LAW RESOURCE INDIA

Who will judge the judges?

Posted in JUDICIAL ACTIVISM, JUDICIAL REFORMS, JUDICIARY, JUSTICE, SUPREME COURT by NNLRJ INDIA on September 1, 2010

Justice V. R. Krishna Iyer in The Hindu

Parliament should wake up and implement glasnost and perestroika in the judiciary. In the name of independence, we cannot have judicial absolutism and tyranny.

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

Most of the judges of the Supreme Court of India are those who were previously senior judges in High Courts. There is no valid ground to sustain any discrimination among judges of the Supreme Court and the High Courts in the matter of their age of retirement. There is justice in eliminating the differential age for retirement of the robed brethren of the High Courts and the Supreme Court. An anomaly is now being corrected.

But what criteria and guidelines are being applied, what level of scrutiny is done, before a Judge of the High Court is elevated to the Supreme Court? At present the choices are made seemingly according to the fancy of the judges who constitute the Collegium. There is no investigation into the social philosophy, academic excellence, judicial performance or wealth and other circumstances that should help reveal the class bias of those who are chosen.

This writer was 104th in rank as a Judge of the Kerala High Court but proved to be, according to many senior advocates, one of the best who sat on the Supreme Court. The name was initially rejected by Chief Justice S.M. Sikri for unknown reasons, but was regarded as good by Chief Justice A.N. Ray, who made the selection. I was a member of the E.M.S. Namboodiripad-led Ministry in Kerala in the 1950s. That was my “sin,” but when I left the Bench, at a dinner Fali S. Nariman and others with him passed a resolution that termed me a humane judge. The resolution said: “Permit us to remind you that the Bar is the judge of judges and no judge can avoid or escape the verdict of the Bar. We have summoned you this evening to hear our unanimous declaratory verdict. Our verdict is a decree of affection and admiration. Let us also declare, in these proceedings which are sui generic, that we are not only your judges but also your judgment-debtors. No words of prosaic prose would be adequate to encompass your vitality and versatility — not even if we drew upon and borrowed from the hoarded wealth of a vast vocabulary you are known to possess. We shall therefore crave your indulgence to supplement the record by those profounder feelings, which the language of the lexicon cannot communicate and which are best conveyed by the language of the heart.”

The senior advocates judged me by my performance. The President conferred on me the Padma Vibhushan.

A Performance Commission is a necessary instrument to assess the worth of judges proposed for elevation or for extension of tenure or for ad hoc appointment. The Collegium often blunders and people suffer. There are no checks on its decisions — it seems to choose on the basis of fancy affections and inadvertently even includes corrupt brothers from the High Court — and not on the basis of a study of the candidate or with access to the public to know the facts, as in the U.S., or association with the Bar as in the U.K. The whole system needs reform and principles need to be set out on a candidate’s social philosophy. That is why privy purses were sought to be protected, and the nationalisation of banks and a land reform law were struck down. A professor of law even expressed the view that the Supreme Court is the conscience-keeper of the proprietariat.

Arbitrary power will corrupt even the best of persons absolutely. A High Court Chief Justice was complaining to me how a Chief Justice who had been on the job for only two months had been picked for the Curzon Road wonder while he, with a clean record, was overlooked although he had been serving for three-and-a-half years in the position in a High Court.

The Collegium is a judicial creation and the syndrome of the personality cult being beyond accountability. It is bizarre in its performance — its selection process is secret and suspect and is subject to no scrutiny. It excludes the executive and is in that respect unique in the world. Why India should retain such a bedlam process, akin to a pre-feudal power cult, is unclear. Parliament must make a law regarding selection of judges, a code of conduct for judges and a Performance Commission as has been done by many States in the U.S.

David Pannick, QC, has argued thus: “The Judicial Performance Commission could serve a valuable function in these respects. Litigants should have the power to refer to the Commission a complaint about the conduct of a judge. The Lord Chancellor should have such power, and should be obliged to exercise it prior to dismissing a judge. (This would not prevent a judge resigning to avoid publicity on the matter).

In May 1986, Lord Hailsham expressed support for the introduction of an independent complaints board to investigate facts and make recommendations to the Lord Chancellor prior to the dismissal of a Circuit Judge. He said, quite understandably, that he was troubled by the absence of a fair procedure.

Judges with a class bias are misfits in a socialist republic. Some judges with a communal bend of mind are on the Bench. The regionalism and communalism of this body called the Collegium has brought down the greatness of India’s fine judiciary.

An appeal

My appeal to parliamentarians is to wake up and implement glasnost and perestroika in the judiciary. They control the executive and strike down laws you make. Who controls them? In the name of independence you cannot have judicial absolutism and tyranny.

Franklin D. Roosevelt said it. Jawaharlal Nehru once told Parliament why India cannot allow the Supreme Court to be the Third Chamber of the House. You are the people’s voice and vox populi vox dei and must express critical, nationalist correctional power. The three instrumentalities must harmoniously work the Constitution’s sense of justice, social, economic and political into a reality. Remember that Roman adage: “Whatever touches all should be decided by all.”

Even with respect of District Judges beyond 55 years of age and up to 58 years there are guidelines in Kerala that provide for compulsory retirement in the public interest “if the High Court on an assessment and evaluation of the records of such officer is of the view that such officer is not fit and eligible to continue in service beyond the age of 50 years, 55 years and 58 years, as the case may be.”

