To see two chief justices — one ex and the other, the present incumbent — of the Supreme Court of India engaged in a war of words is not an inspiring spectacle. Yet this is exactly what is happening between Altamas Kabir, who just stepped down as the chief justice of India, and his successor, P. Sathasivam. According to reports, the latter criticized certain orders issued by his immediate predecessor, Mr Kabir. This was seen by most people as something unprecedented if what was reported was true. The uniqueness of the comment, however, offers the only silver lining in a looming and unpleasant controversy. The silver lining is this: for the first time the veil of secrecy and lack of accountability that protects the judiciary from the public gaze and from public scrutiny has been lifted, albeit only a little. The veil is of the judiciary’s making as it wants to keep itself aloof and distant from the world that surrounds it. There is nothing exceptional in the argument except that the judiciary in India is embedded within the democratic system.
The judiciary in India sees itself as existing within a self-contained cocoon. It reviews its own functioning, it makes its own appointments and considers itself above all queries and questions. This position of the judiciary is protected by the contempt clause. In an era when all the institutions of democracy are becoming more and more transparent and thus open to public scrutiny, the judiciary’s self-contained character appears to be somewhat incongruous. Mr Sathasivam’s remarks (if true as reported) suggest that the present CJI is perhaps willing to be more open to criticism since he himself has criticized his predecessor. The judiciary has been candid in its criticism of the way the executive and the political class function in India. Now perhaps it can direct the light of criticism upon itself.
The point is important because queries regarding the judiciary’s lack of accountability and fears about lapses in the integrity of certain judges have been voiced in the public domain. The old conundrum about who guards the guards is now being altered and being directed at the judges. It is perhaps right and proper that the process of review, self-questioning and transparency should begin from within the judiciary. This will enhance the status of the judiciary, which in India is still seen as an exemplary institution. Every aspect of democracy and every institution in the democratic system should be open to public scrutiny since power in a democracy is ultimately derived from the people. The judiciary in India performs honourably the task of upholding and defending the Constitution. By rendering itself accountable and transparent, it will only carry forward the promise of democracy as enshrined in the Constitution.