Changing Nature of Indian Judicial Structure – The Political Implications

Recent amendments made in the Indian Judicial Structure, though made considerable spaces in national media, the talks revolved round the principle of Judicial Independence and the discrepancies in judicial appointments. The formation of National Judicial Appointments Commission and the enactment of 121^st Constitutional Amendment Bill 2014, which got its Presidential assent on 31^st December 2014, were of no substantial importance to social networks neither the issues were analysed in a larger political context by the Indian Anglophone Media.Unfortunately, the new Constitutional amendments had effectively re-positioned the Indian Courts in the current political set-up, changing its status inferior to the parliament. If this was recognized duly, probably, the incidents would have received a better political attention. This is because the manipulation is on the Indian Supreme Court, world’s most active court on Human Rights Issues, and it imposes the influence of Indian legislature and bureaucracy, which are ranked high in corruption levels, over the courts.

Related events in the recent history of India, from 2003 - UPA Government’s attempt to introduce a Bill regulating Public International Litigation to the latest amendments, tells us that there exists illegitimate higher pressure on the Indian Legislature to suppress the voice of Supreme Court. In 2006, the then government tried to pass Judicial Inquiry Bill 2006, which envisaged National Judicial Council (NJC) to conduct inquiries into allegations of incapacity or misbehavior by High Court and Supreme Court judges.Non-inclusion of Parliamentarians in NJC stalled the Bill.This was partially rectified when new investigatory body was established by the Judicial Standards and Accountability Bill 2010 which was passed on 29th March 2012. The new body, which is called as oversight committee, includes Attorney General of India - necessarily a politically appointed member.

The counter argument of course, are the vital popular calls for Lokpal and the Judicial Standards and Accountability Bill, which reigned over the Indian polity during the Anna Hazare led civil society movements in 2011 and 2012. I would rather say this popular sanction for the Act of 2012 and 121st Amendment Bill 2014 are based upon the beliefs and ideas propounded by the media, which were easily embedded in the troubled legacy of Indian Judiciary, narrating its actions against the neo-liberal, and the theocratic tendencies of the society. This condemnable situation was induced, if not as a part of a predesigned intact agenda, then as a resultant consequence of formidable oppositions that the Indian Judiciary received from various pluralist fragments of Indian Society.The whole political development can be explained using a four point scale framework.

(1) Popular Behaviour of Indian Supreme Court and High Courts from the case of Keshavanda Bharathi to Lily Thomas v. Union of India (2013).Considering the corruption struck legislature and bureaucracy, the judiciary discharges its function commendably, giving due concern to the competing interests and standpoints regarding socio-economic justice. It believes in an egalitarian society of India. A historical evaluation of Indian Supreme Court judgments will show that it categorically negated the ideas and practice of authoritarianism chronic capitalism, and theocracy,vehemently. The change in attitude of Supreme Court towards Nehru-led and Indira Gandhi-led Governments, the courts’ contributions towards environmental jurisprudence and sustainable development, substantiates the above statement. Its non-conventional adjudication of the matters concerning moral and religious issues, had earned strong opposition from cultural wings of the various political organisations.

It can be assertively said that when there is an exceptional sweep by principles of neo-liberalism allotting private participation in every walk of governmental action, Indian Judiciary is hardly carried away. The empirical studies on Indian Supreme Court advocate the idea that it is the most robust court in the world, to respond to human rights issues. Lily Thomas v. Union of India (2013), in which Supreme Court disqualified the convicted representatives from Parliament and Legislative Assemblies, was a recent attack on redundant insider sharing of seats of the assembly.

(2) Mass media sensitization against the judicial activism juxtaposed with judicial corruption.If the primary assumption on the populist behaviour of Indian courts is accepted then the question arises why is there a popular notion among the general public that the Judiciary has become an oligarchy without transparency and accountability. The answer lies in the sensitization agenda of politically owned media corps throwing in figurative remarks on the issues of Chief Justice Mr. K. Veeraswami in 1979, Mr. Justice V. Ramaswami in 1991, A.M. Bhattacharjee in 1995, Ajit Sengupta in 1996, A.S. Anand in 2000, Justice Arun Madan in 2002, Justice Dinakaran, Justice Soumitra Sen, Justice Balakrishnan and others. This is often combined with the first-hand experience of the public tolerating the delayed justice in the lower courts. It is not condemned that the media involvement in judicial corruption is excessive or over sensationalism, but what is abhorrent here is that news against the corruption matters are often placed alongside with instances of judicial activism which involves controversial jurisprudence.

As mentioned earlier, the Supreme Court judgments against practices of capitalism and theocracy, will affect the contrary beliefs of one or other liberalists business associations, political parties and religious sects. Sensationalizing contempt cases against the charismatic political leaders also contributes to the revulsion. The resultant pluralist fragmentation can explain the notion of the public in disbelieving judiciary. One must also take into consideration the fact that the popular media houses of India are mainly owned by powerful corporate houses that often come before the court as defendants in many of the Public Interest litigations.

