A judge is the guardian of the small man and his bundle of rights that make the small man a full human being and enables him to realise his fullest material, moral and spiritual potential, which further empowers him to expand to the utmost frontiers of his body, mind and soul. No judge must aspire for harmony with the legislature and the executive. Every judge must brace himself for a life of tension with both, in the intelligent and stout defence of his ward, who needs constant protection against the arbitrariness and arrogance of indifferent officials, the venality of politicians, or the misdeeds of inimical or criminal neighbours and fellow citizens. Every court is essentially a court of wards, the Supreme Court having the entire citizenry as its ward. Our judges need not be unduly sensitive to the oft mounted attack that they are not elected by the people, and therefore they are unaccountable and undemocratic. This is an unsound argument.
This role of the judge makes one think about elected judges, a system that exists in many states of the United States. This system has also been tried in other countries, and I believe, it has contributed considerably to the anthology of judicial jokes. The most instructive joke is that in a certain state of the US, the Democratic Party found a judge who was paralysed from the waist downwards and in elections invariably he won the sympathy vote. He triumphed in four successive elections but on the fifth, the manager of the Republican Party walked up to his boss and said, "Sir, we have found a solution to our problem." The boss asked, "What is it?" "Sir, this time we have found a judge who is paralysed from the waist upwards."
This system of elected judges will not work in India anyway. Judicial accountability cannot be guaranteed by popular electability. judges represent the law and not votes, and judges elected by the people would merely be labelled as another bunch of politicians.
Economics may have been the most dominant force in the world for most of the time, and probably overarches, in a sense, every national and international agenda even today. But presently in India, politics appears to have overtaken economics as being a dominating force in public life. During the past few decades, all institutions including the judiciary and of course, the bar, have struggled with the temptations of politics. judges, like other mortals, are attracted to politics, particularly the aspiring ones who consider favours from a ruling party as stepping stones for ascent in their career graphs. judges sometimes violate their oath of administering justice without fear or favour. Favours received have to be returned, feel some.
We have, therefore, to evolve an effective mechanism of insulating judges against politics and getting involved in political motivations of the kind which have disgraced some sections in the past not only in this country but also elsewhere.
The 79th report of the Law Commission suggested ways to plug loopholes in the existing system of appointments of Supreme Court judges. No one should be appointed a judge of the Supreme Court, unless for a period of not less than seven years he has snapped all affiliations with political parties, and unless during the preceding period of seven years he has distinguished himself for his independence, dispassionate approach and freedom from political prejudices.
Politicians as a class and the executive in power must, therefore, have no voice in the appointment of judges. The executive is the biggest litigant on account of the citizens' complaints of misuse, often corrupt misuse of executive powers. Even a good judge appointed by a corrupt minister will not command public confidence. The majority view in the Second Judges case, 1993, that in the matter of appointments to the Supreme Court and the High Courts, the opinion of the Chief Justice of India has primacy is the origin of the present collegium system. This was a correct decision and the current system is vastly superior to the one it supplemented when judges of Supreme Court were appointed by the President of India, acting on the advice of the Union Cabinet. A system that produced the sarcasm that "it has created two kinds of judges — those who know the Law and those who know the Law Minister."
South Africa, by its new Constitution, adopted the model of a Judicial Commission for selection of judges, which has been operational since 1996. The Law Minister is formally consulted and he comments upon appointees or recommendees of the judiciary. The comments of the Law Minister are considered with respect and attention but the final word is that of the Commission. I am committed to this mechanism and believe it is our most durable, judicious and democratic solution. I must explain why.
I fully agree with the weighty opinion of my erudite friend, Senior Counsel Anil Divan in his recent article in Hindu: "The secretive process followed by the collegium excludes public scrutiny, violates the citizen's right to know and leads to diminishing respect for the Judiciary." Some bad appointments produced by this system too are notorious.
While the cancer of corruption gallops and seeps deep into every branch of our public life, the judges reciprocate by producing a strange jurisprudence, which only protects the corrupt. The Law of Contempt and the difficulties of proving judicial corruption deter cautious lawyers. But the common man, not so inhibited, produces an impressive volume of popular corruption folklore.
The real decline of judicial character started in 1973. Mohan Kumaramangalam, a distinguished lawyer and politician, claimed that judicial appointments cannot be made without reference to the social philosophy of the judges. The judge, being an important decision maker, makes decisions which are bound to affect the lives of the people vitally and his decisions are influenced by his social philosophy. Therefore, independent India should have judges who are "committed" not only to the social philosophy of the Constitution but also to that of the government. This was controversial. However, Indira Gandhi's government implemented his views during the Emergency.
What is true is that a judge should be in tune with the social philosophy of the Constitution and not that of any political party even if it be the party in power. The famous words of Justice Krishna Iyer will bear repetition: "Appointment of judges is a serious process where judicial expertise, legal learning, life's experience and high integrity are components, but above all are two indispensables — social philosophy in active unison with the socialistic Articles of the Constitution, and second, but equally important, built-in resistance to pushes and pressures by class interests, private prejudices, government threats and blandishments, party loyalties and contrary economic and political ideologies projecting into pronouncements.
"Justice Cardozo approvingly quoted President Theodore Roosevelt's stress on the social philosophy of the judges, which shakes and shapes the course of a nation and, therefore, the choice of judges for the higher Courts which makes and declares the law of the land, must be in tune with the social philosophy of the Constitution. Not mastery of the law alone, but social vision and creative craftsmanship are important inputs in successful justicing."
Though the Kumaramangalam thesis has now been abandoned, its practice continues unabated. While judges associated with the ruling establishment are invariably appointed, those having any form of association with opposition parties are scrupulously avoided. How successive Chief Justices, who are supposed to be totally judicial even in the discharge of their administrative function, enter into convenient compromises, defies comprehension. The inevitable answer is the creation of a National Judicial Commission in which the judiciary, the government, the opposition, the bar and the academic community have an equal voice. Judges should hold office only during the pleasure of the Commission. It should have the power to appoint transfer and dismiss of course in accordance with procedure established by law, what is also known as "due process". The Lokpal may be a useful addition to the participants.
The practicing bar is the constituency of a judge. If he cannot retain the bar's confidence he must gracefully quit office. It is not true that only weak, obliging judges are popular with the bar. Members of the bar know the black sheep on the bench. It is no wonder that the American Bar Association can, by its adverse criticism, make the President of the US withdraw his nominees for judicial office. A Lord Chancellor of England admitted that if he made an unworthy appointment, he could not possibly look straight in the eyes of the lawyers at the bar dinners.
In the S.P. Gupta case (1981 [Supp] SCC 87) Justice P.N. Bhagwati at page 233 pointed out that "even countries like Australia and New Zealand have veered round to the view that there should be a Judicial Commission for appointment of the higher judiciary... This is a matter which may well receive serious attention of the Government of India." Judges must judge without fear or favour, either from the executive or the legislature. Only an independent judicial commission can best ensure this.