The last few weeks have been exciting ones for those of us who follow the constitutional politics which result whenever there are changes in personnel in Supreme Courts. The announced retirement of Justice O'Connor, the sudden death of Chief Justice Rehnquist, and the ongoing confirmation hearings of Judge John Roberts - all these have led to a spate of commentary and analysis in the American media and on the web. There is thus a lot of discussion about Chief Justice Rehnquist's legacy and how Chief Justice Roberts will either continue or subvert that legacy.
I continue to be amazed at how intractable legal issues, complete with legal jargon and theoretical terms, are regularly discussed in the popular media in the US, and how much of attention is paid nationally to such changes of personnel. Undoubtedly, this is because of the important role that the judiciary occupes in American society, culture and popular imagination.
The situation in India presents a stark contrast. Even though the Indian Supreme Court has in the past few decades become one of the most important institutions that shapes( and often lays down) national policy, there is comparatively little attention paid to the personnel behind the institution. Changes at the top of the Supreme Court continue to be mentioned in small news-items, which don't feature much analysis and contain even fewer personal details. One must remember, though, that there is a scholarly tradition within India of assessing the judicial record of individual judges in a thorough manner. Prominent among these are Prof PK Tripathi's comprehensive assessment of Chief Justice Gajendragadkar's tenure as a judge, and Prof Upendra Baxi's evaluation of Justice KK Mathew's judicial oeuvre.
The current incumbent, Chief Justice Lahoti, is coming to the end of the one of the longest terms as CJI in recent history. On Nov 01, 2005, he will lay down office after a term of 17 months as Chief Justice of India (I suspect that this frequent turnover may be an explanatory factor for the low media attention towards the men who get appointed as CJI). Chief Justice Lahoti's record of judgments should surely be the proper subject of any analysis which seeks to measure the impact of his tenure on the jurisprudence of the Supreme Court.
However, in this post, I seek to comment on some extraordinary events which unfolded during Chief Justice Lahoti's tenure, and his reactions to them. In November 2004, Chief Justice Lahoti, broke ground with many of his predecessors who had expressed concern about the growing corruption within the judiciary, by proclaiming that the judiciary in India was 'clean'. This was an astounding statement, especially in the light of frequent exposes in the media about errant judges across the country.
Chief Justice Lahoti's handling of judicial transfers has also attracted controversy. In February 2005, Chief Justice BK Roy was transferred from the Punjab and Haryana High Court to the Guwahati High Court, on Chief Justice Lahoti's watch. Chief Justice Roy had become famous for having caused almost the entire strength of the Punjab and Haryana High Court to go on strike after having raised questions about the manner in which some of those High Court judges had obtained membership in an elite club. The media noted how Chief Justice Roy was trying to rein in dubious practices among High Court judges, but this did not prevent Chief Justice Lahoti and his fellow judges who constitute the 'Collegium of Supreme Court Justices' from transferring him to Guwahati, in what was seen as a 'punishment posting.' Recently, there were complaints from the Guwahati bar about Chief Justice Roy's behaviour which they described as 'high handed.' Other reports suggest, however, that the problems arose because of Chief Justice Roy's efforts to improve access to justice in the North-East. Earlier this week, it was reported that the Collegium of Supreme Court justices, headed by Chief Justice Lahoti ahd recommended that Chief Justice Roy be transferred to Sikkim - one of the smallest High Courts in the country, with a sanctioned strength of 3 judges including the Chief Justice. The transfer of a High Court Chief Justice twice within six months is quite unprecedented. The troubling aspect of these events is that a judge who is perceived as being a person of integrity appears to be paying the price for being unwilling to compromise on his principles.
The Indian judiciary's lack of accountability - both in theory and practice - is well known and documented. Chief Justice Lahoti has added to that perception by refusing to endorse the creation of a National Judicial Commission and by opposing moves to bring the judiciary within the purview of the Lok Pal.
The last aspect I focus on is Chief Justice Lahoti's inexplicable outburst at Parliament's reaction to the Supreme Court's judgment in the recent Inamdar case. V. Venkatesan, probably India's finest legal journalist, places the episode in context, making it difficult to appreciate Chief Justice Lahoti's stand. He also contrasts this episode with an example from an earlier era (the reaction of the early Supreme Court to the Nehru government's enactment of the first constitutional amendment) to emphasise the puzzling nature of Chief Justice Lahoti's reaction.
Any attempt at evaluating Chief Justice Lahoti's legacy as a judge and as CJI will have to take into account these troubling aspects of his tenure.