There is a strong case to consider constitutional changes in the judicial appointment process in India if disappointment is not to visit judicial performance and disinvestment of democracy is not to vitiate the judicative establishment.
JUSTICE, justices and justicing are the triune facets of the judicial process. The central figure, the protagonist of the drama of judicial administration, is, of course, the robed brother on the bench who is the symbol, the paradigm, the dynamic operator vis-a-vis the whole dispensation of legal justice. So paramount is the role of the forensic delivery system that sans judicial presence, jungle law and demoniac democracy governs society, robbery rules as right, and rule of law reigns as a bare rope of sand. This critical importance of the judge is reinforced by our Constitution, which stresses, right in the forefront, the solemn resolution of the people of India to secure justice, social, economic and political. This three-dimensional concept of constitutional justice lifts the court to the highest level of authority and makes the judicature the foremost power under the Republic, although it is often referred to as the least dangerous branch of government, since it has neither the purse nor the sword, sans which the might of the state is not within its province. Indeed, human rights have reality only if judges, sensitive to social concerns, are alertly available to undo violations or promote enforcement. Justice is the end of government. It is the end of civil society. In James Madison's words, justice has been and ever will be pursued until it is obtained or until liberty be lost in the pursuit. We cannot, however, exaggerate the judicial power or make it arrogate to itself all the powers of the Republic. Alexander Hamilton's oft quoted opinion is not irrelevant to the Indian counterpart:
Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honours, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
Nevertheless, it has been observed of the U.S. Supreme Court:
The least dangerous branch of the American government is the most extraordinarily powerful court of law the world has ever known. The power which distinguishes the Supreme Court of the United States is that of constitutional review of actions of the other branches of government, federal and State.
The Indian judicature, at the apex, deals with infinitely more number of cases, more myriad issues of wide coverage and more plural divisions of court than Washington's marble judicial marvel does. Maybe a Montesquien division of the three branches may apply broadly to the Indian political scheme, but our Constitution is not a textbook application of the French jurist's project. Our founding fathers had a fighting creed - a democratic polity with an egalitarian dimension and social justice quintessence, a parliamentary process with a federal hue and limited sovereignty and an Executive committed to massive socio-economic transformation and human rights protection. Central to the vibrancy of this vision is a unitary judiciary, independent, accessible and activist, functionally instrumental as a sentinel on the qui vive and geared to a social justice revolution and rule of law of crimson dynamism and vast jurisdiction.
This constitutional compact is further reinforced by three great Articles of empowerment. Article 141 grants the final forum, that is, the Supreme Court, the ultimate authority to declare what the law is, and its finality binds every adjudicatory body. Article 144 is a celebration of this supremacy because it obligates all authorities, civil and judicial, to act in aid of the Supreme Court. Article 142 is the jurisdictional infinity and remedial glory of the Supreme Court in doing complete justice in any cause or matter pending before it. Vast, in all conscience, is this large power of considerable stature, and so, the choice of the trustees of this somewhat vistaramic functionalism has to be made with great circumspection and creative attention. It is dangerous to invest unlimited authority in midgets, delinquents, insolents, indulgents, persons with dubious commitments.
The social philosophy of the Constitution and judicial convictions of the Court must concur. The social philosophy of the robed brethren and the social-economic-political justice projected in the Preamble must find active concordance. The selecting agency, the selection criteria and the very selection process need purposeful, paradigmatic and public operationalism, with a sense of principled pragmatism and uninhibited transparency. Oligarchic methodology in picking and choosing judges is incompatible with democratic ideology. Esoteric ways and iron curtain operations run counter to the democratic system that judges are expected to uphold. To mystify the mode of appointment of judges is unfair to the office which is public justice and unjust to the selectors, leading to suspicion and speculation about the manner in which the appointees have managed to gain elevation.
