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Before you listen to this episode of The Scene and the Unseen, I have a recommendation for
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Do check out Pulya Baazi, hosted by Saurabh Chandra and Pranay Koteswane, two really good
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Kickass podcast in Hindi, it's amazing.
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Whatever we might think of our politics, we have a little more respect for our institutions.
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We revere the constitution, which even our Prime Minister once referred to as a holy
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Our Prime Ministers through history have tended to treat it less as a book and more as a periodical.
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And we respect the institution we regard as a guardian of that constitution, the Supreme
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There might be many things wrong with our society and our culture, but we think of the
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Supreme Court as the one institution that can mitigate them.
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But what if, instead of mitigating the faults of society, the Supreme Court instead reflects
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them and even deepens them?
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What are we to do then?
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Welcome to The Scene and the Unseen, our weekly podcast on economics, politics and behavioral
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Please welcome your host, Amit Bhatma.
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Welcome to The Scene and the Unseen.
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My topic for today is the Supreme Court of India.
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And the specific trigger that sparked this episode was this graceful conduct of the court
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when it came to recent allegations of sexual harassment against the Chief Justice of India.
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My friend and frequent guest on the show, the economist Shruti Rajgopalan, who specializes
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in constitutional economics, wrote an angry article about it in The Wire, which is linked
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I invited her back on the show to chat about this case in particular and the Supreme Court
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But before we get to that conversation, let's take a quick commercial break.
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This episode of The Scene and the Unseen is brought to you by Storytel.
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Storytel is an audiobook platform which you can listen to on your Android or iOS app.
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I actually use Storytel myself regularly, so as long as I sponsor this show, I'm going
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to recommend one book a week that I love.
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The book I want to recommend today is Alice in Wonderland by Lewis Carroll.
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Is this enough of the real world?
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Just take a break from it.
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And it makes you laugh every time.
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And remember, you get a 30-day free trial only at storytel.com slash IBM.
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Shruti, welcome to The Scene and the Unseen.
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So you know, when I read your wonderful piece on the wire, the first thing that struck me
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was how angry you were.
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You described it as the death of justice in India.
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Tell me a little bit more about the case.
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So there were a few things going on in this particular case that really distressed me.
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So as we all know, there was a sexual harassment complaint by one of the staff members of the
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Supreme Court of India who worked for the current Chief Justice, Justice Ranjan Goboy.
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And she sent an affidavit to the other 22 justices of the Supreme Court and requested
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an inquiry into her complaint that she had been subject to sexual harassment and abuse.
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Now it just so happens that the Supreme Court of India was the front-runner when it came
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This is in a judgment called Vishakhav as a state of Rajasthan, which was far back, like
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in 1997, and well before there was any MeToo movement or even any serious recognition of
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the problem of sexual harassment at the workplace by any other institution in the country.
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The Supreme Court said, we need to recognize this problem.
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There is a huge gap in the law.
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In a very activist opinion, they actually did what we call now legislating from the
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That is, in the absence of law, they literally made law.
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So the Supreme Court provided a series of guidelines on what needs to be done by every
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single workplace in India to prevent sexual harassment and how to deal with the complaints.
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And these guidelines were things like, you know, there needs to be a committee.
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The committee should have at least 50% women.
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It needs to meet certain criteria.
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There must be an external member to the committee and so on and so forth.
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And it is this internal committee where any sexual harassment complaint would be reported
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and they would deal with it swiftly.
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And they said that in the absence of any legislation, these guidelines would be law.
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And then eventually, many years later, the parliament did pass legislation on sexual
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So one would think that given that the Supreme Court was the front runner on this, and they
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are the ones who had actually come up with the guidelines.
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And given the fact that these are all members trained in law, they serve in the highest
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court of the country, that they would know what to do swiftly and justly.
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And what happened immediately after was a series of horrific events.
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So the first thing that happened was that the Secretary General of the Supreme Court
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before anything, like overnight, before any committee had been formed or anything else,
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just said that these are mischievous and false accusations.
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They're trying to malign the institution and it's like the opposition and other interfering
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forces are trying to reduce the stature of the judiciary.
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So first of all, it seems like there are other members of the staff who had already come
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out in judgment immediately after the affidavit and the complaint had been sent, even before
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anything else had been done.
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And this is obviously extremely inappropriate for any institution, but for the Supreme Court,
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Immediately after that, what happened is the Chief Justice of India constituted a bench.
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And in this particular bench to hear this matter, he sat on the bench himself along
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with two other justices, Justice Khanna and Justice Arun Mishra, not Deepak Mishra.
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So you can imagine that the most fundamental principle of natural justice, which is that
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one shall not sit in judgment of one's own cause was completely violated and by the highest
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judicial officer of the country.
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And in this particular bench, what they were determining was it was in reference and they
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said they called it a matter of the highest public interest or public concern.
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And they basically sat in judgment on whether the complaint is valid or not.
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And you can imagine that the person heading the bench is the person against whom the complaint
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So even someone completely untrained in law, a two-year-old would understand that this
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Now when it was pointed out that this is a problem, they decided, by they I mean the
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Supreme Court decided to have an internal committee or an ICC, as they call it, in the
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Sexual Harassment at the Workplace Act.
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So the ICC had three justices, Justice Ramana, Justice Indira Banerjee, and Justice Bopti.
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Now the problem was Justice Ramana, before he sat on this particular internal committee,
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had already revealed to the press that he thought this was a false complaint.
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So once again, someone who had already sat in judgment of the matter and really didn't
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have an open mind was placed on this committee.
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So when the complainant brought this to his attention, he had to recuse himself.
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The complainant also brought another fact to their attention, saying that it had only
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one woman on the panel, whereas the POSH guidelines require that there should be at least 50%
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of the committee has to be women.
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So then they replaced Justice Ramana with Justice Indu Malhotra.
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And this particular panel sat and met.
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There were other violations of their own POSH guidelines, which is that there was no external
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She was not allowed to bring a lawyer to the proceedings.
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The proceedings weren't recorded.
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No external member was allowed to participate in it.
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And all this was basically some kind of like an internal mechanism to deal with a problem
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against their own superior.
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So it was very clear that the other justices were also floundering because basically they're
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hearing something against their boss.
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So in this kind of a panel, it's even more important that an external member be present
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and that external member be someone of a very, very high stature, which is quite easy for
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They can bring in a retired justice.
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They can bring in a retired female justice, like Justice Rooma Pal or someone else who
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has such a stellar reputation.
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So this could have very easily been avoided, but clearly they didn't want to avoid it.
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And finally, what happened is the complainant withdrew her complaint, not because she admitted
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that this was not a genuine complaint, she said she has absolutely no hope of getting
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a fair hearing or justice with this panel at this institution.
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And she is unfortunately right.
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And it just really distressed me.
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Like this entire series of events, it felt like the Supreme Court was doubling down on
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each mistake one after the other.
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And it just really distressed me.
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And isn't it the case that all of these guidelines which this so-called posh committee did not
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follow were guidelines originally set by the Supreme Court itself, right?
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So they seem to behave in a fashion that the rules they make must apply to everyone else
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and they must not apply to themselves.
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So wouldn't you say that in a sense that the court could itself be set to be in contempt
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Yes and no, because the contempt laws are not following a very specific judgment, right?
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But the court also has the ability to interpret rules in its own way.
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So this is a play of words and you could go either way with this.
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But yes, if you strictly think of it as the same rules that apply to everyone else must
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also apply to the members of the judiciary, then they are really violating all of those
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And in a very brazen way, like all this is not hidden, this is all happening in its playing
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out in the media, only partially playing out in the media.
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Frankly, the media was muzzled quite a bit.
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A lot of newspapers are scared to run stories about the Supreme Court because they're worried
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they'll be held in contempt.
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A lot of people are scared to speak up.
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The people most qualified to speak up are from the legal community who unfortunately
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have a lot of cases pending before the judiciary.
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So even though the Bar Council and the Supreme Court advocates on record and all these people
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came forward and they issued statements condemning the procedural mess, it's very difficult for
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scrutiny to come from people who really depend on the Chief Justice of India to get the matters
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So there's a really big problem, systemic problem that is taking place.
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And what's also kind of bizarre is, as you wrote in your piece, is that the case became
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politicized very fast with cabinet ministers jumping in to defend the Chief Justice where
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it had really nothing to do with them.
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I mean, why should they get involved?
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So this is the thing that is very worrying, right?
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So it seems like any time, so, okay, to me in a civilized society, no one should know
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names of specific justices, you know, to me that would be the most civilized society of
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You know, maybe, you know, if there was a new Chief Justice sworn in or something, you
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know his name, but justice should be based on principles so much so that it doesn't have
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any individuals deep imprint on it.
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And we don't think of individuals as partisan and taking sides.
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When the government and cabinet ministers, the attorney general, the solicitor general,
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they all came out of the woodwork within hours, they completely rubbish the complaint and
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malign the reputation of the complainant without knowing all the facts because the complaint
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had been made like 48 hours before all this happened.
