WHICH IS TO BE MASTER? SOME OBSERVATIONS
ON THE POLITICS OF JUSTICE
"When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean - neither more nor less."
"The question is," said Alice, "whether you can make words mean so many different things."
"The question is," said Humpty Dumpty, "which is to be master - that's all."1
In a surprisingly candid statement, Justice M N Venkatachaliah, former Chief Justice of India, and presently the Chairman of the National Human Rights Commission, recently declared, “The judiciary is becoming formidable and asserting its place under the sun.”2 This was, perhaps, the clearest and most unambiguous description, by a member of the superior judiciary itself, of an aspect of India’s judicial evolution over the past two decades; an aspect that law academics in the early eighties spoke of as ‘jurisdiction hunger’; an aspect that has transformed itself in the late nineties into nothing less than a jurisdictional rampage.
The essence of this evolution, so eloquently expressed by Justice Venkatachaliah, is the contest for power between different arms of government; a contest that the Constitution of India had already settled half a century ago, but which has been thrown open once again by widespread political irresponsibility and by legislative incompetence. Today, as new areas of ‘legislative infirmity’ are discovered by activist courts, as the power vacuum consequent upon executive failure and corruption is exposed, the judiciary has expanded its sphere of activities and influence and, indeed, become ‘formidable’. This development has, by and large, met with public applause and adulation as the common man - supported by the enthusiastic, if uncritical media - has come to believe, in an atmosphere of pervasive political uncertainty and administrative chaos, that the judiciary is his only saviour.
Among those who share this conviction, however, you will find a surprisingly small number of litigants. The fact of the matter is that, in its quest for ‘a place in the sun’, essentially a political quest, the judiciary has taken recourse to characteristically ‘political’ methods; and judicial populism has been the most successful among these. The essence of populism, however, is that it plays on public sentiments without addressing the essential issues of policy and performance that could alleviate public suffering. Thus, despite the enormous fanfare that has accompanied many recent decisions and a number of politically sensitive prosecutions [none of which has yet resulted in a conviction, excluding that of the ill-fated Kalpnath Rai - a decision which was swiftly overturned] the judicial record has not been particularly encouraging. For the over three crore litigants waiting for justice in various courts, some of them for several decades, the spectacle of a former Prime Minister being paraded before a criminal court, or the knowledge that the Supreme Court has now defined a code of sexual propriety in the workplace, is not necessarily gratifying.
Protected by the law of contempt, by the essentially closed nature of the judicial family, and by the general tendency of the public to be extremely deferential in their attitude towards the courts, the judiciary has succeeded in directing critical attention away from itself towards the failures of the other arms of government. There is, however, a growing realisation today that the judicial system and its machinery are straying from the Constitutional path and not performing their true function, a function the public has a right to expect them to perform. Despite the increasing exhibitionism of judicial processes, especially in ‘Public Interest’ litigation, the courts are no longer perceived as effective institutions for the resolution of conflict and for the administration of justice. Justice A S Anand of the Supreme Court stated recently that a victim of crime has only two options: to approach the police or the courts. “For him unfortunately,” he confessed, “neither of the two is an attractive proposition. If he is hesitant to approach the police station for reasons which are by no means unknown, his reluctance to approach the court is also not without reason.”3
Justice Anand characteristically fails to elaborate upon the reasons for the public’s reluctance to approach the courts. The judiciary has consistently resisted any objective attempts to define reasonable criteria by which its performance is to be judged, even as it has placed itself beyond the scope of political or executive review.4 But the reality is difficult to escape. “Most Supreme Court Judges,” the eminent constitutional expert H.M. Seervai remarked, “live in a dream world of their own. There are rhetorical passages in a number of judgements as to the intellectual and moral qualities which judges should possess and, by implication, most of them do possess. In my submission, it is necessary to point out that this picture of qualities and character possessed by most Judges, and the further view that all High Court Judges are men of integrity and are incorruptible is not justified by matters on record.”5 Seervai then proceeds to quote an interview given by the late Chief Justice Venkataramiah a day before he retired; the excerpts from the interview are singularly edifying, and refer to Judges who “are willing to be ‘influenced’ by lavish parties and whisky bottles”, and to the trend of close relatives of judges practising and influencing decisions in Courts where those judges were on the Bench.6
Today, it is not possible even to hold the view that the Supreme Court is beyond the shadow of corruption. It is not necessary, in this, to refer to the allegations of impropriety against the Chief Justice of India by a Judge of the Rajasthan High Court; or to the present allegations by a group of senior lawyers calling themselves the Committee for Judicial Accountability against the senior most puisne Judge of the Supreme Court. It is sufficient to note that at least one Judge of the Supreme Court, Justice V. Ramaswami, was found to have committed gross financial irregularities.