Broadly speaking, David Pannick, a brilliant Q.C., puts the position of judges in England correctly, with which Indian robed conservatives cannot quarrel:
Because the judiciary has such a central role in the government of society, we should (in the words of Justice Oliver Wendell Holmes) 'wash... with cynical acid' this aspect of public life. Unless and until we treat judges as fallible human beings whose official conduct is subject to the same critical analysis as that of other organs of government, judges will remain members of a priesthood who have great powers over the rest of the community, but who are otherwise isolated from them and misunderstood by them, to their mutual disadvantage.
Democratic methodology must operationalise judicial selection and regulate their bench behaviour.
There is a strong case to consider constitutional changes in the appointment process in India if disappointment is not to visit judicial performance and disinvestment of democracy is not to vitiate the judicative establishment, leading to court authoritarianism, arbitrariness and sharp alienation from constitutional justice, departure from probity and collapse of systemic propriety. The Constitution, in explicit Anglo-Saxon, specificates a process. The nine-judge bench, with divided opinions, has rendered a majority verdict which reversed the intent and text of the Founding Fathers. Independence of the judiciary has been accorded a paramountcy (of imperium in imperio) by inventive interpretive genius and impractical reasoning which is a riddle wrapped in a mystery inside an enigma. So bizarre is the final formula that the grotesque effect of getting a judge's name through to the President for signature is an arcane operation which has neither speeded up the course nor improved the quality of the selection, nor eliminated the potential for any hidden agenda of particular senior judges. In principle non-transparent, in selective range narrow, in performance dithering, dilatory and personalised, the unwisdom and infirmities of the judicial engineering under the new scheme totally divest the Executive of any voice, never known in any country. The Venkatachaliah Commission has made a tepid recommendation for a Judicial Commission.
The English practice is amusing, interesting and instructive. My source is the delightful and informative David Pannick (Judges). Says the author:
In 1986 Lord Hailsham attempted 'to dispel any lingering sense of mystery or obscurity that there may be' about how judges are appointed by publishing a guide to his policies and procedures.
The guide explains in bland terms the criteria for appointment. The Lord Chancellor's policy is to appoint to every judicial post the candidate 'who appears to him to be the best qualified to fill it and to perform its duties....' It outlines the process of gathering information and 'broadly based' consultations which precede an appointment. Lord Hailsham had earlier described how the practice in all High Court appointments is to hold a meeting between the Lord Chancellor and the Heads of Division (the Lord Chief Justice, the Master of the Rolls, the President of the Family Division, and the Vice-Chancellor) at which a 'number of names is always discussed. There is never a vote, but a consensus is usually arrived at....' I never remember a case in which the decision, when made, was not in fact a collective one.
Lord Halsbury, who is a legend, was an ugly example of partisanship in choosing judges for high judicial office. I see no reason to trust our high judicial echelons to be higher than Halsbury, once given unaccountable administrative power of appointments. Prof. Griffith, in his book The Politics of the Judiciary, writes:
In a famous essay, H.J. Laski recorded that between 1832 and 1906 out of 139 judges appointed, 80 were Members of the House of Commons at the time of their nomination and 11 others had been candidates for Parliament; that, of the 80, 63 were appointed by their own party while in office and 33 of them had been either Attorney-General or Solicitor-General.
Of the thirty judges appointed by Halsbury to the High Court, eight were MPs at the date of their appointment and of these six were Conservatives. Five others had been unsuccessful parliamentary candidates, three of them being Conservatives. One other had been a Conservative MP nearly twenty years before. So fourteen out of the thirty appointments were, in those senses, of politicians - and ten were Conservatives. Heuston concludes that of Halsbury's 30 appointments to the High Court, four or five were men of real distinction, eighteen or nineteen were men of competent professional attainments, leaving no more than seven 'whose appointments seem dubious'. Four of these seven were Conservative MPs on the date of their appointment, one had been a Conservative MP, and another had twice been an unsuccessful Conservative candidate.
