Large scale reforms are needed to resolve the crisis in India’s judiciary

The Supreme Court today is a bundle of contradictions, emitting confusing signals that only underline the depth of the divide within the higher judiciary. So much so that the otherwise passionately articulated line on the independence of judiciary is replaced by loud calls for immediate judicial reform.

In an order of March 28, the Supreme Court bench of Justices Adarsh Goel and UU Lalit acknowledged the gross limitations of the existing system of selection of judges. They called for setting up a panel of experts to shortlist candidates to the higher judiciary, and also to subsequently evaluate their performance.

“There is need to consider… whether there should be a body of full-time experts without affecting independence of judiciary, to assist in identifying, scrutinising and evaluating candidates at pre-appointment stage and to evaluate performance post appointment,” the bench observed in a matter related to delivery of speedy justice.

The bench went on to observe that GoI may also “consider what changes are required in the process of evaluation of candidates at its level so that no wrong candidate is appointed,” adding that it’s important to also consider “what steps are required for ensuring righteous conduct of Judges at a late stage”.

This is, perhaps, the closest a Supreme Court ruling has come to what GoI has been suggesting on forming a committee to do a shortlisting of judicial talent for selecting candidates to the higher judiciary. “Identification of candidates, scrutiny, evaluation and postappointment performance measurements and conduct are time-consuming processes and at least some independent full-time experts are required, if timely and best appointments are to be ensured and requisite in-house oversight is to be a reality,” states the order.

Confusing Signals:

The freshly ignited impeachment debate is also instructive of the issue of in-house oversight. While the Opposition’s attempt to move an impeachment motion against the Chief Justice of India (CJI) for ostensibly political reasons may be seen as unmindful of the harm it could cause to the judiciary, what’s important to note is the manner in which the higher judiciary has, of late, approached the same subject.

Take the case of Allahabad High Court Judge SN Shukla. He has been recommended for impeachment by the CJI following an in-house inquiry relating to alleged malpractice in a medical college case. The letter from the CJI has put both the offices of the president and the prime minister in a quandary.

To add to the confusion, the communication to the PM seeks expulsion of Allahabad Hugh Court Judge Justice Narayan Shukla while the one to the president asks for impeachment. In the past, these letters moved after informal discussions between the CJI and the PM because it would require the ruling party or coalition to initiate the exercise in Parliament.

No such understanding seems to underlie the movement of papers in this case. Not just that, this a unique situation for the president, who has virtually no role in starting an impeachment process. Essentially, the move has caught the executive off guard—not knowing how to progress in this case, while feeling the daily pressure of simply sitting on it even as the judge himself continues in the court, though all work has been taken.

Act of Convenience Usually:

The Supreme Court collegium conveyed such clout that a decision like this was enough for an errant judge to resign. That’s how most cases have progressed in the past. But the fissures within the Supreme Court collegium have diluted that credibility and authority.

As a result, the act of sending the case to GoI appears like an act of convenience. But in throwing the ball in the government’s court without any follow-up action, the apex court has voluntarily ceded space to the executive. While the Constitution may have placed the authority to remove a judge in the realm of the legislature, it always envisaged it as a rare situation. The authority of an independent higher judiciary was meant to lay its own high standards of probity. Shukla’s case shows that not only has the threat of impeachment not worked, it has also put other key offices of the Constitution under duress, making them look helpless in a situation where they constitutionally don’t have a role.

On the other hand, Opposition parties are hoping that the threat of an impeachment motion against the CJI may actually act as a deterrent against any suspected manipulation within the Supreme Court in the Ayodhya Ram Janambhoomi case. A bench led by the CJI, who is due to retire in October, is hearing a plea to move the case to a larger bench.

All of this points to a complete breakdown of the principle of consensus on which the higher judiciary has always worked. Instead, there’s a deficit of trust within the higher judiciary, resulting in gaps and inconsistencies in communication with GoI, and a growing suspicion between the higher judiciary and the political system.

In other words, the old consensus is broken, lines on separation of powers are blurred, and closely held rules of internal engagement are up for contest. Call it an audit or an overhaul, the truth is the judiciary is in a state of unprecedented crisis, and the only sustainable solution is large-scale reform.