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 continued…
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