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And they immediately took the side of the Chief Justice, which shows that something
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They want, they think he's their guy or they want him to be at the helm and they don't
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want him to resign or be impeached and so on.
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So that makes one extremely suspicious of what is going on.
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And if we remember Chief Justice Gogoi, who was just a, you know, a senior justice prior
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to this when Deepak Mishra was the Chief Justice, there was a press conference that before senior
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most judges held and the only person who flipped his stance later was Justice Gogoi.
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And he was the next in line to be appointed Chief Justice of India.
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And it all seems very messy and complicated in terms of, it's very opaque on how justices
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and Chief Justices are appointed and promoted.
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So it's very unclear where the alliances lie and precisely why the current government and
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the current executive want to support this particular Chief Justice.
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So let's step back for a moment and, you know, take a much broader view of what our justice
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What is the role the Supreme Court plays in it?
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What is it supposed to do?
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So you know, we can get a clearer sense of what is going wrong specifically now.
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So take me back in time, like, you know, our modern justice system as it is now really
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came about in 1950, right?
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So a little bit before that in the sense that we had a functioning set of high courts and
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a federal court, which was called the British Federal Court, which eventually became the
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Of course, at the time, the British Federal Court was not the highest court of appeal.
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The Privy Council in London was the highest court of appeal.
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So in that sense, you know, sort of the infrastructure we inherited from colonial times, but the
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constitution making process from 1946 to 1950, one of the big differences, as you know, India
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inherited or at least pretty much exactly adopted the existing parliamentary system.
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So whatever was the British Westminster system was continued in India and, you know, very
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few tweaks were made to it.
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But there was one major difference from the colonial government, which is England does
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not or at least at that time did not have independent judicial review.
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That is an American inheritance for us.
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What we mean by independent judicial review is that the judiciary will provide a check
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and a balance both to the executive and to the legislature.
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So if the executive makes any kinds of actions which are unconstitutional, the institution
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that will adjudicate whether or not it is unconstitutional and then nullify that particular
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order is the judiciary.
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This comes from an old court case called Marbury versus Madison in America.
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That was the sort of the starting point of independent judicial review.
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Now in that particular case, it also applied to the legislature.
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Now, this was not true of England.
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The parliament could only was sovereign in England, sovereign in the sense, you know,
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in terms of checks and balances.
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And the courts could only review executive action, but they could not review legislative
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So this is one major difference between what was going on in England in 1950 and what was
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happening in India in 1950.
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And Ambedkar, who of course studied at Columbia and a whole host of other legal minds in India
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who were very inspired by the American system, thought that it is crucial to have independent
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judicial review in a constitutional set up that guarantees fundamental rights.
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So you need to have writ jurisdiction, which means there are a host of writs that individuals
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have where they can petition the court and say, my rights have been violated.
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And you need to look into this matter and therefore either approve or nullify the executive
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action or the particular, you know, bill or act, which has violated my rights.
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Now incidentally, the court took to this immediately and very quickly, like all the justices who
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were justices at the time of the birth of the Republic, they were very well versed with
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what independent judicial review means, even though they hadn't come from that system.
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So they knew how to interpret the law.
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They knew how to think about these principles and they knew that for the constitution to
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have any real value, you need to be able to very clearly define when legislation and when
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executive action violates the constitution.
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And that's really where independent judicial review comes in from.
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Now why is it important that this kind of judicial review is independent?
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It is so that the judiciary is not subject to the arbitrary actions of the executive
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or the legislature, right, that it has its own place.
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And one of the ways to make the judiciary independent is that its appointment procedure
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So that is really where this kind of system comes from.
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Ambedkar was a very big advocate to push through this kind of independent judicial review.
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And he felt that the judiciary must be both independent of the executive, but it also
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So how do you balance these two things, right?
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Now the executive represents the people of India through, you know, after being elected
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through the legislature, they are the people who really govern.
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So they are the ones in charge of the appointments, but how do we make sure that the people making
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appointments are also removed from the people whom they appoint?
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So there are a whole host of procedures to make sure that the judiciary is independent.
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One of these is that no high court or Supreme court judge can be removed except for an impeachment
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So judicial officers at the highest courts can only be impeached.
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They can't just be, you know, dismissed and they have a term which ends when they reach
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the age of 62 in the case of the high courts and 65 in the case of the Supreme court.
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So they only retire based on their date of birth, right?
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They can't be manipulated and forced to retire early or pushed or get an extension or retire
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So there were a bunch of safeguards like this.
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And the most important part of this procedure was Article 124 for the Supreme court appointments
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and Article 217 for the high court appointments, which basically said that the president shall
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When we say the president, we really mean the cabinet and he shall do so in consultation
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with the chief justice of India, right?
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And now for the last 70 plus years, there is a huge question over what is the meaning
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of the word consultation, right?
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In case of a disagreement whose voice prevails, you know, does the chief justice's view become
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Does the cabinet's view become binding and exactly how do you deal with this problem,
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When there is a disagreement.
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So that has been sort of the centerpiece of independence of judiciary in India for the
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So let me try to kind of recap that and tell me if I understood it correctly.
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Basically it wasn't always the case that the judiciary is independent of both the executive
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and the legislature and what Ambedkar did was he followed the American precedent of
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making it independent of both the executive and the legislature and the purpose of the
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judiciary therefore became to ensure that the rules that were set in the constitution
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and our laws applied to everybody equally, including the executive and the legislature,
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which brings about the dilemma of how do you do this if the judiciary itself is going to
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be appointed by the people who it's supposed to control because, you know, you and I have
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discussed and this was again a question I had for a later part, but might as well bring
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it up now is that, you know, the same way that we apply public choice theory to governments
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where we talk about, you know, the incentives in play, A, I guess the same principles would
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apply to the judiciary and B, in this case, it would seem to me that the incentives for
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those in government would always be to select pliant judges and then keep seeding the Supreme
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courts and the high courts with pliant judges and manipulate the system in that way.
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So what is sort of a history of those kinds of tensions playing out and how has the judiciary
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stayed independent to begin with for whatever time it did stay independent?
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So you have really hit the pulse of the matter.
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So you and I have talked a lot about, you know, what are the kind of rules in place
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and what are the incentives based on the rules.
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But I want to also state the importance of convention and of statesmen like leaders here
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So in the 1950s, you know, when so what happened was that the Chief Justice of the British
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Federal Court was Chief Justice Kanya when we adopted the constitution.
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So the day we adopted the constitution, the British Federal Court became the Supreme Court
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of India and Chief Justice Kanya became the Chief Justice of India.
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When Chief Justice Kanya died in office soon after, the next most senior justice was Justice
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Now it is believed that Nehru who was at the time the prime minister and therefore representing
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the cabinet, he preferred Justice M.C. Mahajan who was at the Bombay High Court at the time.
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And it was quite clear that that was his preference.
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But all the Supreme Court justices threatened to resign if the next most senior justice
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did not automatically become the Chief Justice.
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And that is really the beginning of the convention that the next senior most justice will become
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the Chief Justice and serve whether that term is for two days or for 10 years.
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You know, this is not written anywhere in the constitution.
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Like there are there's no text that supports this, but it is convention.
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And it is also like we must applaud Nehru that when he felt that there was pushback
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from the judiciary on one of his decisions.
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And by the way, Justice M.C. Mahajan was a legendary judge, right?
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This is a time actually when the Supreme Court of India, which used to be the British Federal
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Court was really not that important.
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You know, they were the highest court of appeal.
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They got very few cases, usually on like very boring matters of law.
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The busy and important courts were the high courts.
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They did the bulk of the work.
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So it was really your high court judges who were sort of superstars.
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And it seems like Nehru picked one such superstar, you know, who had by I mean, it's not like
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he just picked some random client guy like he was really by any standards an excellent
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But Nehru knew when to step back and respect the authority of institutions.
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And Nehru was so popular, frankly, if he had said, yeah, go ahead and resign.
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You know, this is a country full of British trained lawyers.
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I can replace you guys tomorrow.
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He could have easily done that.
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But Nehru knew that there there will never be respect for the Supreme Court if it wasn't
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viewed as independent by all the stakeholders in society.
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So he knew when to step back.
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So I want to, you know, sort of emphasize the importance of convention here.
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It is very difficult to put down every rule in writing and then interpret every rule,
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especially by the same court that, you know, needs to interpret the rule in its own matter.
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So in these kinds of situations, the convention really kicks in.
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And from 1951 to 1973, we had a very clear procedure of appointment.
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It was, of course, I mean, even in those years, there are some examples where it seems like
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there's some executive influence, but it largely seems like very good qualified people were
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appointed that the Chief Justice of India's opinion always had very, very high consideration
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And if there were politically motivated appointments or transfers, it wasn't a rampant thing.
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It might have been a one-off thing, right?
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So that's the situation until 1973.
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Now you and I have talked about in an episode, we've talked about property rights for over
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And if we just reference back to that episode, we talked about how the constitution kept
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getting amended by the parliament, especially by the Indira Gandhi government, because the
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judiciary kept interpreting the constitution as it is written, right?
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So one of the consequences of that was that if you keep amending the constitution, the
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courts are going to say, hey, this is very problematic.
