Sunday, January 18, 2009

Reflecting on the Powers of the CJI

It has often been commented that the Chief Justice of India is a remarkably powerful position within the Indian judiciary, and more powerful than most executive justices in courts in other countries. My last post below discusses one way (the assignment of justices to larger constitutional benches) in which this power has expanded beyond what may have been envisioned in the Constitution.

The Constitution itself clearly lays out heightened powers for the CJI. Broadly, these are:
The CJI swears in the President and Governors;
the President must consult with the Chief Justice before appointing Supreme Court or High Court judges;
Article 127 gives the CJI power to appoint ad hoc Supreme Court judges
Article 128 the power to sit retired Supreme Court judges
Article 130 the power to sit the Court outside of Delhi (with the President's approval)
Article 146 the power to appoint officers and servants of the Court
Article 222 the power to move high court judges to another high court
Articles 257, 258, and 290 which gives the CJI the ability to appoint an arbitrator to resolve certain financial disputes between the centre and the states
He or she is also paid a bit more than the rest of the justices, (presumably) for taking on these additional responsibilities.

[note some of these powers are performed in conjuction with other justices, but the Chief Justice must be part of the process]

Beyond this though I would argue the CJI has also gained additional powers either through judicial decisions or just judicial practice that were not explicitly given in the Constitution:
1. The power to select justices for benches (as explained in the post below)
2. An arguably stronger ability to appoint judges on the Supreme and High Courts than the Constitution envisioned (This being affirmed by the Supreme Court in its constitutional case law.)
3. By more often sitting on a three judge bench than other justices his opinions routinely carry more weight. On a two-judge bench the junior judge usually defers to the senior, similarly on a three judge bench with the CJI, but the difference is that a three judge opinion is usually deferred to in the face of a conflicting two judge opinion - in this way the CJI's routine opinions carry more weight than other senior judges on their two-judge benches.
4. The power to decide which cases get heard and when. Although this process is rather opaque, my understanding is that if a CJI doesn't want a case to come up or wants it to come up right away, it can be made to happen.
5. The spokesperson for the Court, and its most public face. I am not sure if you can say this was not envisioned by the Constitution, but it is striking. For example, in the Hindu in 2008 Chief Justice Balakrishnan's name appeared in 273 articles, while Justice Katju only 24, Justice Pasayat 69, Justice Bhandari 26, Justice Kabir 28, and Justice Kapadia 16. Contrast this to a search of SCOTUS justices in the NY Times in the same time period where Chief Justice Roberts was mentioned in 66 articles, Justice Scalia in 61, Justice Stevens in 49, and Justice Kennedy (the now most important swing vote) in 158 articles.
6. Most letter PILs are addressed to the CJI whose office goes through the first wave of filtering (taking out complaints against judges, etc.) before they are turned over to the Registrar's PIL office who goes through the next round of filtering (which removes the vast majority of them before they even reach an admission bench of the Supreme Court). In this process the CJI's office is the only justice's office that will come in contact with these letter petitions before they make it to the PIL office.

Just because some of these powers were not explicitly given in the Constitution, doesn't make them unconstitutional, and I am not making that argument. At least in this post I'm not even arguing that the CJI has too much power - Judith Resnik in the US, for example, has questioned the wisdom of having the Chief Justice there wield as much administrative power as he does. I'm more curious about why this power arose.

My hunch is that much of it has to do with the size of the Supreme Court. With 25 other justices it's a rather unwieldy organization that is difficult to control. (What percentage of law professors in India can even name all of its current members?) As the court increases in size the Chief Justice ironically gains more power as the coordinator of all these other judges (who cycle through fairly quickly because of term limits thus creating collective action problems when they try to organize). This is something to keep in mind as an increase in the size of the Court is contemplated.

One thing this type of analysis does is refocus attention on the selection process of the CJI. Currently it's simply by seniority. This is not as innocuous as it sounds though since through birthday math one can determine whether someone will become a CJI depending on when they are appointed. Therefore, the CJI and the other judges involved in appointments are effectively choosing who to raise from the high courts to become a CJI at a later date (assuming they stay in good health, do not resign, etc.). This isn't necessarily a bad outcome. Arguably, this allows for the system to choose CJI's that have the proper background and temperament for the job.

Other alternatives would include having the CJI picked more explicitly by the political branches (something that for now seems ruled out, but perhaps could be considered at a later date). Alternatively, there could be an election for CJI from amongst the judges on the Supreme Court. This doesn't seem desirable as it could lead to vote trading on cases or a politicking that could bring down the prestige of the Court and create unhealthy rivalries. A rotation model where each justice could be CJI for a month has coordination and consistency problems, although perhaps some tasks could be delegated in this way. Finally, you could have a system where the CJI or judges are picked by a counsel that includes both judges and members of the political branches.

One could also work to simply reduce the power of the CJI. Cases could be assigned purely through lottery, cases could come before the Court on a pre-regimented schedule, the CJI could more regularly sit on a two judge bench, some administrative tasks concerning court employees could be given over to an independently appointed officer, etc.

I'd be curious to hear others thoughts. Did I miss some of the CJI's powers? Did I mischaracterize them? Why did these arguably additional powers arise and do any require reform? These are just some initial observations which I hope to build on later, but in the meantime I hope others do as well.

1 comment:

Anonymous said...

reflecting on this post, SC registry just filed Writ Petition in High Court against the CIC order making CJI a public authority. Does this smack of unaccountability?