Collegium Reform, Diversity, Dialogue: What India’s Courts Need

On Saturday, 1 February, India International Centre was witness to a fascinating, freewheeling conversation on the state of the Indian judiciary, what it needs to do to ensure it dispenses justice and the cases India must not forget in the years to come.

The discussion took place as a part of the launch of Dr Chintan Chandrachud’s new book, The Cases That India Forgot (Juggernaut Books, 2020). The book explores the stories behind some of India’s landmark cases on religion, gender, civil liberties and national security – some of which saw the judiciary step up, while others saw the courts ‘abdicate their responsibility’ to uphold the rights of citizens, requiring strong civil movements to lead to real change.

Veteran journalist and Editor-in-Chief of The Print, Shekhar Gupta, moderated a panel that comprised Justice DY Chandrachud of the Supreme Court (Chintan’s father), retired Supreme Court judge Justice AK Sikri, Additional Solicitor General Madhavi Divan, founder and managing partner of leading corporate law firm AZB, Zia Mody, and the author himself.

The discussion ranged from why criticism of the judiciary reflected the court’s role in society, to why the Collegium system of appointment of judges is flawed, with thought-provoking asides on whether lawyers should be able to take short-term commissions as judges, and the problem of judicial avoidance.

Here are the key highlights from the discussion:

Justice AK Sikri: Why the Supreme Court’s Collegium System Needs Reform

Justice Sikri’s comments on the Collegium created quite a stir in the room, which was packed with Supreme Court judges including Justices Indu Malhotra, Indira Banerjee and Sanjay Kishan Kaul as well as eminent lawyers like Fali Nariman, Soli Sorabjee, Indira Jaising and Shyam Divan.

“I am not a sitting judge any longer, so I can say that it needs reconsideration, said Justice Sikri, who pointed out that ‘India is the only country where judges appoint other judges’.”

Despite acknowledging that the system may have been the best one for India thus far, Justice Sikri explained that there are inherent problems with how judges are eventually selected by the Collegium, despite best intentions.

Explaining how a potential judge is evaluated, he said they do receive reports and recommendations,

“But still, I would say most of the time, we go by our impressions. It may not be a scientific study made about a particular candidate if the candidate is chosen from the bar or from the Bench when it comes to Supreme Court and the Collegium goes by this. And therefore, many times those may be aberrations – those who are taken, they may not be deserving, and many times, those who are deserving, are left out.”

Justice AK Sikri

Madhavi Divan: Are We Losing Out on Good Women Judges?

While Madhavi Divan, who recently took on the post of ASG, agreed there were problems with the Collegium system, she said that it did also throw up some good candidates.

Nevertheless, she said that given the sheer diversity of issues the higher judiciary deals with in India, it is important to consider consulting those with more expertise or sensitivity on the issues to help select judges. “Just being a great lawyer is not necessarily going to make a good judge,” she explained.

“So when you have issues like 377 or environmental issues or issues where legal knowledge alone is not enough, you need of lot of social sensitivity and therefore, I think the system has got to be able to pick up people who may be able to assess as to whether a person has a good social sense, a breadth of experience outside of the courts,” she added.

On the issue of diversity, she noted that she recently met a senior woman advocate who said she missed out on becoming a judge as she had spent several years being a stay-home mum. By the time she got back to practice and made a name for herself, it was too late to join the judiciary given the retirement ages for judges (62 for high court judges and 65 for judges of the Supreme Court).

“So should the age be the same for men and women if women have familiies, how are you going to take care of that? We may be missing out on some very good candidates because we don’t take that into account.”

Madhavi Divan

Zia Mody spoke of the need for the courts to focus on issues of gender diversity in a way that not just address the cases before them, but will also help lead to societal change, referring to Justice Chandrachud’s method of using female pronouns, rather than male ones in his judgments as one of the small ways in which the institution could work towards this.

Justice DY Chandrachud: Mustn’t Get Defensive About Criticism of Judiciary

Justice DY Chandrachud spoke about how, instead of taking criticism of their work in a negative way, judges should understand that this criticism has arisen because of the crucial role the judiciary has assumed in modern society.

“Much of the presentations that I hear are very trenchant in its criticisms of the courts and about the Supreme Court. And I began by becoming very defensive about this, then I realised that it’s important that we open up ourselves to a dialogue with the wider society.”

Justice DY Chandrachud

He recognised that these critiques are a natural result of this development, which has meant the courts in India no longer just decide individual cases, but are also crucial parts of a “social dialogue”.

“If we look at this transformation which has taken place in the position of our courts, particularly of the Supreme Court,” he said, “I think that’s when we realise the need for a greater engagement of the works of the constitutional courts with the life of society.”

Chintan Chandrachud: The Cases That India Forgot to Decide

The final topic for discussion was the judgments of the courts during the past ten years that India must not forget in the years to come. While others spoke of the Section 377, triple talaq and other judgments, Dr Chintan Chandrachud chose to focus on the apex court’s right to privacy judgment, which he termed “the most significant, the most canonical judgment over the last decade”.

He said he was concerned that the judgment would be forgotten, or at least would not be implemented in spirit, which is dangerous given the wide-ranging legal principles the judgment laid out.

“My concern is that the lofty principles articulated in the court’s judgment will not be applied robustly in practice,” he suggested, adding that “It’s one thing to articulate principles of the highest order, it’s quite another to apply them robustly in practice.”

Chandrachud, who is a lawyer at the London offices of global law firm Quinn Emanuel Urquhart also raised concerns over the “cases that India forgot to decide” which is basically a question of prioritisation by the judges. Noting that the Indian Supreme Court is very different from other ‘supreme’ courts as it hears so many more cases than those in other countries, he said there was often a problem of urgent cases not being heard in time.

“What this results in is, that significant cases are often simply not decided, simply not determined, until it’s too late. And so therefore, I think this idea of judicial avoidance is also something we need to think about. And the good and bad decisions that the court has taken also need to be considered in tandem with the decisions the court has simply avoided.”

Dr Chintan Chandrachud