ON 14 SEPTEMBER 2020, a 19-year-old Dalit woman was sexually assaulted in the millet fields of Bul Garhi, a village in the Hathras district of Uttar Pradesh. Relatives towed her paralysed body to the nearby Chand Pa police station. Speaking with a gnashed tongue, the victim narrated her ordeal and named the alleged perpetrators, but the policemen on duty disputed her account and rebuffed her plea for assistance. The family admitted her to the local medical college in nearby Aligarh. With public rage soaring, the authorities registered a case and recorded the victim’s statement. A delayed forensic examination—conducted some eight days after the alleged crime—did not reveal evidence of rape, the police claimed.
With her vitals wavering, the family removed the victim to Delhi’s Safdarjung Hospital. A day later, on 29 September, she died. Her autopsy listed “injury to the cervical spine by blunt-force trauma” and “rape and strangulation.” The family never received her body. Instead, the police bussed it back to Bul Garhi, cordoned off the locality and hustled through a cremation without her relatives present.
These events fuelled national headlines. Officials denied any wrongdoing. The Uttar Pradesh government invited the Central Bureau of Investigation to conduct a probe, but opposition parties dismissed this as a charade. The communist parties demanded an independent judicial inquiry. The Bahujan Samaj Party, the Congress and the Samajwadi Party urged having a Supreme Court or High Court judge monitor the probe. The Bhim Army, a Dalit rights organisation, insisted that a retired Supreme Court judge investigate the police.
The family demanded the same. “We want an investigation to be held under a retired Supreme Court judge,” they told reporters. Later, responding to an offer of state compensation, the victim’s father told a BBC reporter, “I want justice, I don’t want money. I’m a daily-wage labourer, I earn two hundred rupees a day, I can live on fifty rupees. But I just want justice.”
India’s superannuated judges are an engaged lot. Their sunset activities incite a mob of clashing reactions, but one line of employ, as overseers of fact-finding commissions, commands a rare consensus. Over the past year alone, politicians, lawyers and civic groups have demanded that judges interrogate the snooping charges involving the Pegasus spyware, the grisly riots that felled 53 people in Delhi, the policy failures in handling the COVID-19 pandemic and the resultant migrant crisis, an alleged police conspiracy against protesting farmers during Republic Day celebrations in the national capital, and much more. Someone, somewhere, is always hankering for grey judges to affirm facts and proclaim truths. This obsession, an inheritance of caste and a cankered state, is a stubborn feature of Indian public life.
But a long view of judicial commissions suggests the need for caution. Historically, these commissions’ partisan workings and findings tell of retired judges being faithful to the state, not the facts. Venerating them as India’s final purveyors of truth diminishes our civic networks of governance. Reversing the trend will mean expanding the circle of public faith to include us, the people of India. The Bul Garhi victim’s family needs a larger mosaic of characters it can trust to identify facts, honour truth and enforce accountability. And so do we all.
INDIA’S SUPREME COURT JUDGES retire at the age of 65, but they rarely disrobe into anonymity. Instead, most labour in new sites. The market offers them an olio of options.
Some judges pick careers in academia and authorship. Judicial training institutions—the National Judicial Academy in Bhopal and its state clones—employ them as experts. Many national law schools enlist them as lecturers. The National Law School of India University in Bengaluru, the National University of Juridical Sciences in Kolkata and others have bestowed chair professorships on several judges. A few aspire to sweeter positions in foreign varsities. Others attempt monographs, textbooks and annotated commentaries. The monographs, mostly on constitutional law, can fill a library, but only a handful are classics of legal scholarship. Commercial publishers also recruit retired judges as the editors of law textbooks and practitioner commentaries, some of them vintage titles that require constant revisions. Often, uncredited authors do the hard grind—the real editing and updating—but pedigree names on rent grace the front pages. This sly deal suits publishers and judges alike: one hawks more books, the other banks away parasitic royalties.
In early 2005, as an undergraduate law student, I received a call from India’s (then) most prominent law publisher. The owner wanted to meet in person. Would I like to edit a leading textbook on administrative law, he asked. The book was nearly twenty years out of date, he explained, and required rewriting. His offer came with some fine print: I would do the work, and the preface would acknowledge my “assistance,” but only a judge would be named as the book’s editor or new author. I declined.
