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Supreme Court Annual Report 2018-19 : Towards Democratic Judicial Accountability

This goldmine of information is replete with crucial information about the judicial system, its achievements and innovations. However, we must study both what it chooses to say and what it does not... By Prof Upendra Baxi

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The Supreme Court has begun issuing annual reports concerning the administration of justice by it and High Courts since 2015-16, but the media and academic journals have largely maintained an unwelcome discreet silence about these. This frustrates a great innovation; indeed, I recall as a comparatively young research scholar that I had to perform almost Heraclitan labours in the eighties even to obtain the irregularly published annual reports on administration of justice by High Courts! Difficulties of access accompany even the new legal regime of right to information. Now, this goldmine of information is simply available at the click of a digital mouse!

In introducing the 2018-2019 Re­port, Chief Justice Sharad A Bobde has expressed the institutional commitment of the judiciary towards “a democratic discourse between all stakeholders of the Indian Judiciary” and articulated a hope that this “periodic stock-taking of our role as ‘Guardians of the Constitution’ as entrusted on us by the Constitution of India” will generate and nourish “a symbiotic relationship” among all “stakeholders” in the “actualisation of goals set by the Constitution”. One hopes that this relationship is enriched by not only a close study by many publics, including all sections of the Bar, but by law schools, judicial academies and students of judicial process and power everywhere.

An Annual Report comprising 335 pages, with 157 dedicated to the Supreme Court (which this article engages here because of space constraints), and replete with crucial information about the judicial system, its achievements and technological and managerial innovations makes a fascinating but difficult reading. Difficult because it is at once a medium that clarifies but also obscures information; the interplay of creative and censorious aspects deserves notice.

For example, most Indians would never have known that Mohandas Gandhi appears twice in the Court’s architecture. He appears first in “a beautiful mural of coloured porcelain tiles in the Judges Gallery, with the Goddess of Justice on the right”. This juxtaposition is of great significance for achieving the constitutionally desired social order, an expression that I developed as early as 1967!

And second, while one does not even know why the statue of Mohandas Gandhi was installed as late as August 1, 1996, in the lawns of the Supreme Court, one at least knows now that it “was sculpted by the renowned artist Fredda Brilliant Marshall”. Khushwant Singh wrote: “The memory of her standing stranded behind a giant copy of the statue of Gandhi stuck between the front door and her studio remains a telling image of her constant struggle with her art and the world about her.” In different ways, the ascetic Mahatma and the woman artist thus signify a potent symbol of gender equality and justice.

The reason given why the Goddess of Justice is not blindfolded “is that as per Vedic sutras, the deity of Justice does not close its eyes but allows the graceful rays from its eyes to illumine the administration of justice”. This re-symbolization is of great value, and not just for the miniscule visual anthropologists!

So is the annotation that the inscription surrounding Dharma Chakra (Wheel of Justice) with 24 spokes is in Sanskrit: “Satyamevoddhaharamyaham” which means “Truth alone I uphold”, which applies to judicial duty and valour as well. What impact this summation has on the Bench and the Bar remains a formidable theme.

An ordinary citizen would also never have known that there was such a deep affinity between pigeons and doing of justice! But we now authoritatively learn that among the recent initiatives is a “pigeon protecting mechanism” installed “outside Court Nos. 16 and 17 on trial basis”. Doves proverbially carry a message of peace, within which alone justice and good order remain possible. One also hopes that Article 51—fundamental duty of all citizens to develop “compassion for all living beings”—is fully borne in view.

The Report mentions all the present justices of the Supreme Court and High Courts, which covers 2018-2019. The periodic and piecemeal increase in judge-strength (from eight Justices to 11, 14, 18, 26, 31 and now to 34), is, of course welcome. But we still do not know how far the exertions by the Law Commission, especially by Justice DA Desai (Report 120, 1987) and reinforced by Justice AP Shah (Report 245, 2014) were guided by any sense of judicial “manpower” planning.

Pending a full examination of the comparative figures, it may be said that the Collegium system has achieved a five+ years tenure. This compares rather favourably with the system of executive-dominated appointment system.

