Column

Two recent developments involving the Supreme Court — the prevarications over the elevation of Karnataka chief justice Paul Dinakaran to the highest court and the decision to challenge the applicability of the Right to Information Act (RTI) to the office of the chief justice of India (CJI) — have left the country wondering what the honourable judges are up to.

Both decisions have shown the country’s highest judicial authority in poor moral light. The CJI has not covered himself with glory by hemming and hawing in the assets disclosure case and the collegium’s reluctance to abandon Dinakaran’s elevation can be construed as a case of ethical ineptitude.

Any commonsense approach to Paul Dinakaran’s appointment as justice of the Supreme Court should have been nixed the minute so many allegations surfaced against him. The allegations may or may not be false, but not giving them weight sends the wrong signal — that the Supreme Court is unconcerned about the need to keep Caesar’s wife above suspicion.

By first lobbing the proposal to the law ministry and then, when the latter refused to do anything, keeping the decision on hold, the Supreme Court and the CJI have fallen short of the high ground they were presumed to be occupying.

The case of the RTI Act is even worse. The moral authority of the Supreme Court could only have been enhanced by a clean disclosure of judges’ assets.

In the end, the disclosures came after much prodding and pressures from more forward-looking judges in the high courts. Now that the Supreme Court registrar has decided to challenge the Delhi high court verdict on RTI disclosures with its own bench, any verdict emerging from it will be vulnerable to criticism. When judge after judge has been recusing himself from cases on grounds of a potential conflict of interest, how can the Supreme Court expect the world to believe that it can play both appellant and judge in the RTI case? If the RTI verdict goes in the Supreme Court’s favour, it will have low credibility. Only if it loses the case will it have the ring of authenticity. It’s a no-win situation and the Supreme Court displayed poor judgment in appealing against the Delhi high court’s RTI verdict.

If the judiciary wants to redeem itself in public eyes, it must be at the vanguard of three reforms: one, it must institute a transparent selection process and not decide who should or should not become a judge behind closed doors. Two, it must modernise and become more accountable — by delivering speedier justice. Three, it must abandon efforts to hide behind the law of contempt to escape criticism of its often dilatory processes and poor judicial reasoning in some cases.

The first reform is absolutely critical. When it comes to judicial appointments, the general public gets no clue about how the Supreme Court’s collegium, or any other body, decides on whom to nominate for judicial office or elevation to the higher courts. How are we to know why a judge is chosen, when we don’t know what he owns, how he made his wealth, what his antecedents were and what kind of previous judgments he handed down?

At the very least, the Supreme Court’s collegium should give strong reasons for considering Dinakaran as worthy of higher office. It should also not take at face value any judge’s claim that all his wealth was acquired before he became a judge. How does that matter? The key issue is whether the wealth was acquired legitimately, and whether what he or she disclosed was proportionate to his or her known sources of income. If not, the question whether one acquired wealth (or land holdings in Dinakaran’s case) before or after one became a judge is immaterial. The law must clearly be changed to allow for financial scrutiny of all judicial appointments before they are made. The Supreme Court should take a lead in insisting on this procedure before even considering someone for elevation.

The second reform is a complete no-brainer. It is no secret that in India justice is denied through the process of delay. Courts condone delays and dilatoriness on the part of appellants and respondents, and this is something well within the Supreme Court’s own powers to change. Allowing parties weeks to respond and leaving long gaps between hearings makes no sense. The Supreme Court also needs to abolish all court vacations. When every other constitutional authority can function without long vacations, why should the courts be so self-indulgent?

Lastly, there’s the contempt law. Courts have to learn to voluntarily eschew excessive usage of the law of contempt to cocoon themselves from criticism. It is one thing for judges to be accused of bias and not being shown due respect or when specific orders are flouted, but the law of contempt should not be used against people who are merely critical of its functioning. In fact, an open society needs a judicial system that can take criticism — even trenchant criticism — in its stride.