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You can't just amend the constitution any time we enforce the constitution.
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So in 1967, there's a case called Golaknath, where the Supreme Court in 11-judge bench
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held that the constitution is unamendable by the parliament, that fundamental rights
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Now the matter got appealed and in a case called Kesavanand Bharti versus State of Kerala,
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and this was a 13-judge bench, again, the question was, does the parliament have the
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authority to amend the constitution?
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And this is the case where the basic structure doctrine was created and the court basically
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said that the parliament has the authority to amend the constitution, but this is not
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an unlimited authority.
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There is a core to the constitution that is inviolable and unamendable.
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We call that the basic structure.
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It is things like federalism, democracy, secularism, independent judiciary, and so on.
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And if the parliament amends any of these parts, we can strike down that constitution
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Now, the interesting thing is in this particular case, the court didn't say exactly what the
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basic structure of the constitution is.
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They didn't give us a list, right?
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They said, we will know when we see it, we'll decide on a case-by-case basis.
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There's a lot of politics and it's a fascinating story how this case came about, but the decision
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was given on April 24, 1973, which was also the last date of the term of Chief Justice
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So Chief Justice Sikri knew that this is going to create a huge fallout and as soon
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as it is announced, they wrote their separate opinions.
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Justice H.R. Khanna was one of the instrumental people in coming up with the basic structure
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of the constitution and it was a 7-6 judgment and there were like lots of dissenting opinions,
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really convoluted, it runs into thousands of pages.
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And one of the justices who wholeheartedly was on the side of the government was Justice
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So when Chief Justice Sikri retired, there were three justices, right?
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Justice Shailad, Justice Grover, Justice Hegde, who were next in line and then there was Justice
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Now Indira Gandhi, knowing that these justices had sided against the government in this particular
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opinion violated what is the fundamental principle of independent judiciary, which is that justices
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must not be rewarded or penalized for their judicial opinions.
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So the day after Sikri retires, instead of appointing the next in line, she supersedes
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three senior judges and then appoints Justice A.N.
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Ray as the Chief Justice of India.
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And this is the first time anything like this had happened in India.
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It was like a complete shock.
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Of course, this is the time of like great statesmen and within a day justices, Shailad,
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Grover, Hegde, all of them resigned from the bench, right?
#
So in a sense, Indira Gandhi got exactly what she wanted.
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She superseded three justices who were against her, which created three vacancies.
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Ray, who was known as her man, though it's not clear if there was any specific reward
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and punishment system between A.N.
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Ray and the government.
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And she was hoping that A.N.
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Ray will reconstitute a bench within a month or so and re-looked at Keshvanand Bharti.
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Now thankfully that didn't happen and that's a whole other story.
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But this is the first instance of this kind of seniority being violated.
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Indira Gandhi also started or at least pushed forth the trend of transferring justices when
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they gave opinions against the government, right?
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This is most evident in cases like ADM, Shivkanth Shukla, you know, this is the habeas corpus
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case at the peak of the emergency, right?
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And Justice Rangarajan, who was then the High Court judge, who gave the judgment, was immediately
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transferred to Guwahati High Court, which is, you know, kind of a penalty posting, as
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Now, there are some big high courts from where you typically get moved up and that's what
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happened to Justice Rangarajan.
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Khanna, who when you know, ADM Shivkanth Shukla was appealed to the Supreme Court.
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He gave his opinion against the government and against the government actions and held
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up the fundamental rights of individuals and when he was the next senior most justice,
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he was superseded, right?
#
So once again, Justice Baig, who was junior to Justice H.R.
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Khanna, was made Chief Justice by superseding H.R.
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Immediately the day after H.R.
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Khanna resigned, right?
#
So there were these two instances where senior Supreme Court judges were superseded, where
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justices at the High Court and the Supreme Court were transferred for things that they,
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you know, did in their professional capacity, enforcing independent judicial review, which
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And this was really a huge attack on the institution of the independence of the judiciary.
#
Meanwhile, during the emergency, the Indira Gandhi government also passed the 42nd Amendment,
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which severely restricted independent judicial review, you know, and thankfully the emergency
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ended and Janata government, which came in 1977-78, undid a lot of the 42nd Amendment
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in the 43rd and 44th Amendment and they restored all the rules of the judiciary back to the
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1950 set of rules, right?
#
So all the mischief was in some sense undone, but the judiciary has never recovered from
#
this blow in the sense that there is always a feeling that there is too much executive
#
interference and there is always a threat that if any Supreme Court or High Court judge
#
gives an opinion that is against the government, the government uses all of its influence and
#
might to try to undermine the career of that particular judge or to transfer them or to
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make sure that they are never appointed to the Supreme Court if they're a High Court
#
judge and so on and so forth.
#
So this is really the core of the fallout of the actions of Indira Gandhi, right?
#
So this stuff was brewing a little bit before her also, but before her, we had leaders who
#
were statesmen who knew when to stop, you know, the rules were equally unclear all along,
#
but the statesmen knew when to stop and when not to push.
#
So I have kind of three related questions and what you just said kind of brought me
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back to the sort of the first of them and I'll also first go together and the thing
#
is you and I both agree and we've often written about how democracies and systems of government
#
can't rely on having good people and great leaders at the top.
#
Instead what you need is good rules and good structures so that even if somebody who is
#
a demagogue or a bad person comes to power, they can't really do much damage.
#
What is important are sort of the rules in place.
#
The first part of this narrative about the independence of the judiciary seems to rely
#
on to begin with in the first instance, the statesmanship of Nehru in letting that convention
#
be established at the senior most judge be made the Chief Justice of India and not insisting
#
on Justice Mahajan getting that post and then that convention continues because like you
#
said that they were sort of all these statesmen who were doing the right thing, but then the
#
point is you can't rely on statesmen doing the right thing for a system to work.
#
So my question therefore is that again like two questions.
#
Question number one, what kind of rules should there have been in place that could possibly
#
have enforced that kind of independence of the judiciary number one and number two, how
#
does it work in other countries where also the judiciary is notionally independent like
#
would the US be an example of another such country and there also the appointment of
#
Supreme Court judges is very politicized, isn't it?
#
So you're absolutely right, you know, you and I because of our public choice, interest
#
and background, we focus on rules and institutions and we say you can't rely on people.
#
Having said that, people do interpret the rules, right?
#
So when there are good people, the same set of rules, good or bad, tend to come up with
#
slightly better outcomes than when they are bad people.
#
But your larger point is absolutely right.
#
Rules need to be robust to even the worst kind, right?
#
My dissertation advisor Peter Bedke always used to say you don't write rules as if Mother
#
Teresa is going to enforce them.
#
You write rules as if Joseph Stalin is going to enforce them.
#
So that still remains true.
#
Like for example, what you pointed out earlier, you know, that the controversy over what does
#
the word consultation mean in consultation with the CGI.
#
And I'd imagine that good well-framed rules would not leave any ambiguity like that in
#
So this is definitely a flaw in the text of the Constitution.
#
I mean, it would be charitable to say that the framers goofed this up, but they really
#
You know, a consultation, deliberation, these are not the kinds of words that you want to
#
have in a constitutional document.
#
You want to have very, very clear procedures on how people are appointed, right?
#
Now second, if you do put in the word consultation because you want it to be an amicable decision
#
as opposed to, you know, pitting one institution against the other, you still need to clarify
#
who has supremacy in case of disagreement, right?
#
Now in any kind of panel, I mean, even judicial benches, we have an odd number of members
#
Now in an ideal world, we would like opinions to be unanimous or not just have a narrow
#
majority, but we still have an odd number because if it's an even number, it could
#
be a split and then you don't know where to go from there, right?
#
So even our common sense panels and decisions always have odd numbers, right?
#
So now odd number panel, those are conventions.
#
Those are not like, they are not written in the text of the constitution, but it's such
#
a strong and common sensical and obvious convention.
#
But the reason for the convention is to break deadlock, right?
#
So having words like consultation and not having a backup procedure to break deadlock
#
when the consultative process fails, in my opinion, that is probably the biggest flaw
#
in article 124, article 217 and article 222, which is about transfer of judges.
#
So one possible defense in the framers is that they were genuinely extraordinary statesmen.
#
You know, the people who crafted our constitution, because they were surrounded by other people
#
like them who were so well-meaning and so well-educated and so public-spirited in their
#
I think they imagined that is the quality of leaders we will elect and they didn't think
#
that there would be a possibility of future elected leaders who would be self-serving
#
and violate these documents so badly.
#
So that is the most charitable thing I can say in defense of the framers.
#
Now coming to your second question, you're absolutely right.
#
It is complicated the world over.
#
Different countries have different procedures for appointment.
#
In America, the way they have ensured judicial independence is to have a life term appointment
#
at the Supreme Court level, right?
#
And there are pros and cons of this kind of appointment.
#
So the pro is once you get on the Supreme Court bench in the US Supreme Court, you serve
#
until the end of whenever you choose to step down for medical or health reasons or when
#
So it's a life appointment, right?
