“High Courts and Supreme Court are courts of principles. The judges should not speak anything beyond the principles of a particular case. Let us not give lectures to the society. The problem is sometimes we judges impose our own values, our own likes and dislikes on the society”. These were the words of Chief Justice of India, as reported in Times of India on 13 March 2011.
What a timely reminder to his fellow judges! We are hearing, almost every day, the news of one or other Bench (never a Judge, mind you) pulling up the government on some perceived omission or commission. We then have to down our heads in shame for having chosen such a corrupt and inept government into power or even for having chosen such a useless systems of democracy for ourselves; especially when we listen to the prime time debates on TV channels where the even more righteous anchors dissect the holy words of the Bench and prove to us how stupid we have been as a people.
To be fair, judges have to ask questions to the counsels during the hearing of any case. But can they afford to let their casual questions to be reported in the media as if they were final orders, amounting to stated laws, and thereby undermines other arms of the State?
I am not getting into more complicated matters like Ayodhya verdict and the right of a judge to decide cases based on beliefs or faith and not on hard facts. I would limit myself to two rather more recent examples. Firstly, let us analyse the decision on the appointment of CVC. In the words of CJI “What is more important to the appointment of higher office? Presumption of innocence or presumption of institutional integrity and competence?” Well no doubt- it should be presumption of institutional integrity and competence. But then who decides whether a particular candidate meets the presumption of institutional integrity and competence? Should it not be the selection committee? Is it fair for judiciary to replace that decision with its own opinion? We may be tempted to go with Supreme Court in the present instance of PJ Thomas as we and our media have collectively branded him as tainted. But look at the larger question. Any future appointment to CVC can be challenged on the ground of presumption of institutional integrity and competence as there is no yardstick by which these can be measured. Also, if someone doesn’t like a potential candidate all he has to do is to file a case against that candidate.
Presumption of innocence is a universally accepted principle of natural justice. So, to hold an appointment invalid on the ground of presumption of institutional integrity and competence even when the person is presumed to be innocent is a contradiction by itself.
Another example is the Hasan Ali Case. The prodding by the Bench to have Hasan Ali arrested is alarming. Is there no importance to liberty of a person? Should a Court be asking the investigator to arrest an accused? Should it not be the investigator’s decision based on the facts in his hand and the stage of investigation? We have a peculiar situation where Supreme Court asking to get a person arrested and the Trial court setting him free on bail, presumably after perusing the facts on record! Supreme Court, which is the ultimate arbitrator on matters of personal liberty itself is turning persecutor in demanding arrest of an accused.
I know my readers will be tempted to condemn me along with PJ Thomas and Hasan Ali, for saying these politically incorrect things. But, I only urge to consider two things; firstly if we were in the place of these individuals and secondly what if they are actually innocent (presumption of innocence)?
Our Constitution, in its wisdom, has clearly demarcated each organ’s roles and responsibilities. As per our Constitution, Judiciary is not supreme but our people are. There may be problems with Government of the day but the remedy lies elsewhere; not in the judiciary beginning to supervise it. Judiciary’s role is limited to judicial review and not supervision of executive. We may like to witness such pulling up by judiciary as we are not completely happy with other organs, but the damage that it can cause in the long run is huge. If a Government is not fulfilling its responsibilities, we have seen time and again that remedy is with people in voting out that Government.
Finally, the ability of judiciary to be the perfect guardians (as we like to believe) of all the good things in public life itself is suspect. Judges rise from a very corrupt legal system that exists in our country. We all know how deeply involved are our lawyers in politics and corruption. Judges are selected from the lawyers. This selection process itself is not free from external influences. It would be naive to believe that every person, who evolves through this corrupt system and possibly corrupt selection process, will become a saint over night merely because of his appointment as a judge. Increasingly we are hearing whispers about huge bribes being paid to get favourable orders, including mere bail orders.
Strict contempt laws will ensure these whispers remain so for some more time. However, with no much activism in judicial reforms, and with more and more cases of judicial corruption coming to light recently, it will not take much time before serious questions are raised on the role of judiciary itself.
Under these circumstances, it would be prudent for the judiciary to listen to the Chief Justice of India and stick to their constitutional role of judicial review and not indulge in running down other arms of the State. Remember, if you bat for public applause and try to score 4s and 6s on each ball, the chances of losing your wicket is as much higher.