Why Are Indian Courts Sermonising Instead of Judging?

In recent years, the Indian judiciary has witnessed a shift in style from traditional adjudication to what many perceive as a sermonising approach, initiating a wide array of discussions and debates on the balance between providing guidance versus making legally binding decisions. This transformation has raised questions about the core principles of judicial independence and the very nature of justice dispensation in the country. The courts, tasked with interpreting laws and ensuring justice, seem to increasingly embark on moral and ethical sermonising, often at the cost of expeditious and conclusive judgements. This shift is not just a matter of judicial style but signals underlying shifts in the institutional framework and philosophy guiding the judiciary, including implications related to the Collegium system and Reserved Judgements, which together play a crucial role in the functioning and perception of sermonising courts.

The focus of this article will be to explore why Indian courts have adopted this sermonising approach, the implications it has on the rule of law and democracy, and how it contrasts with judicial practices in other democracies. It delves into the Collegium system's role in shaping the judiciary's makeup, the impact of Reserved Judgements on the timeliness and effectiveness of court decisions, and the debate around the majoritarian influences within the judiciary. By examining the consequences of this trend and comparing it with international benchmarks, the discussion will also touch upon the growing calls for judicial accountability and transparency within this framework. This inquiry aims to shed light on the complex interplay between judicial independence, societal values, and the imperative of maintaining the judiciary's role as a pillar of democratic governance rather than as an institution of moral pontification.

The Concept of Judicial Independence

Defining Judicial Independence

Judicial independence is a cornerstone principle that ensures judges can make decisions free from influence by external forces or internal pressures within the judiciary itself. This concept encompasses both individual and collective dimensions of independence. Individual judges must be impartial, basing their judgments solely on facts and law without succumbing to any pressures or influences, whether from government, private interests, or even their judicial peers. Collectively, the judiciary must operate independently from the legislative and executive branches of government, safeguarding its ability to adjudicate without interference.

The essence of judicial independence is captured in the assertion that a judge's decisions should not be influenced by personal biases, the opinions of the ruling government, or popular sentiment. This principle is vital for maintaining public trust and confidence in the judicial system, ensuring that all individuals feel their cases are judged fairly and according to the rule of law.

Historical Context and Evolution

The concept of judicial independence is not a modern invention but has evolved over centuries. It traces its roots back to the philosophies of Montesquieu, who advocated for the separation of powers within government. This foundational idea was institutionalized with the Act of Settlement in 1701 in England, which laid down the principle of judicial tenure security, stating that judges should hold their office as long as they exhibit good behavior.

In India, the journey of judicial independence has been shaped by a rich tapestry of historical influences, from ancient religious prescriptions to colonial legal systems. Initially, the law in India was intertwined with religion, with early legal systems during the Vedic ages and later secular systems under rulers like the Mauryas and Mughals. The British colonial rule introduced the common law system, establishing courts and codifying laws, which significantly shaped the modern judicial framework.

The promulgation of the Indian Constitution in 1950 marked a pivotal moment, establishing a formal separation of powers and explicitly embedding the judiciary's independence within the constitutional structure. Although the Indian Constitution does not have a specific provision stating judicial independence, it is implied through various articles and has been upheld in landmark judicial decisions, such as the case of S.P. Gupta v Union of India. These cases affirm that the core elements of judicial independence and the rule of law are immutable, even by constitutional amendments.

Through the years, the Indian judiciary has undergone various reforms aimed at enhancing its independence and efficiency, such as the introduction and later rejection of the National Judicial Appointments Commission (NJAC). Each step in this evolutionary process underscores the ongoing commitment to maintaining the judiciary as a robust pillar of democracy, capable of adjudicating without fear or favor.