#
And that means that justices can serve on the Supreme Court bench for 40 years, 50 years
#
if you appoint someone young, right?
#
And over 50 years, you are going to give countless decisions every year, but you cannot be penalized
#
for any of those decisions, nor can you be rewarded for any of those decisions because
#
there is no job waiting for you after that.
#
Yeah, but there the issue is that the post that the judge already holds is the reward.
#
You know, being a judge on the Supreme Court, it's not as if they will do something with
#
the expectation of reward after it.
#
They've already got the reward and they can be an implicit or explicit quid pro quo involved
#
So, you know, that's the end.
#
No one can hold you to it, right?
#
Let's say there were a whole group of like unsavory people who got me elected to the
#
bench or appointed to the bench.
#
Now because it's a life term appointment, I mean, if I choose to write what I choose
#
Like they can't do anything after that, they can't do anything to influence me after that.
#
After that, I'm sort of in a bubble.
#
Now it just so happens that the vetting process is so detailed, they pull out law review articles
#
and op-eds you wrote when you were 19 years old, and they're very, very, very careful
#
that you hold the views that you say you hold.
#
Having said that, if they appoint someone to the Supreme Court bench at age 45 or 50
#
and it's a life appointment and you're on the bench for the next 40 years, who says
#
you can't change your mind?
#
You know, who says you can't change your mind the very next day?
#
Now, the Indian Supreme Court works a little bit differently.
#
The retirement age was 65 because at the time of the founding of the country, the life expectancy
#
But today 65 is a very low retirement age, given that life expectancy has increased.
#
So what's happening is most Supreme Court judges take on some role immediately after
#
they retire from the Supreme Court.
#
And it typically tends to be government tribunals and panels.
#
And guess who appoints people to the government tribunal and panels?
#
So now you have this very big problem of post-judicial appointments.
#
And there has been some very interesting research on this particular issue.
#
So I know we're reading a little bit of what we were talking about just a minute ago, but
#
I want to emphasize that appointment procedure is not the only way to be independent.
#
There are other important ways to be independent, which is what is the salary that is given
#
to a judge, which is whether judges are transferred between high courts, which doesn't happen
#
I mean, every state is its own sort of like contained unit.
#
You're not transferring judges from one state to another.
#
So that is another kind of mechanism.
#
And it's a lifetime appointment.
#
So a couple of years ago, Madhav, Aneesh, Subhankar Dham and Jeevani Ko, they actually looked at
#
post-retirement appointments of Supreme Court judges and compared them to whether these
#
judges authored favorable judgments in important cases just before they retired.
#
And guess what they find?
#
I mean, I'd imagine the incentives play out as you'd expect them to play out, right?
#
They actually write favorable judgments because Supreme Court justices are also human.
#
They want a nice house in, you know, Abdul Kalam Road with the car with Lal Bhatti on
#
it and a whole staff and all the perks that come with it.
#
And they're basically fitted on this tribunal or that tribunal, you know, election commission,
#
right to information commission, this office, that office, there's a whole host of appointments
#
It makes a significant difference to the pay and the lifestyle of these justices.
#
So while all the focus has been on appointment procedure alone, that is not the only way
#
We have managed to create a very pliant judiciary even when the appointment procedure is not
#
interfered with, right, by post-retirement carrots, so to speak.
#
So there are many differences and there are many ways to skin this cat.
#
So if you think about it, the U.S. Supreme Court has nominees are appointed by the executive,
#
but they are vetted by the legislature, which is you need a Senate confirmation hearing,
#
So that is highly political process.
#
It is not at all independent, but somehow it manages to protect the independence of
#
the judge once the judge is on the bench and becomes a Supreme Court justice, right?
#
So you can have a very political process and that still ensures independence or you can
#
have a very insular process, which is completely separate from the politics and still have
#
a not so independent system.
#
So in fact, looking at our system, it would actually be remarkable to me if our judiciary
#
It seems as designed to set up a dependence of the judiciary on the executive.
#
And I'm sure this has been discussed massively over the last few decades.
#
So what are the kind of steps that could have been taken or could be taken to make independence
#
So again, I want to take you back a little bit to the history of what happened, you know,
#
so post Indira Gandhi's actions in the seventies and the horror of the emergency transferring
#
so many judges during the emergency, it really became like a farce what was going on.
#
The legal community thought that it needs to do something, right?
#
So there were a series of challenges on appointment procedure because, you know, it became very
#
clear that the appointment and the transfer procedure is not very clear and we need to
#
come up with something.
#
So the first of these cases is called the first judge's case.
#
It was in 1982, S.P. Gupta versus Union of India and in this particular case, the court
#
So exactly what does this consultative process mean, right?
#
So the court simply said that it limited the unfettered power of the executive, right?
#
The consultation should be full, the chief justice's opinion must be recorded, it must
#
be considered, it can't be easily, you know, disregarded.
#
Having said that, the chief justice of India's opinion on appointments and transfers is not
#
So that was the first judge's case.
#
Now, this is a very traditional interpretation because nowhere in the constitution does it
#
seem to suggest that the judiciary's opinion on appointment should be binding.
#
So in a sense, even in the 1980s, the Supreme Court justices were not very activist and
#
still conservative and they were interpreting the text of the constitution.
#
But as we know, since the 80s, you know, after a post-emergency, there was like a two-year
#
Janata government period and then after that, it was back to politics as usual.
#
So all the usual shenanigans started and there was a really important question of how do
#
we really protect the independence of judges?
#
And this brings me to the second judge's case, right?
#
This was a case in 93 and it was basically the legal community, the Supreme Court's
#
advocates on record who questioned once again the existing procedure in articles 124, 217
#
And they said there are poor procedural safeguards, so what do we do?
#
Now this is perhaps the most activist judicial opinion written, not just by the Supreme Court
#
of India, but any court anywhere in the world, right?
#
They basically created a new procedure to appoint Supreme Court and high court judges
#
And if you compare the procedure to what is the text of the constitution, you will think
#
you are in two different countries and the pages got mixed up, okay?
#
So what they did was they said, we're going to create a collegium system.
#
The collegium is led by the Supreme Court of India and two of the senior most judges.
#
And these three people will come up with a list of who needs to be appointed and who
#
needs to be transferred.
#
And they will give this list to the cabinet or the president in whose name the appointments
#
are made and their recommendations are binding and they cannot be violated, okay?
#
Now as you can see, this is a drastically different system from what was actually written
#
Some people thought this was the most amazing thing that had ever happened and the judiciary
#
had finally come of age and declared its own independence.
#
Many others felt that this is outrageous and very self-serving activism and this is going
#
to create a situation where there is no external scrutiny or check on the judiciary.
#
And it's basically a self-appointing system, right?
#
Only the current chief justice of India determines who are the next people who rise to the bench.
#
So it's extremely problematic.
#
A presidential reference was made in 1998.
#
The president of India can ask the Supreme Court to clarify on matters of law or national
#
And this presidential reference in 1998, again, the court put in a few more safeguards to
#
So it's called the third judge's case.
#
So they added some more safeguards to the second judge's case.
#
They said that, you know, the collegium must meet and the minutes must be recorded.
#
It must be a transparent system.
#
And the collegium is going to be not the chief justice of India plus two judges, but chief
#
justice of India and the next four senior most judges.
#
So the collegium will have five people, right?
#
And this will be the group that determines who is appointed and who will be promoted
#
to the Supreme Court and so on.
#
And they will give their list to cabinet and the president will make these appointments.
#
Now once again, coming to the importance of convention, when all this was happening in
#
1998, you can imagine that if it had been Indira Gandhi, who was the prime minister,
#
she would have just shut the whole thing down, right?
#
But it just so happened that people who had lived through the emergency and, you know,
#
better, more statesmen leaders were beginning to come to power.
#
And immediately after that is the time of Vajpayee, right?
#
And it seems to be quite clear that everyone in the executive thought that this is a very
#
bad idea, but they shouldn't mess with the independence of the judiciary.
#
And they should respect this opinion, right?
#
So presidential reference was made.
#
Once the Supreme Court clarified the matter, the matter was left alone.
#
So from 1993 until 2015, we had a second system of appointments, which was by collegium.
#
And before that, you know, from 1951 to 1993 was the first system of appointments, which
#
was by consultation, right?
#
Aside from the shenanigans of Indira Gandhi.
#
So this was really what was going on.
#
Now you don't need much of a legal education to guess what would happen in a system like
#
So, you know, the usual, which is nepotism, which is not the most qualified people rising
#
to the bench, but people who have connections, right?
#
So if you have served and you had on good relationships with the sort of like the elite
#
judicial coterie, then you are promoted a lot of children and grandchildren and siblings
#
of past justices were promoted and they rose to the top.
#
And some internal corruption really started setting into the court system.
#
So there was a time when the court system was really beyond reproach.
#
You know, giants had served on the court and they were really, they held themselves to
#
such a high standard and never put a foot out of place and it was really important that
#
they not only did what is right, but also seem to do what is right, which is, you know,
#
hold themselves to a higher standard.
#
Now all of them that started disappearing under the collegium system.
