Like most of us, I am puzzled by the press conference of 4 supreme court judges. Based on the excerpts of the letter published in the newspapers, I am trying to make some observations.
1. I think apart from some naive believers in democratic institutions, most of us with practical angle to things around us to not assume that judiciary is actually independent of ruling majority. Independence of Judiciary is much more than let's say RBI, but it is delimited by executive, which is based on majority will. A strong leader, who command his ministers, party and public opinion and with agenda of her/his own is likely to interact closely with judiciary. The interaction will have multiple shades: influence, suggestion and interference. Like many of us, I believe that political leadership exerts influence on all institutions of democracy and judiciary is no exception to it. At the same time, judiciary is one institution which has some overlap with executive function of government. This makes behaviour of judiciary one of close interest to political leadership. Since majority will is supreme in democratic model we are living in, expectations of political leadership to see judiciary tracking the majority will through the legal framework developed by lawmakers (political leaders themselves) is not wrong. Like RBI, courts have constitution and laws made by government as a given mandate. They cannot go beyond it. At the same time, it is very likely that laws made by ruling party and principles in given applicable version of constitution can be in conflict with each other. This is where judiciary has to be independent. At this is the area of crucial interest.
Constitutions are not ideology independent. Since ideologies are product of their times, so as the constitutions. As new ideological currents (which are actually reincarnation of old ones in some sense) become stronger and become a guiding force for political leadership and lawmaking, the conflict between constitution and laws can become intense.
Political leadership will try to pick up judges who will lessen the probability of this conflict going against their will. Is this wrong? No. Not at all. It is constitution which has given power of choosing judges to political leaders. It is a check on judiciary of majority will, and it is part of the structure. There is no reason to assume infallibility (not of personal conduct, but one of ideological aggression) of judiciary so as to allow it a complete independence. Since majority will is the foundation of existence of democratic nation, political leadership exerts its power through the choice of CJI. And all governments have been doing this. What is different is the type of political leadership and their criteria of choice of CJI. A strong and motivated leadership might give higher weight to revealed political leanings of candidate while in the absence of such, efficiency or seniority might be the criteria.
2. Once the CJI has been chosen, she/he can exert their discretion unless there are rules. There is no point claiming that CJI is first among equals. CJI is first among equals when it comes to value of judgement. But when it comes to functioning of supreme court, he is first and foremost. This is like captain of cricket team. Captain is not different as a batter or bowler, but captian is different than others as only captain can take certain calls. It is this differentiation which makes captain and CJI leader in first place. So the 'first among equal part' looks a misplaced one.
3. Like any other institution, leadership of CJI can be efficient or inefficient. But anyone criticising it has to provide measure of the inefficiency. We cannot take words of unhappy subordinates as a proof of inefficiency of leadership. Unhappy subordinates have to prove that choices made by CJI have lead to certain consequences which have made more harm than benefit. Press conference has tarnished the supreme court, revealing the proof that roaster was not followed as it should have been will not add to stain that has been put. So without delay, such evidence should come. Trying to sway judgement of court of public opinion on emotional calls and lack of evidence reflects poorly on rebel judges (though shines on all of them being excellent lawyers!). I hope they will substantiate their claims.
4. One might argue that waiting to see harms and benefits can be dangerous. I agree. But then at least some indication of harms that are imminent has to be given. 'Democracy is in danger' sounds terrible, but has to be substantiated.
Political interference is inevitable in competitive democracy since each and every domain of public life can have electoral consequences. Courts are too important to be left alone by ambitious political leadership. The crux is the 'moral character' and 'world-view' of the judges. Judges need to have moral character to rise above their own political considerations, which are part of their world view, which will keep their judgements unclouded.
