokur argued persuasively in The Indian Express on Wednesday, the executive’s influence over appointments and postings appears to have increased.

Finally, at the lower levels, the judiciary is succumbing to populism — as seen in the a Muzaffarpur magistrate’s order which enabled an FIR against 49 individuals for merely writing a critical letter to the prime minister. The police has now decided to file a closure report in the face of widespread criticism. But instances of the lower judiciary pursuing what can only be, at best, termed frivolous cases, and at worst, seen as cases which undermine the very fabric of Indian democratic rights, are rampant.

Travel across the country, and it is clear that the SC is held in the highest regard. It is time for the judiciary to make the necessary corrections — attend to urgent cases on an urgent basis; drop the practice of sealed envelopes except in the rarest cases; be independent and be seen as independent in appointments; and set a strong benchmark on issues related to rights in particular. The institution must live up to its legacy.