Arghya Sen Gupta is a legal scholar and the Founder of The Vidhi Centre for Legal Policy . He is an alumnus of National Law School of India University Bangalore and the University of Oxford where he was a Rhodes Scholar. While, at Oxford, he completed his D.Phil. on Independence and Accountability of the Indian Higher Judiciary and was a Lecturer in Administrative Law. His areas of specialisation are constitutional and administrative law. He has a number of academic publications on the Supreme Court, Parliament, fundamental rights and federalism and writes regularly for The Hindu, The Times of India and the Economic and Political Weekly.
Here he speaks about his new book 'Independence And Accountability Of The Indian Higher Judiciary' With Alok Prasanna Kumar And Akshat Agarwal .
Let's start with your book. In 'Independence and Accountability of the Indian Higher Judiciary' you argue that both independence and accountability are necessary for what you call 'an effective judiciary. Do you think that the manner in which the Supreme Court ('SC') has handled the sexual harassment allegations against the Chief Justice of India promotes an effective judiciary?
Thanks very much. Didn't expect the book to come out in such a pivotal moment in the history of the Indian judiciary; would be happier if it hadn't, but here we are. The current controversy is emblematic of how the SC as an institution today faces a mismatch between the power it wields over people's lives and the accountability it owes to the people. We live in an age of accountability where Lord Hewart's statement that justice should not only be done but should also be seen to be done has become even more relevant. In this case, whether justice has been done or not we are not in a position to know, but it has certainly not been seen to be done. The Court as an institution has always been bred on convention and has therefore relied upon the intrinsic integrity of its judges to secure public confidence. We live in an age where partly because of the publicity that the SC has and partly because of some well-publicized cases of alleged judicial indiscretion, this intrinsic integrity is not enough.
I had a lot of hope form the SC in-house committee that it will restore institutional dignity but it appears that the age of accountability that we're living in expected more of them.
So as a follow-up, who does the SC really owe accountability to? From Indira Jaising's case cited by the SC in its press release, it seems that falling short of impeachment they do not want to answer any questions.
We need to locate accountability in a wider context. In my book I try to answer five questions that I think are key to judicial accountability. First, who is accountable? – judges as individuals and the institution of the judiciary, second, what are they accountable for? – this could be in terms of decisions, behaviour and administration, third, who is this accountability addressed to? – which is what you asked, fourth, how is this accountability to be enforced, and fifth, why do we want this accountability? – which in some sense is a foundational question. These questions have to be viewed holistically.
In answer to your specific question, who is accountability owed to, I don't want to get into the weighty legal debate of whether it is owed to the law which in some sense is a pure conception of accountability or whether it is owed to the people.
But in our Constitution, ultimate sovereignty (including the source of all judicial power) rests with the people. This accountability to the people can be mediated by several intermediaries, including academics, the media etc. It would, however, be wrong for any court in the world, especially our SC to say that it does not owe any accountability to the people. Especially in liberal democracies such as ours, all power is exercised in the name of 'We the People'.
Coming to your foundational question then, why should judges and courts be held accountable?
There are two reasons. First, there is an intrinsic reason that any holder of public office should be accountable. No further justification is required. Second, with regard to the judiciary specifically, we want responsible decision-making. We want a Court in the first place because we want an impartial arbiter of disputes, who should act responsibly in making decisions. The main method to ensure that decisions are made responsibly is through well-reasoned judgements which are a basic tool of accountability. Courts speak through their reasons and not through hectoring or their opinions.
But it is also critical to note that judiciaries in recent decades have become extremely powerful. Concomitant with this great power, to quote the US Supreme Court, comes great responsibility. The more the power, more the accountability that will be sought. Giving reasons for judgements which are only accessible to a small section of academically minded lawyers and members of the legal fraternity is simply not enough. If the court will go into questions relating to diesel cars in Delhi, the functioning of the BCCI, who gets to stay on in the country by virtue of being in the NRC and who gets excluded etc., then it is exercising significant power over people's lives. Thus there is a need to seek greater accountability from judges so that it is commensurate with the power they enjoy.
A similar point has been made in Anuj Bhuwania's book 'Courting the People' where he argues that through PILs, the Courts have amassed great powers. This has led to calls for accountability. How have the courts responded to such calls for accountability?
There is currently an imbalance at play. Post-Emergency, the remit of the SC's PIL jurisdiction has enlarged in a way that was never envisaged either in constitutional text or by the early judicial proponents of PIL. Anuj Bhuwania makes this point very well in his book.
If this balance is to be restored, then a correction is needed in both strands. First, the SC has to carefully consider which PILs it wants to take. Justice Malhotra's dissent in the Sabarimala case, irrespective of whether one agrees with its merits or not, is a warning sign that the SC should consider basic legal questions like standing in constitutional matters. The Court needs to assess what kind of PILs it wants to admit.
Second, on the accountability side the Court really needs to step up. There have been a number of disquieting developments in the last decade. We will see where this ends, since the RTI judgment (on whether the office of the CJI is subject to the RTI Act) is yet to be delivered. Collegium meetings still, despite Justice Chelameswar's dissenting voice, are akin to, in his words, 'coffee table conversations' and happen in an informal manner. In most administrative aspects there is still complete secrecy. For instance, very little primary material has been cited in my book since materials like files on judicial appointments are still not available even after the collegium having functioned for almost 25 years.
