The judiciary has, for some years now, relied less on creating its legitimacy on careful legal reasoning than it has on trying to appeal to a variety of public sentiments and political currents.
The saga of the Indian Supreme Court appears to be one without an ending. The facts are relatively familiar. Ever since a controversy about the adjudication of a corruption case involving a medical college last year — one in which norms relating to judicial recusal appear to have been departed from — the Supreme Court’s institutional reputation has been in steady decline.
The reality, of course, is that the decline predated the controversy, that the judiciary has for some years now relied less on creating its legitimacy on careful legal reasoning than it has on trying to appeal to a variety of public sentiments and political currents, regardless of the enduring consequences that this might have on the rule of law and its long-term reputation.
Much has been said about the Chief Justice Dipak Misra’s management of the Supreme Court, the decision by four senior judges of making a public statement expressing their concerns with the court’s functioning, and on the recent effort to impeach the Chief Justice. The statement by the four judges earlier this year was extraordinary not only because of the unspoken allegations between its lines but because of the degree of internal breakdown that it captured. It revealed the extent to which internal norms and mechanisms had collapsed. In one sense, the act was courageous. The judges crossed a certain institutional threshold, brought to light their helplessness, and raised the question of what else they might have done.
At another level, however, the judges might have both gone too far and said too little. They exposed the fissures within the court, but consequently chose to place matters within the domain of public opinion, subjecting the issue to the usual drama of politics, without in fact offering a great deal of evidence.
The idea, for example, that case outcomes are manipulated by sending them to specific judges does not only implicate the person doing the fixing — it also implicates the judges to whom they are sent. As such, the statement by the four senior judges seems in hindsight like a theory in search of greater evidence, and one is left unclear about where matters lie in the long road from mismanagement to corruption.
One benign interpretation of the January letter is that it did not hope to prove as much as to provoke. It might rightly be asked whether judges should be involved in such an enterprise, but the strategy could have been a genuine attempt at encouraging public debate and catalysing internal action. If so, the intention seems to have gone horribly wrong. The action did not lead to any real reflection or reform. Instead, the burden that the action now carries by politicising the entire affair is one that the evidence presented in the letter cannot quite carry.
At each step along the way, fuses have been lit on an already explosive situation — whether one considers some of the Chief Justice’s actions, whether one considers the January press conference, or whether one considers the unfolding impeachment question. And, as others have argued, no party to this saga can claim the moral high ground. The Chief Justice has failed to ensure that the institution functions in a credible manner and that it can provide answers to the serious questions that have been raised, the ruling government has never fully accepted the NJAC verdict where the court kept control over the appointments process, and the Congress has now pushed the case for impeachment.
The choice to file an impeachment motion should trouble us for multiple reasons. First, this is an extraordinary step to take in the absence of greater evidence. The concerns against the Chief Justice are serious, but without more facts, they are hardly enough. Second, regardless of what the Vice-President had decided, such a motion could probably never go through because there is not enough time to conduct a serious inquiry. The Chief Justice’s time on the court would almost certainly expire before an inquiry would conclude, suggesting that call for such a motion is less to convince and more to confuse. It ultimately hopes to sow distrust with regard to future judicial decisions. The court’s ability to bring finality to contentious matters ultimately rests on trust, and the calls for an impeachment threaten this trust regardless of whether they succeed.
Whatever else might follow, two outcomes of this saga appear relatively certain. The first is that there will be some shift in the balance between judicial independence and judicial accountability. When the judiciary acquired power over its own appointments in the early 1990s, its comparative institutional legitimacy was high, and the political class was fractured with coalition governments. This was the same time when the Election Commission cemented its power. Even though it is the judiciary that is now fractured and we are no longer in the age of coalition governments, no political party or institution has escaped the loss of legitimacy in this ongoing episode, and so the way the independence-accountability balance alters remains to be seen.
Second, the present moment will dominate conversations on the Indian judiciary for some time, meaning that a host of other crucial reform questions independent of the higher judiciary and the office of the Chief Justice will be forgotten. The capacity concerns at the lower levels, questions of resources and pendency, the state of prosecutors and other members involved in the legal process, and so forth, are matters that are serious and long-term, but they will not have the benefit of public debate and public attention for some time.
In a frank interview, Fali Nariman, who knows a thing or two about constitutional values, lamented the impeachment motion, called on the four judges who went public to make clear their stance and help remedy matters, and asked all parties to understand that nothing further can be achieved by allowing this moment to play on. His call for self-restraint, and his urging that the Vice-President’s decision be respected, was similar to one made by B. R. Ambedkar at India’s founding. Constitutionalism, for Ambedkar, was ultimately about a commitment to process and form. It is time for all parties to come good on that commitment.
Madhav Khosla, co-editor of the Oxford Handbook of the Indian Constitution, is a junior fellow at the Harvard Society of Fellows. His Twitter handle is @M_Khosla