Background :-
The only way to break the executive-judiciary impasse is to make public future correspondence on the Memorandum of Procedure. This will be a precursor to infusing transparency in judicial appointments
Editorial:-
The Chief Justice of India’s (CJI) high-octane laments about vacancies caused due to the stand-off between the judiciary and government in appointing judges has brought a renewed focus to delays in the judicial system.
The CJI holds vacancies responsible for creating delays, bringing justice delivery to a grinding halt for several litigants.
By all accounts, the judicial system is painfully slow — as of December 31, 2015, 51.2 per cent of all cases pending in the subordinate courts have been pending for more than two years and 7.5 per cent for more than 10 years; in the high courts the corresponding figures are 68 per cent and 19.22 per cent.
This is unacceptable for any state that promises the rule of law to its citizens. At the same time, to view the stand-off on judicial appointments and the consequent vacancies that are created through the lens of judicial delays is to miss the wood for the trees.
Long-standing vacancies
First, it is essential to clarify the contours of this stand-off — the government and the collegium have been unable to agree on a Memorandum of Procedure for appointment of judges for the better part of this year.
Second, the government has neither cleared nor returned the files sent by the collegium regarding several high court appointments and transfers, unlike Supreme Court appointments and some transfers which were cleared earlier this year.
According to the apex court’s own publication, as of May 2016, there were 2 vacancies in the Supreme Court (out of 31 sanctioned posts) and 432 vacancies in the high courts (out of 1,065 sanctioned posts). This constituted a vacancy rate of 6.45 per cent and 40.5 per cent, respectively.
However, looking at figures from December 2012, much before this stand-off, may provide some perspective. At that time, there were 4 vacancies in the Supreme Court (out of 31 sanctioned posts) and 281 vacancies in the high courts (out of 895 sanctioned posts). This constituted a vacancy rate of 12.9 per cent for the Supreme Court, higher than the present, and 31.3 per cent for high courts.
These figures point towards two fundamental propositions: first, high vacancies are not solely caused by the stand-off — they are endemic to the higher judiciary.
Second, even if the current impasse between the executive and judiciary were to end, vacancies would not be even substantially filled, let alone delays being significantly reduced.
This is because vacancies are a product of a systemic lack of incentives for persons of high quality and integrity to take up judgeships.
Judicial pay is poor, pensions are poorer. Further, the collegium which selects judges and elevates them to the Supreme Court is a closed brotherhood. As former Supreme Court judge Justice Ruma Pal has noted, “A chance remark, a rumour or even third-hand information may be sufficient to damn a judge’s prospects. Contrariwise a personal friendship or unspoken obligation may colour a recommendation.”
It is thus no surprise that several worthy candidates pass up the travails associated in the process of being appointed to and progressing as a judge.
Delays as a multifaceted problem
At the same time, vacancies are not the sole reason for debilitating judicial delays. Delay in the judiciary is a multifaceted problem which differs also from court to court, State to State.
However amongst some common factors is the pressing concern that law, as laid down by the Supreme Court and high courts in a large number of areas, is unclear and inconsistent.
This necessitates constant and overlapping appeals clogging the system. While disposing such cases, very rarely are timelines followed. In the recently enacted Commercial Courts Act, 2015, strict timelines as well as case management provisions have been carefully incorporated.
Unfortunately, similar provisions in the Code of Civil Procedure have been held by the Supreme Court to not bind the inherent discretion of courts to extend time or grant repeated adjournments.
In the same vein, the potential for alternative dispute resolution (ADR) methods, such as arbitration, to reduce judicial delays has not been explored owing to the constant interference of courts.
A recent study found that the Supreme Court admits 41 per cent of all cases filed before it for hearing, a staggering number for the highest constitutional court of a country.
It is little surprise that litigants take a chance before the higher judiciary since securing an admission is often perceived as a game of roulette. This is especially so since the quality of justice, particularly in the lower judiciary, is often perceived as unsatisfactory.
These factors are merely illustrative of the multifaceted nature of delays. They are however united by a common thread that, unlike filling of vacancies, they are all within the remit of the judiciary’s self-correction.
Power struggle over appointments
The complexity of causes responsible for judicial delays should make it amply clear that it is merely a by-product when it comes to the vexed question of judicial appointments.
Talking about delays caused by the stand-off in appointments is an euphemism for the power struggle that has ensued between two organs of state over dictating the future course of judicial appointments.