A second crop of judges stay engaged with court matters. In its sunrise years, the Supreme Court rehired some superannuated judges for brief periods—including Chandrasekhara Aiyar, Vivian Bose and Venkatarama Aiyyar. Article 128 of the Indian Constitution permits this, but the practice has expired. Since the 1990s, no retired judge has been reappointed to the Supreme Court.
Things are a bit different in the high courts. In April 2016, various state chief ministers and high-court chief justices adopted a resolution to deploy retired judges in their respective courts. TS Thakur, then the chief justice of India, supported the motion. Re-engaging such judges, he told the gathering, could help shrink India’s monstrous pile of pending cases. But nothing happened. Then, in April 2021, the Supreme Court dispatched a cargo of orders in response to a public-interest litigation empowering—directing—high-court chief justices to re-induct retiring judges for an additional two or three years.
The Supreme Court has invented other ways to enlist retired judges. In some cases, the court involves them in matters under litigation. In 2016, for example, the court appointed Vikramjit Sen, a former judge, to arbitrate in a complex series of claims between property developers and home buyers. In 2021, as an interim measure in another matter, the court appointed an “Overseeing Committee” under the former judge BN Srikrishna to administer the Gokarna Mahabaleshwar Temple in Karnataka.
In other instances, the court has commissioned judges to proffer policy advice or monitor the conduct of certain parties. In 2012, a surgeon named S Rajaseekaran petitioned the Supreme Court to act against a giant public assassin: roads. Archaic laws, he alleged, were strewing Indian streets with needless bodies. The court instituted a committee on road safety to audit the corpus of motor-vehicle laws, under the retired judge KPS Radhakrishnan. The mandates of other such committees have included improving the capital’s savage air pollution, disinfecting the administration of the Medical Council of India and, most dazzlingly, rebuilding the Board of Control for Cricket in India.
A third cohort of judges pursue lucrative careers in private consulting. (A few engage in human-rights activism and advise NGOs.) Corporate executives and public-sector units voraciously consume chamber advice—written briefs, obtained at a fee. These opinions can assist in crafting legal strategies and act as insurance policies: officials can point to them to shield themselves against charges of dereliction or corruption later on. And then there is arbitration, a method of dispute-resolution commercial houses crave to bypass India’s lazy legal system. The March 2021 roster of the Indian Council of Arbitration, a leading agency in the field, listed over thirty former Supreme Court judges among its empanelled arbitrators.
But arbitral career graphs vary wildly: some judge-arbitrators relish astounding success, others stare at empty desks. What explains the contrast? The legal corridors are rife with rumours of enterprising judges and lawyers courting one another from the judges’ days on the bench.
A fourth set of former judges resume public service on tribunals—specialised official bodies with simpler procedures than the courts, but with similar functions. Today, they form an entire menagerie: the Armed Forces Tribunal, the Central Administrative Tribunal, the Food Safety Appellate Tribunal, the Industrial Tribunal, the National Green Tribunal, the Telecom Disputes Settlement and Appellate Tribunal, and many more. Their original promise was to deliver fast and friendly justice beyond overburdened courtrooms. But governments have kept tribunals in a stranglehold, closely monitoring their workings and appointments to them. (The Supreme Court ordered a new arrangement in November 2020 to guarantee tribunals greater independence, and reiterated its view this July.) Of the hundred or so Supreme Court justices to retire between 2000 and 2020, roughly forty resettled in tribunals. These appointments are symbiotic: they prolong judges’ public careers and lend the forums judicial legitimacy.
A final corps of retired judges savour a buffet of discretionary positions. Some are political or advisory, others constitutional, and others still are international. Prime Minister Jawaharlal Nehru inaugurated the practice of inviting judges to this banquet. In 1952, he appointed Saiyid Fazl Ali, one of India’s original Supreme Court justices, as the governor of Orissa. Ali was still a judge when Nehru announced his decision, and ethics enthusiasts grumbled about the indiscretion. But Nehru persisted, feting Ali and other judges with a bevy of post-retirement offers. He made them governors and ambassadors, placed them in university administrations and tasked them with running advisory commissions and investigative ones.