Spectacularly, the learned chief justice will have nearly served full eight years when he lays down the august office on April 23, 2021. Among Justices who would have served the Court for eight plus years by the time they retire are Justices NV Ramana, Dr DY Chandrachud, Uday Umesh Lalit and Surya Kant. Justices with a six-year-plus tenure are 12, whereas the rest mainly serve about four years.

Second, of the 46 chief justices of India (excluding the present CJI), only Justice YV Chandrachud served as CJI for more than seven years, while Justice Bhuvneshwar Prasad Sinha served for five+ years and Justice AN Ray nearly for four years. A considerable number enjoyed nearly a three-year term. The median term is 1-2 years with some exasperating terms as short as a few weeks or months. While the Report has to let facts speak for themselves, further institutional development of the judicial Collegium system must consider the issue of appointment of justices in such a way as best promotes stability of leadership by ensuring at least a two-year term as CJI. One advantage of the frequently proposed extension of the age of superannuation to 70 is that it provides just this sort of stable leadership.

Third, there are only three women judges (Justices Banumathi, Indu Malhotra and Indira Banerjee). Justice Banumathi completes her term (on July 19, 2020) with a six-plus year tenure, probably the longest for a woman justice (See my comment in the India Legal issue of November 26, 2018). It is significant that the Collegium left it to the leadership of CJI Dipak Misra to make two further appointments, one from the Bench and the very first from the Bar (Justice Malhotra).

The Report does not disclose allegations against the then CJI Ranjan Gogoi in a workplace sexual harassment case; these were examined, by an administrative committee of the Court comprising Justices Bobde, Indira Banerjee and Indu Malhotra. Ordinary citizens would never know why it closed the matter because the entire proceedings and the final decision remain shrouded in silence and secrecy. The annual report does not provide information on the performance of its own committees on sexual harassment at the workplace nor does it offer information on whether deliberations are underway to devise a procedure that is fair and accountable for the future. Surely, so crucial a matter as allegations of sexual harassment in the court precincts deserves the dignity of reasoned elaboration and an articulate procedure for all is certainly overdue after four decades of the Mathura Open Letter written by four law academics (1979) and especially after the landmark Visakha ruling (1997).

The Report gives ample details on arrears, workload and disposals; this is welcome and it is good news that the judiciary is now fully alive to this matter. While this calls for a detailed analysis, we cannot but help noting that a large number of cases are awaiting disposal for over ten years! Most welcome would have been an indication of the variety of these matters and of final disposal. And simple announcements like the creation of single-judge benches (to hear transfer matters and bail cases carrying up to seven years imprisonment) do not give us reasons why this is a worthy measure and why it took five years to notify this amendment to the Supreme Court Rules!

Chapter 14 lists 16 “landmark judgments” which overall give a sense of the astonishing normative work thus accomplished. Naming many of its leading judgments would be an easy task—for example, related to sexual minorities, leprosy patients, adultery, right to privacy, experimental intra­net access, restricted availability of live streaming of judicial proceedings, bar girls and the jurisdiction under the Right to Information Act as applied to the Supreme Court. But that cannot be said for all the hits and misses!

True, the criterion for selection of decisions as “landmark judgments” even when explicated will also remain a contested terrain. But, for example, Item 13 referring to the case filed by Dr Ashwani Kumar for certain facilitative and enabling directions for a standalone comprehensive legislation against custodial torture on the basis of a UN Convention on Torture remains incomprehensible. It is a very odd “landmark”, given other feats and feasts of interpretation.

The Court held that it would not be “appropriate … to enforce its opinion, be it in the form of a direction or even a request, for it would clearly undermine and conflict with the role assigned to the judiciary under the Constitution”, although it would continue to deal with individual cases. How even a judicial request for significance may violate constitutional judicial role remains a mystery. The oddity lies not in judicial self-restraint as such but in the celebration of judicial comity with the executive, even as regards a core dignity—reinforcing right against torture which some eminent international lawyers suggest rightly has already become an aspect of international customary law.

 

—The author is an internationally renowned law scholar, an acclaimed teacher and a well-known writer

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