#
And it became quite clear that the Supreme court and all the judges were a little bit
#
like, you know, power drunk and they thought they could do whatever they wanted.
#
This is, you know, the eighties, nineties and since the 2000s, especially the nineties
#
and the 2000s is also the most activist form of the judiciary.
#
So the Supreme court butts its head into every policy matter.
#
It is legislating from the bench.
#
It passes daily orders on all matters from taxation, which was never under its purview
#
to the powers of pretty much every other institution, right?
#
So the Supreme court has become its own powerful giant and this entire, you know, sort of jugglery
#
trick worked because the people had a lot of faith in the institution.
#
So as long as the public supports you, in a sense, you can sort of get away with a lot
#
of procedural problems, right?
#
So the people of India thought the Supreme court is this hallowed institution and that's
#
really where we get justice through specialty petitions and public interest litigations
#
and all of those things.
#
And it seems to be the last uncorrupted bastion.
#
So the Supreme court got away with this for a long time.
#
And then once the corruption started becoming more and more public is when, you know, sort
#
of the music stopped and you had to take stock.
#
So before we go to that part of the story, let's take a quick commercial break.
#
And then when we come back, I also want to ask you more about the activism of the court,
#
the legislating from the bench, so to speak.
#
But first, let's take a quick commercial break.
#
Welcome to another week on the IBM podcast network.
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And with that, let's go on with your show.
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Welcome back to The Scene and the Unseen.
#
I'm chatting with Shruti Rajgopalan about the state of our judiciary and my next question
#
following on from what you were speaking about before the break is really about judicial
#
I mean, forgive the newbie question, but my impression of the judiciary always was that
#
look, the judges are basically supposed to interpret what the laws are or what the constitution
#
says and their judgments are on the basis of that.
#
Their own opinions don't really matter.
#
They can't to use that phrase, legislate from the bench.
#
It's a job of the legislature to legislate.
#
And what the Supreme Court simply does is that it interprets existing laws and the constitution
#
and partial judgments based on that.
#
Now a number of the judgments that we've spoken about in this episode, whether it's for example,
#
the basic structure judgment, where I wonder on the basis of what do they decide what the
#
basic structure is if the constitution doesn't mention that or the 1993 second judge's case
#
where they decide that there should be a collegium and this is a procedure and blah, blah, blah
#
on the basis of what do they decide that or even the Vishaka judgment, which both of us
#
agree is excellent and a really positive move forward, but on the basis of what do they
#
Because the point is that once you accept that the judges have a right to sort of legislate
#
from the bench as it were, then depending on which people are on the bench, they can
#
legislate absolutely anything, right?
#
So, you know, there are two, three different views on this and I'll finally come to the
#
point that no matter which view you take, the Indian Supreme Court is still doing the
#
So the first view is, look, it is always the job of the court to be conservative and not
#
And what do we mean by activists?
#
Now there are two ways to think about the role of the judiciary, right?
#
So the first is it provides a check and balance.
#
So you know, whatever the executive and the legislature do to preserve principles of natural
#
justice and the spirit of the constitution, you need to provide a valid check.
#
Now based on this kind of interpretation, if your legislature and executive are going
#
bonkers, it means your judiciary can go bonkers, right?
#
So if you have a legislature, which is repeatedly amends the constitution, then you're going
#
to end up placing the judiciary in a situation where they may also have to exceed their powers
#
a little bit or their original powers a little bit or get more creative with their interpretation
#
to actually give a solid check to the legislature and the executive.
#
So this kind of activism, most legal scholars are quite comfortable with in the sense that
#
they feel that the job of the judiciary is to really pursue in a very spirited way, really
#
pursue the protection of individual rights and the constitution.
#
So in this sense, a lot of the activism that happened say during the emergency, you know,
#
like Justice H.R. Khanna's opinion in Keshwanand Bharti or Jabalpur versus ADM Shrikanth Chokla,
#
these are all legendary cases where there could have been a textbook interpretation
#
and they went a step ahead of the textbook interpretation, but the goal was still to
#
protect individual rights and it wasn't self-serving in the sense that it wasn't increasing the
#
power of the judiciary.
#
So basically by the spirit of the book, if not the actual words, because the actual words
#
can be changed at any point.
#
Now there's another version of what is the role of the judiciary.
#
So first is checks and balances, right?
#
The second part of it is a very Adam Smith division of labor kind of view of the judiciary.
#
In fact, Adam Smith writes about this in The Wealth of Nations, that there are two roles.
#
One is the functional task, which is, you know, the judiciary's job is really to go
#
through a lot of evidence procedure and actually adjudicate.
#
And that's a highly specialized task, right?
#
The legislature's job is to amalgamate preferences of millions of people.
#
And that's the legislature's job.
#
The executive's job is to execute the goals of the government, you know, as conveyed by
#
the legislature or the preferences of the people.
#
So these are three very fundamentally different tasks.
#
You know, this is as different as the butcher, the brewer and the, and the baker.
#
So in that sense, the one way to think about judicial activism is you're really doing jobs
#
which are outside your expertise and outside your purview, which is why you must be limited.
#
So, you know, things like fiscal matters, about taxation, about government spending,
#
about, you know, I'll give you a good example of this.
#
Now think of the CNG cases.
#
Do you, do you remember when they changed all the fleet of buses in Delhi and then eventually
#
in other states from diesel to CNG?
#
Do you have any memory of this?
#
So this happened in the early 2000s.
#
No, but I mean, you're also not from Delhi.
#
So you know, you may have not really lived through it.
#
So this was when the early 2000s, I was in high school, just starting college, overnight
#
the court just, you know, there were a series of cases by MC Mehta, who was sort of like
#
this environmental activist.
#
And he said, you know, people of Delhi can't breathe and you can imagine he said this like
#
Can you imagine what they would say today?
#
They said the biggest problem is all the particulate matter that comes out of these diesel buses.
#
We need to make sure that all the diesel buses change to CNG overnight.
#
Now think about what it takes to change an entire fleet of government and private buses.
#
You need an infrastructure.
#
First of all, these buses need to exist.
#
Then you need to refit them.
#
Once you refit them, every petrol pump in the city needs to outfit itself with a CNG
#
Now the court simply said, change 10,000 buses to CNG.
#
They gave them a deadline, the Delhi government violated the deadline.
#
They gave them a second deadline, the Delhi government violated the deadline.
#
Supreme court got so sick of the Delhi government, they just said, diesel buses cannot ply after
#
And overnight, it was like a Soviet Union, I mean, there were no buses and all the autos
#
and buses, even the ones that had CNG, the lines outside the petrol stations and the
#
CNG stations were, I mean, you really thought you're living in a shortage Soviet style economy.
#
Like these four auto rickshaws and bus drivers would stand in line for three or four days
#
to get one tank full of CNG and then continue again.
#
So now if you think about this from the point of view of the, you know, functional separation
#
of powers, not just the checks and balances, this is about specialisation and knowledge.
#
The courts, which basically adjudicate disputes, which are over a matter of fact or matter
#
of law, they simply don't know how to execute a transition from system A to system B, which
#
is a question of governance that is squarely in the pocket of the executive.
#
The court said, Oh, we didn't know that, you know, there will be the CNG problem.
#
It's like a classic knowledge problem.
#
Of course you can overnight convert and say the buses are going to run on CNG, but you
#
can't produce CNG out of thin air and make it available exactly where the people need
#
This would have required the Delhi state government issuing new licenses to all the petrol pumps,
#
creating new petrol pumps with CNG.
#
You know, it's a whole infrastructure that takes place and the government knew about
#
And it's so funny that the Supreme court justices who are very smart people didn't know about
#
it because it's simply not within that purview to know this.
#
On the second matter, which is this question of, you know, the functional knowledge to
#
execute on some of these tasks, those are the more like very problematic questions of
#
judicial interference or judicial activism.
#
You know, you have ludicrous examples of this.
#
So the Delhi high court at one point was trying to legislate or standardize the height of
#
speed breakers in Delhi.
#
Is it really the job of the courts to decide what the height of speed breakers is?
#
And I'll tell you how the matter came about.
#
Resident welfare associations were randomly building speed breakers near schools or in
#
front of their house to reduce the number of accidents, right?
#
Because we have such poor sort of traffic rule following spirit in India.
#
So people were doing all this and they realized that all the speed breakers are of uneven
#
heights, which apparently is a matter of national importance.
#
Someone filed a public interest litigation and the public interest litigation now decided
#
whether or not you can have speed breakers and how high these speed breakers should be.
#
And you think about it and you're like, really the pendency of cases is extraordinary at
#
There are people in jail who are being, you know, deprived of their rights because the
#
cases are going on for too long.
#
There are land dispute cases where the original parties to the case have died waiting for
#
And the Supreme court thinks that the most important thing is to legislate from the bench
#
on CNG and the, you know, Delhi bird sanctuary and the air quality and the height of speed
#
And this list has become extremely long.
#
There is virtually no area of Indian governance where the Supreme court has not given its
#
opinion one way or another.
