Monday, February 12, 2007

Assertions of Institutional Supremacy

In a recent post, I sought to highlight the problems with Somnath Chatterjee's assertion that Parliament ought to have the last word on the issue of Parliamentary Privileges, and that judges should stay away from this arena. As Noorani's article linked in that post demonstrated, it is not at all clear that the Constitution intended Parliament to have the final word on such issues.

By the same token, a recent statement made by the new Chief Justice of India, Justice Balakrishnan, is equally problematic. According to this newsreport, Chief Justice Balakrishnan is said to have "ruled out the question of having any compulsory annual declaration of wealth and assets by judges of the apex court and high courts." The report quotes the CJI as having asserted that

"No self-respecting judge would accept the idea of such compulsory declaration or have any committee of lay persons to probe the conduct of the judiciary,"

Leaving aside the fact that several judges of the Supreme Court of India in the past have recommended and endorsed such measures (most notably, Chief Justice Verma, who is said to have mooted this proposal during his tenure), one cannot help wondering if the 'self-respect' of judges should be the determinative factor on this issue, at a time when the controversy sorrounding Justice Bhalla is fresh in the minds of people who have been campaigning around the issue of corruption in the higher judiciary.

It is an oft-made claim but in this context, it bears repitition: if the higher judiciary in India aims to be the watchdog for every other democratic institution in India, it would be better off setting its own house in order in the first place. To this end, it should put in place measures to ensure that it is above reproach.

On a separate note, while Chief Justice Balakrishnan's tenure is already headed towards the history books, he may also be remembered for having given perhaps the largest number of interviews to the press so early in his tenure. Newspapers from the last two months seem to be filled with an unusual number of quotes attributed to him.

While this may augur well for those who value transparency in public life and
complain about the reticence of high public figures to comment about the functioning of their offices, some of the new CJI's statements do cause concern, given the fact that his comments bear upon cases that may potentially arise before him in his capacity as Chief Justice of India. Of late, there have been some cases in other jurisdictions where judges have had to recuse themselves from cases for having publicly stated their views on the policy issues at stake beforehand.

Update:
In the comments section, V. Venkatesan has interesting thoughts on the CJI's press statements. He has also asked about the comparative examples that I referred to in the last paragraph, while also enquiring about statements of the CJI that I find particularly problematic. The one judge who has been in the news a lot over the past few years for making public statements that have caused doubts about his ability to adjudicate upon cases with an open mind, is Justice Antonin Scalia of the U.S. Supreme Court. This online article details how Justice Scalia recused himself (pursuant to an application by the plaintiff) in a recent, high-profile case relating to secularism in the U.S. (the Pledge of Allegiance or Newdow case). Newdow was decided in 2003. More recently, in April 2006, the same issue arose in the context of a much more controversial case: Hamdan, which dealt with the legality of the Guantanamo detentions. At issue was Scalia's comments delivered in March 2006 to the effect that the Guantanamo detainees had no rights under either the U.S. constitution, or international law: a central issue in the Hamdan case. Scalia ultimately did go on to hear the case, but as this article points out, the concerns raised were serious ones.

I cannot offhand think of any particular statement of Chief Justice Balakrishnan that I found particularly problematic, but given that in India, it seems inevitable that any significant issue (whether political, social, or even economic) eventually becomes a legal and judicial issue, it would seem prudent to avoid commenting on current, developing issues. The CJI may be well advised to at least consider Justice Scalia's recent experiences in this respect.

4 comments:

vvenkkatesan said...

Dear Arun, I entirely agree with you on the last paragraph on the CJI's interviews. In fact, I have never been enthused at the idea of seeking the views of the outcoming and incoming CJIs on almost every subject under the sun, just for the sake of it. In the similar vein, the current CJI's interviews only produced a yawn, as I did not find anything of interest. However, after reading your piece, I understand it is possible to fault the CJI for having spoken on issues which may potentially arise before him as cases. Is this healthy? Certainly not. Does it add to transparency? Not at all. In fact, it could prejudice other Benches, and only heighten uncertainty, as the CJI is not around to answer any supplementaries which the reader or a listener may be curious to know. If transparency is the objective, let the CJI start an interactive forum through the Supreme Court's website, to answer at least questions of academic interest, and on issues involving judicial accountability.
I am more interested in knowing details about what you have written about some judges in other jurisdiction having recused themselves from cases on which they might have voiced their views in public. Any instances which readily come to your mind? Also, what according to you, are subjects which the CJI ought not to have spoken on in public?
V.Venkatesan
venkat.venkatesan@gmail.com

vvenkkatesan said...

As the political drama unfolds in Uttar Pradesh following the Supreme Court’s judgment in Sri Rajendra Singh Rana &Ors vs. Swami Prasad Maurya & Ors on February 14, a unique suggestion to address some of the objectives, and flaws of Tenth Schedule to the Constitution needs to be debated afresh. The suggestion – which emanated from an official of the National Commission to review the Working of the Constitution in 2003- unfortunately did not see the light of the day, as the Commission did not even consider or debate the proposal. One does not know why the Commission killed the proposal in-house. The block vote proposal did not leave any scope for loophole, and it was so convincing in all respects. I am giving the relevant link of the Frontline article for the readers to respond. It is http://www.flonnet.com/fl1818/18180360.htm

V.Venkatesan

Red said...

Arun

Just wanted to flag the CJI's interview with Karan Thapar on Devil;s Advocate (where Thapar alternates between grilling and trying to bully the politicians).
http://www.ibnlive.com/news/even-cjis-judgement-can-be-wrong/32861-3.html

To be fair, he seemed to be very very careful of making any sort of categorical statement.

"Karan Thapar: Many politicians are upset that you have struck down the Ninth Schedule. How do you respond to their anger and emotional outburst?

KG Balakrishnan: It is incorrect to say that the Ninth Schedule has been struck down. We can’t predict the possible constitutional decision.

Karan Thapar: Let me tell you, why politicians are upset. They say that as a result of your decision, laws like the Tamil Nadu law, which permits 69 per cent reservation will now be subject to review and it's possible that these laws could be struck down. As a result, they say, the Supreme Court is intruding into the area of social justice.

KG Balakrishnan: We couldn’t say whether the challenge would be sustainable or not. No specific legislation has been stated under decision. It was only a general statement regarding the Ninth Schedule.

Karan Thapar: Do you think it is possible that the Supreme Court may review the Tamil Nadu law and not strike it down?

KG Balakrishnan: I can't say anything at this stage. There is no guarantee of any law. Any law could be challenged at any time. "

Arun Thiruvengadam said...

Dear "Red",

I agree with you that in this segment and interview, Chief Justice Balakrishnan has shown the caution and care one would normally expect from a judge in discussing matters that can arise before him in future. My comment was applicable to other interviews given by the CJI both immediately before and after his assumption of office, where he seemed a bit less circumspect in commenting upon a host of general issues.

Best,

Arun