• Recently respected CJI Gogoi expressed concern on the higher judiciary losing its aura and majesty. This article, humbly presents ten ideas by which SC can restore its glory.

The Motto of the Supreme Court of India is:

यतो धर्मस्ततो जयः

Yato Dharmah Tato Jayah

Where there is Righteousness (Dharma), there is Victory (Jaya)

Chief Justice of India (CJI) Ranjan Gogoi recently expressed concern over young lawyers' unwillingness to become judges, saying one reason was that the higher judiciary was "losing its aura and majesty". 

The CJI said that it was the aura and majesty of the higher judiciary that attracted the talent of the Bar as lawyers were willing to work hard and make sacrifices in terms of money.”

It requires great courage to make an honest confession.

Rather than speak about why things have come to such a pass this article has suggestions on how higher judiciary can regain its aura.

In all humility and without prejudice are some ideas for consideration by the Collegium.

The first realization for the executive, judiciary and legislature is that their performance is constantly watched by people and their views openly expressed on social media.

Respect for any constitutional arm has to be earned through performance otherwise criticism is unsparing. The days of blind respect are over.

As on November 1 2018 number of pending matters in the Supreme Court are 56,320. The ordinary citizen wants quick disposal and resolution of cases. Also note that "delays in courts make it difficult to enforce contracts – and this is a factor in the World Bank's rankings on ease of doing business".

Two, can the CJI hold a press conference and upload on SC website, a time bound action plan to clear backlog.

Importantly CJI must outline steps to prevent accumulation of cases. If this means effective legislative change, CJI team must work with the government to make it happen.

Next is a review of the SC holiday calendar.

In 2018 SC was closed for 5 working days each during Holi, Dussehra and Diwali and 11 working days during Christmas & New Year? Summer break was from May 20 to July 1.

Government servants have only gazetted holidays and are entitled to say 30 days annual leave.

Suggestion has two parts.

Can SC be open throughout the year with judges taking annual leave just like it happens in the government and corporate worlds?

In view of the huge backlog of pending matters can the number of festival holidays be temporarily reduced to at best two days?

The SC also needs greater gender balance.

Out of 27 SC judges (as on 5.12.2018) only three are women.

From "1950 to November 2015 only six women became Supreme Court judges out of a total 229 judges appointed?"

SC Judge Indu Malhotra recently said, “There Is a Gender Bias in Legal Profession and Judiciary. People think women judges are not good enough to grapple with complicate commercial matters.”

When SC speaks of gender equality one might ask why there are such few women judges.

Four, with an increasing number of judges accepting appointments on government panels, their credibility is being compromised.

According to this Indian Express report of July 2012, 'Of the 21 judges to have retired from the Supreme Court since January 2008, 18 got jobs in different government commissions and tribunals.'

Probably there should be a cooling off-period for retired judges say two years.

This is not to imply that retiring judges, a storehouse of knowledge, should not be gainfully employed by the government. So also retiring judges should be refrained from speaking to the media, on issues pertaining to their tenure, for a pre-determined duration.

One of the reasons why the higher judiciary was held in awe because it interpreted law and administered justice.

However, in the last few years SC has devoted time to ban liquor on highways, pollution control, dance bars, disclosure of names of big loan defaulters, use of pellet guns in Jammu and Kashmir, Rohingyas, explosion of non-governmental organisations (NGOs), dahi handi, running Board of Control for Cricket in India (BCCI), etc.

Many SC orders, though well-intentioned, earned the ire of the common man. The general feeling among the public was that the SC did not weigh all arguments heavily in pronouncing judgments on issues such as ban on liquor vends along highways and the partial ban on bursting firecrackers around Diwali.

The firecrackers norms set by the court were clearly violated. This is not to imply that the good intention, sincerity or integrity of the court is being questioned.

Six, the SC must be careful whilst entertaining PIL’s on social and governance issues.

The elected government is in the best position to study the matter and take a call. SC can nudge the executive from time to time. SC should stick to deciding matters based on interpretation of law and not humanitarian grounds.

Often the government refers matters to the SC because it is apprehensive of losing votes. Cases like the validity of Triple Talaq or decriminalisation of homosexuality are prime examples.

In such cases the SC must ask the Executive to take responsibility and pass appropriate legislation. 

It is the responsibility of the legislature, not SC, to make laws. Former judge Justice Katju recently wrote SC judges making laws of their own will lead to chaos.

In November 2018, a law student filed a PIL seeking a direction to the government to provide monthly reports on the performance of the Prime Minister and his cabinet ministers. “Is this the job of the Supreme Court, the bench asked.”

The fact such a PIL was placed before the CJI tells you what is wrong with the current system.

The SC needs to spell out guidelines regarding who can file a PIL and under what circumstances.

Nine, the judiciary was at the forefront in India's battle against corruption. Its orders on 2G and coal scam are worthy of praise. Having said that, can the judiciary sit in judgement on a case when it is not mandatory for its judges to make a public declaration of assets.

In order to make the system more transparent, judges at all levels must make a 'declaration' of their assets and liabilities.

These should be dated, signed and periodically updated at a pre-defined frequency.

Ten, in light of strong and sustained protests against its Sabarimala order SC must realize that social structures play a big role in the development and evolution of society.

It would be worth reflecting on what former President Pranab Mukherjee told the fourth retreat of Supreme Court judges in April 2016.

“Each organ of our democracy must function within its own sphere and must not take over what is assigned to others. The balance of power between the three organs of the state is enshrined in our Constitution. The Constitution is supreme. The exercise of powers by the executive and legislature is subject to judicial review. However, the only check possible in the exercise of powers by the judiciary is self-imposed discipline and self-restraint by the judiciary.”

It is when judiciary recognises its own sphere can there be dharma – “as is inscribed in the logo of the Supreme Court, ‘yato dharma tato jaya’; where there is dharma, there is victory.” 

First published here 

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2 What is Dharma in Hindi

3 Where are the Women Judges in India's courtrooms