Majoritarian Judiciary in India

Definition of a Majoritarian Judiciary

A majoritarian judiciary occurs when the decisions within a court are predominantly influenced by the majority consensus, often overlooking the nuanced and sometimes superior reasoning of minority opinions. This concept gains particular significance in cases that require a substantial interpretation of constitutional provisions, where Constitutional Benches are formed in accordance with Article 145(3) of the Constitution. These benches, which can consist of an odd number of judges ranging from five to thirteen, aim to ensure that decisions are made by a numerical majority, as mandated by Article 145(5). This structure is intended to facilitate decision-making and uphold the values of efficiency and equality through majority rule. However, it often leads to the overshadowing of dissenting judgments that may offer a deeper, albeit less popular, analysis of the law.

Current Examples and Incidents

Recent judicial decisions in India provide clear instances of majoritarian influence overshadowing meritorious minority opinions. For example, the Supreme Court's majority judgment on demonetisation was widely criticised, while the minority judgment by Justice Nagarathna, which challenged the institutional acquiescence of the RBI to the Central government, was lauded for its depth and analytical rigor. This disparity raises critical questions about the reliance on numerical majorities in judicial decision-making and the constitutional disregard for the appreciation of dissenting arguments.

Another poignant example is the dissenting opinion of Justice H.R. Khanna in the A.D.M. Jabalpur v. Shivkant Shukla case, which upheld the right to life and personal liberty even during states of constitutional emergency. Although initially in the minority, this opinion was later recognized for its foresight and moral courage. Similarly, Justice Subba Rao’s dissent in the Kharak Singh v. State of U.P. case, which upheld the right to privacy, was vindicated decades later in the landmark K.S. Puttaswamy v. UOI judgment.

Studies have shown that the rate of dissent in judicial decisions can be influenced by various factors, including the presence of the Chief Justice on the bench. For instance, during the height of the Emergency in 1976, the rate of dissent was a mere 1.27%, compared to 10.52% in 1980. This indicates a potential suppression of dissenting opinions during periods of intense political pressure, further questioning the efficiency and desirability of majority rule in judicial determinations on matters of national and constitutional importance.

The concept of judicial majoritarianism is still developing in academic discourse, with scholars like Jeremy Waldron critiquing the justification of majority decisions based solely on numbers. Waldron argues that the expertise of judges and the complexity of legal arguments should transcend simple head-counting tactics, which can sometimes lead to methodological errors or biases influenced by personal experiences or perceptions.

These examples and discussions underscore the need for a critical reassessment of the role and impact of majoritarianism in the judiciary, particularly in how it affects the interpretation of law and the balance between majority rule and minority rights.

Why Indian Courts Adopt a Sermonising Approach

Political Influence and Pressure

The influence of political entities on the judiciary is a significant factor contributing to the sermonising approach of Indian courts. The historical and ongoing struggle between the executive and judiciary, often fueled by political pressures, has compromised the process of impartial justice. The Principles on the Independence of the Judiciary highlight the importance of decisions being made solely based on factual evidence and legal principles, without undue limitations or inappropriate influences. However, the reality often diverges from this ideal.

Political dynamics deeply impact judicial rulings, as demonstrated by research examining the connection between political forces and judicial decisions. Legislative and executive branches have been known to use statutory provisions to overturn judicial rulings, directly challenging judicial autonomy. For instance, the Supreme Court's directives in the case of Commissioner of Customs vs. Sayed Ali were countered by the Parliament through the Customs Amendment and Validation Bill, 2011, which retrospectively validated duties and actions not originally empowered under the Customs Act.

Further complicating the judiciary's role is the blurring of lines between the executive and legislative branches, as noted in the Rai Sahib Ram Jawaya Kapur v. The State of Punjab case. This overlap does not strictly adhere to Montesquieu's separation of powers doctrine, potentially leading to an autocratic control by the executive.

Cultural and Social Factors

Cultural and social dynamics also play a crucial role in shaping the sermonising nature of Indian courts. The judiciary often finds itself at the intersection of enforcing legal standards and navigating deep-seated cultural practices and traditions. This is evident in cases involving personal laws where the courts have to balance legal principles with cultural sensitivities.