Despite the immaculate projections of members of the judiciary, it is clear that no institution can escape the influence of pervasive social and political vice. As Lord Devlin expressed it, “on the whole judges are no better than the society in which they lived. When Ministers accepted bribes, Judges accepted bribes; when Ministers sold public offices, Judges sold public offices; when Ministers used public money on condition that they paid it back, Judges used public money on condition that they would pay it back.”7
An institution, however, is not to be judged by the possibility of corruption within it, or by allegations of corruption against its individual members. No institution can obviate all such contingencies. An institution must be judged, rather, by its responses to evidence of corruption. Today, even as the Supreme Court spearheads a veritable crusade against corruption in all other arms of government, its response to evidence of corruption within the judicial fraternity is, to say the least, distinctly inconsistent.
I shall refer to an incident in this context, regarding which I have sufficient detail. In 1993, they was great commotion in Chandigarh over a speech at a meeting of the Punjab and Harayana High Court Bar Association in honour of the then Chief Justice of India, Justice M N Venkatachaliah [whom we have encountered above, celebrating the judiciary’s “place in the sun”]. Present at the meeting, in addition to the CJ, were four other Judges of the Supreme Court - Justice J S Verma [the present Chief Justice], Justice Kuldip Singh, Justice M M Punchhi and Justice A S Anand, as well as the Chief Justices of Rajasthan, Gujarat, Himachal Pradesh and Jammu & Kashmir, as also the Chief Justice and the Judges of the Punjab and Harayana High Court. The then Law Minister, H R Bharadwaj was also present. Anupam Gupta, a member of the Bar Association, a prominent lawyer, and a legal columnist, was one of the speakers before this august gathering. I quote him at some length:8
“No system of justice, it has been said, can rise above the ethics of those who administer it.... When abuse of judicial power outgrows individual aberrations and becomes an institutional lifestyle, when judicial corruption ceases to be a mere rumour and develops into an universal perception, when judges scramble for ministerial favours and perks and State governments and Chief Ministers acquire greater clout over the Court than the Court has over them under the Constitution.... it becomes a moral and Constitutional imperative to take action, in the celebrated words of President Roosevelt, to ‘save the Constitution from the Court and the Court from itself’”
These were harsh words, but they were followed up with some hard numbers.
“As many as 14 out of 28 sitting Judges of the Punjab and Haryana High Court, i.e., half of its total strength, have their close relatives practising in the High Court. Eight out of these 14 judges have more than one relative practising here. Over and above them, wards of two sitting Supreme Court Judges also practice in the High Court, one of them having more than one ward.”
Gupta also referred to a Karnataka High Court judgement regarding the right and wrong of a judge’s wife who was practising in the High Court where her husband was a Judge; the Court observed:
“Many of the litigants in this Court are common men who would not be wrong in assuming that the learned counsel while sharing her connubial felicity may also share with the learned Judge her professional life.”
Confronted with such allegations, there are only two possibilities, and two responsible courses of action available. Either the allegations were false, in which case, it was not only within the rights and the powers of the Supreme Court and High Court judges present there to proceed against and punish the speaker, but was their bounden duty in order to restore the reputation of the High Court; or there was substance in the allegations, in which case, after due investigation, corrective action should have been initiated to cleanse the Court of the evident taint on its reputation. What was the actual response?