These early retirees did it all: reorganise states into linguistic units (Ali), settle boundary disputes (MC Mahajan), probe ministerial malfeasance (SR Das), interrogate bureaucratic bungling (SK Das), investigate corporate corruption (Vivian Bose) and tender policy recommendations (Venkatarama Aiyyar). The trend has since only accelerated, and Nehru’s inaugural practice is now the republic’s abiding habit.
These post-retirement pursuits provoke a wide spread of reactions. The first two—academic and court assignments—do not elicit much suspicion, but questions remain, particularly over the latter. Why do the courts enlist some former judges for ad hoc roles but not others? We do not know: the courts rarely reveal their mind. The third option—chamber practice and arbitration—stirs occasional disquiet in legal circles but seldom so much as makes the news. In contrast, tribunal placements incite frequent storms of commentary. Some denounce such appointments, anxious about governments employing them as lures to erode the independence of the judiciary. Others demand them: only retired judges, they reason, can protect the independence of tribunals. The fifth path, of discretionary positions, rouses especially trenchant reactions. The commentariat bitterly disfavours retired judges taking up political posts as governors, ambassadors or nominated members of parliament. But even it embraces—in fact, insists upon—judges’ shepherding investigative commissions of civic importance. Something about retired judges, some intangible trait, makes them universally assumed to be ideal ushers of these commissions.
THE JUDICIARY MOTORS on trust. It has nothing else. Writing in 1788, Alexander Hamilton, among the original signatories of the American constitution, christened it the “weakest” branch of government. The legislature controls the “purse”—the country’s finances—and “prescribes the rules” that regulate citizens. The executive commands the “sword of the community,” the military. But the judiciary, Hamilton noticed, has “neither FORCE nor WILL,” only judgment. Popular obedience to it rests on faith: people must believe in judges’ impartiality.
Unsurprisingly, international codes of judicial conduct and the Indian Supreme Court’s own Restatement of Values of Judicial Life, adopted in December 1999, belabour the role of trust. They eulogise a bouquet of values—independence, impartiality, integrity, propriety, equality and diligence—and exhort judges to exemplify them in everything they do. The mission: engender trust in judges and the judicial process.
But India has long witnessed a form of trust transfer: judges are trusted, but so are retired judges. In office and out of it, they appear the same: repositories of honour and honesty, ethics and excellence, tact and sound temperament. Note how retired Supreme Court and High Court judges demand, and are forever accorded, the dignity of the title of “Justice.” High judicial status in India is invisibly permanent: once a judge, always a judge.
This is the handiwork of the caste system. Judging, especially in the Hindu consciousness, has enjoyed an abiding association with Brahmins. While community elders mediated local disputes, lingering disagreements that reached higher forums involved Brahmins as judges. In princely courts, the officiating priests also performed adjudicative duties. They acted as royal advisors, jurisconsults or judges. In 1772, the East India Company’s first governor general, William Hastings, unwittingly codified these customs when he directed English judges that, “in suits regarding inheritance, marriage, inheritance, caste, and other religious usages and institutions, the laws of the Koran, with respect to Mohammedans, and those of the Shaster with respect to the Gentoos, shall be invariably adhered to.” So pandits and shastris, specialists in sacred texts, sat as advisors and referees on colonial benches and co-signed verdicts. (Maulvis did the same in disputes involving Muslims.) This cemented the Brahmins’ old role in the new legal system. As JDM Derrett, the one-time Tagore professor of Hindu law at the University of Calcutta, put it, “Non-Brahmans admitted that Brahmans were the expounders of law, and that the Hindu religion required obedience to the dharmasastra which the Brahmans alone knew.”
This imperial union of British judges and Brahmins was dissolved in 1864. The latter no longer sat as jurisconsults on benches. But as the Anglo-Indian legal system expanded, the upper castes, especially Brahmins, assumed lower-level judgeships and populated key roles in the emerging legal professions. The cultural memory of Brahmins as judges deepened as modern courts imitated ancient custom.
