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| Law and justice in an independent nation | | |
V.R. Krishna Iyer
If the rule of law must run close to the rule of life, a transformation of the system is needed.
THE LAW IN India still survives as a static, primitive, Victorian heritage with native executives notwithstanding a semi-centennial struggle to build law, justice, and development for an independent nation. Our legal system is administered by a Westminster-imitation judicature. The tryst with destiny spelt out sublimely by the grand rhetoric of Nehru on August 15, 1947, and the ideologically fine-tuned Preamble to the Constitution, which binds our governance, are eclipsed by the Republic's distorted dimensions of law and justice as interpreted by the precedent-governed brethren on the Bench.
The Indian `lordships,' with writ process and arcane case law, gave rulings that were binding because of their robes. If the rule of law must run close to the rule of life, a transformation of the system is a desideratum. Most crucial for justice — social, economic, and political — for the happiness, health and humanism of the people and their peaceful progress is the judiciary. We need a dynamic, people-oriented, legally literate, progressive, and imaginative judicature with a swaraj vision. Otherwise, chaos will corrupt, confuse, and terrorise the Indian cosmos.
The need to tell the community the truth about the judges is not commission of contempt but democratic duty and probity. David Pannick quoted Jerome Frank: "Some politicians, and a few jurists, urge that it is unwise or even dangerous to tell the truth about the judiciary. Judge Jerome Frank of the U.S. Court of Appeals sensibly explained that he had little patience with, or respect for, that suggestion. I am unable to conceive ... that, in a democracy, it can ever be unwise to acquaint the public with the truth about the workings of any branch of government. It is wholly undemocratic to treat the public as children who are unable to accept the inescapable shortcomings of man-made institutions ... The best way to bring about the elimination of those shortcomings of our judicial system which are capable of being eliminated is to have all our citizens informed as to how that system now functions. It is a mistake, therefore, to try to establish and maintain, through ignorance, public esteem for our courts." (Judges, Page 205)
I write this article having been an advocate, Minister, and judge of the highest court in the land. So I assert, agreeing with Pannick QC: "We need judges who are trained for the job, whose conduct can be freely criticised and is subject to investigation by a Judicial Performance Commission; judges who abandon wigs, gowns, and unnecessary linguistic legalisms; judges who welcome rather than shun publicity for their activities." (Judges, Page 205)
The way "Judge and Co." is run is of great concern for the freedom, progress, and human rights of "We, the People of India." I proceed to look critically, without fear or favour, at judges — many of them mediocrities and several others savants of learning and justice. The great Holmes (U.S. Supreme Court) wrote: "I trust that no one will understand me to be speaking with disrespect of the law, because I criticise it so freely. I venerate the law, and especially our system of law, as one of the vastest products of the human mind. But one may criticise even what one reveres." ( Vol.I Quote It P-340)
Can the Indian legal system be saved is the question posed by F.S. Nariman, a jurisprudent par excellence, in a recent book published by Penguin. You cannot, without a radical vision of progressive transformation integral to Indian realities and cultural roots, save the legal pharmacopoeia. The citation of exotic precedents, British and American, the appeals upon appeals from deck to deck making finality of fate and verdict an expensive illusion. The Bench-Bar complex so extravagantly exasperating. These and other pathological features make the legal system unapproachable for the common Indian who seeks justice in court and alternatively in the streets. There is little native flavour in the legal praxis except the costly curial chaos, and adversary logomachy.
Even the appointment of judges is a disappointment. The selection process is a dubious secrecy confined to a few Supreme Court judges, keeping the people, the Bar, the academia, and the Cabinet without a voice in the choice of those whose pronouncements bind every person. There is an old Roman adage: "Whatever touches us all should be decided by all."
In America, the selection of judges is not a closed-door intrigue nor arbitrary majority view of accidentally top three judges. The people have a voice through the Senate Judicial Sub-committee. Even in England, mystery and obscurity is no longer a holy policy. The Lord Chancellor is helped in his selection of candidates by an Appointment Committee.
As Pannick says: "Judges have considerable power to make and apply the law. They are not elected to office by the people whom they govern in these respects. 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."
The Appointment 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 and officers skilled in selection procedures. The Committee is open to the people and would introduce a much-needed public eye into an otherwise private process. Unfortunately, in India the Executive at the highest level was the authority vested with the power of judicial appointment. The Chief Justice was consulted but his concurrence was not a sine qua non. In the Constituent Assembly Dr. Ambedkar categorically dismissed the demand that the Chief Justice or the other judges be given the appointment power. Nevertheless, half a century after the Constitution was enacted, with poor reasons but authoritarian ipse dixits, which never convinced me, the Supreme Court, by a majority, arrived at a self-serving ruling being accountable to none that a few judges would decide on who should sit on the Bench, High Court or Supreme Court. This intriguing edict has no parallel elsewhere in the English-speaking world. Even if I disagree with the personal dicta of the judges concerned, their decision governs as the law of the land (Art. 141).
The delays in choosing judges are by the seniormost few on the Supreme Court appalling; the criteria for choice are almost personal, uncontrolled by socially accountable canons and compromises among the thesis. The candidates once selected or rejected are jettisoned or again midwifed for unknown grounds. The Bar and the public are in the dark. Judges, transferred for suspect behaviour, emerge as Chief Justices of a High Court or even as members of the Supreme Court. One High Court judge who rarely attended court or wrote a judgment was made Chief Justice in Kerala by the bizarre wisdom of the feudal few of the apex court accidentally at the top.
To be brief, in the art of choice the process is a riddle wrapped in a mystery, inside an enigma. Management of the judiciary needs vigilance, research, social perspective, and national commitment, people's concern and socialist, secular convictions. The Executive is weak and has not brought a constitutional amendment to restore Dr. Ambedkar's view accepted in the Constituent Assembly. A weak Centre, a Parliament lost in loquacity and "walk-out" strategy, and a mute public and local bodies and legislative assemblies with "sound and fury, signifying nothing" do not care or dare to amend the Constitution to keep the high bench truly high. For the sake of justice, the judicial management at the top must insist on practising Parkinson's Law and the Peter Principle.
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