Conversation with Prof. Tom Ginsburg, Professor and Deputy Dean at the UChicago Law School

ginsburg_tomProf. Tom Ginsburg is the Leo Spitz Professor of International Law and Deputy Dean at the University of Chicago Law School as well as a Professor of Political Science at the University. He is a prominent scholar of comparative and international and has authored or edited several books, including Judicial Review in New Democracies: Constitutional Courts in East Asia (2003), The Endurance of National Constitutions (2009), and Comparative Constitutional Law in Asia (2013). He was recently in New Delhi to deliver a lecture at the University of Chicago Center on his upcoming book, Judicial Reputation: A Comparative Theory.

Prof. Ginsburg’s comparative work on judicial councils (i.e., judicial appointments commissions) has been cited by the Supreme Court in the leading opinion striking down the constitutional amendment and the statute instituting the National Judicial Appointments Commission (Supreme Court Advocates-on-Record Association v. Union of India). In an e-mail interview with me [Vasujith Ram], Prof. Ginsburg discussed the collegium and the National Judicial Appointments Commission in the light of his scholarship in the area:

Q: You have analyzed judicial councils from the perspective of law and economics, based on principal-agent theory. How would you analyze India’s collegium system of judicial appointments?

A: Judges, ultimately, are agents of society, and so should serve the public interest.  The question is how to set up a system of judicial appointments that would maximize that possibility.  The collegium system is the paradigm example of a self-appointing mechanism for judicial appointments, and so if one believes that existing judges are the highest guardians of the public interest, it is a good system.  The alternative is a system that reflect inputs from other actors, such as politicians who are also representatives of the public. Which system is better comes to down to one’s relative trust in judges as opposed to other possible appointers.

Even if one trusts the judges, there are risks that are inherent to a self-appointing senior judiciary.  The main risk is that they will not reflect changes in the society, in terms of preferences about justice or in terms of changing demographics.  The system requires that judges pay special attention to make sure they are reflecting the society, and not just appointing people who think and look just like themselves.  This would lead to a gap between the legal system and the underlying society it governs.

Q: How would you compare the (now held to be ultra vires) National Judicial Appointments Commission (NJAC) and the collegium system of appointments?

A: The NJAC would have replaced the collegium system by introducing inputs from outside the judiciary: the Law Minister and eminent persons to be appointed through a political process.  While this system was held unconstitutional in India, other countries have systems that are similar to the proposed NJAC.  This fact does not bear on the constitutionality of the arrangement, but does suggest that it might be practicable to have a different system.  Obviously the NJAC would have introduced moderate limits on the ability of the judges to control the appointment process.

Q: In your study, you find little relationship between the existence of judicial councils (or merit plans) and judicial quality. Could you elaborate? This is in light of Justice Khehar’s observation: “Judicial Commissions/ Councils created in different countries were, in their [Garoupa & Ginsburg’s] view, measures to enhance judicial independence, and to minimize political influence. It was their view that once given independence, Judges were more useful for resolving a wider range of more important disputes, which were considered essential, given the fact that more and more tasks were now being assigned to the judiciary.”

A: Yes, our study argues that, even in theory, there is no necessary relationship between judicial councils and judicial independence.  Sometimes councils are implemented to enhance independence but other times they are not implemented to reduce it and increase accountability.  We do not actually directly study the issue of judicial quality, which is of course quite difficult to measureIt is quite possible in some circumstances that greater accountability will result in an increase in judicial quality—it all depends on the particular situation of the judiciary in a given country.

Q: While the NJAC judgment notes your descriptive point that there is a growing scholarly consensus that judicial appointments ought to be insulated from partisan politics, it ignores your analytical point that this consensus is theoretical and not based on systematic evidence. In the judgment it is held, with the apparent support of your article, that the presence of the Law Minister on the NJAC is a retrograde step since the diminishing role of the executive in appointments is an “obvious reality”. What are your thoughts?

A: As a positive matter, it is not surprising that we see pressure on an activist, self-appointing judiciary to take into account a broader set of perspectives than it traditionally has. Because the judiciary matters in India, in the sense of being an important institution in constitutional government, there will be pressures from rising political forces like the BJP to have a say in the appointment process. This kind of pressure does not necessarily reduce judicial independence or quality, as I said above.  But whether it is a good thing in the particular context of India is a different matter.  It would depend on a diagnosis of the current situation of the judiciary and the quality of the proposal, which of course would require extensive study.

Q: The judgment also seems to have overlooked your findings about the need for independence even within the judicial hierarchy. With support from case studies like that of Singapore, you point out that Senior Judges may exercise considerable influence, creating institutional pressure on lower court judges. How pervasive is this problem? Is it something that ought to have been considered by the Bench hearing the case on the constitutionality of the NJAC?

A: Frankly, I think there is a problem in India that there is insufficient attention to the lower courts.  While the High Courts are directly implicated by the collegium system, in that judges and potential judges need to be known by those who will serve in the collegium, this network does not (in my limited understanding) extend to the lower levels of the judiciary.  It would be good if the country’s trial judges were more dependent on their superiors in the judiciary I think.

Q: Compared to the collegium system, how useful do you think the NJAC may have been in ensuring adequate diversity on the Bench? The collegium has been long criticized as being a modern clique.

A: Judicial appointments commissions often have a role in diversifying the judiciary, and it is important for the reputation and legitimacy of the judiciary as a whole that it reflect, broadly speaking, the diversity of the country. The Judicial Service Commission in South Africa, for example, was set up under the post-apartheid constitution to transform the judiciary, and it has done a decent job of making the judiciary more representative in terms of race and gender. In the UK, too, the judicial appointments system has been overhauled to try to ensure more women and minorities.  We don’t know how well the NJAC would have done, but I can imagine it may have been helpful in this regard.

Q: The NJAC comprised of the 3 senior most judges, the law minister and two ‘eminent persons’ (not necessarily ones with a legal background). What is your comment on this composition? Are there other instances where persons from non-legal background form part of the Judicial Councils? How have they fared?

A: It is not uncommon to include non-lawyers on judicial councils; one can think of such persons as members of the ultimate beneficiary of the judiciary, the general public.  They may be helpful in demanding more diversity, or coming up with ideas for judicial management, and they can also help to ensure that the judicial council does not itself become captured by either the judiciary or the government. On the other hand it is often difficult for non lawyers to understand the details of judging and what it requires. Judging is a really technical enterprise, and one almost needs to be a judge to evaluate how well a judge is doing.

Another thing is that the NJAC proposed that the eminent persons would be selected by politicians, including members of the majority and opposition. This is an interesting and important idea for helping to protect against the NJAC simply being used to pressure the judiciary.

The bottom line is that the NJAC was an interesting innovation and we will never know how it would have worked.  I wonder if it would have solved all the problems that its proponents identified; at the same time there are other major problems in the Indian judiciary that would have been unaddressed.  The biggest one, it seems to me, is judicial administration. The Supreme Court is so busy with its massive docket it can devote little time to improving the performance of the lower courts.  Some judicial councils have a role in this regard, but there are other solutions too. I look forward to watching the drama of the Indian judiciary play out in future years.

(Special thanks to Avani Chokshi and Mansi Binjrajka for assistance in conducting this interview)

Image courtesy: here.

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