The new republic, in turn, enacted this memory with gusto. Till 1990, over forty percent of Supreme Court judges were Brahmins. The figure has since dipped slightly, but remains vastly disproportionate to their demographic representation in India.
“All significant concepts of the modern theory of the state are secularized theological concepts,” the German philosopher Carl Schmitt once wrote. All significant practices of the modern Indian state, to adapt Schmitt, are secularised caste concepts. Their long histories scaffold the cultural practices of the administrative state and reveal themselves in how the bureaucracy organises, expresses and engages itself. The inner workings of the judiciary vividly demonstrate this. Today’s judges are yesterday’s Brahmins—and though not all modern-day judges belong to the Brahmin caste, they are all performing Brahmins. Just like a Brahmin is always a Brahmin, a judge, too, is always a judge.
This reverence made opposition politicians demand that retired judges probe the Delhi riots of 2020. This reverence inspired the Bharatiya Janata Party to urge an investigation led by a retired judge into the ethnic cleansing of Hindus in the Kashmir Valley in the 1990s. This same reverence prompted the Communist Party of India (Marxist) to call on retired judges to review the government’s ruinous sale of telecom spectrum in 2010.
But do the facts justify this oddly uniform—and culturally informed—trust?
CONSIDER THE CATALOGUE of commission findings involving retired (or sitting) Supreme Court judges who investigated politicians in the last five decades. (I exclude commissions set up to recommend policies, and include only that information which is already public knowledge.)
On the afternoon of 31 October 1984, Prime Minister Indira Gandhi’s Sikh bodyguards murdered her. Immediately, Delhi groaned like a slaughterhouse as organised mobs hunted Sikhs down as ostensible vengeance. In 1985, Prime Minister Rajiv Gandhi, Indira’s son, appointed Ranganath Misra, a Supreme Court judge, to probe the carnage. Misra’s report hinted at police apathy, avoided naming apparatchiks and absolved the Gandhis’ Congress party of any culpability.
In May 2000, the governing National Democratic Alliance, an anti-Congress coalition, commissioned another investigation. GT Nanavati, a former Supreme Court judge, headed an examination of the “sequence of events” in 1984 and “any lapses or dereliction of duty” among officials. Unlike Misra, Nanavati indicted Congress leaders for instigating the assault: among them Jagdish Tytler, Sajjan Kumar and HKL Bhagat. But his report came out in February 2005, five years after his original appointment. By then, the NDA had succumbed to a surprise electoral defeat and the Congress had resumed power. Except Kumar, none of those named nor others who had stood above them in the party structure faced any criminal consequences.
Elsewhere, Nanavati was more forgiving of the political leadership.
In the early hours of 27 February 2002, coach S-6 of the Sabarmati Express, on the return leg of its route connecting Ahmedabad to Ayodhya, erupted in flames. The train was stationed at Godhra Junction that morning, a few hours shy of its final destination in Ahmedabad. Almost five dozen Hindu pilgrims were burnt to death. Grisly violence erupted across Gujarat a day later. At least a thousand, if not several thousands, died in communal attacks—most of them Muslims.
The next month, Narendra Modi, the state’s chief minister at the time, appointed KG Shah, a retired high-court judge, to investigate the inferno and the riots. Two months later, critics goaded Modi into expanding the probe panel. He inducted Nanavati. The investigative commission’s first tranche of findings arrived six years later. (Shah had died by then, and Akshay Mehta, another retired judge, had joined Nanavati.) The train fire, the panel concluded, was a pre-meditated crime: local Muslims had masterminded a plot to kill Hindus. The judges absolved Modi, his ministers and their minions of any complicity or negligence in the ensuing riots. The findings advantaged Modi, who was dogged by persistent allegations that he had a hand in the bloodshed.
Another commission proclaimed contrary facts. In August 2004, Lalu Prasad Yadav, the railway minister at the time and Modi’s political foe, entrusted UC Banerjee with a parallel investigation into the train burning. Banerjee, a retired Supreme Court judge, filed his interim report in January 2005. The victims had died in an accidental fire that began inside the coach, he wrote, and no Muslim masterminds or mobs were involved. This finding, conveyed just before state elections, suited Yadav.