#
Now I'm having this very funny image of Supreme court judges in their black robes measuring
#
the height of speed breakers on Delhi streets as CNG autos whizz by and, and a classic example
#
of this in a domain, which I know fairly well is the interference of the Supreme court and
#
the BCCI in Indian cricket.
#
What the COA is doing where they're completely clueless about how to run Indian cricket.
#
And I don't even know whether they actually have the jurisdiction to interfere in the
#
way they are, but that's a separate issue.
#
And it's just so happened that, you know, the people of India are so tired of waiting
#
for procedures and governance and they are so exhausted by executive inaction that they
#
think they have no choice, but to go to the court.
#
I'll give you another example of activism in the Supreme court.
#
And how this activism can be very problematic.
#
So one of the reasons that the activism started in the 1980s was as a social justice program.
#
You know, bonded laborers, you know, this is a Badua Mukti Mocha case that came out
#
of the mining community.
#
They were like mine workers and bonded laborers who were just living like such a horror in
#
their daily life and their workplace.
#
And they didn't have much voice or agency, right?
#
And through a series of cases, the court started interfering and actually assigning positive
#
And another very interesting thing that the Supreme court did at the time was it reduced
#
what is called the locus standi requirement, right?
#
Normally in any court case, the parties to the case need to show that they have standing,
#
you know, if you wanted to use a very contemporary economic term, it would be skin in the game,
#
They have to show that they are actually affected parties in this particular dispute.
#
And that's why they're coming to court.
#
Now the court said, you know, a lot of the people who are deprived of human rights, like
#
children, like minorities, Dalits, bonded laborers, they really don't have the agency
#
to come forward and represent themselves.
#
So if a public interested or public spirited human being came to represent them, we will
#
Now you can imagine this is such a great thing, right?
#
I mean, like diluting locus standing so that we can help slum dwellers and we can help
#
bonded laborers seems like such a, it seems like activism, but the right kind of activism.
#
Now let me explain the problem with this random people come out of the woodwork representing
#
problems where they are not directly affected, right?
#
And if you represent problems where you're not directly affected, one, there is an incentive
#
problem, but there is also a knowledge problem.
#
Delhi lawyers who live in elite Delhi areas and Delhi judges who don't take auto rickshaws
#
and don't take buses are legislating on matters where they have no skin in the game and they
#
have nothing to lose and everything to gain and the other side parties end up being underrepresented.
#
Now let me give you the worst example of diluting locus standard requirements.
#
Now if you remember our entire journey in our country with section 377, originally the
#
Delhi high court in the NAS foundation case had struck down 377 and upheld the right to
#
same sex consensual relationships, right?
#
This was a Delhi high court judgment.
#
This court appealed to the Supreme court and the Supreme court overturned it, right?
#
This was all the drama that took place before what happened last year.
#
Now if you look at Supreme court overturning the Delhi high court case and you actually
#
look into the matter, you'll notice that NAS foundation did not appeal the Delhi high court
#
The government at the time, which was the UPA government and the Delhi government did
#
not appeal the case, even though they lost, they said, you know, the courts have spoken.
#
We are okay with 377 being struck down.
#
The person who actually appealed the case was a Hindu astrologer.
#
Second, this Hindu astrologer was not a party to the original suit.
#
So it's like there are two teams playing cricket and now someone who was neither a player nor
#
the umpire, not the spectator, but was, you know, standing and eating mangoes outside
#
suddenly comes in and says, I think this game and its outcome was unfair.
#
And the court heard it and they had to because they are bound now by their own precedent
#
of diluting standing requirements.
#
And if anyone can come and appeal anything, guess what?
#
Anyone will come and appeal anything.
#
And that is so according to me that Supreme court case was not just bad law, it was bad
#
procedure because they just randomly allowed, you know, a third party who had nothing to
#
do with the case to come in a little too late and they heard the appeal and then they overturned
#
So according to me, you know, all the activism of the Supreme court got in the way of all
#
the activism of the Supreme court, right?
#
This is the problem with having these terrible inconsistent set of rules and not binding
#
yourself with procedure.
#
So when you're asking broader question of judicial activism, some of it has held us
#
in good stead because I have to say in a world where no other institution was really checking
#
the power of the government, it was only the judiciary.
#
Now the poor outcome of that is the judiciary grew too big for its own boots.
#
It interfered in everything from the speaker's powers to election commission, to how parliament
#
must be run, to how tax policy must be made.
#
And now we are in a giant mess where it is very difficult to roll back this kind of authority
#
without actually interfering with the independence of the courts.
#
And so now what do we do is kind of the big question going forward.
#
So our problem is really now who will watch the watchman kind of problem.
#
I just wanted to complete your thought.
#
I think we kind of got waylaid where you were saying that there are three views on judicial
#
One was checks and balances that they act as a balance on an overactive executive.
#
And the second is the whole division of labor thing.
#
And the third, I forgot to mention the third.
#
The third is that the activism must not be self-serving.
#
You know, there was a lot of support for the Supreme Court activism as long as it was advocating
#
genuinely for the powers of others.
#
You know, the Vishakha case is a classic example.
#
Did they legislate from the bench?
#
And as a constitutional economist, do I think that's a good idea?
#
But was that public support and intellectual support and legal support for the case?
#
I mean, worldwide, it was a landmark judgment.
#
It has been cited in opinions in Europe, in America, in Africa.
#
It's really an extraordinary case in the sense that the court stepped up when virtually no
#
other public institution stepped up.
#
And frankly, they made rules.
#
They put in rules and guidelines, which is what the courts do from time to time.
#
They fill in gaps in law.
#
Now, in this case, of course, they created law from scratch, but it is still somewhat
#
within their functional expertise.
#
But it was not self-serving.
#
If you look at the second and third judge's case, it's a completely self-serving document.
#
It is all about their power.
#
If you were genuinely interested in independence of judiciary, wouldn't you increase retirement
#
age and completely ban Supreme Court justices from taking any government appointment after
#
That is like crucial to independence.
#
But they don't really care about independence.
#
They care about the fact that they should be allowed to do whatever they want, but also
#
have their cake and eat it too.
#
So if they want to go the other way and lobby for some government posting, they should be
#
allowed to do that too.
#
So I think the court has been very self-serving and disingenuous.
#
So in some sense, this is not so much about rules and checks and balances, but about the
#
functional legitimacy of the court.
#
People are more likely to accept an activist court when the activist court is once again
#
run by statesmen who know when to do the right thing.
#
And we have not had those people.
#
Now the public choice in you and me would say, Hey, these horrible rules would never
#
produce the right people.
#
But once upon a time, we did have genuine statesmen, activists as they were.
#
Krishna here was an extremely activist judge, wrote horrible judgments, created a lot of
#
problems in labor law and labor jurisprudence that we have until today.
#
But none of it was self-serving.
#
I think, you know, but you know, I've in the public choice column that I write for
#
Bloomberg Quint, I think the first of those examined the question of in the context of
#
politics, why we had such outstanding leaders in the post immediate post independence generation.
#
And I think the same reason would apply to justices to some extent as well, which is
#
that it's a residue of a time where the incentives were different for people to get into politics.
#
If you got into politics or public service in those days, there wasn't so much in it
#
You were less likely to be driven by the lust for power or money.
#
I mean, obviously none of our freedom fighters had access to any of that in any case.
#
And you were more likely to be animated by higher principles.
#
And I'd say that it's kind of inevitable that given the shoddy rules that we have that
#
we will end up over a period of time with a bunch of scoundrels, both in politics and
#
I completely agree with that, that over a period of time, if you have a bad set of rules
#
that actually don't check people and don't constrain people, then it creates a situation
#
where you have, there will be enough sort of crazy people in society or self-serving
#
people in society who will try and manipulate those rules to their benefit.
#
And if the bad rules and systems continue over a period of long time, then there is
#
no question that eventually that group will take over.
#
And that's exactly what has happened with the judiciary.
#
We talk about dynastic politics and nepotism, there is no institution with greater nepotism
#
than the court system in India.
#
I mean, we have way more number of father-son, Supreme Court justices pairs, then we have
#
father-son or brother pairs of chief ministers or prime ministers or something like that.
#
Now, there is one part of it is all of India is dynastic, the son of a potter becomes a
#
potter kind of problem.
#
But there is also a question of nepotism and connections and do you know how to navigate
#
the system and hobnob with the right people such that they nominate you to the bench.
#
And when the judicial system is completely insular in its appointment systems, this is
#
just far more likely to happen.
#
Also, this is the kind of situation where you get a lot of possibilities of sexual harassment
#
Now think about it, if the Chief Justice of India, now that's not what happened in the
#
In the current case, the complainant is not a judge, but is a staff member.
#
But you can very easily imagine, if enough women make it to the bench, the day is not
#
far that if all the appointments are controlled by these five men right on top that they can
#
Now, we haven't had that problem yet because there are so few women in the system.
#
I don't know if that's a benefit or a problem.
#
But so far we haven't had that, but very soon you're going to see those kinds of problems
#
And I think the biggest problem is when the court system does things like this, it is
#
legitimacy in the eyes of the public.
#
Justice must be done, but it must also seem to be done.
