The conflict between the judiciary and the legislature or the executive is almost a consistent feature of a vibrant state and if kept under check is healthy for propagation of democratic values. Ashoka, son of a judge, states that judges all over the democratic world have played a crucial role in the development of the societies. Here’s his critique of the judiciary, one of the three pillars of a democratic polity, exclusively for Different Truths.
“Judges ought to be more leaned than witty, more reverent than plausible, and more advised than confident. Above all things, integrity is their portion and proper virtue.” ~ Francis Bacon
Judiciary is one of the three pillars of a democratic polity. A society without an effective system of justice would always remain suspect hence the absolute need for the preservation of the pedestal that the judges enjoy. When the legislature and the executive are frequently subjected to savage criticism and reviled – and that happens not that infrequently – it is the judicial rectitude that sustains the faith in the state.
The conflict between the judiciary and the legislature or the executive is almost a consistent feature of a vibrant state and if kept under check is healthy for propagation of democratic values.
Chief Justice John Roberts was bang on when he remarked:
“Judges are like umpires. Umpires don’t make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.”
And unhealthy conflict between these three arms can be avoided if we follow the following words of wisdom:
“Judicial abuse occurs when judges substitute their own political views for the law.” ~ Lamar S. Smith
Before proceeding any further, it is important for me to make a confession. I am myself a judge’s son and have been a keen follower of judicial developments in this country. I do not necessarily subscribe to the views of ex-President William Taft, who became a Chief Justice after demitting his 1500 Pennsylvania Avenue office:
“I love judges, and I love courts. They are my ideals that typify on earth what we shall meet hereafter in heaven under a just God.”
But I do believe very firmly that judges all over the democratic world have played a crucial role in the development of the societies. That one of the most distinguished judicial figures in modern history viz., Josiah Bartlett also happened to be a very eminent physician clearly must have played a role in the development of this interest. I was also fortunate enough to have interacted with perhaps the greatest judicial figures of the modern era in the UK viz., Lord Scarman and the loquacious Lord Denning. Denning somehow sullied his judicial record towards the end by a controversial judgement in which he stated that while racial discrimination was illegal in the UK, religious discrimination was not. When I moved to the US, I also had the good fortune of observing some truly great judges like Justice Brennan and Justice Anthony Kennedy (whose judgement in the Texas vs Johnson should be made a compulsory reading for all law students). I regard Justice Kennedy as the most capable serving judge we have anywhere in the world at this time.
Looking at the modern Indian history, one would find that the judiciary started on a very suspect note. Elijah Impey used to describe himself as the first Chief Justice of India. That he was an employee of the East India Company with no Imperial sanction did not inhibit him from using that megalomaniac appellation.
Impey happened to be a school friend of the despotic Warren Hastings, the first Governor General who brought him here. He unashamedly did his bidding when he sentenced Maharajah Nandcomar to death in a highly suspect trial that lasted less than 10 minutes. The Maharajah was Hasting’s adversary and the charges were clearly trumped up. This incident must go down in the annals of infamy as the most disgraceful act of judicial perversion.
Independent India, however, has a chequered judicial record. We have been fortunate enough to have had judges like Radha Binod Pal. And Patanjali Sastri’s judicial scholarship and wisdom was exemplary by any standards. We have had distinguished judges like Krishna Iyer, whose judgements always had the additional effect of enhancing one’s vocabulary. We have had judicial stalwarts like Jeevan Reddy and Bharucha and staunch votaries of human rights like Adarsh Sein Anand. And after all who can forget perhaps the bravest and the brightest judicial figure to emerge on the Indian judicial horizon viz. Hansraj Khanna.
But sadly there also have been occasions when the judiciary failed us grievously. I am of course referring to the Emergency. Shivkant Shukla vs ADM Jabalpur surely would rank alongside Dred Scott as the worst example of judicial abrogation. Commonly known as the habeas corpus judgement, it took away from us all our rights to life and liberty. Only one judge viz., Hansraj Khanna dissented. And there was another judge who in a concurring note made an infuriatingly absurd comment i.e., those who were arbitrarily detained under the Emergency were being accorded maternal treatment! The judge is question was Hamidullah Beg and I recall wryly remarking that he had inadvertently revealed the sort of relationship he must have had with his mother; a typical tongue in cheek!
Very soon after this judgement the sitting Chief Justice retired and Khanna, who was the next in line, was passed over. No prizes for guessing the judge Indira Gandhi preferred! Years later when Justice Bhagwati, who was one of the judges to have ruled in the matter became the Chief Justice, paid a visit to London. I was invited to a reception that was held for him and as a newly qualified young barrister I threw all discretion to the wind and mentioned to him how disappointed I was with his ruling in the habeas corpus case. To his credit, he took it in the right spirit in the most generous manner and without taking any umbrage at my display of brash impudence, revealed that he and Justice Chandrachud had already made a public statement that they had probably erred. Bhagwati effected several notable reforms in the judicial system but his concurrence in this infamous judgement denied him the claim to greatness.
There has been a lot of debate lately over the procedure for appointment of judges especially in the higher courts. That of course has to be ironed out between the executive and the judiciary. Getting proper judges in the courts is an essential pre-requisite.
But equally, if not more important, is the institution of a mechanism where judges can be held accountable. The present system was found to be woefully inadequate in the Justice Ramaswami case where a judge who was declared corrupt by three of his colleagues was not impeached by the Parliament because he enjoyed a favourable rapport with the then ruling dispensation. I think a debate on this is more important than the appointment process. A number of very unsettling instances of late make it very crucial for us to pay it the attention that is due.
Even more important is to establish a mechanism where people can express concerns about the lower judiciary where most of the cases are dealt with. There have been some disturbing instances which have come to light. While reviewing an appeal against a judgement, the Delhi High Court found the observations of the lower court so off beat that is ordered the judge in question to register for a refresher course in the Criminal Procedure Code. The judge appealed to the Supreme Court where he admitted that he may have been wrong but prayed for the order to be revoked. The Court granted him relief but only after severe admonition.
It is reasonable to presume that this was an exception rather than a rule as most people for fear of contempt do not register their concerns about the judiciary. While ascribing motives to the judges in public and bringing down the reputation of the judiciary is undoubtedly covered under contempt, one can always share concerns about the judiciary to the supervising High Court in a confidential manner without any fear of invoking contempt.
For the record, I myself have shared my concerns with the Chief Justice of India about three judges in a confidential note which was also passed on to these judges in question and the Chief Justice of the supervising High Court. The concerns in my opinion were too important to be ignored but I was not entitled to make any assessment which I left to the higher courts.
My own position is that until such time as we have a better mechanism set in place we should never hesitate to apprise the senior judiciary. I would see that as a duty of a concerned citizen.
Decades ago when my father was in the judiciary, the Chief Justice of the Allahabad High Court was Justice M.C. Desai, an ICS officer known for adherence to the highest judicial traditions. He learned that a Munsif had used the profane colloquial expression for a donkey in vernacular in an open court. He summoned him and asked him to apologise publicly. I do feel through his action Justice Desai maintained the dignity of the entire judiciary.
We do need more senior judges like Justice Desai. I would like the hallowed portals of judiciary to continue to evoke the same veneration it did in my father’s time. But for that we would also have to fulfil our duties as citizens and not hesitate to communicate our concerns when warranted.
©Ashoka Jahnvi Prasad
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