All the judges of the Supreme Court and of the various high courts, as well as the Law Minister walked out of the meeting ‘in protest’ against the speech. No action was taken on the allegations and, a deafening silence has since been maintained on the issues raised. In this context, it has, I think, been correctly remarked: “Sometimes silence is not golden - just yellow.”9
A more recent example provides even greater illumination.
Since September 17, 1996, a criminal complaint has been pending in the court of the Chief Judicial Magistrate, Pali [Rajasthan], against Justice R R Jain, then a judge of the Gujarat High Court. According to the complaint, the judge engineered the wrongful arrest of a Pali advocate on false charges under the Narcotic Drugs and Psychotropic Substances Act, as also the advocate’s subsequent release after he had agreed to vacate a shop where he had his office. The shop belonged to a family close to the judge, and the power of attorney for the family is held by the judge’s uncle. At midnight on May 2, 1996, the Gujarat police handcuffed advocate Sumer Singh at Pali, and attempted to spirit him across the border to Palanpur in Gujarat. Fortunately for him, a patrol party of the Rajasthan police intercepted them and a record of events was created which the Gujarat police had not intended. The complaint states further that the judge arranged all this after attending a marriage in Pali at the house of the family that owned the disputed shop; he then travelled to Palanpur to meet his friend Sanjiv Rajendra Bhatt, the Superintendent of Police, Palanpur, and then proceeded to Ahmedabad to resume his duties in the High Court. Sumer Singh was falsely shown as having stayed in a hotel in Palanpur; recovery of opium was shown in his absence from the room he supposedly occupied. The Superintendent of police then told him that the judge wanted the shop vacated, and if this was done, his release would be arranged. Otherwise the recovery of opium would be shown against him, and he would be prosecuted. The advocate’s brother, a tehsildar and some others interceded with the judge, speaking to him over the phone, and eventually vacated the shop. On Sumer Singh’s complaint, the Pali Bar Association wrote to the then Chief Justice of India, A M Ahmadi. In the absence of any response, the Gujarat Bar took notice, and passed a resolution against Justice R R Jain on June 22, 1996. Evidence against the judge in the form of transcripts of his tape-recorded conversation are available with advocates of the Pali Bar. Meanwhile, the Rajasthan police investigated the complaint and arrested the judge’s uncle, Phootermal, and put him in jail. There has been no final report from the police on the complaint against the judge. Chief Justice J S Verma is reported to have been apprised of the case. R R Jain was then simply transferred from Gujarat to Madras as Additional Judge.10 In this context, it must be recalled that, in the Second Judges’ Transfer Case, Justice Verma, writing for the majority, had held that “Any transfer made on the recommendation of the Chief Justice is not to be deemed to be punitive....”11 Nor would it be proper to have punitively transferred the judge without proper investigation of the case. Nor, indeed, can mere transfer be regarded as sufficient punishment for the very serious offences allegedly committed. Indeed, a grave question arises as to whether an individual charged with such an offence can or should be permitted to sit in judgement on others. Justice R R Jain, nevertheless, has now been recommended for confirmation as a permanent judge of the Madras High Court.
Can there be one law for judges, another for politicians and administrators, and still another for the common man?
The critical question, however, as with the decline of the other core institutions of democracy [the legislature and the executive], is not about corruption. It is about the effectiveness of these institutions in fulfilling the objectives of their constitution. Quantitative comparisons are, of course, impossible in this context, but the failure of the judiciary in this regard is no less dramatic than that of the other branches of government. To begin with the highest echelons of judicial leadership, Seervai has noted that “...with rare exceptions the standard of Supreme Court decisions has continued to fall steeply in matters involving questions of Constitutional Law....Judicial incompetence takes the form of ignorance of the legislative history; ignorance of the provisions of the Constitution; ignorance or disregard of well-settled principles of interpretation; ignorance of the meaning of ordinary English words; inability to draw correct conclusions from passages cited; and begging the question to be proved.”12 Seervai also speaks of the “disconcerting unpredictability of the Supreme Court”13 as judges display tendencies to ignore precedent and established rules of Constitutional interpretation, operating not on accepted Constitutional, jurisprudential and judicial norms, but with each one “paddling his own canoe” [to borrow the phrase of Chief Justice Taft of the American Supreme Court].
