Time for change

Supreme Court of India


The time has come for a democratic revolt against the judiciary and for the appointment of a performance commission for judges.

DELINQUENCY of judges must be rooted out. They should be socialist, secular and democratic by conviction, simple in life and straightforward in behaviour. Judges correct the executive’s aberrations. When legislatures violate the Constitution by unconstitutional actions, courts quash such actions. But the egregious exaggeration that shocks the public is the terrible catastrophe of judicial corruption.

To quote Felix Frankfurter in Bridges vs California, 314 U.S. 252, 289 (1941):

“Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions. Just because the holders of judicial office are identified with the interests of justice they may forget their common human frailties and fallibilities. There have sometimes been martinets upon the bench as there have also been pompous wielders of authority who have used the paraphernalia of power in support of what they called their dignity. Therefore judges must be kept mindful of their limitations and of their ultimate public responsibility by a vigorous stream of criticism expressed with candour however blunt.”

Even High Court and Supreme Court judges are suspected of bribery and delinquency. Today, the judiciary suffers from an unbecoming misbehaviour syndrome. The most respected and sublime sector of public service, namely, the judiciary, is losing its credibility. I quote Winston Churchill and Lord Scrutton to prove the poor credentials of the judges.

The Secretary of State for the Home Department (W.S. Churchill) on the second reading of the Trade Unions (No.2) Bill, 1911 (26 H.C. Deb. col. 1922) said:

“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 are 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.

(Honorary Members: ‘No, no’, ‘Withdraw’ and interruption.)

Lord Justice Scrutton in an address delivered to the University of Cambridge Law Society on November 18, 1920 (1 Cambridge Law Journal, page 8):

“The habits you are trained in, the people with whom you mix, lead to your having a certain class of ideas of such a nature that, when you have to deal with other ideas, you do not give as sound and accurate judgments as you would wish. This is one of the great difficulties at present with Labour. Labour says ‘Where are your impartial judges? They all move in the same circle as the employers, and they are all educated and nursed in the same ideas as the employers. How can a labour man or a trade unionist get impartial justice?’ It is very difficult sometimes to be sure that you have put yourself into a thoroughly impartial position between two disputants, one of your own class and one not of your class.”

We require a performance commission to eliminate the robed brethren who are guilty of goofiness and gross culpability. We require a constitutional code of conduct and good behaviour for judges. When they are guilty, a commission of high integrity and critical incisiveness must investigate into charges against them, and if found guilty they shall be removed without impeachment.

David Pannick in his delightful book ( Judges, 1987) has observed:

“Mr. Justice Jackson of the U.S. Supreme Court observed in 1952 that ‘men who make their way to the bench sometimes exhibit vanity, irascibility, narrowness, arrogance and other weaknesses to which human flesh is heir’. It would be surprising, indeed alarming, if some of the eminent legal minds that constitute the English judiciary did not, on their rare off days, act injudiciously. This was recently recognised by Lord Chancellor Hailsham. Those who sit in judgment occasionally become subject to what he called ‘judges’ disease’, that is to say a condition of which the symptoms may be pomposity, irritability, talkativeness, proneness to obiter dicta [that is, statements not necessary for the decision in the case], a tendency to take short-cuts. A judge may grow unfit for his office in many ways. It is therefore important to consider what sanctions exist in relation to judges who are unable to act in a judicial manner.”

In short, mountebanks, though few, creep into the Bench, and their judgments bind even though absurd. To secure sound balanced pronouncements, we may require a performance commission to eliminate such mountebanks after due inquiry. In the U.S. at the state level there are performance commissions. Even David Pannick has supported such an institution. We must have one in India too.

It is no longer a mere case of taking bribes or one of deciding cases in favour of the wealthy class. Sharp practice, tricky strategies and cute conspiracy have become the methodology of some in the judiciary. Luckily, they are yet few, but it is bad enough.

These developments make it necessary to see that judges are selected after due investigation into their antecedents and class bias. Once corruption is detected and established, errant judges should be shown no mercy. The judiciary is the salt of the earth and if the salt loses its savour wherewith shall it be salted. Severe punishment for judges is a deterrent for the sanitisation of the profession. Judges hold a sublime place in society. If they turn criminal there is no compassion for them.