One solution, irrespective of how current and former CJI have functioned, that comes to the mind, is to make roaster random and public. Since all the supreme court judges are equal when it comes to oversee the case, there should be random allocation with equal workloads. There is no need to give discretionary power to CJI in first place. I have always wondered about why judges sitting on Ayodhya dispute case have to be from various different religions. Doesn't it reveal a suspicion about ability of judges to set aside their 'world-view' and be an expert professional when it comes to applying constitution to disputes? We all assume there is no such suspicion. Then random allocation should be as good as any choice made by discretion by CJI. But if there is suspicion, then we should seek justice in our inner conscious than courts!
1. I think apart from some naive believers in democratic institutions, most of us with practical angle to things around us to not assume that judiciary is actually independent of ruling majority. Independence of Judiciary is much more than let's say RBI, but it is delimited by executive, which is based on majority will. A strong leader, who command his ministers, party and public opinion and with agenda of her/his own is likely to interact closely with judiciary. The interaction will have multiple shades: influence, suggestion and interference. Like many of us, I believe that political leadership exerts influence on all institutions of democracy and judiciary is no exception to it. At the same time, judiciary is one institution which has some overlap with executive function of government. This makes behaviour of judiciary one of close interest to political leadership. Since majority will is supreme in democratic model we are living in, expectations of political leadership to see judiciary tracking the majority will through the legal framework developed by lawmakers (political leaders themselves) is not wrong. Like RBI, courts have constitution and laws made by government as a given mandate. They cannot go beyond it. At the same time, it is very likely that laws made by ruling party and principles in given applicable version of constitution can be in conflict with each other. This is where judiciary has to be independent. At this is the area of crucial interest.
Constitutions are not ideology independent. Since ideologies are product of their times, so as the constitutions. As new ideological currents (which are actually reincarnation of old ones in some sense) become stronger and become a guiding force for political leadership and lawmaking, the conflict between constitution and laws can become intense.
Political leadership will try to pick up judges who will lessen the probability of this conflict going against their will. Is this wrong? No. Not at all. It is constitution which has given power of choosing judges to political leaders. It is a check on judiciary of majority will, and it is part of the structure. There is no reason to assume infallibility (not of personal conduct, but one of ideological aggression) of judiciary so as to allow it a complete independence. Since majority will is the foundation of existence of democratic nation, political leadership exerts its power through the choice of CJI. And all governments have been doing this. What is different is the type of political leadership and their criteria of choice of CJI. A strong and motivated leadership might give higher weight to revealed political leanings of candidate while in the absence of such, efficiency or seniority might be the criteria.
2. Once the CJI has been chosen, she/he can exert their discretion unless there are rules. There is no point claiming that CJI is first among equals. CJI is first among equals when it comes to value of judgement. But when it comes to functioning of supreme court, he is first and foremost. This is like captain of cricket team. Captain is not different as a batter or bowler, but captian is different than others as only captain can take certain calls. It is this differentiation which makes captain and CJI leader in first place. So the 'first among equal part' looks a misplaced one.
3. Like any other institution, leadership of CJI can be efficient or inefficient. But anyone criticising it has to provide measure of the inefficiency. We cannot take words of unhappy subordinates as a proof of inefficiency of leadership. Unhappy subordinates have to prove that choices made by CJI have lead to certain consequences which have made more harm than benefit. Press conference has tarnished the supreme court, revealing the proof that roaster was not followed as it should have been will not add to stain that has been put. So without delay, such evidence should come. Trying to sway judgement of court of public opinion on emotional calls and lack of evidence reflects poorly on rebel judges (though shines on all of them being excellent lawyers!). I hope they will substantiate their claims.
4. One might argue that waiting to see harms and benefits can be dangerous. I agree. But then at least some indication of harms that are imminent has to be given. 'Democracy is in danger' sounds terrible, but has to be substantiated.
Political interference is inevitable in competitive democracy since each and every domain of public life can have electoral consequences. Courts are too important to be left alone by ambitious political leadership. The crux is the 'moral character' and 'world-view' of the judges. Judges need to have moral character to rise above their own political considerations, which are part of their world view, which will keep their judgements unclouded.