In England, the power of appointment is with the politicians, and in India it has been wrung by judges and will remain so until a constitutional amendment introduces a well-balanced Commission. Judges too have frailties and partialities even in judicial affairs. In administrative matters they can be so without easy detection. Choosing candidates for the Supreme Court habitually from Chief Justices of High Courts is doubly dubious and hardly fair to great puisne judges. Promotion as Chief Justice is chancy, as I know, and picking from that lucky lot is another gamble. The process, as at present, is a casino game and promotes cultivation - a subtle form of corruption - of Supreme Court chiefs.
David Pannick puts on record a British experience:
Today, judicial appointments are not made on a corrupt or politically partisan basis. But the methods adopted continue to suffer from major defects which harm the public interest. Judges are appointed by a process that resembles a pre-1965 Conservative Party leadership contest or a Papa Conclave rather than the choice of law-makers in a modern democracy. Judges are chosen without any public discussion of their identity, let alone of the merits or defects of the candidates. Their appointments receive little, if any, public comment. The reasons why one candidate, rather than another, has been recommended to the Queen remain hidden in the files of the Lord Chancellor's Department or concealed within the breasts of those senior judges amongst whom 'soundings' have been taken. All of this serves to deter public discussion of the criteria of good judges and to perpetuate gossip (most of it untrue) about the reasons for the rejection of certain candidates and the success of others.
In the USA the President has the power to appoint Supreme Court Justices with the consent of the Senate. A Presidential nominee has to undergo a Senate examination of his record and jurisprudential beliefs. This serves a valuable function in helping to articulate the criteria of a good judge, in publicising the beliefs of the nominee, in rejecting inadequately qualified candidates, and in focussing public attention on the process of appointment. The Senate has declined to confirm twenty-seven of the nearly 140 Supreme Court nominees placed before it since 1789. Other federal U.S. judges are similarly appointed by the President, subject to confirmation by a vote of the Senate. The tasks of the President and the Senate are facilitated by the practice of the American Bar Association of assessing whether the nominee is qualified to be a judge.
The more open, more critical American procedure of judicial appointments could be imitated in England to great advantage. At present we work on the doubtful principle that the Lord Chancellor and senior judges will know the candidates for judicial office, professionally or otherwise (p. 66-67). (The American political abuse, sometimes outrageous, has been missed by dear David.)
What is most instructive is another constructive proposal in Britain. I quote Pannick again:
In 1972 the Justice Sub-Committee which reported on the judiciary wisely recommended that the Lord Chancellor should be helped in his task by an appointments committee. This would allow for interested bodies to make recommendations, or for interested persons to apply.... The appointments committee could comprise representatives of the Law Society, the Bar, academic lawyers, the judiciary, and perhaps some lay members, for example highly trained and experienced personnel officers skilled in selection procedures. The committee would not fetter the decision of the Lord Chancellor on whom to appoint. Nor would it introduce party politics into the process. It would, however, add an element of professionalism into what is still an amateur exercise. When judges are appointed to the Court of Appeal or the House of Lords, the Committee could usefully publish a report on the qualifications of the nominee. In this and other ways (such as the publication of an annual report on judicial appointments) the committee would introduce a much-needed public eye into what has hitherto been a private appointment process (p. 67-68).
At this point, an exaggerated myth - independence of the judiciary - needs moderation. I quote Prof. Griffith:
What is meant by saying that judges must be impartial and seen to be so? Judges themselves claim this as their great virtue and only occasionally as it is seen to be departed from. Lord Haldane was a practising barrister in 1901 when he recorded: 'I fought my hardest for the Dutch prisoners before the Privy Council this morning, but the tribunal was hopelessly divided, and the anti-Boers prevailed over the pro-Boers. It is bad that so much bias should be shown, but it is, I suppose, inevitable.'
D.N. Pritt in his autobiography told of his many political cases and of one which 'came before a judge of great experience and knowledge, so bitterly opposed to anything left-wing that he could scarcely have given a fair trial if he had tried'.
