Wednesday, Dec 07, 2022

‘Trust the judges’ — as of now

The ill-effects of populist judgments have been compounded by the fact that, whenever the Judiciary has tried to create some footholds for t...

The ill-effects of populist judgments have been compounded by the fact that, whenever the Judiciary has tried to create some footholds for the other two branches to draw back from the abyss – e.g., in Indira Sawhney in regard to promotions, to specialties and super-specialties, the Executive and the Legislature have smothered those footholds: by circumventing the intention of the courts in practice – e.g., in regard to the creamy layer; and, where that alone would not do, by amending the Constitution itself – recall, for instance, the two constitutional amendments that were made to overturn the two circulars that had been issued to give effect to Indira Sawhney. We are going to witness a repeat of this suicidal sequence in regard to AMU, in regard to reservations on grounds of religion, in regard to reservations in the private sector, in regard to the disastrous IMDT Act. In these instances I am with the Judiciary – and only wish that it had been more dogged. But I do feel that the fact that this is the way the Executive and Legislature will react could have been anticipated – and, therefore, the judgments should have been less hesitant, less circumlocutory. Many, in fact I would dare say “most” of these excesses have been the work of just a handful of judges. I cannot but say that several of them were patently playing to the gallery, often to galleries abroad: many will recall, to cite a current example, the peroration against capital punishment in a well-known judgment. I can from personal knowledge recall the instance of one judge who would get his “progressive” judgments to the Magsaysay Foundation via a judge in Australia to urge that he – the Indian progressive — be awarded the Magsaysay Award. This small handful of “progressives” has been aggressive. They have captured the “moral high ground”. Often they got their way just by being quicker in producing the first draft. But those who sat with them on the Bench cannot escape responsibility: like the intellectual class in general, these others did not stand up, they did not, if I may pluck the expression that Justice Chandrachud used in regard to his judgment in ADM Jabalpur, have courage when they needed it, when the country needed it. And in the judgments I am recalling, all they needed was just intellectual courage. They acquiesced, at the least they went along. The result has been harm: where a line should have been drawn, it was not.

This recent experience compounds an apprehension. In the end, the Judiciary can only perform a holding operation. For one thing, as has happened so many times, the Legislature, and that means in effect the Executive – after all, those who are in the Government at a moment are there because their group controls the Legislature – can amend the law, it can overturn judgments by amending the Constitution. Indira Sawhney says there shall be no reservations in promotions? All right, we introduce a new Article – 16A – into the Constitution which specifically allows such reservations. Moreover, persons who man the Executive at the moment appoint judges – after due “consultation”, of course. And they appoint to the Bench persons in their own likeness. As the quality of persons in public life deteriorates, the type they will select will progressively deteriorate. The facts that the legal fraternity often bemoans today – that the quality of judgments has deteriorated, that the number of judges who one can look up to for authoritative pronouncements on constitutional law is far fewer today – are the cumulative result of the deterioration of persons who select judges. We see here too the operation of Indiresen’s Law: second rate persons select third rate persons. Trouble piles up bit by bit. Unnoticed. For there is a lag: new appointments are a small proportion of the stock of judges. For years, even concerned persons are lulled into the belief, “Yes, our institutions are going to the dogs. But at least our courts are still what they have been.” Unfortunately, even that comfort is beginning to fray today. The cumulative effects which the deterioration of persons in public life has had on the Judiciary are now visible even to the lay observer.

Thus, if I were compelled to choose between the three limbs today, I would still follow Lord Denning’s counsel, and “Trust the judges”. But, for the reasons I mentioned, I have to add, “as of today”. Accordingly, dykes have to be constructed around this dyke itself. For this,

The courts must be much more vigorous in enforcing their orders. How can it be that warrants are issued, proclamations are issued again and again for the arrest of a Member of Parliament, and he is just not arrested – he gives interviews to TV channels, he, or, equally alarming, some stand-in he nominates, appears for a law exam, no less; he tells newspapers that he has been at his house in such and such a place; and yet the police do not apprehend him for months? We now have a Minister of the central government absconding for the second time – the first being the case of Shibu Soren. Where do such incidents leave “the majesty of law”? What do they leave of the awe in which every citizen, every authority must hold the Judiciary?

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The courts must do what they can to prevent further debasement of standards in public life. Activism needs to be directed at a new target today. Much has been accomplished by what the courts have done on Articles 14 and, to take an example of special value to persons like me, Article 19. The country would be well served if the same enthusiasm and innovation were now directed to ensuring accountability of public officials. In the immediate future, for the country’s sake the courts must be especially watchful of persons who are in a position today to bully the Executive – and, therefore, the Legislature – and thereby suborn investigative agencies, who can and will bully these agencies into presenting so weak a case in the course of prosecution that judges will have no option but to let them off. For the longer they survive in public life, the greater the certainty that no limb of the State – none, including the Judiciary – will endure.

