Judges are the spinal cord of the rule of law, and the final interpreters of the Constitution. Their judgments govern social and economic justice. But oftentimes, as Frankfurter pointed out, their failings show up. He wrote: “Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions. Just because the holders of judicial office are identified with the interests of justice they may forget their common human frailties and fallibilities.”
We see in India a number of instances of such failings coming into focus. A radical transformation of the robed brethren has become necessary.
The backbone of the constitutional order, or its basic structure, depends on the confidence it commands from the have-nots. This perspective was best expressed by Professor Griffith in The Politics of the Judiciary through two quotations, by Winston Churchill and Lord Scrutton respectively.
Churchill wrote: “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 are 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.”
Lord Scrutton wrote: “Where are your impartial Judges? They all move in the same circle as the employers, and they are all educated and nursed in the same ideas as the employers. How can a labour man or a trade unionist get impartial justice? It is very difficult sometimes to be sure that you have put yourself into a thoroughly impartial position between two disputants, one of your own class and one not of your class.”
I wish we had a socialist secular democratic Republic with a judicature that will be fundamentally fair and passionately indignant so that everyone gets what is due to him, securing dignity, morality and spiritual integrity. The executive administration of a society can be truly sacred and sublime only when the judiciary and the legal decisions it pronounces are altogether unaffected by considerations of class, community, fraternity and cultural ethos.
Capitalism and socialism are fundamentally based on the haves and the have-nots. The working class is often exploited by the capitalist class when it nominates the executive, which more often than not represents the richer classes. Even with adult franchise, the purchase by the richer classes of members of the legislature remains a possibility. Naturally, the class bias comes into play even in the selection of judges. Even the judiciary and the jurisprudence they enforce have a class character.
If you want a truly socialist Republic, judicial power must vest in the working class and the peasantry. Inevitably, given its class character, the law of interpretation that the judiciary adopts tends to favour the haves, not the have-nots. The social structure and the fundamental character of the instruments of the Executive, the Legislature and the Judiciary have a political character.
It is only when the Labour Party came to power that the Indian Independence Act was passed in the House of Commons and India could become free. Then the Constituent Assembly shaped the Constitution. But this did not radically change the economic fundamentals of Indian society. That will require a revolutionary movement. Sixty-six years after Independence, the poor remain poor. The Preamble remains an aspiration, not an achievement.
The Aam Admi Party, which stands for elimination of corruption may perhaps be the beginning of a transformation. The crimson day will be hastened if the new ideology of the Buddha, Vivekananda and Gandhi becomes the politics of tomorrow. Then, judicial power will truly reflect the elimination of poverty and the installation of the right to life of the little Indian.
(V.R. Krishna Iyer is a former judge of the Supreme Court of India)