An independent, objective and unbiased judiciary is one of the most important pillars of democracy. In fact, it is supposed to be one of the strongest pillars that people can depend upon and trust above all others. When aggrieved by the legislature, the executive or the media, people trust the judiciary to come through for them. When such great powers are vested in this function, its responsibility to retain the trust of the people also multiplies many folds. Therefore, when the judiciary is at the receiving end of mockery, it is a cause of concern. It is an indication that people’s trust in the institution is wavering.
However, when such concerns are raised, they are met with hostility. Instead of evaluating the causes, several times, there are hopes expressed for the parliament to curb public dissent by enacting laws to that effect. This is an undesirable approach.
The judiciary in India has been beyond reproach for a very long time. While this was designed to ensure the independence of the judiciary, however, one realises increasingly that such independence should not be without checks and balances. Having been left to its own accords, the judiciary has developed certain chronic imperfections that must be urgently corrected. Some of these deformities are highlighted below:
- Nepotism has buried its roots deep within the Indian judicial system. A recent article in a leading newspaper highlighted how every 3rd judge was an ‘uncle’ of another judge in High Courts. This “Uncle Judges Syndrome” was even highlighted by the Law Commission of India in their 230th report. Relations precede talent in the appointment of judges – a system that needs overhauling. An objective real-time marking and grading system should be developed to average out the impact of favouritism and grudges that may determine the career path of a judge in the present collegium system.
- As Shri Arun Jaitley had once most famously put it, “The temptation of post-retirement appointments influences pre-retirement judgments.” This is a serious threat to the independence of the judiciary – the foremost requirement for its effectiveness. The parliament must enact a strong law that prevents judges from taking up any kind of post-retirement engagements/ appointments/ jobs whatsoever.
- Of late, we have seen many instances of judges exceeding the judicial brief. One may argue that there is no such ‘Laxman rekha’ that applies to a judge, but that premise is instinctively invalid because no one should be above the law, not even a judge. It is therefore very important that the roles and responsibilities of a judge are well-defined, as also the boundaries within which a judge must operate.
Many judicial overtures have been with respect to interference in the legislative functions. And many of these overtures have been when the judiciary allowed personal opinions to overshadow merit-based judgement in a case. The recent outburst blaming Nupur Sharma for the Kanhaiyalal beheading is an example of such fallacies. A similar incident happened when a judge of the Madras High Court blamed the Election Commission for the surge in Covid cases and proclaimed that the Election Commission should be tried for murder! Neither of these ‘oral observations’ made it to the final order.
Some people argue that oral observations have no legal standing. To them, I ask what is the need for oral remarks that do not form a part of the final judgement? And if there is a need, then why is it not included in the final judgement? Judges must be impassioned if they want to be fair. Judges must not allow emotions to cloud the objectivity of their judgement. If they do, it shakes the trust that people have in the judiciary. It is remarks like these that lower the dignity of the courts and must be prevented with the help of a well-defined enforceable judicial brief.
Despite being legally irrelevant, oral observations have far-reaching ramifications. For one, oral observations from the highest guardians of the legal system are almost always interpreted as having been endorsed by the institution. Secondly, such remarks almost always go viral and lead to a media/ public trial of the case itself. Even in the case of the EC, the counsel for EC argued in the Supreme Court that the remarks made by the High Court were widely reported in the media and tarnished the image of the EC as an independent constitutional body, and caused undue prejudice to EC. Such oral observations can impact public opinion and lead to stigmatization. They also open the door to the public mockery of our courts.
The role of a judge is that of objective evaluation as per procedures hard-wired in the constitution. A judge must give their judgement, not their opinion.
4. Accountability is another grey area in our judicial system. This is perfectly reflected in the Latin phrase – “Quis custodiet ipsos custodes?” implying ‘who will judge the judges?’ While judges are required to depend solely on evidence to deliver verdicts, it is important to make them accountable for their decisions. Systems and procedures should be put in place that removes all elements of ‘whims and fancies’ from a judgement. Allowing/ disallowing evidence, witnesses, etc. should all be process-driven instead of being person driven. This will bring greater transparency to the system, and make it more accountable, and thereby more trusted.
In all of the above, you may notice that emphasis is laid on the trust that people have in the judiciary. This can never be overstated. Law is black and white. Law is written, recorded and preserved. Law demands proof. Law is liberal – it considers a person innocent until proven guilty. Law protects all. All this is to ensure transparency and promote trust. And if people cannot trust the judiciary then it is the biggest failure ever. Therefore, in moments such as now, when the judiciary is being mocked, egos must be set aside and retrospection must be resorted to. It is easy to charge someone with contempt, and jail or penalise them, but that does not erase the underlying cause of such mockery.
The current judicial system in India has become regressive, collapsing under the weight of the British era baggage that it still carries. Baggage of both redundancy and privileges that are unhealthy for a progressive society. Redundancies that must be removed, and privileges that must be moderated. The current judicial system needs a breath of fresh air. Judicial reforms must be brought about in India on an urgent basis.
We need a vibrant judiciary in the country because it is the judiciary that people turn to when all else fails. We need a vibrant and evolving judiciary so that it comes through in every trial that it faces. After all, it was Justice J.R. Midha who famously said, “In the Court of Justice, both the parties know the truth, and it is the judge who is on trial.’
The judiciary must win every case it faces.
