A few points on today's events. The last two decades have witnessed a concentration of power in the office of the Chief Justice of India, without the parallel evolution of a system of accountability. In the long term, this is unsustainable. (1/n)
The principle that the Chief Justice is the first among equals, and handles the administrative work of the Court, is found in constitutional courts worldwide. However, the Indian legal system has developed some features that make this principle problematic. (2/n)
Two of these features are the splitting up of the Supreme Court into multiple different benches, and the massive backlog of cases. In this context, the Chief Justice's powers to assign cases to benches and to decide when a case is to be heard become very significant. (3/n)
As I argued a few months ago, given the structural faults in our system, the Chief Justice's administrative power effectively transform itself into a power to significantly influence the outcomes of cases: indconlawphil.wordpress.com/2017/08/02/icl… (4/n)
Two recent examples of the relationship between administrative power and outcome: the two-and-a-half year delay in the listing of the Aadhaar case, thus rendering Aadhaar an effective fait accompli, and the fifteen-month delay in hearing Delhi vs Union (5/n)
The problem is that even as power has become centralised in the office of the Chief Justice, the Court has not evolved a parallel accountability mechanism. The Office of the Chief Justice is effectively answerable to none. (6/n)
This leads to situations like the one we witnessed recently, where the Chief Justice constituted a bench to hear a case in which the Chief Justice was potentially implicated:
indconlawphil.wordpress.com/2017/11/13/no-… (7/n)
indconlawphil.wordpress.com/2017/11/13/no-… (7/n)
The combination of absolute power, complete opacity, and no accountability in the office of the Chief Justice basically means that for the institution to survive, every CJI must be utterly incorruptible, absolutely impartial, and beyond reproach. (8/n)
But no institution can survive long-term if its survival is dependant only upon the unimpeachable character of a succession of individuals. At some point, it is inevitable that an individual will fail to meet this threshold. And at that point, we're in serious trouble. (9/n)
So, telescoping outwards from today's event, and the personalities involved, what it has highlighted is the dire need to reverse the concentration of power sans accountability in the office of the Chief Justice. In other words, structural reform.
Finis. (10/10)
Finis. (10/10)