Notice the mounting pattern. Findings vary by judges: selecting the right ones begets the right reports. Predictably, the archives are crawling with commissions that engineered expedient findings.
In July 1985, opposition parties delivered a 53-page charge sheet to Rajiv Gandhi against Haryana’s Congress chief minister, Bhajan Lal. It contained a feast of allegations: corruption, fraud, nepotism, profiteering and more. Gandhi appointed Jaswant Singh, a retired judge, to conduct an inquiry. In just under a month, Singh had a 150-page exoneration ready. The report scrubbed Gandhi’s ally free of all stains.
When it came to Gandhi’s foes, it was a different story. In 1989, Gandhi was accosted by a chorus of corruption charges against himself and was desperate to deflect attention. He invited Kuldip Singh, a Supreme Court judge, to probe his political rival Ramakrishna Hegde. Singh’s swift report dutifully indicted Hegde on several counts. Gandhi had lost his prime-ministerial office by then, but the findings still embarrassed Hegde and he vacated his post at the Planning Commission.
Allies-turned-adversaries, too, suffered similar fates. In 1986, the finance minister, VP Singh, hired an American firm to investigate foreign-exchange violations by Indian firms. Singh had not consulted with Gandhi on this, and his government and the Congress party, fearing embarrassing disclosures, turned on the finance minister. His party colleagues alleged that Singh had compromised India’s national security by enlisting a firm with purported links to the Central Intelligence Agency.
Gandhi named two Supreme Court judges, MP Thakkar and S Natarajan, to investigate the controversy. Working from their residences and away from the public eye, the judges conducted a skewed probe. The pugnacious lawyer Ram Jethmalani, representing one of the parties in the case, refused to address them with the usual honorific. “You are now not Lordships for me as you don’t sit as judges of the Supreme Court,” he told Thakkar and Natarajan. “Sorry, I will address you only as commissioners.” The judges’ report, a withering attack on Singh, surprised no one, and was just what Gandhi needed to arrest the dimming of his political star. By the time it was out, Singh had abandoned the Congress and become Gandhi’s arch adversary.
Another example: In April 2004, the United Nations secretary general Kofi Annan invited Paul Volcker, the former chairman of the US Federal Reserve, to probe corruption in the Oil-for-Food Programme in Iraq. Volcker’s 2005 report identified the Congress and aides of Natwar Singh, a high-ranking party politician, among the beneficiaries. To pacify an outraged opposition, Prime Minister Manmohan Singh, a loyal Congress man, appointed RS Pathak to reinvestigate Volcker’s India-related findings. Pathak, a former chief justice of India, absolved the Congress of any wrongdoing without summoning party leaders or demanding any explanations. He concluded that Natwar Singh had improperly enabled others to secure corrupt deals, but found no evidence against him personally. The opposition later claimed that the fix was in: Natwar Singh needed to fall so that the Congress could remain standing. Pathak, in effect, had delivered what the party needed.
Again, in August 2005, Assam’s chief minister, the Congress’s Tarun Gogoi, solicited an investigation into an eerie sequence of killings under the state’s previous administration. He entrusted KN Saikia, a former Supreme Court judge, with the proceedings. In the 1990s, the United Liberation Front of Asom, a secessionist group, had unleashed bloody mayhem. By 1998, a spate of counter-killings began, as masked gunmen fired midnight bullets into relatives, friends and sympathisers of suspected ULFA militants. (They also killed journalists and activists.) The Saikia report on the “secret killings” fingered PK Mahanta, Gogoi’s political adversary and the state’s chief minister at the time they occurred.
Occasionally, commissions do not directly profit their architects, but judges still find ways to serve their agendas. On 2 January 1975, a bomb ripped through the Samastipur train station in Bihar. It grievously wounded LN Mishra, the railway minister in Indira Gandhi’s cabinet, and he died the next day. Mishra was under a cloud of corruption charges regarding his fundraising for the Congress, and his assassination, the opposition claimed, was a profitable loss for Gandhi. She put KK Mathew, a Supreme Court judge, in charge of assessing the “facts and circumstances pertaining to the explosion.” The resulting report, delivered after Gandhi had declared the Emergency that June, did not identify the alleged killers, but Mathew devoted a chapter to denouncing Gandhi’s adversary Jayaprakash Narayan and his populist movement against her government. The “climate of violence created by the agitation as well as the allegations of corruption made during it against Mr. Mishra provided an atmosphere congenial to the perpetration of the crime,” the judge surmised. In implicating Narayan’s movement, Mathew retrospectively excused Gandhi’s constitutional coup.
