The Irony of Twisted Fate- Supreme Court of India and the Independence of Judiciary

The question over the process that is to be adopted for the appointment of members of judiciary is nothing new in India. Right from the First Judges case[1], when the matter was for the first time seized upon by the Supreme Court, the debate on this subject remains quite unsettled, with deleterious effects on the executive-judiciary relationship. The recent move by the executive to alter the situation in a grand manner vide the 99^th Constitutional Amendment[2] and the consequent National Judicial Appointments Commission Act[3], to institutionalize the process of appointment has bought in the executive and judiciary into direct confrontation, resulting in the amendment being struck down by the Supreme Court of India as unconstitutional for its violation of ‘basic structure’ of the constitution.

The judgement[4] though seems to be doing its job in protecting the independence of judiciary, the fundamental proposition that it puts forward raises more questions than it proposes to answer. Deciding over the question of constitutionality of the said amendment it has traversed much more than what was required of it, defeating the very principles that it professes itself to be a guardian of. In the name of protecting the ‘independence of the judiciary’ it has promoted itself to hegemony, browbeating the other two legs of the federal structure that the constitution establishes. Though one cannot in any manner assure that the members of the legislature and executive are the vanguards of ethics and morality; however that does not consequently make the judiciary a messiah who is beyond reproach. Though the Supreme Court has placed itself in a lofty summit of unreachable proportions, through this ruling, it is still based on very shaky grounds. The fact that the Second[5] and Third[6] judges case that the present verdict has relied upon itself is based on a stretched interpretation of the Articles of the Constitution has been lost in the rhetorical bashing of the polity.

The mind set with which the conclusion was arrived at had made them defy certain constitutional logics in the process. For example in the First and Second Judges case, the manner in which the term “consultation” used in Articles 124, 217 and 222 of the Constitution, which concerns with the appointment and transfer of members of Higher Judiciary, has been interpreted by the Supreme Court, expanded its scope much beyond what was actually intended by the drafters and included the consultation of Chief Justice and subsequently the collegium of judges as must, thereby assigning the ‘primacy’ to the opinion of Chief Justice. This has to be seen in the light of the fact that the answers arrived at were merely a result of all the extended interpretation that were crammed into the relevant articles of the Constitution. The present verdict, going a step further, has conferred the all compassing power to itself to decide over the matters relating the appointment of members of higher judiciary, making itself a sole authority have a say over the process.

The principle upon which the verdict has been arrived at merely makes it all too obvious, the desperation to protect its exclusive say in this domain. This has made them to go to unheard of lengths to substantiate it. Take this for example. With the purpose of showing that any degree of involvement of other legs of the democracy in the process will cause a prejudice against its independence, the notion ‘theory of reciprocity’ has been exploited. As per this theory in a situation wherein a judge is nominated to the position by the executive, once he attains the post, he feels himself indebted to them. The gratitude that the judge finds prejudices his decision making process. To quote a passage “In the existing Indian cultural scenario, an act of not reciprocating towards a benefactor, would more often than not, be treated as an act of grave moral deprivation. When the favour extended is as important as the position of judgeship in the higher judiciary, one would best leave it to individual imagination, to determine the enormity of the reciprocal gratitude and loyalty.”[7] The very concept is at the best a conjecture but it is stupendous to draw a conclusion that this causes a violation of the basic structure of the constitution. How much ever the possibility of the executive and legislature being morally corrupt lingers over us it is still a constitutional morality to involve them at some level. The Constitutional Assembly has never intended the independence of judiciary to mean the primacy of judiciary. The ostensible suspicion that the judiciary through this verdict is casting upon the executive is no different from the executive misdemeanour of the past when out of turn elevations in the Supreme Court were made, for which vigorous references were made in this verdict. It is ironic to know if the Constitutional principles warrant the degree of independence to be of a magnitude that the present verdict interprets it to be then the judiciary itself has become the potentate that it is there to take control of.

