India at 75: Judiciary has become near-perfect example of Russell's paradox

The question "who judges the judiciary" is fundamental since it appoints its own members via the Collegium system introduced in the early 1990s

This is the third in a six-part series on how institutions—Constitution, Legislature, Executive, Judiciary, RBI and Concluding article—have worked since independence. This series will appear on Mondays, Wednesdays and Fridays in the run-up to 75th Independence Day on August 15. Part 1 Part 2

How does one judge a judiciary? There are no simple answers to this question because, in most cases, justice is a zero-sum game in which one side wins everything, and the other gets nothing. So being aggrieved with judges is natural. Clearly, that cannot be a basis.

But in the Indian case, we can use consistency as a good proxy. As Arun Shourie has demonstrated so effectively in his book Courts and Their Judgments: Premises, Prerequisites, Consequences, there is a lot left to be desired. Consistency hasn't been a virtue that our judiciary can truthfully boast of.

The Indian judiciary, like in all countries, has also had to adjudicate between the government and the citizens. This intervention is, by far, a more critical yardstick and a very tough task because, quite often, what governments want to do is as justified as what the citizens don't want them to do. How does a judge decide that the interests of 1,000 people are subordinate to the interests of 100,000? Or, for that matter, the other way round?

In this context, the Supreme Court's judgment on the Ninth Schedule — which contains 284 items beyond judicial review — assumes great importance. The Court ruled that it would review a law if fundamental rights were violated.

"Justification for conferring protection, not blanket protection, on the laws included in the Ninth Schedule by Constitutional amendments shall be a matter of Constitutional adjudication by examining the nature and extent of infarction of a Fundamental Right."

But as we have seen very recently in the Enforcement Directorate case, the judgment could have well been the opposite. The Ninth Schedule ruling could still be reversed at some point in the future. After all, the US Supreme Court reversed American women's right to abortion.

In a generous measure, this tendency — to what Mr Shourie once called flip-flop — is because the judiciary has run into the same problem as so many of our institutions have: its members are appointed by politicians whose party happens to be in power. Doubtless, this is true of many countries. But many of them have a system of confirmations, notably the US. The absence of such hearings means a judge must be acceptable only to the government of the day. No one else has a say, which is not good.

Simultaneously, since 1980 when the Supreme Court admitted the first public interest litigation, the judiciary has been torn between justice and equity. Justice is about the individual, whether a person or an entity, but equity is about justice between groups. An excellent example of this distinction is the reservation of seats in educational institutions.

Sometimes the judiciary ventures into areas that are, and should be, the preserve of politicians. We then get judge-made laws even though courts are not charged with making them, but only applying or interpreting laws. Until the law is changed, they can only maintain the existing one. This was the point made by a Chief Justice way back in the 1960s when he said he understood why politicians were in a hurry but that it was up to them to change the law. Till this was done, the courts would have to do their duty.

But in the last 25 years, they have also sought to make the law on matters of equity. In fact, in recent years, they have also been encroaching into areas that belong to the Executive. Successive governments have complained about this tendency. It doesn't seem to have made much difference. However, it must be said that more often than not, the judiciary has intervened in the Executive's domain because the latter hasn't done what it must.

In the final analysis, however, our courts have stoutly defended the rights of citizens against the short-termism of politicians steadfastly. But in the process, the judiciary has also expanded its remit.

But the practice of sometimes being hyperactive in a class action has come at a cost: justice in individual cases. There are over 70,000 cases pending before the Supreme Court, out of a total of 48 million cases pending in all courts taken together. That's not something the judiciary can be proud of, no matter the cause.

At least one of these reasons lies within the higher judiciary's power to address. This is the practice of hearing verbal arguments in each case. It would be far more efficient if, as in the US Supreme Court, only written submissions were accepted and, in the final hearing, only two hours were allowed to the contending parties.

This takes us back to the question posed at the start: who judges the judiciary? This is especially important since it appoints its own members via the Collegium system introduced in the early 1990s. This system has led to very mixed results, and the judiciary has become a near-perfect example of Russell's Paradox which asks the following question: if there is a village in which the barber shaves only those who don't shave themselves, who shaves the barber?