Thursday, March 22, 2007

Puzzling over a former CJI's letter, and reflecting upon desirable levels of transparency in the judicial process

Yesterday's Indian Express carried a short letter from a former Chief Justice of India, Justice R.C. Lahoti. I for one am intrigued by his motivation in writing the letter, though its contents and claims are equally interesting. Since the published version is relatively short, it can be reproduced in full:

"The falling standards in the judiciary and legal profession are a matter of concern for every right thinking person. Every system, however good, needs to be reviewed and updated from time to time. The article, ‘Just advice’ (IE, March 8) by Fali S. Nariman, which stressed the need to revive our rather moribund legal system, prompts me to share through your paper what little spadework I tried during my tenure at the apex court of the country. During the last nearly 60 years of independence, there has been no serious effort to study the system in depth, analyse its working and make suggestions for improvement, followed by implementation.

After assuming the office of chief justice of India, in my first meeting with the then prime minister, I impressed upon him the need to appoint a high-powered commission/committee headed by a former CJI for the purpose of studying the Indian judicial system and making suggestions to tone it up by simplifying procedural formalities and making it more people-friendly so as to achieve the cherished goal of quick and cheaper but quality justice.

We have to devise a system which ensures qualitative appointments. I strongly felt that the commission/ committee should include expert members drawn from the fields of management, administration and technology. The Bar should also be represented. The terms of reference should be as wide as possible. The whole idea is to achieve reform by remodelling, if necessary. The prime minister felt convinced. It seems that the matter was referred to the Union law ministry. However, there were no signs of any actual initiatives from the government — the idea has remained just wishful thinking till date.

On commencement of my tenure as CJI I had, against all odds, also got an e-committee appointed which acted at super speed. After collecting all the relevant data and analysing it within a record time of seven months — after working day and night — the e-committee prepared a ‘Five Year Plan’ for the total introduction of IT in the judiciary. The PM launched the Five Year Plan which needed a meagre amount of Rs 800 crore only for the total computerisation of the judicial system, interlinking the lowest court in any corner of the country with the high courts and Supreme Court. After demitting my office, I note that not much headway has been made. Very recently, I learnt that the project has been shelved by the bureaucracy. It was destined to meet this bureaucratic end. I feel very sorry. If only the things had moved in the right direction, we could have had paperless courts at the end of five years."

Chief Justice Lahoti's implied claim that he was the first person "in over 60 years of independence" to study the issue of judicial delays seriously is so outlandish, that I will refrain from commenting on it at length. Anyone who has studied this issue will know that from colonial times, administrators in India have acknowledged the problem of judicial delays and backlogs, and this may well be one of the most analysed issues in Indian law. (For an analysis which cites some of this vast literature, while also providing a biting critique of the system of Lok Adalats which seem to be a popular solution among several judges and policy-makers, see this excellent article by Jayanth Krishnan and Marc Galanter). All this is, however, not to say that we are any closer to finding lasting solutions to the huge backlogs that cripple the Indian legal system. In particular, Justice Lahoti's recommendation of forming a "high powered committee" (headed by a former CJI, no less) is hardly new, and any such report will have to cite the numerous Law Commission and expert body reports dating from the 1920s that already exist on the issue.

The problem with evalauting this rather rosy self-assessment of his tenure by Chief Justice Lahoti is that we, as members of the public, have very little information to go by in making an independent judgment upon his claim. In a recent post, V. Venkatesan argued that judges should discuss the circumstances sorrounding crucial judgments, and should use their memoirs for the purpose of enhancing public information and knowledge about the inner workings of judicial institutions.

Several Indian judges have written autobiographies/memoirs, some of which contain interesting snippets of information about the back stories of important judgements. However, most of them adopt a very idiosyncratic style, and do not really offer very much to constitutional scholars beyond gossip and somewhat partisan justifications of the individual judge's conduct or decision in particular cases. One scholarly work which does contain fascinating details about the internal deliberations of judges in crucial cases like ADM Jabalpur and Kesavananda Bharathi is Granville Austin's second book on the Indian constitution: Working a Democratic Constitution.

I am not sure, however, whether the judiciary needs to be subjected to the same kind and level of scrutiny as the other two more directly representative institutions. Given its institutional nature and function, the judiciary may be able to argue for lesser standards of scrutiny (though I do believe that the current situation, where no scrutiny seems to be tolerated, falls well below those lesser standards). V. Venkatesan cites American literature that provides very detailed accounts of the working of the U.S. Supreme Court (he specifically cites 'The Brethren') to argue for similar works about the Indian Supreme Court.

A more recent example of such a journalistic work which examines (in sometimes merciless detail) the operational details of the current U.S. Supreme court, is the following book by Jan Crawford Greenburg: 'Supreme Conflict: The Inside Story of the Struggle for Control of the U.S. Supreme Court.' The book focuses on the personnel of the current U.S. Supreme Court, including the backstories of how its most recent members were appointed, the interpersonal relationships of current judges, minute details about their judicial philosophies, and how they crafted particular judgments. The book cites formal interviews with several of the current and recent judges of the Court, and also relies upon interviews with unidentified, anonymous personnel such as law clerks, attorneys, journalists who cover the Supreme Court, etc. Some idea of the details revealed by this book can be had by looking at reviews of the book which are available here and here.

The current law relating to contempt of court may well preclude similar journalistic exposes of the working of the Indian Supreme Court. However much one may value transparency, the American example may be a bit of an extreme, as has been accepted even by some American scholars. An important academic book released around the same as the Greenburg book (but which will, in all probability, never get the same level of attention) is Brian Tamanaha's "Law as a Means to an End." An award-winning and respected law and society scholar, Tamanaha argues that this kind of discourse in mainstream American media and even in U.S. law schools, has led to the creation of a widespread 'instrumental' understanding of the law, where everything is seen as deeply political, and the idea that the rule of law means something as an ideal is debunked. Interestingly, Tamanaha is a liberal, and this critique is unusual in that it comes from the left. For those interested in accessing his views, they can be found in this online article, which deals with the same issues as his book.

Returning to the point I started with, perhaps Justice Lahoti should elaborate upon the measures he took to address the backlogs in the judicial system by penning a detailed autobiography. Such a task, if undertaken with necessary research inputs and rigour will enable us to put his legacy, and his contributions as Chief Justice, in proper perspective.
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