Why not, then, have similar provisions for High Court judges too? This is a democracy, not a robed dictatorship with papal-like infallibility vested in the Supreme Court for the purely administrative functions of government. Corrupt anti-socialist ‘brethren’ are dangerous without accountability.

Let us not permit forensic fascism. By and large, India’s judges are of a high standard. But a few foul the Bench and shake the faith of the people in the justice system.

On the Politics of the judiciary, Professor Griffith of London University quoted Winston Churchill thus: “The courts hold justly a high, and I think, unequalled pre-eminence in the respect of the world in criminal cases, and in civil cases between man and man, no doubt, they deserve and command the respect and admiration of all classes of the community, but where class issues and involved, it is impossible to pretend that the courts command the same degree of general confidence. On the contrary, they do not, and a very large number of our population have been led to the opinion that they are, unconsciously, no doubt, biased. (The Secretary of State for the Home Department [Mr. W.S.Churchill] on the second reading of the Trade Unions (No.2) Bill, 1911 (26 H.C. Deb.col. 1022).

The executive is weak and tends to treat this country as a dollar colony. The judiciary is British-oriented and precedent-board. Parliament at least must be supreme, activist, sovereign, democratic, socialist and, secular. If you fail, India dies. Never. You are the voice of swaraj, the victory of a do-or-die struggle. Your Constituency is the People of India. Edmund Burke put it thus: “We are not slaves of the robed brethren mechanically obedient to a curious invention called collegium.”

Source : http://www.thehindu.com/opinion/op-ed/article605949.ece

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6 Responses

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  1. Venkatesh P. Dalwai said, on September 1, 2010 at 14:09

    Though I do not dare to comment upon the comments of one of the Legendary Judges of this Country but I feel the learned Author is too harsh about present system of Collegium recommendation and such practice is in exsistence even when the learned Author was part of elite Apex court. Concern of corruption is well taken and parliment must fast track the Accountability law for Higher Judiciary. Incompetancy must be rooted out at the entrence be it for Munsiff or High court or Apex court. Considaring the present change of society and complexcity of laws and performence pressure, Our Judges have been doing well.

  2. vijay said, on September 2, 2010 at 18:23

    Sir,

    Parliament is no better than judiciary. It is difficult to expect glasnost and perestroika from them.Why don’t you put up the simple formula on the issue as you are the right person, and ask them to consider.

    Vijay.

  3. R.T.P.S.TULSI, ADVOCATE said, on September 4, 2010 at 09:19

    “Who will judge the Judges” is yet again a wake up call for controlling judicial absolutism and tyranny. The need for a Performance Commission is sine qua non to ensure judicial discipline.
    The need for Performance Commission as recommended above is sine quo non. Higher Judiciary is failing in their primary duty under the Constitution by failing to devise self regulatory in house mechanism to uphold the principles of judicial discipline, propriety and awaiting enactment of law by the Parliament.
    If the Courts command others to act as per the law, it is not possible to countenance violation of their own Rules and principles by those who are required to lay down the law.” Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles. The Hon’ble Courts need to show more urgency to review of their Rules including those framed under the RTI Act, 2005 and ensure implementation such as Case Flow Management Rules which were framed by a High level Committee at the instance of Hon’ble Supreme court. The failure to follow the Rules by the Superior Court even after these are in force for over two years and the like is totally unwarranted.
    The demand for video graphing of Court Proceedings has been rejected even by the Hon’ble Supreme Court. Notwithstanding the long existing practice in the Royal Courts of Justice in London and recommendations of Mr. H.M.Seervai.

  4. Digvijay Singh said, on September 11, 2010 at 10:50

    it is nothing but the indispensable thing in the Indian Judicial System where the instances of tyranny (cruel use of authority) is a regular phenomenon. there has to be a Commission (Committee) to scrutinize the behaviour of the Presiding Officer assigned to do the justice based on the materials produced by the litigants and not on his own whims and thoughts….. the most important thing is that a PO has to play a judge by leaving his personal nature and thoughts behind… and perform like a dancer doing his job blindfolded…(irrespective the status, position etc. of the litigants)…
    Justice must be delivered by following the Principles on which the law is based…. and the behaviour & demeanor of the judges also plays very important role…a judge should not be Arrognat… it must be co-operative…

  5. P M Ravindran said, on September 15, 2010 at 08:04

    It is a good thing that this question is being raised by former judges and advocates. While I believe that about 10 pc of the people in all the three organs of the constitution are good (and responsible for sustaining the system at least to the extent it is existng today!)my observation tells me that the judiciary is the worst and it is the judiciary that is even promoting lawlessness in the other organs.For now you may like to visit the on line petition at http://www.petitiononline.com/jrandac1/petition.html and support it.

  6. Mukesh Kr said, on September 17, 2010 at 23:32

    The soul of judiciary rests on its strong reasoning for arriving at its decisions/ judgment, where both executive and legislature become weaker. That’s why ultimate power of review lies with the judiciary under Article 226 & 32 of the Constitution. Such reasoning depends on absolute transperancy in its functioning, and full accountability of the Judges. It absolutely do not require tools like Contempt of Court Act. However, the present system fails on these aspects. Hence, I vote for legend Justice VR Krishna Iyyar for his view on need for glasnost and perestroika in judiciary, and pay due regards to Ld. Shanti Bhushan and his son Prashant Bhushan for standing strongly against prevelant corruption in judiciary and exposing ex-CJIs. The surprise is not about the Bhushan family, but about the judiciary who used its amunitions to kill or shut our mouth against them.


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