This is not unprecedented — appointments have similarly been stalled in the past, most recently during the Chief Justiceship of Justice M.M. Punchhi in 1998, when the government and the CJI disagreed on the proper procedure for appointment of judges. No appointments were consequently made for over six months.
Like in 1998, the current impasse too is primarily the product of an inadequately reasoned judgment that is less an expression of constitutional law and more an assertion of judicial self-belief. In an uncommon and unnecessarily strident majority view, the Supreme Court not only struck down the National Judicial Appointments Commission (NJAC) but also criticised the government and the political class as a whole.
In the process, it missed a genuine opportunity of reforming a system that it itself recognised as flawed — neither did it institute safeguards into the NJAC that would have made it constitutionally valid nor did it substantively reform the collegium itself to satisfy concerns that were shared by some petitioners, the government and the Supreme Court itself.
Time to walk the talk
If one ignores the rhetorical images of lockdown associated with a stand-off and inquires into the real reasons for disagreement, the matter becomes curious.
As per news reports, the government proposed a screening committee for all judges-elect comprising eminent persons and retired judges to ensure criteria-based selections; second, the government has asked for a national security veto. The collegium apparently has rejected both proposals.
The first suggestion appears unobjectionable.
In the NJAC judgment, some judges advert to a similar committee; its importance in order to ensure accountability and citizen participation cannot be disregarded.
The collegium’s objections to such a proposal, if true, are perplexing and should be made public. As far as a national security veto is concerned, the judges are rightly concerned about national security (or national interest) becoming a fig leaf for state unaccountability, a blunt instrument used to end all requirement for further explanation.
Given this possibility, rather than national security being a ground for veto, a healthy convention should be adopted by the collegium that ordinarily a rejection by the government on these grounds will be heeded, provided they are subjectively satisfied.
But without entering into matters of detailed disagreement, the entire process of formulation of the Memorandum of Procedure is deeply discomforting.
First, it appears that the role of the collegium is limited to accepting or rejecting reform suggestions given by the government. If true, this is disturbing — if the Supreme Court is serious about reform as it said it was in the NJAC judgment, it is now time to walk the talk and propose reforms itself.
Second, a combination of the secrecy of the process and the apparent hostility between the judiciary and government means that a document that was designed to ensure real reform has descended into a plaything of the powerful, with neither side showing any genuine desire for change.
Substantive proposals such as transparently outlining a zone of consideration, setting up a process for nominating and interviewing candidates, outlining criteria for appointment, clarifying the importance of seniority, presenting an annual report of candidates considered, interviewed, appointed and rejected and many others, suggested by scores of civil society representatives, are gathering dust.
The only way to break this impasse and ensure that a kernel of reform is salvaged from the interstices of a power struggle is to make all future correspondence on the Memorandum of Procedure public.
This will transparently demonstrate how substantive reform is being effected or stalled and serve as a precursor to infusing a culture of transparency in judicial appointments.
Otherwise, the country will suffer the consequences of a bitter power struggle where whoever wins, the cause of justice for the people of India loses.
Recent Posts
The United Nations has shaped so much of global co-operation and regulation that we wouldn’t recognise our world today without the UN’s pervasive role in it. So many small details of our lives – such as postage and copyright laws – are subject to international co-operation nurtured by the UN.
In its 75th year, however, the UN is in a difficult moment as the world faces climate crisis, a global pandemic, great power competition, trade wars, economic depression and a wider breakdown in international co-operation.
Still, the UN has faced tough times before – over many decades during the Cold War, the Security Council was crippled by deep tensions between the US and the Soviet Union. The UN is not as sidelined or divided today as it was then. However, as the relationship between China and the US sours, the achievements of global co-operation are being eroded.
The way in which people speak about the UN often implies a level of coherence and bureaucratic independence that the UN rarely possesses. A failure of the UN is normally better understood as a failure of international co-operation.
We see this recently in the UN’s inability to deal with crises from the ethnic cleansing of the Rohingya Muslims in Myanmar, to civil conflict in Syria, and the failure of the Security Council to adopt a COVID-19 resolution calling for ceasefires in conflict zones and a co-operative international response to the pandemic.
The UN administration is not primarily to blame for these failures; rather, the problem is the great powers – in the case of COVID-19, China and the US – refusing to co-operate.
Where states fail to agree, the UN is powerless to act.