The Congress’s curriculum on picking judges—the right judges to unearth the right findings, hand out the right exonerations or fuel the right innuendos—is no longer a secret. Indian politics is teeming with graduates proficient in finding suitable candidates.
In the early 2000s, undercover reporters filmed the president of the ruling Bharatiya Janata Party, political aides of the defence minister and senior staff in the defence ministry accepting wads of cash as part of a sting to expose corruption in defence deals. Immediately, political parties wrangled for mileage. The defence minister, George Fernandes, resigned, and Prime Minister Atal Bihari Vajpayee ordered a probe. SN Phukan, a retired Supreme Court judge, examined the allegations. Predictably, he exonerated Fernandes. The opposition spokesman Jaipal Reddy, of the Congress, blurted out the truth: “Phukan was handpicked by the government. He will naturally give a clean chit to the minister.”
A decade later, the parties swapped roles: a Congress-led administration picked a judge and the BJP complained. In 2011, Kapil Sibal, the telecom minister in the United Progressive Alliance government, convened a one-man commission to investigate alleged corruption in the allocation of telecom licences and 2G spectrum between 2001 and 2009. Shivaraj Patil, a retired Supreme Court judge, landed the assignment. His report absolved A Raja, Sibal’s predecessor in the Congress-led alliance, but fingered several government officials from the earlier UPA administration, which had ruled from 2004 to 2009, and the BJP-led government that had preceded it. Arun Shourie, the telecom minister in that government, blasted Patil’s report, calling it a “complete misrepresentation” designed to help the UPA. “A handpicked judge gives a report to the government which is so convenient,” he railed. “It is a perversity.” Some years later, the BJP leader Arun Jaitley relitigated the same charge against Patil, insisting that Sibal had selected a judge of “his choice” to artificially unearth an “NDA scam.”
All parties know their partisan shades of black on the bench, but pretend otherwise.
A DISTRESSING AXIOM governs India’s ad-hoc commissions. Penned by retired (or sitting) judges, their reports patronise the partisan interests of those who install them. The commissions resemble vending machines: insert charges against their creators, and the reports exonerate; insert charges against the opposition, and the reports implicate.
The pattern is problematic even if the findings seem justified. Consider the string of inquiries Prime Minister Morarji Desai initiated in 1977, after voters ousted the Congress from power in Delhi. Rejecting demands for an omnibus “Nuremburg-type trial,” Desai commissioned eight piecemeal investigations into the Emergency-related excesses of his predecessor, Indira Gandhi, and her consiglieres. Retired Supreme Court judges headed all of them. These included the famed Shah commission (against Gandhi herself), the Gupta commission (against her son Sanjay Gandhi and his financial vandalism in the Maruti company), the Reddy commission (against Gandhi’s confidant and defence minister Bansi Lal) and the Grover commission (against Congress chief ministers and their abuses of power). Each commission found against its subject(s). But the incriminating reports were also wins for Desai: he got just what he wanted.
Only seldom do commissions disobey the axiom. Consider one of Desai’s inquiries that revisited the puzzling Nagarwala affair. On 24 May 1971, one RS Nagarwala impersonated Indira Gandhi’s voice over the phone, and later sped off with sixty lakh rupees from the State Bank of India’s high-profile Parliament Street branch in Delhi. Then came a train of odd events: Nagarwala’s conviction in a trial that lasted ten minutes, his death in prison not long after, the death of the investigating officer in a car crash. Desai trusted P Jaganmohan Reddy, a retired Supreme Court judge, with a probe. Reddy identified “incontrovertible facts” and “several lacunae” but refused to speculate based on them. The available facts, he concluded, provided no basis to fasten the crimes or coincidences to Gandhi. It was a rare report: a commission against an adversary that delivered an exoneration.
