|Rather than engaging the legislature and the executive in an institutional turf war, it is time the judicial leadership took note of waywardness in its own ranks and moved towards an enlightened working philosophy.|
LAST SUNDAY India's senior political elite came face to face with the higher judicial hierarchy at the annual joint conference of Chief Ministers and Chief Justices. Much notice has been taken of the Prime Minister's exceptionally sagacious observation that all the three organs of the Indian state — the legislature, the executive, and the judiciary — ought to respect institutional boundaries. In his address, the new Chief Justice of India, K.G. Balakrishnan, demonstrated an agreeable stubbornness when he spoke up for the judiciary, its independence, and its constitutional obligation to interpret authoritatively the Constitution. The Chief Justice even went a step further and suggested that if the judiciary's discharge of its functions created "tension" with the legislature or the executive, so be it. "Such tension is natural and to some extent desirable," argued the Chief Justice.
There can be no quarrel with Mr. Justice Balakrishnan's cogent formulation: it should indeed have a sobering effect on the judiciary-legislature-executive matrix. In recent years, the middle class-centric public discourse has tended to see any differences between Parliament and the Supreme Court as a "confrontation," in which the unappetising politician was depicted as unfairly seeking to prevent the upright judge from performing his or her constitutional duty. Now, thanks to the Balakrishnan proposition, any occasional differences will, and should, in good time get sorted out in a dignified manner. No need for any institutional hard feelings.
Nor can there be any disagreement with Mr. Justice Balakrishnan's clinical delineation of the court's power of judicial review. In any democratic political system, the citizen must feel that he or she has the ultimate protection of an independent judiciary against the state, always prone to trample upon the individual's political and civil rights.
However, Mr. Justice Balakrishnan's otherwise very fine diagnosis of the judiciary's problems failed to address a major and obvious malady: the absence of jurisprudential discipline, which is being increasingly felt beyond the occasional individualistic behaviour of a judge.
True, the Constitution is what the higher judiciary says it is; it cannot be otherwise, at least in a democratic republic. But, then this task of defining the Constitution is being performed by as many as 400-odd empowered, be-robed men and women, spread across the apex court and 21 high courts, each technically on a par and unanswerable to any brother judge, under no obligation to accept the intellectual or jurisprudential leadership of any superior judge. The result is periodic outbreak of judicial waywardness, in this or that high court. For instance, a single judge takes it upon himself to declare that Muslims have ceased to be a minority in Uttar Pradesh. True, a larger bench "stays" the interim order, but not before it had underlined "explosive political issues," to use Mr. Justice Balakrishnan's phrase, that too in the heat of an election process.
At the same time, we do unhappily know of failed attempts by many Chief Justices at the high court level to impose some kind of behavioural discipline on brother judges. Add to this permissiveness, all the familiar flaws that have resulted from a closed, in-house selection to the higher judiciary. It is now widely recognised that this selection and promotion process does not necessarily favour the best and the brightest of judicial men and women. These inadequacies in the enrobed men and women are rarely addressed because of the prevalent "us versus them [the political class]" mindset.
These individual inadequacies and institutional habits cumulatively detract from the ideal image of a wise and independent judiciary. Yet too much criticism of the judiciary and its functioning ought to be avoided. For, as Mr. Justice Balakrishnan correctly pointed out, it could do "incalculable damage" to the institution (of the judiciary).
The onus, then, is on the judiciary itself to reclaim its glory. Not long ago, a judicial statesman (the late Chief Justice Ismail Mohomed of South Africa) delineated the contours of this responsibility: "The independence of judiciary and the legitimacy of its claim to credibility and esteem must in the last instance rest on the integrity and the judicial temper of the Judges, the intellectual and emotional equipment they bring to bear upon the process of adjudication, the personal qualities of character they project, and the parameters they seek to identify on the exercise of judicial power. Judicial power is potentially no more immune from vulnerability to abuse than legislative or executive power but the difference is this: the abuse of legislative or executive power can be policed by an independent judiciary but there is no effective constitutional mechanism to police the abuse of judiciary power. It is therefore crucial for all judges to remain vigilantly alive to the truth that the potentially awesome breath of judicial POWER is matched by the real depth of judicial RESPONSIBILITY. Judicial responsibility becomes all the more onerous upon judges constitutionally protected in a state of jurisprudential solitude where there is no constitutional referee to review their own wrongs."
It goes without saying that judges have to resist the temptation of getting swayed by the political partisanship of the day. Judges do tend to render themselves vulnerable to such temptation given the selection process as also the creeping institutional arrogance. This occasional propensity to partisanship, however, is easily traceable to the wider absence of jurisprudential discipline. Thankfully, a section of the judicial leadership has initiated a re-think on the all-too-apparent abuse of the Public Interest Litigation (PIL) device.
Rather than getting bogged down in the debate over the extent of judicial "over-reach" or rather than remaining satisfied with checking the executive's waywardness, it is time that those at the helm of the judiciary also gave thought to bringing about some kind of jurisprudential coherence in the pronouncements of the 400-odd higher judges in the country. But this coherence will remain elusive as long as the judiciary does not re-discover the fundamental promise made in the Constitution to the people of India, the promise of an egalitarian social and economic order.
The judiciary takes its brief from a Constitution framed in 1950. However, the political class, especially since 1991, has redefined the purpose of the Indian state to the disadvantage of the vast majority of Indians. And the judiciary has gone along with this short-changing. What is probably worse is that large segments of the judicial hierarchy have come to subscribe to the new middle class-instigated ideas and prejudices. Social and economic biases have come to define the working philosophy of many a judge.
India is changing at a rapid pace and parts of this change appear to be calibrated by global forces, beyond the reach of the Indian state. Public policy-making in such a situation entails difficult choices, invariably pitting one section of society against others. The judiciary finds itself embroiled in the making (or unmaking) of these difficult choices, and the nature of judicial intervention is often defined less by any pronounced jurisprudential doctrine and more by the judge's personal predilections. The reservation for Other Backward Classes controversy and the court-driven painful sealing drive in Delhi are two prime examples of an individualistic approach.
The problem is part structural as at no time is a judge (either at the time of appointment to a high court or of elevation to the apex court) judged in terms of his or her philosophy or ideas. A calculation of seniority becomes the prime, if not the only, yardstick of eligibility. And since the process of selection and promotion is a closed affair, the public at large never gets to know, leave alone question, the judicial nominee's philosophy. Ability or willingness to make the executive bend at the knee seems to have become the only working or preferred philosophy.
Citizens will rejoice in many more institutional victories of the judiciary as long as it is willing to function as an enlightened friend of democratic India. The judiciary cannot function — nor can it retain its independence or credibility — in total isolation from the demands and hopes generated by democratic churning. While the judicial leadership is certainly entitled to assert its rights and autonomy, it is also obliged to work towards producing an enlightened jurisprudential philosophy. The new Chief Justice will do democratic India a much-needed service if he were to bring to bear his moral and intellectual values to define and constrain his brother judges' functioning. Judiciary must re-align itself with Indian society and its existential pains.
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