Marking the 75th anniversary of the official formation of the UN, when 50 founding nations signed the UN Charter on June 26, 1945, we look at some of its key triumphs and resounding failures.
Five successes
1. Peacekeeping
The United Nations was created with the goal of being a collective security organisation. The UN Charter establishes that the use of force is only lawful either in self-defence or if authorised by the UN Security Council. The Security Council’s five permanent members, being China, US, UK, Russia and France, can veto any such resolution.
The UN’s consistent role in seeking to manage conflict is one of its greatest successes.
A key component of this role is peacekeeping. The UN under its second secretary-general, the Swedish statesman Dag Hammarskjöld – who was posthumously awarded the Nobel Peace prize after he died in a suspicious plane crash – created the concept of peacekeeping. Hammarskjöld was responding to the 1956 Suez Crisis, in which the US opposed the invasion of Egypt by its allies Israel, France and the UK.
UN peacekeeping missions involve the use of impartial and armed UN forces, drawn from member states, to stabilise fragile situations. “The essence of peacekeeping is the use of soldiers as a catalyst for peace rather than as the instruments of war,” said then UN Secretary-General Javier Pérez de Cuéllar, when the forces won the 1988 Nobel Peace Prize following missions in conflict zones in the Middle East, Africa, Asia, Central America and Europe.
However, peacekeeping also counts among the UN’s major failures.
2. Law of the Sea
Negotiated between 1973 and 1982, the UN Convention on the Law of the Sea (UNCLOS) set up the current international law of the seas. It defines states’ rights and creates concepts such as exclusive economic zones, as well as procedures for the settling of disputes, new arrangements for governing deep sea bed mining, and importantly, new provisions for the protection of marine resources and ocean conservation.
Mostly, countries have abided by the convention. There are various disputes that China has over the East and South China Seas which present a conflict between power and law, in that although UNCLOS creates mechanisms for resolving disputes, a powerful state isn’t necessarily going to submit to those mechanisms.
Secondly, on the conservation front, although UNCLOS is a huge step forward, it has failed to adequately protect oceans that are outside any state’s control. Ocean ecosystems have been dramatically transformed through overfishing. This is an ecological catastrophe that UNCLOS has slowed, but failed to address comprehensively.
3. Decolonisation
The idea of racial equality and of a people’s right to self-determination was discussed in the wake of World War I and rejected. After World War II, however, those principles were endorsed within the UN system, and the Trusteeship Council, which monitored the process of decolonisation, was one of the initial bodies of the UN.
Although many national independence movements only won liberation through bloody conflicts, the UN has overseen a process of decolonisation that has transformed international politics. In 1945, around one third of the world’s population lived under colonial rule. Today, there are less than 2 million people living in colonies.
When it comes to the world’s First Nations, however, the UN generally has done little to address their concerns, aside from the non-binding UN Declaration on the Rights of Indigenous Peoples of 2007.
4. Human rights
The Human Rights Declaration of 1948 for the first time set out fundamental human rights to be universally protected, recognising that the “inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”.
Since 1948, 10 human rights treaties have been adopted – including conventions on the rights of children and migrant workers, and against torture and discrimination based on gender and race – each monitored by its own committee of independent experts.
The language of human rights has created a new framework for thinking about the relationship between the individual, the state and the international system. Although some people would prefer that political movements focus on ‘liberation’ rather than ‘rights’, the idea of human rights has made the individual person a focus of national and international attention.
5. Free trade
Depending on your politics, you might view the World Trade Organisation as a huge success, or a huge failure.
The WTO creates a near-binding system of international trade law with a clear and efficient dispute resolution process.
The majority Australian consensus is that the WTO is a success because it has been good for Australian famers especially, through its winding back of subsidies and tariffs.
However, the WTO enabled an era of globalisation which is now politically controversial.
Recently, the US has sought to disrupt the system. In addition to the trade war with China, the Trump Administration has also refused to appoint tribunal members to the WTO’s Appellate Body, so it has crippled the dispute resolution process. Of course, the Trump Administration is not the first to take issue with China’s trade strategies, which include subsidises for ‘State Owned Enterprises’ and demands that foreign firms transfer intellectual property in exchange for market access.
The existence of the UN has created a forum where nations can discuss new problems, and climate change is one of them. The Intergovernmental Panel on Climate Change (IPCC) was set up in 1988 to assess climate science and provide policymakers with assessments and options. In 1992, the UN Framework Convention on Climate Change created a permanent forum for negotiations.