Another disobedient report also had a Desai link. In July 1978, malfeasance charges swirled around relatives of Desai and his home minister, Charan Singh. In April 1979, the prime minister appointed CA Vaidialingam, another retired Supreme Court judge, to interrogate the claims. Delivered in January 1980, the Vaidialingam report probed 41 charges and condemned Desai’s son and daughter-in-law, as well as Singh’s wife, on seven counts. The commission had stung its creator. But these are honourable exceptions: rogue vending machines of a bygone era. The well-oiled ones have rarely malfunctioned since.
India’s judicial commissions of inquiry appear scripted. Their appointments calm an initial frenzy, misdirect opposition attention, lend ministers precious time, offer retired judges a pretence of official duty and cost the exchequer untold sums. In conversations with the American political scientist George Gadbois, several judges of the Supreme Court fessed up to the crooked origins of some commissions. Ministers, they said, planted “motivated witch hunts aimed at harassing political rivals.” But the pattern of friendly findings suggests that some outcomes, too, have been crooked—rendering judges character assassins for hire. So much for the ambassadors from virtue-land, the repositories of ethics and excellence.
This self-evident truth should make Indians distrust such commissions. Instead, an illusion of integrity has them riveted. Neglecting the glaring facts, Indians adamantly venerate retired judges and inflate their dignity. At times, their faith has a delicious hint of irony. In September 2020, the lawyer Colin Gonsalves, writing in the Indian Express, castigated the Supreme Court’s refusal to probe corruption charges against judges. He asked: “Why can’t the truth be told? Why can’t names be mentioned? Why can’t details be spoken of? Why can’t testimonies of senior lawyers who have practised in the [Supreme Court] for decades and know particulars … be recorded?” And who should do the recording? “A commission of retired judges of impeccable integrity,” Gonsalves suggested. He did not say how to identify them. Another commission of retired judges, perhaps? Even opposition parties who know better (for they have their vending machines, too) cannot escape the lure of this mysterious faith.
Perhaps Indians should dispute this cultural consensus, disavow the inherited trust and experiment with a radical alternative: bet on retired judges a bit less and on themselves a bit more.
MODERN DEMOCRACIES are indirect systems: citizens govern themselves through representatives. The latter legislate, execute policies and officiate over people’s lives. Periodic elections are central to this setup. They ensure delegates stay loyal to citizens’ interests and preferences. During the late twentieth century, scholars enshrined this form of indirect democracy as the ultimate elixir, the pinnacle of institutional design for self-government.
Not anymore. Bridled by a fleet of electoral pathologies—voter inertia, ignorance, bias, elite capture, corruption and more—historians, philosophers and political scientists are scouting for alternate modes. The philosopher Alex Guerrero and others have suggested retooling an old Athenian motor to power democracies afresh. They call it lottocracy. (Other names for it include “sortition” and “demarchy.”) Guerrero’s version imagines multiple single-issue assemblies addressing specific topics: healthcare, climate change, consumer protection, higher education and so on. Three hundred randomly selected individuals would populate each one, with each “lottocrat” serving a three-year term. Guerrero’s framework regards such service as voluntary, but lottocrats would enjoy financial incentives and accommodations for their families and work schedules if they agree to serve. Also at their disposal: expert assistance, stakeholder inputs and community feedback as they propose, debate and enact legislation.
The idea of lottocracy is not alien to India. In 1993, a constitutional amendment incorporated Panchayati Raj, India’s aboriginal form of self-government, as a third tier of government administration. Voters elect local administrators every five years, but one-third of panchayat seats are reserved for women. (Some states have upgraded this to half.) Each electoral cycle, specific seats are randomly identified for reservation. This is lottocracy at the seat level. A stack of econometric research on the effectiveness of such randomised reservations (including by the Nobel laureate Esther Duflo) suggests the system has worked well.
