The judicial appointments bill passed by Parliament will still need to pass muster in the Supreme Court of India. There is good reason to believe that the political domain, though by word committed to the independence of the judiciary, either has a distorted idea of what independence is or indeed subscribes to different inarticulate versions of the “independent but committed” conception of the judiciary. Understandably, the idea is not as dishonest or simple as its opponents make it out to be. Is there a place in our polity for ideology or should we be celebrating the “end of ideology” with the maturing of our democracy? The fact is that the UPA government had a distinct idea of India much of which the new government may passionately disagree with but might find it difficult, at least at this moment, to publicly jettison to create space for its own idea of India or Hindustan. Must this matter to the judges that decide our fate in many profound ways? If the answer is “yes” then would that not be relevant to what kind of judges we have? Our understanding of this conundrum will provide guidance to how we ought to select judges rather than the common sight these days on television channels and in newspaper columns of a priori opinions about what is the right way to choose a judge.
So to return to the question of ideology: it is important to make a distinction between popular ideology (or what common citizens might assume is ideology) of the present as against institutional ideology of historical validity. This should not be confused with a case for being captives of the past in form or substance. Institutional ideology is an analytical product of data about political and philosophical positions taken by society from generation to generation but under trained scrutiny, cleansed of distortion and adulteration. This exercise can be done by any trained mind but in our system, it is best done by judges. The principle of stare decisis and following precedents is a part of that technique. It does not matter that in a particular case, a judge gets it wrong because the system of appeals reduces the chances of an aberration leaving a lasting distortion.
The UPA and the NDA may well have dramatically different perceptions of the national good and institutional morality of our society but deep down in our national psyche there are beliefs that cannot be affected by it. The greater the consonance between a political outfit’s stated positions and the deep institutional tenets, the more likely is the political programme to succeed in a sustained manner. That is the logic of democracy. Of course, institutional ideology too can change but by its very nature it can evolve only over a long period. We should not of course confuse this with status quo because within the institutional morality might well be all the instruments for change and response to challenges of the new age.
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Independence of the judiciary needs many factors, least of all an understanding of the judge’s role in society by the judges themselves. There is enormous amount of material available in the experiences of great judges of our country and the common law world. There are several fascinating models of the role of the judge, from strict constructionists to creative additional legislators, conformists and zealous social reformers, relief givers and “hanging judges”, philosophers and wordsmiths, leaders and followers. Interestingly judges from different jurisdictions with vastly varying social conditions still manage to borrow from each other to fortify their reasoning and analysis. In India, as indeed in many other democracies, we are lucky that institutional beliefs were distilled into our Constitution at a remarkable moment in history, when the masses expressed their confidence in the leaders to give to the nation a social compact of universal acceptance. The amendments that have been made have fleshed out the pristine principles as it were, but the basic structure doctrine has, in a sense, preserved the essential spirit of the Independence movement and the document that reflected its spirit in 1950.
This background needs to be kept in mind as we attempt to change the system for appointments of judges that has been in place for several decades. Many arguments are being heard about transparency, accountability, exclusion, inclusion, self-perpetuation, that it does not have a parallel in the world, etc. But if we believe in the Indian genius why must we feel self-conscious that no one does it this way? Some of the best institutions of the world share many attributes of the present system of judicial appointments in India, including the shortcomings. This is not an appeal to leave things as they are because improvements are always possible and desirable. But we should not be doing something that focuses unduly on one aspect of the judiciary and leave the rest to continue in the spirit of business as usual. I have some idea about how restless the judiciary is about its inability to deliver justice that is of high quality, expeditious, affordable and most of all, easily understood by the common citizen. Judges are not oblivious to the flaws that exist in the present system and in their own way, attempt to address them. Although we see some signs of the political class being able to forge consensus on the urgency of the intended reform, there are some serious questions that have surfaced from the judiciary despite its discreet demeanour in reacting to such public discussions. Comments from some members of the judiciary (albeit no longer on the Bench) should not be cited as a compelling reason for haste. An institutional conversation between the judiciary and the executive (on behalf of the legislature) is the need of the hour. This is too important a matter to be left to be decided in a contest between different wings of government, sending out a signal to the people that years after Independence we remain unclear about the separation of powers.
The writer was Union law minister from May 2011 to October 2012