Who Will Judge The Judges?

Avani Bansal
8 Dec 2019 7:00 AM GMT
Who Will Judge The Judges?
History is full of examples that when there is an attempt to create a totalitarian state, judiciary is made an instrument to carry out that plan instead of becoming a force to resist it.
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Our inboxes – technological, mental, and spiritual (hopefully) are overflowing with opinions on the recent judgments, delivered under the leadership of the recently retired Chief Justice Ranjan Gogoi. All eyes are now on the leadership of the newly sworn in Chief Justice – Justice Sharad Arvind Bobde.

Just before coming to the main argument at hand, I notice the affixation 'Justice' before a judge's name like I have never before. While thinking to myself of the legacy of Justice Gogoi, and the clamours of whether justice was or was not done as bears out from the judgments on Babri Masjid-Ayodhya, Rafael, Sabrimala, CJI's office under RTI, Indira Jaising (Lawyers Collective), to name a few, the word 'Justice' does seem to have taken a different hue, even for a law-student/lawyer who hears this term repeatedly on an everyday basis. Judges are the ones who are tasked in a democracy to carry out 'Justice' (important value mentioned in the Preamble and also pervading as a spirit through out the Indian Constitution). But are 'Justices' who are supposed to carry out 'Justice', also under scrutiny of whether they were 'just'. Simply put, who judges the Judges?

Like every institution in India, the independence, efficacy and performance of Judiciary depends on its lead actors. So, who are these judges who act as supreme Justices in the highest court of the land? The Supreme Court website gives us brief details about the background of the Justices but is this enough information for common people to place their trust about the most critical issues affecting their lives and of their nation in the hands of these justices? For starters, there should be more analysis of what school of thought do these judges belong to, whether they take a textualist or purposive interpretation of the Constitution, some form of systematic study of the judgments given by them. It is time that we study our judges the same way that they do in the United States of America. Here's hoping that the legal community and the law deans in India are listening. If anything, this will further solidify our understanding of the judiciary as an institution and we will be better able to appreciate why the judges decide what they decide. This understanding of the subjective-ness involved in the decision making will only help develop a deeper respect for the judges and the judgments we disagree with.

Traditionally, the judiciary in India came to acquire deep respect by all quarters of the Indian society, partly due to the relative failure, inefficacy and corruption prevalent in the other two branches of the state – Legislature and Executive. The overarching approach of the judges of the Supreme Court, for a long time, has been justified, when faced with executive excess, in the name of the lesser evil. In the constant debate about who is superior – Judiciary or the Government/Executive, the former seems to have emerged as a champion for most part of our constitutional history. Yet the glaring example of the excesses that the Judges are capable of, was for the nation to see during the Emergency imposed by Mrs. Indira Gandhi. For the first time, the nation realized that the judges are also human, all too human.

Yet, what we see today, seems to be unmatched and unparalleled by all standards. The seeming 'capture of the Judiciary' under the current political regime should be a hot debate which seems to have been conveniently and completely shushed, even by the doyens of the bar – those who have been known to stand up for the Constitution. The prevailing sense of fear seems to have affected the legal community equally, if not more resulting into a deafening, if not dead, silence on the state of the Indian judiciary today.

While stating opinion is fine, stating facts can be contempt and therefore it is important to clarify, that all of this piece is only the subjective opinion of the author.

Even for those who don't get an opportunity to observe the Supreme Court from proximity, some recent developments should be eye-opening.

First, in the Babri Masjid -Ayodhya matter, the Supreme Court wrote a long judgment invoking Art. 142 of the Indian Constitution which empowers the Supreme Court to do anything in order to 'do complete justice in any matter'. This section practically gives all and any power to the Supreme Court to resolve a matter, including the likes of the much heated Babri Masjid-Ayodhya judgment. Irrespective of what one's views are on the dispute, it is pertinent to ask – 'appreciating that the case involved question regarding the faith of the people, could the Court have expressed its inability to decide a matter like this, being a court of law that it is? The answer to this question is technically – yes and yet there doesn't seem to be a convincing explanation as to why did the Court, with a surprising unanimous vote of five judges, decide to allow the entire 2.77 acres to be used for construction of a temple. For argument sake, if the court believes that there is preponderance of probability and Hindu side has a better claim, does they qualify for any relief in view of the proven fact of illegal demolition and disregard of rule of law ?

Secondly, in the Sabrimala review petition, again irrespective of whether one agrees with the practice banning entry of women into the temple, what justifies, the Supreme Court allowing the entire matter to be heard by a bigger bench including new and freshly tagged matters challenging different discriminatory practices in different religious communities. One does not deny that these other discriminatory practices should be challenged but when has it been that the Supreme Court has allowed these other practices to be challenged in a Review Petition, thereby allowing these fresh petitions to be heard directly without going through the natural cycle of a legal case?

Thirdly, doesn't the urgency shown by the Court in hearing some matters and its decision to take its sweet time in others, seem arbitrary. Where does the discretion of the judges stop in deciding when to hear a matter and decide on the urgency involved? Again, irrespective of one's views on the Kashmir issue, the time taken in hearing the matter does raise some deep concerns.

Is this enough material to raise a valid question on the independence of the functioning of the highest court of the land? Perhaps not. But we seem to be forgetting a cardinal rule of justice – it should not only be done but also seem to be done.

A leader who is fair should be seen as fair. History is full of examples that when there is an attempt to create a totalitarian state, judiciary is made an instrument to carry out that plan instead of becoming a force to resist it. While the legends of those judges who saved the Indian Constitution at the cost of their own bright future , are recounted with unmatched vigour by the senior lawyers to the junior lawyers in the Court, whether we, the juniors, will see the same spirit in flesh anytime soon remains to be seen.

Even if all is indeed hunky dory in the highest court of the land, the times we are in, it is perhaps better to err in favour of caution. And ask the hard questions before the last bastion of hope is captured beyond a point of no return.

Coming back to the main question then – who will judge the judges, we may find out the clue in the fact that the Indian Constitution does not let the people of India judge the judges. Who should then? Isn't the writing clear on the wall – the judges have to be judged as per the Constitution of India, the application and interpretation of which will be done by another set of judges, who will not be appointed by the 'people of India', not directly at any rate. Time they say is the best judge. How much time? Well, that the people of India can and will have to decide.
Views Are Personal Only.

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]

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