I propose the lottocratic principle for fact-finding commissions: engage a randomly selected panel of citizens to probe the next riot, the next police botch-up or the next act of political malfeasance. Using ordinary citizens as fact-finders is a common practice. Many countries have it, and India, too, had it once: the jury system. Jurors hear counsels, then deliberate over and pronounce on the guilt or innocence of the accused. India’s last jury assembled in Calcutta in January 1973, to try two persons for committing homicide and grievous hurt. By a majority vote, the jurors acquitted them both. About fifty years later, India must reinvent jurors as commissioners. In some respects, commissioners have more to do than jurors: identify victims, interrogate witnesses, inspect evidence, write reports. In other respects, they have less: they do not decide the guilt or innocence of any parties. (Commissions only find facts; they cannot deliver legal judgments.)
Implementing lottocratic commissions requires agreement on some details: how to select citizens (from the electoral rolls, perhaps), how many (possibly ten to fifteen), from where (maybe a mix of locals and non-locals). Other issues require attention, too. Compensation: should commissioners be paid, and if so, how much? Independent expert assistance: how should it be made available? Security: how should commissioners be reasonably protected? These matters are debatable, but not difficult to settle.
THE IDEA OF NON-EXPERTS as fact-finders also has an intriguing parallel in the physical sciences. In June 2014, the Oxford English Dictionary elevated “citizen scientist” into its lexicon, some twenty years after the British sociologist Alan Irwin and the American ornithologist Rick Bonney separately proposed the term. Irwin, in particular, was motivated by a desire to open up “science and the scientific processes to the public.” Citizen scientists are amateurs involved in producing data and knowledge. They assume many avatars: data collectors, interpreters, problem definers, even data analysts. Some collaborate with (professional) scientists, others toil under the DIY flag. They have pioneered discoveries and inventions in many areas. The California-based Counter Culture Labs, for example, is attempting to produce a generic and cheap insulin, aided by an army of amateur geneticists. Increasingly, citizen (or civic) scientists command a presence in ecology, geology, microbiology, ornithology, oceanography and beyond. With support from national academies, international organisations, dedicated journals and prestigious academic conferences, they are forging a global movement. If ordinary citizens, despite fears about bias and data contamination, can do science, can they not do civics too?
Today, fact-finding commissions in India are under judicial monopoly. We trust them because all other governing institutions are awash with distrust. This poverty of credibility has skinned our democracy to its bones. The republic is a jamboree of elected posts, appointed officials, hustling businesses, voluntary networks and striving citizens. Branding everyone except judges (and, incidentally, the army) as “compromised” is a ruinous pursuit: India will lose if it runs down the prey.
Entrusting the task of identifying facts, and the truth, to ordinary citizens—divided by caste and creed, politics and ethics, region and religion—is an ambitious experiment in democracy, but one the republic urgently needs. Atomised realities and sectarian values are gripping India fast. Indignant citizens are burrowing into snug silos: private spaces with room only for those who think and act (and vote) like them. And these angry hideouts are stoking our instincts for war and blood, as the anthropologist Thomas Hansen suggests in The Law of Force: The Violent Heart of Indian Politics.
Making Indians engage with, argue about and agree on facts despite obvious differences may rekindle local trust. These interactions can cultivate civic synergy. They can (re)affirm the idea of living with—and amid—difference. This is no idle theory. In his acclaimed Ethnic Conflict and Civic Life, the political scientist Ashutosh Varshney illustrated the murderous fallout of depleted community ties. He analysed three pairs of Indian cities: one city in each pair had a history of communal violence, the other had a history of harmony. Marrying rich ethnographic insights with archival data, Varshney showed how layers of inter-ethnic engagement contributed to observing peace despite provocations. Cities with strong, sustained individual interactions (in mohallas, markets and the like) and organisational networks (community centres, trade unions, grassroots educational, trade and professional associations) excelled at communal peace. Engagement amid diversity matters. It has saved lives—it can save our democracy, too.
Some scepticism is understandable. Can citizens probe fairly while living out their rainbow of individual identities? Can they resist the sly pressures partisans will rain down on them? Can they resume normal post-commission lives? I cannot foretell. But we must try. Today, judicial commissions are predictable vending machines. Anything that renders outcomes unpredictable is progress. A commission of randomly selected citizens guarantees such unpredictability. It is assuredly better than today’s commissions of untruth.
This story first appeared on caravanmagazine.in