It is in this tendency that we discover the essence of the breakdown of the adversary system of justice that we have inherited. Today, a veritable Babel of contradictory voices emanates from the Supreme Court as each judge actively intervenes to impose his personal “philosophy” and political worldview on every controversy. Anglo-Saxon jurisprudence, the basis of our own judicial system, assigns an unambiguous role for the judiciary as an independent and disinterested arbiter between two [or more] adversaries, who agitate their claims before it; claims based on the law and laid down by the legislature. In criminal matters, one of the adversaries is invariably the state. The judiciary is required, however, to treat both the state and the accused on the same platform. Lord Denning explained the role of the judge in this system with great felicity:
The judge’s part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows points that the advocates are making and can assess their worth; and at the end make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate; and the change does not become him well. Lord Chancellor Bacon spoke right when he said that : ‘Patience and gravity of hearing is an essential part of justice; and an over-speaking judge is no well-tuned cymbal.’14
Seervai describes the ‘judicial temper’ as:
“a frame of mind which is open till both sides have had their legitimate say but is decisive when both sides have been fully heard. Secondly, judicial temper also involves a frame of mind which decides each case on its merits and does not start with prepossessions in favour of one class or other.... A judge who closes his mind before he has heard both sides, and makes it clear that he supports one side, will talk a good deal to make his view prevail.”15
Unfortunately, we are overwhelmingly confronted, today, with the phenomenon of the “much-talking judge”16 as courts take suo motu cognisance of matters, ‘direct’ investigative agencies to make inquiries and ‘monitor’ and ‘supervise’ the investigation - all in the interests of ‘justice’, of course. In this the lines of demarcation between judge and petitioner, or judge and complainant, decreed by the rule of law are all but obliterated as the court increasingly takes on the role of the prosecution. Apart from going against the basic character of our justice system, this also raises serious questions of equality before law. By such interventions courts direct the resources of the state towards a particular investigation - and, in many recent cases, in view of the court’s interest this becomes disproportionate, often putting the defendant at an unfair disadvantage. More importantly, such intervention sends confused signals to the subordinate judges who must eventually hear the case and give a verdict. In a case where the prosecution has been “supervised” and “monitored” by the Supreme Court [or even the High Court], it will be a brave judge indeed who would go against the prosecution; and the formal declaration by the superior court that the subordinate court must try the case “according to law” and ignore any observations the superior judges may have made does little to improve the subordinate judge’s frame of mind. This is against the very basic tenets of natural justice, a denial of fair trial, and hence unconstitutional.
The ‘much-talking judge’ does irreparable harm both to the dignity of the court and to the cause of justice. It is not only subordinate courts, but advocates and investigators who are pressured by the views and antipathies that the judge may seek to impose on a particular case; where important interests of state or prominent personalities are involved, moreover, in pre-judging a case the judge seriously and permanently undermines the prospects of justice. We discover a process of a search for a preconceived ‘truth’, in which conclusions leap far ahead of ‘facts’, and what are construed as facts run well beyond the available evidence. In the Punjab Mass Cremations case, for instance, Justice Kuldip Singh, on the basis of nothing more than an unsubstantiated newspaper report, and well before any evidence regarding the alleged ‘illegal’ cremation of 1,000 unidentified bodies by the Punjab Police had been placed on record, declared in open court that the alleged incident was “worse than genocide.”17 The case is sub judice and it would be improper to go into the merits of subsequent investigations and proceedings; but the media accepted and splashed the Supreme Court judge’s verbal obiter dicta as a final indictment of the Punjab Police, as a final judgement on its mode of functioning in the decade-long battle against terrorism.
