Judgement Daze

Gautam Patel

What is about judges that so upsets politicians and political columnists? A couple of days ago, one politician referred to High Court and Supreme Court judges as the “laziest” layer of the judiciary. That’s a curious statement coming from someone who’s made a career and an exceedingly good living out of that “laziness”. On television, a self-anointed political pundit was even more waspish, suggesting that judges “get off their butts” and saying that the judiciary was thoroughly useless, or words to that effect.

Statements like these might sound good on television and in newspapers, but they are essentially vapid. Supreme Court and High Court judges do not have a politician’s or columnist’s luxury of making snap decisions. Deciding matters is a thankless and difficult business. Sifting through competing arguments, documents and interpretations to arrive at the one that’s a best fit requires reflection, study and thought. Like human beings everywhere, not all are equally capable. Some do it faster than others. And sometimes they’re wrong (which is why we have appeal courts). Behind the name calling is a faulty assumption that judges are like machines, pre-programmed to deliver consistent results when fed any set of facts. It never works like this. Nowhere in the world do judges at the highest level decide cases at lightning speed. The US Supreme Court receives nearly 10,000 applications a year. It hears at best 60 to 75. Our Supreme Court’s list for today, 16 December, has anywhere between 30 and 60 per Bench, over 500 cases. And in America, arguments are strictly time-limited; and opinions take weeks and months. The delays in our system are a serious problem, but they are not attributable to indolence or useless judges. This image of all judges sitting around doing nothing, convenient for someone trying to look intelligent, has a small problem: it’s untrue.

Two days ago, the UPA government, staggering and lurching from its self-inflicted wounds, served up a three-course meal of anti-graft bills. This was, of course, only to keep Team Anna from carving up the government’s cooked and basted goose with the Lokpal knife. Of the three, the Judicial Standards and Accountability bill is the most serious. Its implications are profound, and it’s more than just about keeping errant judges in line.

There was a time when criticism of the judiciary was almost unknown. Perhaps this was out of a misplaced fear of the power of contempt, or an equally misplaced sense of servility; but it’s not true any longer. Judges, as a tribe, are attacked, vilified and described in terms which, while not quite in the Digvijay Singh class, are in harsher terms than we’ve yet seen. Sometimes the comments come from within the judiciary itself — senior lawyers, for instance — and these are even more pointed.

The debate on the judicial accountability bill has been going on for some time. There have been recommendations by successive law commissions and committees. Jurists have weighed in and many have written up papers and made suggestions.

The triggers for this debate are well-defined. There is the problem with removal of judges on occasions when this is necessary. The constitutional provision for impeachment is, as one senior lawyer put it, a failure. This lack of a self-correcting mechanism is, of course, postulated on the theory that judges, as society’s sentinels, will not really need such a provision; but this only demonstrates the gap between reality and theory. There is also the criticism about the way in which judges are appointed — we must be the only democratic country anywhere where judges appoint themselves — but this too has a historical background. It’s an extreme reaction to the extreme actions of Indira Gandhi and her ham-fistedness during the Emergency. The result is an unfortunate system often described as totally opaque, very like a cosy coven with Masonic secrets. Sometimes this is a double whammy: with no external checks on appointments and no effective methods of self-correction, the judiciary often finds itself stuck with a wrong ’un. Certainly this needs to be addressed; but lumping all judges in one class isn’t the way to go about it.

A quieter, and perhaps more sinister, move is to separate judges from society altogether. It’s one thing to say that a judge’s relatives should not appear before him; that’s obvious, and it’s as old as the hills. But social acquaintances, friends? Chapter II of the bill prohibits judges from having “close associations” with “individual members” of the Bar.¹ Whatever that means. Litigation lawyers are unlike other professionals in one respect: they work together in a single building (or a set of buildings) every single day. Many have been friends since law school days. Their circles are not merely professional; there is a very great deal of social closeness, in joy, sorrow, the birth of children, marriage and death; and to even attempt a separation of these is a recipe for disaster. In practice what it means is this: you could never have a lawyer, however capable, appointed as a judge, because he would immediately have to be shunted to the farthest corner of the country where he knows no one, there to live till 62 in splendid isolation. Judges have warrants of appointment, not warrants of solitary confinement.

It is, according to the Bill, also improper for judges to express their views in public on political matters.² That means public authorities and governments, and “in public”, undefined, presumably includes courts, since these are open to all, and since our judges are not given to delivering homilies from soapboxes in parks. Judges’ comments made during hearings sting. They make good press. Some judges are more loquacious than others, and reporters love them (they have nicknames for each), for they can be relied on to deliver nuggets good enough for tomorrow’s copy. As gagging journalists isn’t an option, the next best thing seems to be to try gagging judges. All this proceeds on the assumption that these are ad hominem, unprovoked comments. What it overlooks is the far too frequent, churlish and oppressive conduct of governments and their officers vis-à-vis citizens and litigants. What the bill therefore suggests is that while a government can do and say exactly what it likes, no court can ever say a word even during the course of a hearing. Perhaps the government would prefer that judges grunt and sigh?

It is doubtful whether Parliament has the constitutional authority to prescribe standards of judicial conduct, or whether this even necessary or desirable. If the judiciary is to be independent — and this is a constitutional mandate — then Parliament cannot trammel that independence by prescribing what it thinks is ‘appropriate’ conduct. This bill has many serious flaws: the composition of the Oversight Committee is a joke; it seriously expects judges to investigate their brethren; and the oversight committee’s composition is just opacity masquerading as transparency. These need a closer look, perhaps in another article.

For the moment, this will have to do: what the bill gives us is ways to remove judges; ways to slap them on the wrist without taking matters to their logical conclusion; reasons to pack them off to remote areas; and ways to shut them up. This, we are asked to believe, is judicial accountability. It’s probably nothing more than a backdoor attempt by the government to regain control over judges. The judiciary needs a bill to address its real problems, not imaginary ones.