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Is it a case of too much of a good thing?

Harish Khare

Judges increasingly find themselves getting involved in adjudicating essentially political disputes. This trend ought to be reversed. The institutional balance originally envisaged in the Constitution must be restored.

THERE ARE many minor pleasures in travelling with the Prime Minister of India on an overseas trip; but those of us who recently accompanied him to New York fortuitously got a major blessing. Our stay in New York happened to coincide exactly with the start of the Senate Judiciary Committee confirmation hearing for Judge John Roberts, President George W. Bush's nominee to preside over the American Supreme Court. A once-in-a-lifetime experience for anyone interested in the theory and practice of institutional balances in a constitutional democracy.

And for four days the man who would be Chief Justice of America was on live television. Millions of Americans got to size up the man; saw his wife, dutifully sitting behind him; saw and heard Judge Roberts give an account of himself, expound on his legal philosophy, explain his art of judicial reasoning, identify his judicial heroes, defend his past opinions and views. Questions from the committee were probing, meant to elicit from the nominee as comprehensive a judicial world view as possible; some were helpful, while like those from Senator Edward Kennedy, the most liberal Democrat on the Committee, patently hostile. But not once did the judge lose his cool. He had his answers, quips, smiles, evasions, and explanations. And not once did he refer to any notes; not once did an aide whisper a suggestion in his ear.

Each day of the hearing The New York Times published copious accounts of Judge Roberts' testimony. Senior journalists content-analysed his views on tricky subjects such as Roe vs. Wade (the 1973 case that legalised abortion), federalism, judicial activism, privacy. Others news-analysed his style, wisdom, vision, and skills. The New York Times was not an exception; newspapers throughout America dissected Judge Roberts' performance and persona, whether he is a "conservative" or "constitutionalist" or a closet liberal.

Any Indian watching Judge Roberts being put through the constitutionally-mandated wringer could not avoid the curious thought: what do we in India know about our own judges in the Supreme Court or the High Courts. Very little indeed. No one even gets to see a photograph of the wife of a Chief Justice of India, except perhaps on the day he is administered the oath of office by the President at Rashtrapati Bhavan.

Yes, the obvious caveat to this parallel is that the Indian and the American systems are two very different constitutional arrangements. Judge Roberts will be Chief Justice for life or till he chooses to announce his retirement. The last Chief Justice, William Rehnquist, presided over the American Supreme Court for 18 years till his death. In India we have had Chief Justices with tenures ending in just over three weeks, sometimes in a few months rather than long judicial innings of years and years. The revolving door, erected by the so-called Second Judges Case and greased by the sacrosanct principle of seniority, keeps giving us a Chief Justice every other year, if not more often.

In the American system, the citizen at least has the satisfaction of knowing the men and women on the Bench before they retreat to becoming anonymity after confirmation. No one has ever argued that American democracy stands diminished or the American citizen's faith in the judicial system gets shaken by knowledge about a judge's thought process. By contrast, we know so little of our judicial benefactors, though anyone who can purchase a copy of the Judges List can find out who will be the Chief Justice of India, say, on January 1, 2010.

What is more, our judges' pronouncements are no less consequential; nor is our judiciary any less autonomous, independent or powerful than the American courts. Unlike the American courts, the Indian judiciary has been arrogating to itself the right to monitor the morals and manners of the political class. And this monitoring now tends to produce consequences that belong in the politician's domain.

On the other hand, we maintain that the judges are above politics. That façade began cracking up in the post-Nehru era. The first crack appeared when a sitting Chief Justice of India (K. Subha Rao) allowed himself to become the Opposition's Presidential candidate against Dr. Zakir Hussain in May 1967. Mercifully no sitting judge has since committed such a "grave impropriety" (to quote M.C. Setalvad). Nonetheless, the evidence suggests existence of private ties of political congruence. Otherwise, we would have not had retired judges getting elected members of parliament from party quotas, or accepting gubernatorial assignments. And now there are any number of post-retirement appointments the government of the day can dangle before the judicial fraternity.

Those who preside over the higher courts are deemed ipso facto to have the temperament, expertise, and rectitude developed over decades that somehow insulate judges from the temptation of political partisanship. However, if soon after leaving the Bench so many judges are willing to break bread with the political crowd, can it be presumed that all of them are totally devoid of political predilections and prejudices? Curiously enough in our public discourse the politician is invariably blamed for wanting to suborn judicial integrity, as if the judge concerned is not making a choice. In 1967, Justice Subha Rao clearly made an ideological-cum-political choice; he was approached by the Swatantra Party's Minoo Masani and others because only few months earlier, on February 27, 1967, he had given a judgement (in I.C.Golak Nath vs. State of Punjab) that was hailed by the forces of the Right in India.

All these thoughts push themselves forward because political circles in New Delhi and Patna are agog with speculation whether or not the electoral process in Bihar will be rolled back, even after the Election Commission, under Article 324, has notified an election schedule. Beyond Bihar, there is the larger question whether or not the judiciary is allowing itself to be dragged into the political arena by this or that section of the political crowd.

The issue of PILs

Politicians have cunningly spotted this judicial inclination to want to clean our Augean stables. Public Interest Litigation was a creative innovation; it was meant to provide relief to the hapless citizen against an insensitive state. It has now become a tactical tool available to any politician or party that has lost a battle in the political arena. Many High Courts have even got embroiled in matters that belong to the executive domain; that too perhaps can be understood. But now this judicial foray into the political arena has induced another institutional weakness: the temptation to play to the gallery.

This in itself would not be such a bad proposition if the "gallery" were a level playing mechanism. Media attention or applause in an unequal society like ours ought to be inherently suspect. The media in India are at best an unreliable guide to public opinion and at times an unworthy custodian of public interest. The media are prone to lap up "oral observations" as abiding and binding judicial pronouncements, especially those directed against politicians and governments. These "oral observations" have no legal sanctity nor are they reflected in any court record; yet these invariably cause embarrassment or consequences for this or that section of the political class.

The one time a judge has shown an awareness of the scope for misunderstanding of his "oral observations" was when Justice S.N. Variava issued a clarification about an observation of his March 15, 2005, that suggested that someone had sought (unfairly) to transfer a trial judge in the fodder scam case. Otherwise, the observations produce screaming headlines for their hit-and-run spicy flavour and become part of political propaganda, for or against this or that leader or party.

There is another danger. The media discourse tends to be dominated by middle class professionals who are in thrall of middle class values and interests. Nothing would be more tragic than for any constitutional institution to be swayed by media coverage as a true reflector of the public interest. And, when it comes to political reporting, the media have very suspect credentials in terms of objectivity or fairness. For instance, so much energy has been spent on the warrant of arrest against Shahbuddin, a Rashtriya Janata Dal member of Parliament from Bihar; but no attention gets paid to another sitting MP, Prabhu Nath Singh of the Samata Party, who is similarly on the wrong side of the law.

The essence of the democratic spirit enjoins the political leadership to act responsibly and reasonably. Democracy insists that power be exercised with becoming restraint. By increasingly making itself available and ready to correct the alleged wrongdoing of political leaders, judicial intervention has the effect of absolving the political class of the obligation of responsible behaviour and wise conduct.

The judiciary is called upon to arbitrate on constitutional and legal issues and not settle political disputes; judicial rebukes for politicians and governments cumulatively lower public esteem for the elected executive. And unkind observations about constitutional functionaries do not strengthen the democratic institutional edifices that include a genuinely independent judiciary.

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