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.

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.
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