There is no ground, no principle, no jurisprudence authorising the creation of a bizarre or bedlam institution called collegium. The sooner this institution is drowned five fathoms deep, the sooner the judiciary will be rid of one irrational irrelevance. Even in England, experiments for appointment commissions are going on, but ultimately the judiciary is an institution with a class bias. Prof. Griffith argues:

“The rules are what they are because of the nature of the society, because of its cultural and particularly its economic ordering. The government is the political manifestation of the economic forces and the judiciary also subserves those forces. In modern Marxist terms: ‘From this standpoint the law is, perhaps more clearly than any other cultural or institutional artefact, by definition a part of a ‘superstructure’ adapting itself to the necessities of an infrastructure of productive forces and productive relations. As such it is clearly an instrument of the de facto ruling class; it both defines these rulers’ claims upon resources and labour-power – it says what shall be property and what shall be crime – and it mediates class relations with a set of appropriate rules and sanctions, all of which, ultimately, confirm and consolidate class power.’”

Judges are qualitatively becoming illiterate and character wise dubious largely because the collegium has no investigative machinery or obligatory principles for selection. Consequently, favouritism, nepotism, casteism and other extraneous considerations spoil the selection. In the absence of a performance commission, corruption creeps into the process of judicial functionalism. Aghast, today corruption and mediocrity and favouritism and influence are frequently imputed to judges.

Never in the 60 years of judicial history in India have such serious charges been made against judges as have been made in recent times by a responsible person like Senior Advocate Shanti Bhushan against judges of the Supreme Court. Nowadays, high courts are not free from moral violations. Extraordinary defences by judges in hiding their wealth or in promoting to the Bench their close relations were not so common earlier as they are now. The people of our Republic have become a victim with such poor reputation. The robed brethren are accused of robbing wealth and yet no inquiry, no action by the Cabinet and no inquiry by Parliament into judicial jejuneness takes place.

The time has come for a democratic revolt against the judiciary and a demand for an appointment commission, a performance commission and an anti-corruption commission to keep a constant watch over judges and the respect they command. If judges fail in their moral fibre, the rule of law and the rule of life would collapse and open the route to military rule and functional chaos.

Said Learned Hand ( The Spirit of Liberty, Papers and Addresses of Learned Hand, collected by Irving Dillard, 2d, New York, Alfred Knopf, 1960, page 81):

“I venture to believe that it is as important to a judge called upon to pass on a question of constitutional law, to have at least a bowing acquaintance with Acton and Maitland, with Thucydides, Gibbon and Carlyle, with Homer, Dante, Shakespeare and Milton, with Machiavelli, Montaigne and Rabelais, with Plato, Bacon, Hume and Kant, as with the books which have been specifically written on the subject. For in such matters everything turns upon the spirit in which he approaches the questions before him. The words he must construe are empty vessels into which he can pour nearly anything he will. Men do not gather figs of thistles, nor supply institutions from judges whose outlook is limited by parish or class. They must be aware that there are before them more than verbal problems; more than final solutions cast in generalisations of universal applicability. They must be aware of the changing social tensions in every society which make it an organism; which demand new schemata of adaptation; which will disrupt it, if rigidly confined.”

The collegium has added to the qualitative disgrace of the brethren and calls for liquidation as the adjudicatory mechanism. Perhaps we are reaching a state where judges, for their corruption, are caught and prosecuted until they consent to quit or choose to sleep in all their conscience behind bars. Swaraj was made of sterner stuff. A national commission for the appointment of judges with transparency, similar to the one now in England, is also urgently needed.

Glasnost and perestroika are imperatives from which the robes have no escape.