For example, in the Shah Bano case, the Supreme Court's decision was later nullified by the Parliament with the enactment of "The Muslim Women (Protection of Rights on Divorce) Act, 1986", which limited maintenance support to the period of iddat as per Islamic law, contrasting with the broader provisions of Section 125 of the Code.

The cultural context is notably absent in the courtroom, despite its significant influence outside. This disconnect between the cultural narratives prevalent in society and their acknowledgment in legal settings further pushes the judiciary to adopt a sermonising role, attempting to bridge these gaps through moral and ethical guidance.

Moreover, the judiciary's attempt to navigate these complex cultural and social landscapes often results in decisions that extend beyond mere legal interpretation, reflecting an effort to align legal outcomes with broader societal values and ethics. This approach, while well-intentioned, sometimes diverts from the core judicial responsibility of objective legal adjudication, leading to a sermonising stance.

Impact on Rule of Law and Democracy

Failures in Upholding Constitutional Values

The integrity of the judiciary is paramount in safeguarding the Constitution and upholding the rule of law. However, instances of judicial impropriety and controversies involving both Supreme Court and high court judges have severely dented the public's trust in the judicial system. These incidents not only challenge the impartiality and fairness expected of judges but also risk the very foundation of constitutional governance by creating suspicions of a quid pro quo system. The political class's practice of offering lucrative post-retirement positions to judges further undermines judicial independence and lowers ethical standards. This erosion of integrity is particularly alarming because judges carry the crucial responsibility of preserving constitutional values, civil liberties, and the rule of law both on and off the bench.

Public Trust and Confidence

Public trust is a critical asset that the judiciary must maintain to function effectively. The principle of recusal, which rests on public confidence in judicial impartiality, underscores the importance of judges being seen as fair and unbiased. Judicial culture and discipline, which involve the internal deliberations and sharing of draft judgments among judges, are essential for maintaining this trust. However, when the judiciary is perceived as failing to act with integrity or to adhere to ethical guidelines, public confidence wanes. To combat this, the judiciary needs robust mechanisms for accountability and oversight, including a mandatory cool-off period to prevent judges from accepting government positions immediately after retirement. These measures are crucial for restoring faith in the judiciary and reinforcing its role as the custodian of the Constitution and the protector of the people's rights.

International Comparisons

Judicial Responses in Other Countries

Globally, the judiciary plays a pivotal role in protecting individual rights and ensuring the rule of law, which are fundamental to sustainable development in any democratic setup. However, the effectiveness of judicial systems varies significantly across countries due to differences in legal traditions, appointment procedures, and the level of judicial independence.

In the United States and India, for instance, the representation of marginalized communities within the highest judiciary remains minimal. Since the retirement of Justice K.G. Balakrishnan in 2010, India has not seen a Dalit judge in the Supreme Court. Similarly, the U.S. Supreme Court has been predominantly composed of white males since its inception in 1790, with only a small percentage of justices being women or minorities. This lack of diversity can lead to increasing feelings of isolation and discontent among marginalized groups.

Additionally, biases in the judicial process are evident in both countries. In India, the trial court's acquittal in the Bhanwari Devi gangrape case highlighted overt caste prejudices, where the judgement absurdly noted that upper-caste men could not have committed such an act against a lower-caste woman. In the U.S., the jury system introduces its own set of biases where factors like race, attractiveness, and behavior of the defendant can influence judicial outcomes, despite instructions for impartiality.

Case Studies: Israel, Pakistan, Kenya

Israel's recent judicial controversies illustrate the challenges of maintaining a balance between government authority and judicial oversight. A significant reform proposed in Israel aimed at limiting the Supreme Court's power to overturn government decisions based on "reasonableness," sparking widespread protests and debates about the impact on democratic principles and human rights.

In Pakistan, the judiciary has often been at the center of political turmoil, with several instances where the courts have had to assert their independence against executive pressures. This struggle is indicative of the broader challenges faced by emerging democracies where judicial independence is crucial for democratic stability but remains under constant threat.