However, despite an international scientific body in the IPCC, and 165 signatory nations to the climate treaty, global greenhouse gas emissions have continued to increase.
Under the Paris Agreement, even if every country meets its greenhouse gas emission targets we are still on track for ‘dangerous warming’. Yet, no major country is even on track to meet its targets; while emissions will probably decline this year as a result of COVID-19, atmospheric concentrations of greenhouse gases will still increase.
This illustrates a core conundrum of the UN in that it opens the possibility of global cooperation, but is unable to constrain states from pursuing their narrowly conceived self-interests. Deep co-operation remains challenging.
Five failures of the UN
1. Peacekeeping
During the Bosnian War, Dutch peacekeeping forces stationed in the town of Srebrenica, declared a ‘safe area’ by the UN in 1993, failed in 1995 to stop the massacre of more than 8000 Muslim men and boys by Bosnian Serb forces. This is one of the most widely discussed examples of the failures of international peacekeeping operations.
On the massacre’s 10th anniversary, then UN Secretary General Kofi Annan wrote that the UN had “made serious errors of judgement, rooted in a philosophy of impartiality”, contributing to a mass murder that would “haunt our history forever”.
If you look at some of the other infamous failures of peacekeeping missions – in places such as Rwanda, Somalia and Angola – it is the limited powers given to peacekeeping operations that have resulted in those failures.
2. The invasion of Iraq
The invasion of Iraq by the US in 2003, which was unlawful and without Security Council authorisation, reflects the fact that the UN is has very limited capacity to constrain the actions of great powers.
The Security Council designers created the veto power so that any of the five permanent members could reject a Council resolution, so in that way it is programmed to fail when a great power really wants to do something that the international community generally condemns.
In the case of the Iraq invasion, the US didn’t veto a resolution, but rather sought authorisation that it did not get. The UN, if you go by the idea of collective security, should have responded by defending Iraq against this unlawful use of force.
The invasion proved a humanitarian disaster with the loss of more than 400,000 lives, and many believe that it led to the emergence of the terrorist Islamic State.
3. Refugee crises
The UN brokered the 1951 Refugee Convention to address the plight of people displaced in Europe due to World War II; years later, the 1967 Protocol removed time and geographical restrictions so that the Convention can now apply universally (although many countries in Asia have refused to sign it, owing in part to its Eurocentric origins).
Despite these treaties, and the work of the UN High Commission for Refugees, there is somewhere between 30 and 40 million refugees, many of them, such as many Palestinians, living for decades outside their homelands. This is in addition to more than 40 million people displaced within their own countries.
While for a long time refugee numbers were reducing, in recent years, particularly driven by the Syrian conflict, there have been increases in the number of people being displaced.
During the COVID-19 crisis, boatloads of Rohingya refugees were turned away by port after port. This tragedy has echoes of pre-World War II when ships of Jewish refugees fleeing Nazi Germany were refused entry by multiple countries.
And as a catastrophe of a different kind looms, there is no international framework in place for responding to people who will be displaced by rising seas and other effects of climate change.
4. Conflicts without end
Across the world, there is a shopping list of unresolved civil conflicts and disputed territories.
Palestine and Kashmir are two of the longest-running failures of the UN to resolve disputed lands. More recent, ongoing conflicts include the civil wars in Syria and Yemen.
The common denominator of unresolved conflicts is either division among the great powers, or a lack of international interest due to the geopolitical stakes not being sufficiently high. For instance, the inaction during the Rwandan civil war in the 1990s was not due to a division among great powers, but rather a lack of political will to engage.
In Syria, by contrast, Russia and the US have opposing interests and back opposing sides: Russia backs the government of the Syrian dictator Bashar al-Assad, whereas the US does not.
5. Acting like it’s 1945
The UN is increasingly out of step with the reality of geopolitics today.
The permanent members of the Security Council reflect the division of power internationally at the end of World War II. The continuing exclusion of Germany, Japan, and rising powers such as India and Indonesia, reflects the failure to reflect the changing balance of power.
Also, bodies such as the IMF and the World Bank, which are part of the UN system, continue to be dominated by the West. In response, China has created potential rival institutions such as the Asian Infrastructure Investment Bank.
Western domination of UN institutions undermines their credibility. However, a more fundamental problem is that institutions designed in 1945 are a poor fit with the systemic global challenges – of which climate change is foremost – that we face today.