One Comment

  1. Permit me to give a link to my Blog :Justice Iyer’s radical call in his article in the Frontline: ‘Time for Change: Law Resources India: http://balpatil.sulekha.com/blog/post/2011/03/justice-iyer-s-radical-call-in-his-article-in-the.htm
    As a legal, social and media activist for national Jain minority status on par with other national religious minority communities such as Muslim, Christian, sikh, Buddhist and Zoroastrian (Parsi) and one who has had the privilege of reviewing the eminent jurist, Justice V.R. Krishna Iyer’s book ‘Social Mission of Law’ in The Economic Times way back in 25-7-1976 which I am reproducing below I would like to take the liberty of commenting on Justice Iyer’s radical call in his article in the Frontline: ‘Time for Change: asking for :
    ” DELINQUENCY of judges must be rooted out. They should be socialist, secular and democratic by conviction, simple in life and straightforward in behaviour. Judges correct the executive’s aberrations. When legislatures violate the Constitution by unconstitutional actions, courts quash such actions. But the egregious exaggeration that shocks the public is the terrible catastrophe of judicial corruption.”
    Which reminds one of Jawaharlal Nehru’s historic peroration when presenting the Draft Constitution:
    “We will honour our pledges. Within limits, no Judge and no Supreme Court will be allowed to constitute themselves into a third chamber. No Supreme Court and no judiciary will sit in judgement over the sovereign will of Parliament which represents the will of the entire community. If we go wrong here and there, they can point it out; but in the ultimate analysis, where the future of the community is concerned, no judiciary must come in the way. Ultimately the whole Constitution is a creature of Parliament…It is obvious that no court, no system of judiciary can function in the nature of a third hourse, as a kind of third House of correction. So it is important that with this limitation the judiciary should function…Ultimately the fact remains that the legislature must be supreme and must not be interfered with by the courts of law.”
    These words have an inspiring finality like Abraham Lincoln’s historic peroration in his Gettysburgh speech that the “Government by the people, for the people and of the people shall not perish from the earth” and deserve to be engraved on the portals of the supreme judiciary as a constant reminder to the honourable justices that they cannot aspire to soar higher than the Parliament, and if they do their judicial wings would be clipped and not vice versa.
    But I wonder in all humility should this juristic cri de Coeur from Justice Iyer which admits of no dissent not also encompass in its juristically corrective compass the legal community of the lawyers and legal profession which forms the inseparable arm of the justice system. In this context permit to reproduce below my article published in The Economic Times dt. December 8, 1975: ‘Reorientation of Legal Profession’ in the distinguished legal portal of the Law Resource India:
    “I wish to offer a few comments on President Ahmed’s recent call while inaugurating the Delhi Bar Council library to the legal profession to ponder over the possibilities of altering and modifying the style and manner of law practices.
    I think this is a most significant statement in come from the Constitutional Head of the Indian Republic in the context of the radical rethinking going on the legal system with a view in initiate far-reaching reforms and even to change the Constitution substantially in order to usher in a second Republic more in conformity with the felt aspirations of the people something on the lines of France as hinted by the PM Indira Gandhi sometimes back. As the PM declared the reformation of the legal system had to be thought of. “We have to remedy this situation. Millions are waiting for social justice and for the law to be speedier and less expensive.”
    Even more pointedly the PM said that it would be better to think in terms of changing the legal proceedings that denied justice to the weaker sections than devise ways of legal aid which though it provided a relief from the rigours of a rigid system could not be more than a palliative
    Thus I do not think that there can be any two opinions that our legal system and the entire judicial machinery is hopelessly antiquated and must be revamped. The President’s observations, therefore, offer a most faithful line of inquiry in which legal reform can be initiated.
    That the style and manner of law practice as it is conducted now is wasteful of public resources can be shown from the volume of litigation between business and the State. As pointed out by the economist Schumpeter:
    “A considerable part of the total work done by lawyers goes into the struggle of business with the State and its organs …. In a socialist society there would be neither need or room for this part of legal activity. The resulting saving is not satisfactorily measured by the fees of the lawyers who are thus engaged. That is inconsiderable. But not inconsiderable is the social loss from such unproductive employment of many of the best brains… their shifting to other employment might be of more than infinitesimal importance.” (Capitalism, Socialism and Democracy.)
    Moreover the thesis that law and justice are contrived in the interests of the stronger, governing and hence propertied classes is not only a Marxian economic discovery but also a Platonic view in Republic expressed through Thrasymachus. It is not surprising , therefore, that the weaker sections are deprived of justice in an implicit legal situation where might still prevails over right. The persistent plight of the Harijans and neo-Buddhists despite all the constitutional protection which was strongly deprecated by the Prime Minister is a case in point.
    The distorting effects of the unrestrained pursuit of property was analysed by Jawaharlal Nehru in his speech in the Constituent Assembly debate on September 10, 1949 on Article 24 of Draft Constitution. It is pertinent to recall Nehru’s views on property, acquisition by the State, compensation, the legislature and the judiciary today when fundamental rethinking is being done.
    Tracing the evolution of the idea of property Nehru said: ”Ultimately you arrive at an idea of property which consists chiefly in a millionaire having a bundle of paper in his hands which represents millions, securities, promissory notes, etc. That is the conception of property today; that is the real conception of the millionaire. It is rather an odd conception to have to protect carefully that property which in the larger concept of other words, properties, is paper. In other words, property becomes today more and more immaterial and more and more a shadow. A man with credit has more property and can do wonders with that credit. But a man with no credit can do nothing at all.”
    This was precisely the bone of contention which obstructed again and again our people’s avowed constitutional march to justice, social economic and political which fortunately has come a full circle with the realization in the majority decision of the Kesavananda Bharathi case; a prophetic confirmation of Jawaharial Nehru’s observation in the above speech;
