How ought judges to be judged? How ought they to be selected?
Why these questions now?
Well, on occasion we have learnt of judges who immediately after their retirement became members of a political party which has, rightly or wrongly, been considered as espousing an agenda inconsistent with pluralism and inclusiveness. Some judges after retirement have notably attended a notable event. On occasion, certain political functionaries have made assertions of their disenchantment with the constitution as it stands although that is the constitution on which they took their respective oaths of office and have asserted that it ought to be replaced with the constitution that militates against the values accorded primacy by the present constitution.
On occasion, we have come across instances of judges making assertions which are inconsistent with the requirements of unbiased adjudication in an atmosphere of neutrality of perception and an absence of prejudice.
On occasion we have come across instances where judges heard matters at length and though those involved the Liberty of individuals charged with serious offences there was an apparent inability to deliver the judgement in those cases before the judges demitted office came to be transferred as a result of which the particular cases had to be heard all over again effectively causing an extension of the incarceration of those individuals depriving them of their liberty and depriving their families of their Proximity and perhaps also disabling their families from the income that these people would have provided in the normal course had they been not incarcerated.
Judgements on police
On occasion, we have had judges pass judgments which have demonstrated that the police in several states are not above staging encounters to ensure the “neutralising” of individuals whom they believed to be responsible for certain crimes, but possibly harboured reservations about the efficacy of prosecution in those cases succeeding, and therefore preferred to adopt extra-legal means to dispense what they believed to be justice, in the circumstances over-reaching the legal process and the courts.
On occasion the courts have held that the prosecution was based on unsustainable grounds and people have been exonerated and acquitted and, in a few cases, strictures have been passed against the investigative and law enforcement agencies as well. One of the inevitable conclusions one can justifiably derive from these instances is that there are at least some cases in which the prosecution is either motivated or fundamentally flawed and prosecution ought never to have been initiated in the first place.
This write-up does not aim to interrogate the role of the police or the efficacy of the investigating or prosecuting agencies and therefore it does not delve further into those aspects. It is however clear that there are at least some judges who have acted to uphold the law and deliver judgments consistent with their consciences and it is put forward at least as a possibility that if those cases in which judges after having heard matters at length have retired without delivering the judgement, or have been transferred before delivering the judgement, resulting in a re- hearing of the entire case being necessitated, indirectly causing an extension of the incarceration of the individuals in prison, had been decided in time by the judges who had initially heard them, there could have been an acquittal and therefore freedom for those individuals with attendant relief for their families.
Education, health care and justice
It is trite that the health of a community is determined by how easily accessible and affordable are the three things that matter, education, health care and justice, and it is a sad reflection that in our country all three, where they are qualitatively of a high standard, are beyond the reach of the ordinary citizen. Delay and denial of justice looms large over the lives caught in this maelstrom.
That being the case it is very important that the judiciary (since that is what we are talking about here) is, and is seen as being, above reproach and of the highest standards possible. Its conduct must inspire confidence, not cause dismay or disillusionment. When a judge speaks from the court his voice must be the voice of temperance and wisdom, spread light and not darkness, uphold the constitutional values on which he took the oath of office and not trample them, inspire the bar and not result in consternation.
When this does not happen then persons higher in the judicial hierarchy have necessarily to step in and carry out a course correction exercise. While this is essentially a damage control exercise, even there we have found certain unexpected turns of phrase being used which are again a cause for concern for the citizens, needing further introspection among the higher echelons of the judiciary.
Allahabad HC observation
How these instances are reported is also a matter of concern, because they are read by millions and can be interpreted in many ways, some wrong. To provide an instance or two, only to place the matter in perspective, the honourable Supreme Court expunged recently the Allahabad High Court’s regrettable and unfortunate observation that the majority population of the country would become the minority one day if religious congregations where conversions take place are not stopped (Kailash vs State of Uttar Pradesh). This came to be reported and the report says the bench of the judges observed that the remarks made by the high court “were uncalled for at the stage of bail”. Is it or can it be anybody’s case that such observations would be appropriate at any other stage of a case? Should it really matter when an adjudicating authority is in seisin of a specific lis, for a judge to pontificate on whether the demographics would change or not, when the constitution guarantees a right to practise and propagate, which would on the one hand permit conversions and on the other, be an entirely political issue completely outside the scope of what is being adjudicated? The citizens worry.