Are such phrases applicable today? Every practising barrister knows before which judges he would prefer not to appear in a political case because he believes, and his colleagues at the bar believe, that certain judges are much more likely than other to be biased against certain groups, like demonstrators or students, or certain kinds of action like occupations of property by trade unionists or the homeless. This however is to say little more than that, as we have already remarked, judges are human with human prejudices. And that some are more human than others (p. 30-31).
The notable American book The Brethren, which has no counterpart in India, observes ripping open the functional secrecy of the judiciary:
The United States Supreme Court, the highest court in the land, is the final forum for appeal in the American judiciary. The Court has interpreted the Constitution and has decided the country's pre-eminent legal disputes for nearly two centuries. Virtually every issue of significance in American society eventually arrives at the Supreme Court. Its decisions ultimately affect the rights and freedom of every citizen - poor, rich, blacks, Indians, pregnant women, those accused of crime, those on death row, newspaper publishers, pornographers, environmentalists, businessmen, baseball players, prisoners and Presidents.
When judges blunder critics thunder, since contempt law inhibition is alien there (in the U.S.).
Of course, the law of contempt is liberal and free speech, as a value, enjoys high priority in the U.S., but in India colonial contempt jurisprudence is still a hangover. We need, I plead, a Commission to investigate complaints about judges and provide for punitive consequences for bad behaviour and gross incompetence. Chief Justice S.P. Bharucha, frank and forthright, has admitted the existence of corrupt judges, though provably few, impeachably fewer. But by gossip, judicial delinquency is of proportions sufficient to warrant a just and accessible but high-powered mechanism to investigate venial deviancy. Dark room behaviourism is unbecoming of high judicial office. Absent the system of electing judges, as in several States in the U.S and in Switzerland, the scope for scrutiny of candidates and incumbents must be provided by law. Contempt justice is to defend the court process, not the conduct or reputation of the judicial personnel - for which the law of the land will suffice. Special free prosecutional facility, as in the case of Ministers, may perhaps be made for judges too. The prolix, promiscuous and in terrorem availability and use of contempt jurisprudence, where even truth is no justification, exceeds constitutional bounds and the High Bench, sitting in banc, must civilise, liberalise, humanise and harmonise Free Speech and Contempt Justice in a creative comity, tuned to the dialectic and dynamic of democratic values.
There is no reason why American juristic scholarship should not give us light. I will furnish a recent example of extraordinary, obnoxious criticism of the most controversial ruling of the U.S. Supreme Court. Jamin B. Raskin, Professor of Constitutional Law at American University's Washington College of Law, wrote an article with a vehement title ('Bandits in Black Robes') and a sub-title ('Why you should still be angry about Bush v. Gore'). The article runs as follows:
Quite demonstrably the worst Supreme Court decision in history, Bush v. Gore changes everything in American law and politics. The Rehnquist Court has destroyed any moral prestige still lingering from the Warren Court's brief but passionate commitment to civil rights in the middle of the last century. Now the court has returned to its historic conservative role, rushing to aid the political party of property and race privilege in a debased partisan way, torturing out of the Equal Protection Clause new rules to assure the power of one political faction. Bush v. Gore was no momentary lapse of judgment by five conservative justices, but the logical culmination of their long drive to define an extra-constitutional natural law enshrining the rights of white electoral majorities, like the one that brought George W. Bush the White House.
Imagine the Arundhati Roy case and compare it with the 'Bandits in Black Robes' article. The Supreme Court of the U.S. has not collapsed, nor has Prof. Raskin been incarcerated for gross contempt. Lord Denning ignored a similar gross contempt case and demonstrated how the dignity and performance of judges will overpower vituperative rebuke by critics.
I plead for no serendipitous innovation but insist that the rule of egalitarian law must run close to the realism of the social order. The court, more than the 'brethren', must not lose its credibility and the judges must be as sensitive as Justice Stevens, who in a recent leading dissent in the notable Bush v. Al Gore wrote:
What must underlie petitioners' entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law.