    “Within limits no judge and no Supreme Court can make itself a Third Chanmber. No Supreme Court and no judiciary can stand in judgment over the sovereign will of the entire community. If we go wrong here and where it can point it out, but in the ultimate analysis, where the future of the community is concerned, no judiciary can come in the way. And if it comes in the way, ultimately the whole Constitution is a creature of Parliament.”
    Thus while a new juristic ethos is very much in the air especially during this emergency which has brought an acute realization of the constitutional need for discipline and law and order despite the unresolved wrangle about the basic features of the Constitution, one regrets to note, there is no concerted effort yet to make the judicial machinery and the legal profession a fit vehicle to carry the evolutionary message of social justice for the people.
    As a former American Chief Justice Burger said addressing the Association of American Bar in 1970:”In the final third of the century we are still trying to operate the courts with fundamentally the same basic methods, the same procedures and the same machinery, Roscoe Pound said were not good enough in 1906. In the supermarket age we are trying to operate the courts with crackerbarrel corner grocer methods and equipement—-vintage 1900.”
    If that is the situation with American judicial process it is no better with the English system— the parent of the common law systems in America as well as India because Lord Devlin was constrained to observe that: “if our business methods were as antiquated as our legal methods, we should be a bankrupt country….There is need for a comprehensive inquiry into the roots of our procedure, backed by a determination to adapt to fit the conditions of the welfare State.”
    It is in this context, I think, the President’s call to alter and modify the style and manner of law practice assumes urgency. What can be done to remedy the situation? I, for one, feel that there is no alternative but to have people’s courts, people’s judges and people’s advocates in consonance with the President’s call. It would be necessary also to give a completely new orientation to legal education to make it adaptive to new social and economic needs.
    One cannot understand why our law colleges must continue to be academic factories turning out advocates made to order to suit what is decidedly a rotten and anachronistic system to go into the motions of law which lead neither to justice or to social ethos but merely mean in the bargain a grievous loss to society. I would not shed a tear if all our law courts are closed tomorrow.
    I would even go ahead and make a plea that in keeping with the revolutionary socio-economic and juristic temper of the times we must be courageous to allow public spirited citizens and social workers to plead the causes of their oppressed fellow citizens in the courts of law without formal degress
    There is nothing very innovative or absurd in this suggestion. And it was a matter of common, practical, administrative device in the British regime to offer the posts of collector or judge to persons of lower qualification to provide an opportunity of political education and even diplomas to practise were given without examination to persons possessing general knowledge.
    This was the pre-eminent practice followed by Shri Shahu Chhatrapati the progressive ruler of the erstwhile Kolhapur State in Maharashtra who was a pioneer in the upliftment of the untouchables and gave Sanads to the befitting members of the untouchable community to practise as Vakils. What the great royal social reformer said in the face of violent opposition to his progressive measures to ameliorate the lot of the backward classes is worthy of the most careful attention today at the close of the twentieth century when we are still struggling to erase the age-old stigma of untouchabilty.
    Shahu Chhatrapati said at the third All-India Conference of the Untouchable Classes at Nagpur on February 16, 1922:
    “I am convinced that these people are not devoid of natural ability. What they are in need of is the opportunity. If proof be wanted there is no paucity thereof. The eminence to which Matang, Tuk, Parashar, Vashishtha, Chokhamela were raised and other sages who were born in low communities sufficiently bears out the above statement. Not long before we find even in advanced country like England people were granted the diploma of Barrister in the lnns of Court. Even men, non-matriculated Indians availed themselves of this opportunity. But these dinner Barristers were deemed fit to conduct cases in any Court of Law and it will be admitted this class has produced many noteworthy lawyers. Our high class people feel it disrespectful to raise the status as I have done by giving diplomas to the members of the untouchable community but this a mistake. To wait for equality of treatment till their educational qualifications are raised cannot be preferred to the policy of immediate action to end the fearless and thoughtless social tyranny which cannot be matched anywhere on this earth. Immediatism is the only successful way, that is my firm belief. I do not wish to follow the ways of those reformers who would delay indefinitely any action in favour of social reform, because that gives offence to the older folks. The enlightened mind of the country is agreed on the evils of the caste system. The only question is who should be doing the work of aboliton.”
    How far-seeing Shahu’s conception of immediatism was in educational reform and innovation in legal systems by giving practicing diplomas to deserving untouchables , can be seen by the fact that the London ‘ Observer’ in its editorial ‘Wigs on the Green’(February 15,1976) commented on an MP’s demand in the British Parliament” to end the monopoly of lawyers as advocates and allow a party to be represented by anyone, competent to help him, present his case. The editorial said : “Many people in Britan, perhaps most, regard the law as an enemy rather than a friend. That ought to worry lawyers, politicians and rest of us, since respect for the rule of law goes to the heart of a democratic society… For Britain has at present a legal systems which often looks as anachronistic as its wigs and gowns: a systems in which solicitors are plentiful in well to do areas and inaccessible in less fashionable districts: in which the law appears suited only to the property rights of the middle class, but oblivious of the new problems of the poorer and less well educated people…Sooner rather than later, the legal system must be made to appear less like a bastion of privilege, more like a defender of us ali.”
    I think this is the implicit spirit in which we have to understand the President’s call for changes in the style and manner of legal profession and simultaneously it will provide a solution to the plight of the weaker sections . Shahu Chhatrapati was, we must remember, the first ruler who pioneered welfare legislation by showing a deep understanding of the social-economic roots of the law and its administration. He was the only ruler in British India to preach, practise and make laws for the removal of untouchability and event make valid inter-caste and widow marriages.