#
In some sense, this is all a bit of a magic trick.
#
We all believe that magic is happening and then it's happening.
#
Now if we start questioning that this is really not what it seems to be, the whole institution
#
will come down like a pack of cards.
#
Because the court doesn't really have any power of its own aside from public legitimacy.
#
It doesn't control the purse strings and it doesn't control the sword.
#
So the court system only survives if the people who are vested in the court system think that
#
it has a right to exist.
#
So if there are more situations like this, which is basically a problem propagated by
#
the appointment system, but if there are more situations like Chief Justice Mishra who sat
#
in his own cause and same as this current Chief Justice Gogoi who sat in a matter in
#
his own cause, very soon that legitimacy will be lost.
#
So that's a problem and it can't be fixed overnight.
#
You can get rid of a bad judge overnight, but this public legitimacy, it just can't
#
This whole situation of a judge sitting in a case where he is the accused feels to me
#
like the batting side in a cricket match also being the umpire.
#
So the captain of the batting side will decide whether somebody is out LBW or not.
#
Is Ludhikrishnan, I had an episode.
#
Can I interrupt and give you an example of that?
#
When we were kids playing cricket, the person who owned the bat decided whether that person
#
I don't know if this was your experience, but the kid who owned the bat never got out
#
because we all had to wait our turn to bat because we didn't have one.
#
So it's a little bit like that also.
#
You see a lot of that happening in India.
#
And I had an episode a year back on judicial reforms with my friend Alok Prasanna Kumar
#
and you know, he made a very similar point to what you're making now where he spoke
#
about how our Supreme Court has a diversity problem.
#
And in my mind, the ramification of this is not just in terms of representation and so
#
on in a democracy, but also it impacts decision making.
#
Like one of the best books I've read in the last few years is a book by Philip Tetlock
#
called Super Forecasting, which refers to a study which showed that the most important
#
parameter for good decision making is diversity.
#
It's not any of those things.
#
But diversity and the more diverse that a group is, the more likely you are to make
#
For example, you spoke about the judicial activism of the Delhi High Court earlier where
#
they spoke about, you know, all the buses have to go CNG.
#
And you imagine that the court was diverse enough that there are people who've actually
#
grown up riding around in buses and auto rickshaws.
#
Maybe they might have had greater foresight in that situation and not done what they did.
#
But that aside, so, you know, what I see here is a worst of both possible worlds.
#
On the one hand, the judiciary is not quite independent from the executive because of
#
bad incentives in play, such as post retirement options where the government can always hold
#
out carrots in front of judges and say that, OK, after you retire, this is what you get
#
and you get that card with the red button on top.
#
And on the other hand, it is also too powerful in and of itself because it controls the appointment
#
process through the collegium.
#
The second judge's case of 1993, as you pointed out, a case of judicial activism, which was
#
So this is like a double problem now.
#
It's very difficult to solve it.
#
So, you know, in all credit to the Modi government, they tried.
#
They passed a constitutional amendment, which was called the NJAC, you know, the National
#
They amended Article 124217 and basically they changed the appointment procedure in
#
the formal text of the Constitution.
#
So it was a full constitutional amendment.
#
And this constitutional amendment basically said that the Collegium will not just have
#
members of the judiciary.
#
So the Collegium will be the Chief Justice of India and two justices, but it will also
#
represent the law minister.
#
So one position out of six will go to the executive, three positions out of six will
#
That is the CJI and the next two senior most justices.
#
And it had a provision that there will be two eminent persons who will be on this Collegium.
#
And I think the idea behind this was, look, there is a problem with the executive having
#
a 50 per cent stake because, you know, the government of India, both the union and the
#
state governments is the largest litigant before the court.
#
So in that sense, it's a problem to have too much representation.
#
So they kept it down to one person.
#
And they had this for, you know, two eminent people from society sort of provision.
#
And there was also provision that there should be enough women and minorities, right, within
#
the group that chooses these eminent persons and three from the judiciary.
#
Now, it is not the best system, according to me, but I think it would have still been
#
an improvement over the current system.
#
Because there was a genuine recognition that the executive needs to participate, but not
#
And the Supreme Court struck this constitutional amendment down, saying it violates the basic
#
structure and went back to the system of the Collegium.
#
So you can't actually, so they get to rule on anything which affects them using the excuse
#
of the basic structure.
#
But using the basic structure.
#
So then what happened was, I mean, the executive is also clever.
#
So the cabinet didn't appoint judges for a long time.
#
You know, I think this last week, we are finally operating at a full strength of the bench.
#
So the chief justice would send names and the cabinet just won't appoint them.
#
So they were in deadlock, which basically meant justice suffered because the bench is
#
not operating at its full strength.
#
So the cabinet was very clever in that they didn't do anything overt, but they also knew
#
when to dig their heels.
#
So now it is a more collaborative process, but there are some other very big problems
#
Now let's say they wanted to be completely insular.
#
That is, it was the chief justice of India plus four justices.
#
It would be so much better still if they made the procedure transparent.
#
That is, if the Collegium sat and they actually took down minutes to the meeting.
#
In every meeting they told you how many of the members of these five, you know, members
#
of the Collegium support every appointment or oppose every appointment.
#
You know, since the second judge's case and you know, it's confirmation and the third
#
judge's case, we don't have any minutes to Collegium meetings.
#
And if they did exist, which institution has the authority to subpoena them?
#
How can we demand to see these minutes?
#
So the procedures that came about in the third judge's case, which the Supreme Court had
#
enforced, they are not being followed by the Supreme Court.
#
So the Supreme Court is sort of running its own like Gundaraj kind of thing, right?
#
It does whatever it wants.
#
Justice Chalameshwar actually came forward and said that I am in the Collegium, but it
#
is not recording meetings and it's not recording dissent.
#
If you remember last year, there was that famous press conference by the four senior
#
most judges against Chief Justice Deepak Mishra about the master of the roster and all of
#
And one of those issues was also the Collegium.
#
So there is a really big problem in that the courts think that any requirement of disclosure
#
or scrutiny is a threat to their independence, which is simply not true.
#
I mean, this is just really, it's sort of like, you know, in the Soviet, the Duma, there
#
was a, one of the protections was that no member, there can't be any criminal charges
#
against members of the Duma.
#
So guess what happened?
#
All the criminals ended up in the Duma, right?
#
So it's one of those sort of things where if you create a system where you are completely
#
above scrutiny, then only those people who really wish to be above scrutiny are going
#
to lobby for these spots.
#
All good, decent people are going to sort of stay away from this system.
#
Because if you're not a politically motivated judge, you won't survive in this current judicial
#
jungle of the Collegium.
#
So this is sort of the problem.
#
There are some other problems also, like the retirement age is frankly too low and particularly
#
with reference to the High Court.
#
So you know, the High Court retirement age is 62.
#
So the way it works is mostly Supreme Court justices are promoted up from the High Court
#
and mostly it is when the High Court judges retire.
#
So the average term of a Supreme Court justice is just around two years.
#
And the average term of a Chief Justice is about six to eight months.
#
We've had Chief Justices who serve three weeks because of the seniority rule.
#
So there is a lot of churn at the top, you know, so that is one very, very big problem.
#
That's a diversity problem also, because if most of your judges are coming up from the
#
High Court, then you are getting a very sort of like monochromatic picture of what the
#
judiciary needs to look like.
#
Everyone looks the same and has the same kind of experience.
#
Now if you read books about the judiciary originally by George Gadboy, you know, who's
#
done profiles of all the judges, you will notice that even initially both the High Court
#
and the Supreme Court were mostly men, upper caste Brahmin men, who had some legal training
#
and had family, which was like a family of lawyers, right?
#
So there wasn't too much diversity when we began either, but it seems to have gotten
#
There was a little more diversity of thought because they came from different High Courts
#
and different backgrounds personally, but now it's all very elite, upper caste, privileged
#
people whose family have excellent legal and political connections, who are sort of moving
#
up the bench in the court system.
#
And there is a really big problem of minority representation in terms of other religions,
#
women, Dalit community, it's a really big problem right now, right?
#
So it's both diversity of individuals in terms of identity and also diversity of ideas.
#
Like you said, you know, if you've never ridden in a bus, you don't know the problems of
#
shutting down a bus service.
#
So it's a little bit of both and the Supreme Court is now completely captured by this mess.
#
And it's not easy in terms of what is the way out of this.
#
I mean, the new Modi government could have some renewed pressure.
#
You know, I mean, this, this new term is got such a loud and large mandate in favor of
#
Narendra Modi and given the complete mess that has been made by the Supreme Court in
#
the last year and a half, it is possible that if another constitutional amendment is pushed
#
forth with a sensible set of appointment rules and procedures, it is possible that the public
#
will support the government and not the Supreme Court for the first time in a very long time.
#
So there are some possibilities.
#
So I should point out to my listeners that we are actually recording this on May 23rd,
#
which is the date of the election results.
#
They've just been announced today morning.
#
We're recording this in the evening, which is why we are not talking about the executive
#
or the legislature, but about the Supreme Court, Sally.