What is possibly worse, is that Justice Kuldip Singh’s statement became grist in the Khalistani propaganda mill. One prominent NRI Khalistan ideologue circulated copies of the news reports through the Internet with the following comments:
When the Indian Supreme Court describes our situation as 'worse than genocide' why are Akali leaders so shy to espouse Khalistan? We are being killed and cremated just like the Jews in Nazi Germany. The Jewish people knew that the only way to prevent their complete annihilation was to establish a sovereign homeland of their own. The Sikh Nation's situation is no less dire...
This statement, with the authority of a Supreme Court judge behind it, has been repeated in numerous international fora as evidence of India’s “poor human rights record”. No subsequent judgement by any court will ever entirely undo the harm this single sweeping observation has already done.
The problem, however, is not restricted to the potential for error and injustice in individual cases. Judges today perceive themselves as the unaccountable defenders of a unarticulated ‘philosophy’, the contents of which they alone appear to be aware of. The result, as it manifests itself piecemeal in conflicting and contradictory judgements and orders, is total jurisprudential disarray. Seervai expresses this differently, but is no less damning in his evaluation:
The most important cause of prevailing uncertainty in the law is that a number of Supreme Court Judges firmly believe that a certain ‘philosophy’ and certain ‘values’, inhere in our Constitution, and it is their duty to give effect to that ‘philosophy’ and those ‘values’. Since the ‘philosophy’ and the ‘values’ are not formulated, they cannot be subjected to judicial or professional criticism...18
This belief, he continues, “is responsible for the judicial indiscipline which is responsible for the disconcerting unpredictability of Supreme Court judgements.”19 This unpredictability, he argues further, “is largely due to the fact that several Judges ask themselves the wrong question: ‘This is how I wish to decide, what shall I say?’ instead of asking themselves the right question: ‘What is the law?’ This attitude has resulted in...fatally flawed...judgements.”20
These ‘fatally flawed judgements’ have catastrophic effects as they echo through the subordinate judiciary. The Supreme Court lays down the law for all the High Courts and lower courts throughout the country. Any conflict, inconsistency, ambiguity or confusion in any of its judgements multiplies itself a hundred-fold in the High Courts, and many thousand-fold in lower courts, as lawyers and litigants discover new loopholes and opportunities for, if nothing else, protracting the processes of litigation. It is significant, in this regard, to note that judicial delay almost always benefits the wrongdoer. If the Supreme Court sincerely seeks to identify the causes for the unmanageable problem of mounting pendencies, it will discover perhaps the most important one in the confusion of philosophies and directives emanating from its own portals.
These, then, are the conditions prevailing in the Supreme Court. Regarding the subordinate judiciary, the less said, the better. It is sufficient to note, for example, that the conviction rate in criminal cases as it stands today is below six-and-a-half per cent. The processes that result in these rare convictions, moreover, are so erratic and arbitrary that the results are more lottery than law. The fact of the matter is that an overwhelming majority of criminals are going free. In any event, it is my belief that anything that an injured party may secure at the end of a process of litigation that could extend across several decades cannot deserve the title ‘justice’.
Despite all these failings, it is indeed amazing that we are, in the Indian judiciary, confronted with an institution that has placed itself beyond the scope of accountability to any other authority. And it has accomplished this by its own fiat in that “fatally flawed decision” - the Second Judges’ Transfer Case. India is the only country in the world where judges select themselves; where they determine their own transfers; and where they discipline - or decline to discipline - themselves. There are no declared norms for these processes, and no accountability once these processes are complete. No public or executive scrutiny is countenanced, and a handful of judges exercise all this authority by themselves in accordance to norms, ‘values’ and ‘philosophies’ that are [presumably] known only to this privileged fraternity.