    Bal Patil

    Bal Patil
    Secretary-General, All India Jain Minority Forum, New Delhi,
    Ex-Member, Media Expert Committee, Govt. of India,Ex-President, National Society for Prevention of Heart Disease & Rehabilitation
    Ex- Member, Maharashtra State Minority Commission, Govt.of Maharashtra, Mumbai.
    Author: Supreme Court’s volte face on Constitutional Amendment, published by Govt. of Maharashtra,
    Co-Author: JAINISM (Macmillan Co 1974). with Colette Caillat, (Member Institut de France, Paris,) & A.N.Upadhye, My translation of Dr.L. Alsdorf’s German Beitraege zur Geschichte von Vegetarismus und Rinderverehrung in Indien (History of Vegetarianism and Cow Veneration In India) published (Routledge, London) History of Vegetarianism and Cow-Veneration | Indologica, in Feb.2010 edited by Dr. Bollee. Participant and speaker on Jain Minority Issue in the Tuebingen University International Jain Workshop 19/20th Feb.2010: The Jaina and the British http://www.herenow4u.net/index.php?id=71832
    http://www.herenow4u.net/index.php?id=71359 .Participant and speaker in the 7th Jaina Studies Workshop on Jaina Law and Jaina Community, Centre for Jaina Studies, SOAS, University of London, Bal Patil’s English translation of Dr.Ludwig Alsdorf’s French Les Etudes Jaina, Etat Present et Taches Futures (Jaina Studies Present State and Future Tasks edited by Dr.Willem B. Bolle, (2006) Jaya Gommatesa! Foreword by Dr Colette Caillat, (2006, Mumbai). Jainism: An Eternal Pilgrimage by Bal Patil, Ed. By Tony Whittington, all the three published by Hindi Granth Karyalay, Mumbai
    Flat C-608, Essbel Bldg, Lokhandwala Complex, Kandivali (East), Mumbai-400 101,
    Tel:91 22 2965 5533, Fax: 91 22 2965 5533, Cell: 98692 55533
    Website: http://jaina.in http://en.wikipedia.org/wiki/Bal_Patil
    Email: balpatil@globaljains.com

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