The Indian judiciary is an institution trapped in a myth about its own power. The Supreme Court has, on a rather slender constitutional basis, become the most powerful court in the world. It is difficult to think of any significant public policy that is not mediated by judicial intervention. Yet judicial reforms are the one area over which there is the most consensus and least action. In fact, reforms ought to be easy to enact. Many are technical in nature: better computerisation, more effective reorganisation of dockets, tightening up of the conventions of court proceedings, making judges exercise more control over procedural details like granting of adjournments. A small set of minor procedural anomalies have cumulatively a far-reaching effect on the judiciary’s performance. And these are well within the powers of the court to correct. The apex court’s own success in the reorganisation carried out in 1994 that substantially reduced its backlog is a case in point. Yet, in practice, legal reform remains hostage to a vicious political economy trap and poverty of ideas. If the courts are serious about reform, they have to raise certain questions. Why are those reforms, that are within the court’s power to institute, not introduced? The sad truth is that the courts have not acknowledged their complicity in obstructing reform. The second question is more complicated. There are aspects of judicial and legal reform that require the cooperation of a wide range of actors: the government, social scientists, the bar. Have the courts put themselves in a position that they are unable to elicit this cooperation effectively? Are the premises on which legal reform is based flawed to begin with? The court’s approach to reform has been flawed. The Supreme Court’s approach to reform has been to acquire more power for the judiciary. But, oddly, the judiciary has become more unaccountable in the process. The decisions in the Second and Third judges cases, which virtually shut out the executive from appointments to the higher judiciary, were constitutionally dubious. The judiciary simply went from the plausible proposition that the executive had occasionally abused its discretion to the unjustified conclusion that its role in judicial appointments should therefore be diminished. But civil society ought to take the judiciary’s own assessment of itself with more scepticism. There is very little evidence to suggest that the quality of judges appointed to the Supreme Court improved as a result of greater judicial control. At any rate, the criteria for those appointments are even more shielded from public scrutiny. Think of the consequences of the power the chief justice and the collegium of four of the seniormost justices exercise. Recently it had apparently decided to discipline judges from the Punjab High Court who went on strike. The Supreme Court would do well to discipline judges it thinks are errant. But exercising such disciplinary power actions are not evidence of greater judicial accountability, but the very opposite. As citizens, for instance, we ought to know how many complaints the collegium receives. How many of then are made by judges against colleagues? How many complaints are acted upon and on what grounds? All the collegium’s actions demonstrate is that it can choose to exercise discipline when it wants. But the exercise of this power should not be confused with greater judicial accountability. Legal reform requires more than just lawyers and judges. A sensible debate on legal reform is hampered by the almost total disconnect between law and the social sciences. Even on as mundane a matter as clearing backlogs, the courts are not going to accomplish their goals by simply enacting new rules. A thorough sociological and economic understanding of the composition of dockets is going to be crucial to solving this problem. For instance, though we don’t have hard numbers, we know that an overwhelming number of pending cases involve government. The government is a bad litigant, not just because it is often ill prepared but also because it has no incentive to settle. Clearing the backlog will need a thorough analysis of the incentives under which the government operates as a litigant. There is wide variation in the performance of high courts. The Andhra Pradesh High Court has proportionately far fewer cases that have been pending for more than eight years, whereas West Bengal and UP seem to have a larger proportion of such cases. Or take another curious anomaly: at the level of subordinate courts, Gujarat seems to have the highest number of pending criminal cases (almost 2.5 million), even higher than UP. Surely these variations call for explanation. But the information systems of the courts have made serious research into their functioning very difficult. Fali Nariman’s proposed bill on judicial statistics, if passed, will go some way in rectifying this. Various bar associations have demonstrated the extent to which they can oppose even sensible reform. While the courts have called everyone to account they have not been able to break the vicious political economy of the legal profession. The bar’s structure is in part the result of a regulatory regime for advocates that prevents greater professionalisation of the bar. The courts’ powerlessness in the face of actions of court officers, should remind us of how fragile judicial power is. Admittedly, judges have occasionally helped clean our air and protect our liberties but the overall enforcement record of judicial decisions is perhaps no better than that of comparable state agencies. We will probably never know because the author of the one serious social science study of the effectiveness of the PIL was hauled up for contempt and his book was ordered to be withdrawn from circulation by a chief justice who has since been elevated to the Supreme Court. Judicial reform will not be effective unless the courts begin to seriously think about institutional design, the sociology and economics of law and the regulatory regimes that sustain vested interests that constantly jeopardise reform. Instead of attending to these crucial issues, the judiciary’s approach to reform has been to live in a virtual reality of its own making. Its own jurisprudence has made it more difficult to understand what constitutional conventions and the rule of law are supposedly about. The writer is president, Centre for Policy Research. The views are personal