So, what am I driving at? The thought that comes to mind is that in the case of judges who have decided to become part of a political party immediately after retirement it certainly causes one to wonder whether, since they obviously share the ideology of whichever political party they have chosen to join, is it not at least a likelihood that during the time when they served in the position that they held, their decisions were coloured by that ideology? Judges are required to leave their ideological and other baggage outside the courtroom when they enter, but this is a subjective thing which is extremely unlikely to be achieved up to the level at which it ought to operate. Therefore, there would be subtle intrusions of that ideology into the decisions that they deliver even though it may be without conscious intent, since there are many types of subconscious biases that operate in an individual’s mind even under ordinary circumstances, perhaps intensifying in their effect in a situation of hotly debated, keenly contested, competing claims.
Miscarriage of justice
Extending that possibility to its logical conclusion, at least in some of these cases the judgement could result in a miscarriage of justice and be an aberration. No amount of subsequent course correction by observations by the higher echelons of the judiciary would change that situation or undo the injustice that has been done and I have so far only come across a few instances in which the Supreme Court has pointed out that even Supreme Court judges have committed mistakes on occasion and has actually delivered a judgement that operates to undo the wrong that has been earlier committed. These instances however are few and far between and in most cases the miscarriage of Justice remains unaddressed.
How does one ensure that this does not happen? I have long maintained that in a country like ours where justice is an expensive proposition, if a person gets justice he gets it at the first or lowest rung of the ladder since in many cases an adverse decision breaks the back of the litigant and he does not have the wherewithal to pursue his case at appellate stages considering the expense effort and time consumed. It is therefore imperative that at the stage of a person being appointed as a judge, that individual’s personal beliefs, values, ethics, scruples, morals, public and private conduct, capacity to articulate his thoughts in carefully chosen words, family background, educational attainment, and the capacity to compartmentalise his thinking to keep out of consideration extraneous matters while discharging duty, rising above his personal prejudices and biases, are carefully investigated and only those people who pass these stringent tests elevated to the position of judges. Psychological testing can help.
Upholding law, nothing else
In courts of a state, there is usually this approach that we hear about where an effort is made to see that every district is represented by a person who belongs to that district and there is also often an attempt to ensure that in a court at least a few judges belong to the minorities or the oppressed classes or those who are or were generally considered marginalised. One wonders whether it should matter whether all the judges are from one district or of one belief system, the critical requirement being that they deliver judgements that uphold the law and Constitutional values, and not anything else.
Damage control ex post facto merely cautions an individual who has already demonstrated an inability to stay within the confines of constitutional requirements and a tendency to stray in prohibited areas. Thus, the only manner in which it can be ensured that miscarriages of justice do not occur is to ensure that persons of suspect mindsets are not elevated to the position of judges in the first place. Once a judge is appointed it is not possible to easily remove him and impeachments are rare. So, prevention is not just better, it is imperative, considering an inadequacy, if not absence, of efficacious cure: advisories and cautions only drive the mindset underground and do not uproot it. Casually worded observations do not have the requisite disciplining impact. “A man convinced against his will, Is of the same opinion still,” so if the aberration originated in an ideological slant, the same mindset will prevail, carefully camouflaged at that. The perceptible can be thereafter cloaked, to the detriment of the values the Constitution mandates upholding of.
Perhaps, to restore the glory of the judiciary to inspire awe again, appointment procedures can one day be freed from the shackles that prevent the best of the best, who are likely to consider office a sacred trust and not a means to further a line of thought, those who can successfully steer their way within the time-honoured pathways of judicial propriety and not stray into the brambled thickets of extraneous considerations, from being handed judicial office.
Like the last words of Alexander Dumas’ classic The Count of Monte Cristo, citizens can do little but “Wait, and hope.”
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