(3) Need for judicial standards and the improving the quality of the lower courts, which is disregarded by the 2012 Act.It is an apparent fact that sub-standards of judicial affairs and the delayed justice, at the lower courts, had resulted in reduced public faith in judiciary. The lower courts are those institutions of judiciary where the people of India have first-hand experience. They seldom know about the affairs of the India’s Highest Judiciary situated at Delhi. Given the vastness of the territory, majority of its population have not even seen the building in reality. Interestingly, India has only 24 High courts to deal with 29 states.

What actually required is a space for subjective assessment, quality improvement of the lower court judicial officers and reforms in the judicial standards which gives ample importance to people who come before the courts. Unfortunately, the enacted Judicial Standards and Accountability Act 2012 do not even refer to lower courts. Perhaps the Judicial Auditing System in Philippines combined with introspective reports of the judges, which shall be made published in the year end, may be a good reform. Upon the publication of such reports, people can also approach to a concerned internal forum in Judiciary as to improving the standards of judges or even to impeach them. The Act 2012, but just believes in a politically appointed oversight committee, which can investigate complaints received against higher court judges.

(4) Political connivance in The Constitutional (121st Amendment) Bill 2014, Judicial Standards and Accountability Act  2012, Judicial Inquiry Bill 2006, and the 2003 attempt to introduce a Bill regulating Public Interest Litigation. It is interesting to note that the legislative assemblies who faced lot of practical inabilities to pass the Lokpal Bill (it’s legitimacy being a separate question), have found no reasonable constitutional objections to formulate Judicial Standards and Accountability Bill 2010 or in enacting it in 2012. The Statute incorporates an Oversight Committee involving political appointments. According to Section 18 of Act, the Attorney General of India who appears before Supreme Court on behalf of Government of India sits in the Oversight Committee as Member to hear complaints on SC judges. Further Section 3(2) contains a crucial restraint on judiciary not to make any “unwarranted comments” on other constitutional bodies or persons. The exclusion of RTI provisions drive in the notion that the Act 2012 is not in line with new age democratic impulses. Moreover, it must be noted that the Act which lauds judicial standards does not address any, if the question relating to the quality of lower courts or their performance.  Perhaps as the objectives of the Act and Section 3 submit, the Act was necessarily meant to restrict the judiciary from speaking ill about the other constitutional bodies and nothing else.

The recent amendment to Article 124 of the Constitution of India incorporates a six member National Judicial Appointments Commission (NJAC) is again a glaring interferencewith the Judicial Independence. While existing Article 124 empowers the President of India to appoint Judges after consultation with the judges of High Court and Supreme Court, the Amendment Bill makes it mandatory for the President to act upon the recommendation of NJAC.

The new Article 124A mandate that the NJAC shall comprise of the Chief Justice of India, 2 Judges from the Supreme Court appointed on the basis of seniority, Law Minister, and two other eminent personalities who in turn shall be selected by a committee consisting of CJI, Prime Minister of India, and the leader of the opposition or the leader of the single largest party on the opposition side. The language of the legislative text gives the impression of a NJAC comprising of 3 members from the judiciary and 3 members external to the institution of the judiciary; nevertheless, a deep analysis of the text will reveal the prejudiced proportionality of 6:3 political (inclusive of the President of India) and non-political members involved in the process of judicial appointment. It is argued that the Law Minister and Prime Minster are also a part of the existing appointment mechanism as they are the ones who advise the President of India in any such case. Questionably, if this is the level of influence political members have even without the sanction of a written law, then necessarily as it gets penned, the influence will be even greater.

Above all, the proposal of the new Article 124C provides for the Parliament the power to regulate the business of NJAC by way of legislation, as and when required. It’s an unconditional, unfettered power that can be delegated. This abridges the constitutional protection given to the mechanism of Judicial Appointments, as earlier the parliament could only change the mechanism by way of Constitutional amendment which is more a lengthy process.

Therefore if one draws a substantive analogy between 2014 Amendment Bill, Act 2012,  Judicial Inquiry Bill 2006, and the 2003 attempt to introduce a Bill regulating Public Interest Lawyering, it can be easily inferred that there is always unyielding interest for regulating judiciary as far as their behaviour in writ jurisdiction is concerned. i.e. while acting in the cases where the governing mechanism is involved. The statement of objectives of the Act 2012 makes clear that it is concerned with higher judiciary alone, while the common man in Indian Territory craves for some substantial quality improvement of the local judiciary’s work. The indication is that pressure is high on the legislature, be it at the instance of political stake holders, at the interest of the commercial stalwarts, or of the cultural and religious lobbies, to suppress the human rights initiative of the Supreme Court.

If we are to analyze the issue of judicial accountability from the aforesaid perspectives, it can be understood that the actual requirement to satisfy the public call for a better judicial system would be by improving internal framework to improve the qualitative development of judicial officers and to build cohesive sets of judicial standards for which judges shall be accountable to themselves before the public.Inopportunely, new reforms try to bring in external controls that too, from undesirable sources.

Given the political situation in India, where the newly elected Government of India has announced 100 Smart cities, and has largely projected itself as a promoter of more deregulated business process, rejuvenated manufacturing sector, go-getter modelled land acquisition law, and diluted environmental laws attack on the principles of public participation and the local self-governance, the 121st Amendment Act 2014 can be taken as the latest word on the new imperialism rising in India.

Nithin Ramakrishnan is a fellow at Centre for Economy, Development and Law. The views expressed in the article are in personal capacity and not of the Centre.