View: A new CJI provides GoI the chance to have another go at judicial reforms
In a recent interview to ET, Justice Bobde also said he was in favour of creating a national judicial service. GoI has been pushing this idea with the intent to create an all-India cadre of judicial officers from where bulk of future judges could ...
This is not to say that outgoing Chief Justice Ranjan Gogoi was in any way an obstacle to reforms. But his tenure did come in the backdrop of dissent, resentment and overall turmoil in the higher judiciary. This was expressed in January 2018, for the first time in public, through a joint press conference of four Supreme Court judges, including Gogoi himself, who sought to convey their collective dismay over the way the then-CJI was running the show. Subsequently, as CJI, Gogoi did try to smoothen the functioning of the courts. But the corridors of the higher judiciary weren’t quite rid of controversy and criticism.
However, many of the politically sensitive cases, like Ayodhya and Rafale, have now been decided upon. This, in a way, gives the government an opening to make a fresh beginning with new Chief Justice S A Bobde, and take the agenda beyond specific cases of interest.
The Narendra Modi administration had displayed that determination only in the initial years of its first term when it pushed for the National Judicial Appointments Commission, which was struck down by the Supreme Court in October 2015. GoI couldn’t forge political consensus again to revive that idea. While it may not appear feasible even now, there is some leeway for GoI to close the long-pending negotiation on the memorandum of procedure (MoP) with the judiciary.
The entire issue is stuck over creating a mutually agreed, transparent screening process to shortlist candidates for judicial appointments. GoI’s view is that it should, at least, have the rigour applied for selecting, say, secretaries and heads of other statutory bodies.
For secretary-level officials, a 360-degree ‘assessment of suitability’ is carried out by a committee of secretaries and former bureaucrats. It appears that the judiciary and the government agree on the principle of a screening process, but are still divided over who, or what kind of body, should execute this process.
A Fresh Approach
In the absence of any understanding, GoI is believed to have set up its own informal 360 degree-like process to look at candidates the collegium sends for consideration. As a result of this process, proposals do get delayed, leading to government-judiciary acrimony. This is a conversation that is now ready to be revisited. A mutually agreed screening process may just get both sides to move forward on an issue that has held back progress on any other reform.
In a recent interview to ET, Justice Bobde also said he was in favour of creating a national judicial service. GoI has been pushing this idea with the intent to create an all-India cadre of judicial officers from where bulk of future judges could be selected. The proposal has been gone into in considerable detail, including on ways to carry out an all-India test and selection.
The government had also engaged with the outgoing CJI on the subject — which is how the matter got discussed at length. The broad understanding is that creating a service such as this would help significantly in addressing vacancies in the lower judiciary. If the new CJI is supportive, there’s no reason why GoI cannot resume discussions with the aim of achieving closure.
Besides this, there’s a whole clutch of issues surrounding commercial cases on which GoI and judiciary need to have a detailed conversation. The judicial process is said to be among the big deterrents to foreign firms planning investments in India. This aspect has also been pulling India down on several ‘ease of doing business’ index parameters, despite an impressive improvement in overall ranking.
Most foreign companies now insist on a clause on international arbitration in their legal documents with Indian entities in case of dispute. And India has not fared particularly well on arbitration in commercial matters. The Devas-Isro case is a case in point where GoI continues to be in a bind. Bobde has also mooted the idea of making pre-litigation mediation a must in commercial disputes. This, however, will need a legislative effort from GoI, so as to ensure that a mediated solution has the force of a decree. Mediation, it may be noted, is the preferred route to resolving commercial disputes in western democracies like the US.
Keep Fingers Crossed
Either way, what’s clear is that there’s an exhaustive reforms agenda for the government to pursue with the higher judiciary. The appointment of the new CJI, who appears not to be weighed down by any burden of the past, provides a narrow opening for the government to revive the agenda on judicial reforms. Politically, too, it makes sense for the Modi administration to initiate such a dialogue in the first few years of its new term.
The downside, of course, is that such efforts in the past have ended in frustration and conflict, which makes all stakeholders rather sceptical. Yet, exploring such spaces of dialogue within the precincts of the Constitution remain the most durable way forward, howsoever remote the chances of success.