In recent years a curious proposition has, nevertheless, increasingly been articulated: that judges are ‘accountable’ to the ‘people’. No effort is made to clarify what ‘accountability’ and ‘the people’ actually mean in this context. Were judges politicians, of course, there would be little difficulty in understanding these terms. They would confront the electorate periodically, and would [at least theoretically] be called to account for their activities in the preceding period. The judiciary, thankfully, is not required to compromise its dignity through any such ritual. Nonetheless, we are constantly reminded - especially in the context of judicial activism and the flood of public interest litigation that occupies so much of the Court’s time today - that the judiciary ‘enjoys popular support’ since people are ‘disgusted with politicians and bureaucrats’, as though the judiciary is a party in the contest for political power [which, at the present time in history, I believe it is]. At a purely visceral level, these arguments are accepted by the less informed both in the public and among those who propound them. They are based, however, on a gross misunderstanding of the position of the judiciary within the democratic framework.
The judiciary is, no doubt, an institution integral to democratic governance; it is not, however, a democratic institution. The noted American jurist, Professor Schwartz, in fact states that it is, in the context of its power of judicial review, “basically an undemocratic institution. Through the exercise of its review power the Supreme Court may enable the will even of the great majority of the people to be frustrated.”21 Irving Kristol expresses as somewhat differently: “The Supreme Court is not - and was never supposed to be - a democratic institution; it is a republican institution which counterbalances the activities of our various democratic institutions.”22
Constitutional doctrine, it has been remarked, “ought to be, as nearly as possible, a steady line on the graph of history, always upward, avoiding peaks and valleys.”23 The jurisprudential turmoil that we are currently witnessing is, to my mind, not a sign of sagacity or statesmanship, but a sign of desperation in a system on the verge of collapse. Three criteria have been defined for the identification of a system of justice on its last legs:
That people come to believe that inefficiency and delay will drain even a just judgement of its value.
That people who have long been exploited in the smaller transactions of daily life come to believe that courts cannot vindicate their legal rights from fraud and over-reaching.
That people come to believe the Law - in the larger sense - cannot fulfil its primary function to protect them and their families in their home, at their work, and on the public streets.24
These circumstances manifestly prevail in India today.
I believe it is when institutions and individuals are failing to fulfil their own true functions and obligations that their appetite for power and aggrandisement is the greatest. I believe that this, ultimately, is the character of the adventure on which the Indian judiciary is presently engaged.
If these unfortunate and unconstitutional trends are to be checked, it is essential to set up an independent Judicial Commission which would be responsible, not only for appointments and transfers, but also to see to it that judges perform their duties in keeping with the high traditions of the legal profession and the Judiciary, and for the investigation of, and prosecution on, charges of corruption and judicial misconduct. Such a body should also be required by statute to publish an Annual State of Justice Report, with a complete category-wise Statistical Break-up of cases, pendencies and disposals; as well as a comprehensive summary of the main jurisprudential trends emerging from critical judgements. The latter would go some distance towards ensuring that, even where individual decisions apply contrary or contradictory principles, the approved jurisprudential position of the Supreme Court - and its consistency with constitutional provisions - is unambiguous.
No Commission comprised of people drawn from the area or the fraternity that requires reform will ever be able to bring about the requisite reforms. The proposed Judicial Commission must be widely representative - with those who have been subjected to the tyranny and the caprice of the judicial system given a prominent voice.
By virtue of the Supreme Court’s majority judgement in what is known as the Second Judges’ Transfer Case [Supreme Court Advocates Assn. on Record v. Union, (‘94) A.SC. 268, (1993) 4 S.S.C. 441]. The decision itself is regarded as unconstitutional by constitutional experts. Cf. H M Seervai, Constitutional Law of India, Fourth Edition, Volume 3, N Tripathi Pvt Ltd, 1996, “The Second Judges’ Case - A Fatally Flawed Decision”, pp.2928 - 2970.
Kristol, Irving, Reflections of a Neoconservative: Looking Back, Looking Ahead, Allied Publishers Pvt. Ltd., 1986, p. 93. The remarks are in the context of the American Constitution, but they apply equally to the Indian.
(Published in K. Mahesh & Bishwajeet Bhattacharyya (Eds.) Judging the Judges, New Delhi: Gyan Publishing House, 1999 )