Unfortunately, the record of the Judiciary in this matter is a mixed one. The fodder case would have been killed long ago had the Supreme Court not been keeping an eye on it. On the other side, there is the Antulay case: it is apparent that cases involving high functionaries need to be brought to conclusion expeditiously; by reversing its own earlier judgment, and directing that the case be tried not in the High Court but in the Sessions Court, the Supreme Court in effect killed the case. Persons in public life should not have the fundamental right that everyone seems to have in this country – that is, to cause infinite delay in his case. The right course, of course, would be for laws to be changed in regard to trials of persons in public life. But such change is not likely in the near future – for the decision in this regard is today in the hands of the very class that has most to lose from more expeditious disposal of these cases. This is where judicial creativity would be of the greatest service to the country.

All of us should join hands to insulate the Judiciary from the two other limbs. This means in particular,


Judges as well as others should press that the National Judicial Commission be set up soon. The names it recommends for appointment should be accepted without fail – unless the Executive has very strong evidence to suggest otherwise, evidence and reasons that it must record in writing and communicate to both the Commission and the Chief Justice of India. Pending the constitution of such a Commission, senior judges have to ensure that the “consultation” that is mandated in regard to appointments and transfers is real and effective consultation. That is why the Supreme Court deserves our gratitude for having reversed its judgment in SP Gupta, the original judgment in the Transfer of Judges case. For by that judgment the Supreme Court had handed the key to the robber.

Institutions are the persons who man them; and, as far as institutions are concerned, those persons are their conduct. In the last few years, questions have erupted in regard to the conduct of some members of the Judiciary. These are bound to be seized upon by those who are inconvenienced by the courts, they will be used to lower the esteem in which people hold the Judiciary. Moreover, as was vividly demonstrated in the case of Justice V. Ramaswamy, impeachment proceedings in Parliament are not an effective remedy. For one thing, impeachment can only be an extreme remedy: it will not safeguard us against the slow rot which, apart from the immediate harm it does, accustoms the country to lower and lower standards, and thereby prepares it for a complete breakdown. Moreover, as the V. Ramaswamy case demonstrated, even in judging a judge, Parliament will proceed politically, not judicially. Invariably so — given the current state of Parliament. Nor is transferring the errant judge to some out of the way place any solution – people of that region are as entitled to justice; as such, they are certainly entitled to take umbrage at being treated as a dump. There is thus an urgent need to institute a credible internal mechanism within the Judiciary that will ferret out malefactors – swiftly, visibly, and with deterrent, exemplary severity.

We live in times of swift, fundamental change – the half life of a product is less than six months today, entire technologies are overtaken by other technologies in twelve to eighteen months. Nor can we shut ourselves up – our firms have to contend with ferocious competition from countries like China. Therefore, those who man our legislatures, and a fortiori those who man our governments need to acquaint themselves much better with what is required to run a modern economy. The same goes for judges.


But that task should not be left to judges. As has been rightly said, it is the duty of every citizen – one that he must perform in his own, immediate interest – to educate his rulers. Associations of industry, for instance, must do much more than they do today, to acquaint legislators and judges with what modern operations require. True, sitting judges may be loath to, and may not have the time to attend workshops and visit factories. But we can get the facts to their social circle – retired judges, senior advocates and the like. This single effort will do much to ensure harmony between at least two of the three limbs – the Executive and the Judiciary.

Nor is the economic sphere the only one in which the country faces challenges that are of an entirely new character. Terrorism is a vivid example from another sphere. Out and out criminals who enter legislatures and thence governments are a third. In such circumstances, confronted with a case, judges must look not just at the fine print of a sub-clause of a section of a law, but at the meta-consequences of the decision they are about to pronounce.

But it is not just judges who need to look at the meta-consequences of their decisions. If cases involving revenue take long and the government is left without the resources it needs; if a terrorist gets off on a technicality and the policemen who risked their lives apprehending him are left wringing their hands in despair, that is not only because of judges. One side in a dispute is always interested in delays; one side always stands to gain by riveting the court to legalisms. The trouble is that professionals – in this instance, lawyers – make themselves available to stretch out a case, to pin the court to some technicality. So, professionals too must adhere to some self-denial – that they will be judges of the first recourse, that they will not use an institution just to benefit a client.

In that regard, we have to do less. But in another, more, much more than we do. It is but right that the Judiciary is the penultimate agency to ensure accountability of the Executive and the Legislature, the ultimate one being the people. How is the Judiciary in turn to be made accountable? By thorough, professional scrutiny of judgments. This has been a real lacuna in India, and the contrast with the way judgments are examined in the US and other countries is as sharp as can be. I do hope, therefore, that, even as judges do their work of guarding the Constitution, as professionals we will strengthen the Judiciary by analysing judgments with the care that they deserve, and the proper working of our Constitution requires.

This was the text of Mr Shourie’s speech at the National Legal Services Authority Conference in New Delhi on November 9


First published on: 11-11-2005 at 12:00:00 am
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