The ideals that is sought to be preserved under the Constitution cannot be done single handedly by the judiciary and it never was the intention of the drafters too. It seeks for an eclectic mix of the three arms of the federal structure in its functioning. The executive judiciary antagonism that is perpetrated through this verdict does not bode well for the nation. Doubtless it can be agreed that the amendment that was sought to be introduced is not the best way to take forward the much needed reforms in the process of judicial appointments, the judiciary has committed a grave error in placing itself in a rather too high a moral ground in the process of declaring it unconstitutional. I believe the present verdict draws its inspiration from the moral compass that guided the judiciary at the darkest hour in our democracy during the periods of emergency. Without a shadow of doubt it is the same that saved us all from the impending tyranny of the then executive. But to continue having the same attitude will defeat the very constitutional principles that it is product of- an irony of twisted fate. If not anything else at the least this verdict has given rise to a fresh debate over the need for reforms in the present process of judicial appointments. The judiciary must take a note of this to fix the functioning of its self, for the opportunity is ripe to introduce much wanted changes towards the accountability and transparency.

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[1] S.P.Gupta v. Union of India, 1981 (Supp) SCC 87

[2] Constitution (Ninety-ninth Amendment) Act, 2014, online: India Code, Legislative Department <http://indiacode.nic.in/coiweb/amend/99th.pdf>

[3] National Judicial Appointments Commission Act, 2014, online: India Code, Legislative Department <http://www.indiacode.nic.in/acts2014/40_of_2014.pdf >

[4] Supreme Court Advocates-on-Record Association and another v. Union of India- Writ Petition (Civil) No. 13 Of 2015

[5] Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441

[6] Re: Special Reference No.1 of 1998, (1998) 7 SCC 739

[7]  Supreme Court Advocates-on-Record Association and another v. Union of India- Writ Petition (Civil) No. 13 Of 2015 at ¶ 164

Dispute Review Boards: The Gun Without Bullets

In a post that I wrote early this year, I discussed the new, for India, concept of Dispute Review Boards. There I merely gave an overview of what the concept is all about, without resorting to any sort deep analysis, and the role of lawyers in such kind of proceedings. Though I wrote that post without actually attending in person any DRB proceedings, my opinions were based on the way in which everyone who is involved in it treated it, as an adjudicating process. My fears, in fact proved to be true beyond reproach as I got to attend one of the most hostile conciliation in my very limited experience. 

The problems in this particular DRB proceeding that I happened to involve myself are numerous. I can with a degree of certainty state that the same is the case with most other DRB proceedings in India. The fundamental problem is the mind-set that every person involved in the proceedings has towards the proceedings itself. As stated in my earlier post, lawyers contribute the most to this problem. Everyone involved in the proceedings thinks this merely as another box ticking exercise that has to be done before reaching the process of litigation, how much ever long drawn and adversarial it could be. This is no less because of the fact that none of the people who were involved in the process were either trained in the process or at least gone through the pain of reading the literature on this process. They essentially treated this like arbitration with a change in the nomenclature of certain things here, like an award in arbitration into recommendation. One of the important contributing reasons for this waywardness is the poor drafting of contractual clauses concerning the DRB. The contract that I was involved in, merely had two lines to the effect that the disputes should be first referred to a DRB and the process shall be governed by the ICC (International Chamber of Commerce) Dispute Board Rules. 

When to form?

The primary aim that is sought to be achieved through this conciliatory process is to solve any dispute in a commercial transaction as and when it arises and as amicably as possible. This has to be seen in the light of the fact that the whole concept Dispute Boards evolved as a solution for the problem of delay that happens frequently in the construction industry. To the contrary, in my case, the DRB process was initiated only after the whole project is over defeating the whole purport. In case the process is initiated post the completion of project, apart from the failure to resolve the disputes on time, it also results in a futile reconstruction of whole process again, wherein inevitably some muddling happens resulting in time and cost to the parties. A real time settlement more than settling the disputes helps preserving the relationship between the parties. An important reason for this mistake is because it has not been expressly mentioned in the contract, that the DRB has to be constituted at the beginning of the project, in order to continuously monitor the project and settle the disputes in real time.