Kenya presents another interesting case where the judiciary has taken bold steps to assert its independence, notably in the 2017 presidential election when the Supreme Court annulled the election results citing irregularities. This landmark decision was hailed globally as a testament to judicial courage and independence, setting a significant precedent for other nations.

These international examples underscore the complex interplay between judiciary systems and democratic governance. While each country's judicial response to political, cultural, and social challenges is unique, the overarching need for an independent judiciary that can uphold constitutional values and protect human rights remains a universal principle.

Calls for Judicial Accountability

The demand for stronger judicial accountability has intensified in India, reflecting the evolving expectations of a democratic society increasingly aware of its rights and the necessity for transparent governance. This section explores the multifaceted calls for judicial accountability, drawing insights from legal experts and proposing solutions for reform.

Voices from Legal Experts and Advocates

Legal experts and advocates have voiced concerns over the lack of effective mechanisms to address misconduct or errors by judges, except through the cumbersome process of impeachment. The case of Sub-Committee on Judicial Accountability v. Union of India highlighted the absence of statutory provisions to regulate judicial behavior during proceedings, underscoring the need for reforms that ensure the integrity of the judiciary remains intact. Furthermore, the judiciary's exemption from the Right to Information Act, as stated by the Chief Justice of India, has sparked debates about the necessity of transparency within the judicial system to maintain public trust.

The legitimacy of judicial procedures is another critical area where accountability is demanded. Ensuring that decisions and laws enacted by the judiciary adhere to the Constitution is fundamental to maintaining its legitimacy and the public's confidence in its rulings. Additionally, the credentials of judges, often obscured from public view and sometimes influenced by political connections, call for a transparent appointment process to prevent biases and ensure justice is delivered fairly.

Proposed Solutions and Reforms

Addressing the calls for judicial accountability involves implementing several key reforms. Firstly, the establishment of a mechanism outside of the impeachment process is crucial for handling cases of judicial misbehavior or mistakes promptly and effectively. This could involve judicial review bodies or ethics committees that operate with transparency and independence.

Secondly, enhancing transparency in the appointment and functioning of judges is essential. Proposals such as making judges' credentials public and setting clear, merit-based criteria for judicial appointments are steps toward demystifying the judiciary and enhancing its credibility. Moreover, implementing a mandatory cooling-off period before retired judges can accept government positions could help mitigate potential conflicts of interest and preserve judicial independence.

The reservation of seats in the judiciary for underrepresented groups is also a significant aspect of the reform discussion. Ensuring fair representation in the judiciary not only promotes equity but also enhances the legitimacy of judicial decisions in a diverse society like India.

Lastly, the introduction of laws akin to those in the United States, where judges are required to make annual financial disclosures publicly, could set a standard for transparency and accountability, encouraging similar practices among other branches of government.

In conclusion, the balance between maintaining judicial independence and enhancing accountability is delicate but essential. The proposed reforms aim to strengthen the judiciary's role as a guardian of the Constitution while ensuring it remains a credible, impartial, and transparent institution that commands the public's trust and respect.

Conclusion

Throughout this exploration of the Indian judiciary's evolving dynamics, we've delved into the complexities of its sermonising tendencies, political pressures, and the broader implications for democratic governance and the rule of law. It's clear that the shift from strict legal adjudication to a more sermonising role reflects deeper societal, cultural, and political undercurrents that challenge traditional judicial functions. The discussion has underscored the importance of judicial independence, the need for diversification within the judiciary, and the critical role of accountability and transparency in maintaining public trust and confidence in the legal system.

The comparative analysis with other democracies and the consideration of calls for judicial reform highlight a global consensus on the need for an independent judiciary that upholds constitutional values while also being responsive to societal needs. As India navigates these challenges, the balance between judicial independence and accountability emerges as crucial for ensuring the judiciary remains a robust pillar of democracy, capable of upholding the rule of law and protecting the rights of all citizens. Emphasizing reforms that enhance transparency, representativeness, and accountability will be key to strengthening the judiciary's position as an institution of both legal authority and societal trust.

? Dr Rakesh Varma