Who will judge the judges?

Most of the judges of the Supreme Court of India are those who were previously senior judges in High Courts. There is no valid ground to sustain any discrimination among judges of the Supreme Court and the High Courts in the matter of their age of retirement. There is justice in eliminating the differential age for retirement of the robed brethren of the High Courts and the Supreme Court. An anomaly is now being corrected.

But what criteria and guidelines are being applied, what level of scrutiny is done, before a Judge of the High Court is elevated to the Supreme Court? At present the choices are made seemingly according to the fancy of the judges who constitute the Collegium. There is no investigation into the social philosophy, academic excellence, judicial performance or wealth and other circumstances that should help reveal the class bias of those who are chosen.

This writer was 104th in rank as a Judge of the Kerala High Court but proved to be, according to many senior advocates, one of the best who sat on the Supreme Court. The name was initially rejected by Chief Justice S.M. Sikri for unknown reasons, but was regarded as good by Chief Justice A.N. Ray, who made the selection. I was a member of the E.M.S. Namboodiripad-led Ministry in Kerala in the 1950s. That was my “sin,” but when I left the Bench, at a dinner Fali S. Nariman and others with him passed a resolution that termed me a humane judge. The resolution said: “Permit us to remind you that the Bar is the judge of judges and no judge can avoid or escape the verdict of the Bar. We have summoned you this evening to hear our unanimous declaratory verdict. Our verdict is a decree of affection and admiration. Let us also declare, in these proceedings which are sui generic, that we are not only your judges but also your judgment-debtors. No words of prosaic prose would be adequate to encompass your vitality and versatility — not even if we drew upon and borrowed from the hoarded wealth of a vast vocabulary you are known to possess. We shall therefore crave your indulgence to supplement the record by those profounder feelings, which the language of the lexicon cannot communicate and which are best conveyed by the language of the heart.”

The senior advocates judged me by my performance. The President conferred on me the Padma Vibhushan.

A Performance Commission is a necessary instrument to assess the worth of judges proposed for elevation or for extension of tenure or for ad hoc appointment. The Collegium often blunders and people suffer. There are no checks on its decisions — it seems to choose on the basis of fancy affections and inadvertently even includes corrupt brothers from the High Court — and not on the basis of a study of the candidate or with access to the public to know the facts, as in the U.S., or association with the Bar as in the U.K. The whole system needs reform and principles need to be set out on a candidate's social philosophy. That is why privy purses were sought to be protected, and the nationalisation of banks and a land reform law were struck down. A professor of law even expressed the view that the Supreme Court is the conscience-keeper of the proprietariat.

Arbitrary power will corrupt even the best of persons absolutely. A High Court Chief Justice was complaining to me how a Chief Justice who had been on the job for only two months had been picked for the Curzon Road wonder while he, with a clean record, was overlooked although he had been serving for three-and-a-half years in the position in a High Court.

The Collegium is a judicial creation and the syndrome of the personality cult being beyond accountability. It is bizarre in its performance — its selection process is secret and suspect and is subject to no scrutiny. It excludes the executive and is in that respect unique in the world. Why India should retain such a bedlam process, akin to a pre-feudal power cult, is unclear. Parliament must make a law regarding selection of judges, a code of conduct for judges and a Performance Commission as has been done by many States in the U.S.

David Pannick, QC, has argued thus: “The Judicial Performance Commission could serve a valuable function in these respects. Litigants should have the power to refer to the Commission a complaint about the conduct of a judge. The Lord Chancellor should have such power, and should be obliged to exercise it prior to dismissing a judge. (This would not prevent a judge resigning to avoid publicity on the matter).

In May 1986, Lord Hailsham expressed support for the introduction of an independent complaints board to investigate facts and make recommendations to the Lord Chancellor prior to the dismissal of a Circuit Judge. He said, quite understandably, that he was troubled by the absence of a fair procedure.

Judges with a class bias are misfits in a socialist republic. Some judges with a communal bend of mind are on the Bench. The regionalism and communalism of this body called the Collegium has brought down the greatness of India's fine judiciary.

An appeal

My appeal to parliamentarians is to wake up and implement glasnost and perestroika in the judiciary. They control the executive and strike down laws you make. Who controls them? In the name of independence you cannot have judicial absolutism and tyranny.

Franklin D. Roosevelt said it. Jawaharlal Nehru once told Parliament why India cannot allow the Supreme Court to be the Third Chamber of the House. You are the people's voice and vox populi vox dei and must express critical, nationalist correctional power. The three instrumentalities must harmoniously work the Constitution's sense of justice, social, economic and political into a reality. Remember that Roman adage: “Whatever touches all should be decided by all.”

Even with respect of District Judges beyond 55 years of age and up to 58 years there are guidelines in Kerala that provide for compulsory retirement in the public interest “if the High Court on an assessment and evaluation of the records of such officer is of the view that such officer is not fit and eligible to continue in service beyond the age of 50 years, 55 years and 58 years, as the case may be.”

Why not, then, have similar provisions for High Court judges too? This is a democracy, not a robed dictatorship with papal-like infallibility vested in the Supreme Court for the purely administrative functions of government. Corrupt anti-socialist ‘brethren' are dangerous without accountability.

Let us not permit forensic fascism. By and large, India's judges are of a high standard. But a few foul the Bench and shake the faith of the people in the justice system.

On the Politics of the judiciary, Professor Griffith of London University quoted Winston Churchill thus: “The courts hold justly a high, and I think, unequalled pre-eminence in the respect of the world in criminal cases, and in civil cases between man and man, no doubt, they deserve and command the respect and admiration of all classes of the community, but where class issues and involved, it is impossible to pretend that the courts command the same degree of general confidence. On the contrary, they do not, and a very large number of our population have been led to the opinion that they are, unconsciously, no doubt, biased. (The Secretary of State for the Home Department [Mr. W.S.Churchill] on the second reading of the Trade Unions (No.2) Bill, 1911 (26 H.C. Deb.col. 1022).

The executive is weak and tends to treat this country as a dollar colony. The judiciary is British-oriented and precedent-board. Parliament at least must be supreme, activist, sovereign, democratic, socialist and, secular. If you fail, India dies. Never. You are the voice of swaraj, the victory of a do-or-die struggle. Your Constituency is the People of India. Edmund Burke put it thus: “We are not slaves of the robed brethren mechanically obedient to a curious invention called collegium.”