The SC thus has to rein in its powers and up its game on accountability if it is to retain the public confidence that it has enjoyed for the vast majority of its existence.
Talking about the collegium brings us to the question of judicial independence. Independence is always considered as a constraint on accountability. How do we reconcile the two?
There are two points, first as I have argued in my book, independence and accountability are not intrinsically opposed to each other. This is the creation of a false binary which we must reject. Second, the independence which was initially a shield against interference has now come to be used as a sword against accountability.
Both independence and accountability are needed for what I call an effective judiciary. I identify three critical elements for an effective judiciary. First, is 'impartiality', which is the basic characteristic of every judge. Second, is 'integrity' without which you cannot be a judge. While integrity has a relationship with impartiality, it is a distinct value and one may exist without the other. The third is the institutional element, which I call the 'web of integrated government'. An effective judiciary should not be insulated from government. In every well-functioning judiciary in the world there is an elaborate system of checks and balances. We must recognise that the judiciary is an organ of the state and as an organ of the state it must be integrated with the state. This implies that organs must work with each other where necessary, and as Madison said ambition should counteract ambition where necessary. This is a delicate balance where the judiciary and the executive are necessarily inimical to each other without being hostile. This is what I call the web of integrated government.
This is reflected in the Constitution as well. While the framers wanted judicial independence, appointment powers were given to the President while impeachment powers have been left to the Parliament. This does not mean that the judiciary is not independent but it is a part of the web of integrated government. All three elements make an effective judiciary, and this cannot happen without independence and accountability. Focus on only independence will lead to an insulated judiciary which I think is the direction in which we are now headed. Thus a balance needs to be struck between independence and accountability and the time to strike such a balance is now.
Coming back to the question of appointments, do you think the collegium will be there forever? Is there any opening where the government can potentially change the system of appointments?
The Collegium is a broken system. It was necessary at the time it was introduced, even though the introduction was based on a flawed interpretation of the Constitution, but it has now outlived its purpose. In principle, I think we need a new system like the NJAC which was contemplated in 2014. Practically, however, I don't think that will happen. Given the NJAC judgment of the SC, which in my opinion was wrongly decided, I don't think that political capital will be expended, particularly in this vitiated political atmosphere, on the question of judicial appointments.
Thus I don't think the change will happen anytime soon. The next best step is to have as much transparency in the collegium system as possible. We must recognise that transparency is not antithetical to independence.
Is there a sense institutionally that something has to change? Not amongst the judges but amongst stakeholders such as senior advocates, the bar at large, the government etc.,?
I don't think there is any sense that things have to change now. A lot has happened that has been disquieting. But for change you either need real political capital or you need real judicial statesmanship. While both do exist to some degree, I doubt there is a critical mass of people who want to see change through.
Talking about stakeholders, retired judges are key. What position should we take regarding them?
In Part III of my book I have a doctrinal device, that helps you evaluate whether a measure is justifiable or not in terms whether it leads to an effective judiciary. As far as post-retirement employment of judges is concerned, I conclude that it is not justifiable for it impedes judicial independence and there are no positive accountability reasons associated with it.
I have studied a cross-section of post-retirement appointments and in terms of numbers I have looked at 50 retirees over a 9-year period. During the period under study, 37 judges received post-retirement appointments which is a little more than 70%. Amongst those 37 judges, one judge was recommended prior to retirement and 19 were recommended within one year of retirement. So, this is happening very soon after retirement. As a question of perception, it is a very significant independence issue. What I have suggested is that there must be a cooling off period of two years at the very least. Some ideal systemic changes that we could however consider are to increase the retirement age to 70, equalise retirement ages in the High Courts and the SC so that there is no clamour to reach the SC, increase pensions to last drawn salary and do away with post-retirement jobs completely for statutory tribunals.
A final question is regarding the impeachment of judges. Considering there has never been a successful impeachment with the last impeachment motion against CJI Dipak Misra failing to get off the ground is it still a tool of accountability for judges?
Impeachment is the ultimate accountability mechanism. By in its very design, it is meant to be used sparingly. In my book, I point out how during Justice V Ramaswami's impeachment motion, which was the only time where there was actually a vote carried out in Parliament, the same was defeated due to a mass abstention by MPs for presumably political considerations. Unfortunately, in India thus impeachment has become a politicised process and it does not have as effective an accountability rationale that it was meant to have.
However, impeachment cannot also remain the only accountability rationale. There could be many kinds of misconduct which may not warrant impeachment. Other countries have several measures such as suspensions, forced leave, censure etc., to deal with different kinds of misconduct. Impeachment is an important accountability measure and should stay, though politicians should grasp the fact that they have been vested with tremendous constitutional responsibility. At the same time however, we should have a judicial standard and accountability law which has measures for misconduct that are short of impeachment. This is not only a reform that India needs but equally importantly the Supreme Court needs to continue enjoying public confidence.
'Independence and Accountability of the Indian Higher Judiciary' written by Dr. Arghya Sengupta and published by the Cambridge University Press is releasing on 9 May 2019 at 6 p.m. at the Multi-Purpose Hall of the India International Centre. All are welcome. The book is available here.