#
And it seems to me that in all of this, there is a sort of a, this fundamental trade off
#
that has to be made between on the one hand, the independence of the judiciary, which is
#
But on the other hand, between the accountability of the judiciary, which also matters a great
#
And thirdly, the competence, frankly, I mean, Amit, if you read the more recent judgments
#
and opinions, they are just a horror.
#
I mean, and when I say a horror, I'm not being a snob, like, oh, you know, it's grammatically
#
incorrect or not formatted.
#
I really mean in terms of points of fact and points of law, these judges seem to have just
#
come out of nowhere and they seem to just write whatever flies into their mind.
#
And there is no sensible reasoning reason has left the Supreme Court building completely.
#
So that is, I think the greatest loss in all of this.
#
We are having a huge body of law, but that law has no reason in it.
#
So it is not very useful in terms of being binding as, you know, precedent in the future
#
because we don't have any sensible like doctrinal analysis on why is it that the courts have
#
come to this opinion or landed on one side or the other side in this particular case.
#
So it's what is being lost is more than just, oh, I don't like this Supreme Court judge
#
and there's a sexual harassment against that Supreme Court justice.
#
That's really not the only thing at stake.
#
There is a huge missed opportunity on what is a sensible body of law and rules.
#
So a couple of quick questions before we wind it up.
#
Number one, from within the judiciary, there have been voices of dissent and change, including
#
from the Supreme Court itself.
#
What is driving those voices and how likely are they to succeed?
#
And number two, you spoke about the NJAC constitutional amendment that the last Modi government tried
#
and you pointed out about how it would be a good measure.
#
What was driving the attempt by the government to sort of get that amendment through?
#
What are their incentives?
#
So I would say, despite my other reservations with a lot of Modi government's policies,
#
on the NJAC matter, they were fairly restrained.
#
I must give credit where credit is due.
#
And this is obviously in comparison to the horrors of Indira Gandhi and the emergency.
#
So they could have done a lot worse given the kind of popularity and mandate they had,
#
but they were fairly restrained, they tried to do it properly.
#
They tried to do it through a proper constitutional amendment procedure and the amendment had
#
a lot of problems, but it wasn't the worst thing that had been suggested and it was probably
#
an improvement over the past.
#
So that is the first thing I want to say about that.
#
The second is, I think the revolution has to come from within if it has to have legitimacy.
#
So you know, I wrote a column a few months ago saying the Supreme Court needs to have
#
So you know the story of Ulysses and the sirens?
#
You remind my listeners, which is one way of saying, I know, but remind my listeners.
#
So Ulysses or, you know, the Odyssey, so him, when he returns from the wars and travels
#
and he's on the ship with all his men, he realizes that he is going to get distracted
#
by the sound or the music of the sirens, right?
#
And what Ulysses does is quite interesting.
#
He pours wax into the ears of all his men so that they are not distracted by the sound
#
And then he ties himself to the mast of the ship and tells his men not to untie him, right?
#
So this is basically like the legend or the mythical version.
#
The idea is that you must tie your own hands because you know that your future self then
#
faced with the terrible incentives will not be able to do the right thing.
#
But your current self already knows that.
#
So you must take precautions for it, right?
#
So if Ulysses has no one else to monitor and govern him the way he could monitor his men
#
and pour wax in his ears, then it is upon Ulysses to tie himself to the mast.
#
That's sort of the idea.
#
So this legend or folklore was, you know, invoked by John Elster when he spoke about
#
constitutional constraints.
#
So that's where this comes from.
#
So I had written a column that said that the Indian Supreme Court needs its own Ulysses
#
pact, which is they need to come up with a system of internal rules and protocols on
#
appointment, on retirement age, and they need to stick by it, right?
#
Now these are experts in lawmaking, right?
#
So they need to create a culture where they come up with a very clear set of rules on
#
appointment and they have disclosure requirements, right?
#
Another is they need to have protocols for recusers, which is if you are adjudicating
#
your own case or it's come before your bench, when must you recuse yourself and when can
#
That's another kind of situation that needs protocols.
#
Then a third situation that needs protocols is, should there be some kind of like moratorium
#
or a gap before you're allowed to take other paid work or, you know, work for the government
#
You know, you also don't want them working for Adani immediately after they sat on a
#
bench which has a judgment affecting the Adani companies or something like that.
#
So we need to have rules and protocols for all this and there are two parts to the rules
#
First, they need to be put down and the second is, we do need some leadership within the
#
judiciary to actually enforce this over a period of a few years such that they become
#
Because it's very difficult, I mean, we've tried the bazooka, which is the constitutional
#
amendment and it has failed and the public was with the judiciary at that time.
#
So the judiciary needs to save itself because if they won't let any sunlight from outside,
#
they need to come up with a set of rules.
#
So that is, I think, the number one thing that is required.
#
The second possibility is we burn the whole thing down and build it up from scratch, which
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could be done with a strong leader like Narendra Modi, frankly, you know, he has such huge
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public support and mandate that if he said that the Supreme Court is extremely corrupt,
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which it is, and there's too much nepotism and dynastic whatever in the Supreme Court
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and we need to create a new system by which judges are appointed and promoted, it is wholly
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possible that he might get away with it, right?
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So once again, Narendra Modi will also need a Ulysses pack, like he should not go too
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crazy with the power and the mandate that he has.
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I'm already, I'm already shivering in terror thinking of Mr. Modi changing the constitution
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and putting a new Supreme Court in place and all of that and yeah.
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Well, it won't be a new Supreme Court in place, but it would be a new set of procedures
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to appoint, which frankly needs to come at some point, you know, I mean, it's a little
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hard and you know, in all fairness, he's one fair and square with a huge vote share with
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a huge majority, a larger majority than before, despite all his policy failures and successes.
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So if you truly believe in the constitution and democratic decision making, it is very
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complicated to say that I don't like this guy and therefore he shouldn't get involved
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in a constitution amendment or something like that.
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The only person who has the power to dictate a constitutional amendment is the prime minister
#
with the support of parliament, obviously, you know, but it needs to come from the majority
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And the thing is all our prime ministers in her own words, as you've pointed out repeatedly
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have changed the constitution many, many times and this man has a majority bigger than most
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others, but then I would simply worry about the incentives in play.
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If the executive is to try and redesign the judicial system, because obviously they would
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try to redesign it in such a way that the institution loses its independence.
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I mean, they might be, you know, Mr. Modi might be an enlightened statesman and might
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not do that, but I'm just looking at the incentives and saying those are the incentives.
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But on the other hand, the incentives are pretty bad for the judiciary also to reform
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So we're kind of stuck between a rock and a hard place sort of, you know, it's really
#
difficult and you know, these are the sorts of areas where a great leader can really break
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through, you know, there's an incentive problem on both sides, there's an incentive problem
#
on all sides and it does take a great leader to rise above the incentive problem.
#
So, you know, it's possible that it could come from like the next chief justice of India
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or the one after, but it's also possible that it comes from Narendra Modi who wants to make
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a place for himself in history, you know.
#
And the chief justice has changed fairly fast, right?
#
So as they change very quickly, there is a chance that there'll be some guy who will
#
say, Hey, let me, let me seal my legacy by doing this thing, which I know is kind of
#
So the trouble, you know, we kind of need someone who's around for three, four years.
#
I'll tell you why we need someone to put the rules in place and enforce them and create
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a culture over 50, 60 judges journey.
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You know, that's when it really takes.
#
So I think justice Chandrachur is the next one in line, not immediately, but is the next
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one who will have a fairly long term.
#
So my hope is that maybe, you know, his term is long enough.
#
You know, this is your classic residual claimancy problem, right?
#
So initially when we used to talk about courts, we used to say the Kanya court, the Shastri
#
So the chief justice who was leading the court was sort of responsible for what happened
#
during that time in terms of its jurisprudence and procedure.
#
So we have no one to take ownership of the court because the churn is just so high.
#
So I think one way of thinking about the incentive problem is like you said, you know, someone
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just like justice Sikri on his last day of retirement just gives you the crazy nuclear
#
judgment of Kesha and Bharti and then flies off into the sunset, right?
#
The other possibility is someone says, I'm here for five years.
#
My reputation depends on it.
#
And I have a chance to really reform and put down some rules and actually enforce the rules
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and turn them into convention.
#
So I think both are possible.
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The question is what will happen and who will do it.
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If Justice Chandra Choudh is listening to this episode, kindly do something about us.
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Get us out of the spot.
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Shruti, it's been great talking to you today as usual.
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It's always a pleasure.
#
If you enjoyed listening to this episode, you can follow Shruti on Twitter at S Raj
#
You can follow me at Amit Verma, that's A-M-I-T-V-A-R-M-A. You can browse past episodes of The Seen
#
and the Unseen at www.seenunseenradain.com and www.thinkpragati.com.
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The Seen and the Unseen is supported by the Takshashila Institution and Independent Center
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for Research in Education and Public Policy.
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Takshashila Institution offers 12-week courses in public policy, technology policy and strategic
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studies for both full-time students and working professionals.
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Visit takshashila.org.in for more details.
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Thank you for listening.
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