When The ‘Cure’ Suggested Is Worse Than The Disease

Governance is often about having to choose between two seemingly bad options, in the hope that the positives outweigh the negatives, in the ultimate choice made. Seasoned politicians who have been on top of their craft, versus many from the judicial realm who are putting forth their functional logics as a counterargument, are embroiled in the fight for supremacy and control of the domain.

The situation is warranted by the undeniable concerns in the Indian Judiciary (as is the issue with all arms of governance) i.e., pendency of cases/undertrials, taints of corruption, accusations of opacity and nepotism within the collegium ‘system’ and even a sense of imperiousness. Similar concerns (or arguably far graver) could be made on other ‘classes’ of society e.g., Politicians, Industrialists or even the administrative staff etc.

Thankfully, unlike the other realms of governance who suffer from notions of perfection e.g politicians or administrative staff, there is consensus amongst all (including within the legal fraternity itself), that reforms and changes are essential. The moot question is, whether the said reforms will come by more infusion of the political classes in the running of the judicial framework, or through an accelerated process of continuous self-reforms as initiated by the judicial fraternity?

Let’s start by the constitutional intent on the same. The absolute necessity of ‘checks-and-balances’ in a participative democracy had led to the explicit segregation and separation of functions between the legislature, executive and the judiciary. History is instructive on when the concentration and monopolisation of power (against the tenets of ‘checks and balances’) went in favour of the executive in 1975 and birthed ‘committed judiciary’. The implied ‘commitment’ was to the decisions of the dispensation of the day i.e., an unequivocal case for partisanship.

Indira Gandhi had been an illiberal authoritarian who didn’t brook contrarian views. Her reign saw the phenomenon of a personalised cult which trampled on the independence of various ‘institutions’, including the judiciary. Indira Gandhi had her reasons for ‘sorting out’ the judiciary after her election was set aside by the Allahabad High Court amongst various other challenges to her decisions.

She retaliated with a combination of supersessions and rewards towards those who partook or spurned the journey of ‘committed judiciary’. Indian democracy and ultimately the citizenry were to pay a terrible price for getting enthralled by the ostensible muscularity of Indira Gandhi’s reign.

It is a temptation that did not spare even the highest personification of Indian democracy i.e., Jawaharlal Nehru, who too commented, “If we go wrong here and there, it can be pointed out, but in the ultimate analysis, no judiciary can stand in judgement over the sovereign will of the entire community. Judges can correct the wrong here and there; they cannot arrogate to themselves the position of super-house of a parliament”.

Thankfully the post-Indira Gandhi era did not see brazen usurpers of democracy and by and large the dispensations of varied persuasions, respected the fine line of constitutionality. Unfortunately, the judiciary did not use this time and independence adequately for self-reforms and building the required scale to bring down backbreaking pendencies, amongst other malaises that accompanied the narrative.

But for all accusations of corruption, delays, entitlements, and deep familial connections – the judiciary as an ‘institution’ is spared the vital allegation of partisanship or politicisation, that has sadly engulfed all other supposedly independent ‘institutions’, without exception. Perhaps the relative ‘independence’ of the judiciary vis-à-vis during the Indira era, is the only change now, from then.

Today, from the Vice President of India to the Law Minister of the Union Cabinet, everyone is making jarring and unsubtle pitches for political inclusion (read, interference) as a solution to the perceived inefficacy of the Indian judicial system. In an obviously sanctified and orchestrated manner, the Vice President stirred a hornet’s nest by disagreeing with the Supreme Court’s long-held view that the Parliament can amend but not change the fundamental structure of the Constitution, willy-nilly implying the superior wisdom onto the current set of ruling politicians as opposed to that of the founding fathers of the Constitution, the constitutional restraint of ‘checks-and-balances’, be damned!

As someone who earned the ‘distinction’ of constant slugfest, public tantrums, and much posturing during his gubernatorial tenure with the equally combative and unrestrained Chief Minister, it was a bit posh to berate the judiciary with his no holds barred comment, “one-upmanship and public posturing from judicial platforms is not good and these institutions must know how to conduct themselves”. No such comment is ever forthcoming for Parliamentarians and even Ministers who make the most divisive, violent, and xenophobic comments, and get away unchecked.

Importantly, many distinguished legal luminaries from his own partisan persuasion like Arun Jaitley (or even the Vice President’s predecessor from the same party i.e., Venkaiah Naidu, who insisted on the supremacy of the Constitution) had held an avowedly different view, to what is now supplanted by the current Law Minister and Vice President.

If anything, many forgotten and banished members of the current ruling party had suffered on account of deliberate conflation of the executive and the judiciary in the 70s. But those wise men and women of constitutional sobriety are long forgotten too. As public memory is often selective and fleeting, even the Prime Minister who had valiantly defended the Constitution as the ‘holy book’. Today even that ‘holy book’ is knowingly questioned and sought to be diminished with the suggestion that judiciary needs more governmental interference as opposed to independence (effectively burying yet another catchy slogan ‘minimum government, maximum governance’).

Now, it is also posited that the age-old tact (‘stick’) of possible supersessions to ensure ‘committed’ ranks has been flanked by the possibility (‘carrot’) of post-retirement opportunities to ensure undue praise and unhealthy bonhomie between the executive and the judiciary.

At the same time, with 30 million cases backlogged, statistically undeniable preponderance of judge-appointees from families of former judges, inapplicability of RTI and invisibility of procedural accountability, widespread concerns of corruption and unfair undertrial situation, something is terribly amiss with the judicial framework and in urgent need of a fix.

In Chief Justice D. Y. Chandrachud, the judiciary has its best chance to redeem itself with the man known for his penchant for technology, transparency, and objectivity. The CJI had humbly and presciently invoked the existing systemic lacunas on taking over, “whether it be bringing technology, or the reforms required in the registry of the Supreme Court or judicial reforms” – with the rare opportunity of having time on his side (unlike his predecessor who remained a CJI for 74 days), one hopes that he lives up to his reassuring promise, “actions, not just words”.

Finally, it is not about denying the existence of problems within the Indian judicial system, but about whom to trust more to overcome the same i.e., either by the promises of the eminent politicians or by promises by eminent judicial personnel, themselves.

In a separate parallel of another ‘independent’ institution that historically maintained distance from the political classes, historically ‘barrackised’ itself, and yet had sought systemic and operational reforms within (as do all institutions to meet new-age challenges) – the much bandied talks within the Armed Forces of ‘teeth-to-tail ratio’, ‘theatre commands’ et al, has been ‘reformed’ with Agniveers, nothing more to add.

The case of judicial reforms is more than just about the judiciary itself, as was the case and intent in the 70s. The choice is finally between whom you trust more to deliver i.e., the partisan politician or the apolitical judicial personnel? Let not the proposed ‘cure’ be worse than the disease. Perhaps goading, supporting, and ensuring the CJI-led promise of ‘judicial reforms’ is still the better bet.

Lt General Bhopinder Singh (Retd), is the Former Lt Governor of Andaman & Nicobar Islands and Puducherry. Views expressed are the writer’s own.