Is It a Necessary Condition Precedent?

An interesting implication can be drawn if we suppose that a party bypasses the process completely and goes to litigate its claims. Though I was not able to find any Indian case law on this subject (Albeit it is a limited and indolent search of a lazy bone) I was able to find several American case laws, for the process has matured to a greater extent there. Two possibilities arise in such situations. One is where the claimant simply bypasses it and initiates litigation and another is where the other party simply insists upon the DRB proceedings to buy more time from litigation. The court (in BAE Automated Systems V. Morse Diesel International), as expected, ruled that, in the absence any legally justifiable reasons the process cannot be bypasses. The reasons can be waiver by one of the parties, fraud, estoppel etc. 

Appointment and Removal of Members

As in all conciliatory proceedings the integrity and impartiality of the person who is appointed as a member of the board is of utmost importance. It will be rhetoric to write about the code of conduct that a member of DRB must follow. In the proceedings that I happened to witness one of the members of DRB was visibly advocating the cause of the party who appointed him when the other party’s counsel made his oral presentation of his case. The reason could either be because he did not realise that it is a conciliatory proceedings and that he has to be impartial or because he is just a plain old jackass. The implications of such instances are very important, for any loss of confidence that a party has over the member will undermine the sanctity of overall process.

Applicability of Part III

I was curious after the incident, over whether the provisions of Arbitration and Conciliation Act, 1996, pertaining conciliation will be applicable in this case or not. It is given that it is a conciliation process; however it is still a creature of a contract. One possible reason can be that we cannot thrust in something which is not there already in the contract, with this essentially being a creation of the contract we cannot set it aside. However, Section 61 of the Act clears the air by defining its application and scope.

61. Application and scope - (1) Save as otherwise provided by any law for the time being in force and unless the parties have otherwise agreed, this Part shall apply to conciliation of disputes arising out of legal relationship, whether contractual or not and to all proceedings relating thereto. (2) This Part shall not apply where by virtue of any law for the time being in force certain disputes may not be submitted to conciliation.

I found an Indian case law that indirectly deals with the applicability of Part III of the act to the proceedings before DRB (Alcove Industries Ltd. Vs. Oriental Structural Engineers Ltd. [1]). The main issue in this case is the responsibility of an arbitrator to disclose in writing at the outset, such facts, which may give rise to justifiable doubts to his independence and impartiality. The arbitrator in this case, before being appointed as an arbitrator by the defendant company, worked as a member of Dispute Board, in respect of some works executed by respondent company. This fact was not disclosed when the appointment to the present arbitration proceedings were made. The court in order to explicate the bar of a conciliator (member of DRB in this case) referred to the provisions contained in Part III of the act. The judgement goes on to hold that section 80 of the act prohibits a conciliator from acting as an arbitrator or as a representative or counsel of a party in any arbitral or judicial proceeding in respect of a dispute that is the subject matter of the conciliation proceedings. Though these aspects are irrelevant for the present post, the important aspect that I can infer from this decision is the applicability of Part III of the act to the DRB proceedings. The decision, albeit indirectly, makes it clear that DRB proceedings are indeed governed by the provisions of the act.

Conclusion
Whatever is the form that the efforts for an amicable dispute resolution might take, it all ends up depending upon the intention and ability of the lawyers to best utilize the opportunity, more than the parties themselves, to settle the disputes in the most prudent way possible. The very intent of the process is defeated in most cases with things as basic as the tenor language that is used in the written communications. Without a fundamental understanding of such intricacies it is impossible for such efforts to succeed at any level. Moreover, in most cases with the resolution process being administered ad hoc without any institutional assistance, just like the case of arbitration, in India, the process loses its focus and the required streamlined approach without required expert assistance. The solution cannot be a something that can be done at the stroke of a pen. It requires some ideological acceptance of the process as a genuine alternative to settle the disputes. 

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[1] 2008 (1) ARBLR 393 (Delhi)