ONE of the worst weaknesses of the Indian court system is the intolerable problem of arrears and delays. Various views have been expressed plural proposals have been propounded and yet, Docket Terrorism is still with us creating consternation. Some say that more judges are necessary in proportion to the population. This would result in a judicial over-population problem with benches disagreeing, appeals multiplying and Parkinson's law proving its validity vis-a-vis the judiciary. The more the judges the more the work they create to fill the time available for its completion. Multiply judicial numbers by ten and you will find multiplicity of admissions, appeals, references, revisions and leisurely hearing with judgments kept indolently pending, as now, for years. There is another law known as the Peter Principle which lays down that each functionary rises to the highest level of his incompetence. This rule will fill the High Courts with incompetent subordinate judges who may even ascend to the Supreme Court. Their incompetence is never exposed because of the existence of contempt law. It is common knowledge that standards are falling, procrastination is increasing and prompt disposal, fair and square, is becoming a rarity. Why should this be a pathology of the judiciary? Should there not be an enforceable code of ethics which makes judges answerable and pronouncement of judgments prompt and made with probity? As Chief Justice, M.N. Venkatachaliah began a move which was taken to a much higher level by Chief Justice J.S. Verma, but judges violate this ethics code and are slipshod in the daily business in courts. A constructive constitutional provision in the shape of a Code and a Commission may get for us the best from our robed brethren.
The appointment of judges is delayed although the fact that vacancies are coming up is known in advance. The nine-judge formula has not accelerated the process of filling of vacancies. Why? Now the judges, not the executive, must answer.
Fast track courts, part-time judges as in Britain, streamlining the process in court, using commissions of advocates for many purposes, appointing ad hoc judges and adopting the full potential of information technology in the administration of justice may go a long way in making short shrift of die-hard arrears. The Civil Procedure Code and the Code of Criminal Procedure can be simplified instantly. Execution proceedings can be similarly expedited and the law made a model of fairness and speed.
Currently, even data about judicial arrears and other particulars are difficult to get, nor are annual judicial reports brought before any public body. Why not cyber courts that work as virtual courts, as recently suggested by the member-secretary, Law Commission of India? Why not utilise final year students and law teachers for smaller forensic disposals? The legal and judicial professions are indifferent except exceptionally, and treat the systemic collapse as an inevitable evil - more and more inevitable and less and less evil. The imbroglio, it is a pity, is taken as a fait accompli. Fair justice once denied, human rights vanish. Therefore, the national problems of justice, justicing and justices must be regarded as a people's programme.
V.R. Krishna Iyer is a former Judge of the Supreme Court.A question of salaries
MAHATMA GANDHI told the British Lord Chancellor in the 1930s that the widest judicial power should be conferred on the apex court. The question of emoluments was also mentioned by him. Today, forgetting the penurious lot of the little Indian in large numbers, there is fashionable demand for huge salaries. I quote Gandhi who told England:
So far as the salary is concerned, you will laugh, naturally, but the Congress believes that it is an impossible thing for us who, in terms of wealth, are a nation of dwarfs, to vie with the British Government, which represent today giants of wealth. India... can ill afford to pay the high salaries that are commanded here. I feel that it is a thing which we will have to unlearn if we are going to have voluntary rule in India. It is all very well so long as British bayonet is there to squeeze out of these poor people taxes to pay these salaries of Rs.10,000 a month, Rs.5,000 a month, and Rs.20,000 a month. I do not consider that my country has sunk so low that it will not be able to produce sufficient men who will live somewhat in correspondence with the lives of the millions and still serve India nobly, truly and well. I do not believe for one moment that legal talent has to be bought if it is to remain honest.
The price of justice shall not be beyond the access of the humble. Today it is, and the wages of justice denied is violence on the streets. I do not consider that the country is deprived of basic patriotism so as to drive the people from the courts to the streets. Do remember, legal aid is now a myth but must be enlivened. Justice is what justice does. Let us make India:A land of settled government,A land of just and old renown,Where Freedom slowly broadens downFrom precedent to precedent.(Oxford Quotations, p. 544-11)