Shortly after Justice S. Muralidhar rose on his last day as a judge of the Delhi High Court, there was a snaking queue of lawyers waiting to not just bid farewell to him but to also say thank you. Justice Muralidhar is one of the rare few who is erudite, incisive, disciplined and yet self-effacing. His tenure on the bench was marked by a no-nonsense approach to finish cases, thereby making severe dents in the pendency figures at the court. His penultimate day in Delhi saw him doing what he does best — speak truth to power and soundly rebuff every attempt by the government to avoid affixing responsibility for the recent riots, all the while knowing that he would pay a price for his expedition. Sure enough, his transfer orders were issued overnight, depriving him of any further role.
Any person in those circumstances would have felt vexed and despondent. However, we found him welcoming us all with affection, unfazed by the drama. “I have my task cut out for me,” he said, alluding to the large pendency of cases at Chandigarh. The moment was deeply emotional. As we were leaving, one of our companions (who had given consent to be appointed as a judge) said with a wry smile, “At least I found my role model, what about you?”
Need for a beau idéal
We are now at a time where we need heroes so that our institutions survive. It is not that the present epoch is exceptionally challenging for the higher judiciary. The last 50 years have seen the political playbook take a clear form — appoint a sympathiser, allow them to feel obliged, and then try to redeem the debt at an opportune time. It is merely that the manual has a new master, but the tricks remain the same. It is precisely to guide one through this morass that a beau idéal is necessary.
If one were to merely glance at the great judges over the ages — Vivian Bose, Hidayatullah, H.R. Khanna, M.N. Venkatachaliah, Ruma Pal, R.M. Lodha, and many more — it was not merely their learning and innate brilliance that set them apart. Nor was it the fact that they were flawless — they would be the first to admit to their failings. What made them unique was their ability to inspire their peers by simple, righteous conduct. They were wedded to the judicial institution and through it, aligned with the constitutional fabric. In every decision they made, they were solemnly aware of the hopes of millions, and that any weakness of purpose would weaken the edifice.
As of this month, 395 out of 1,079 High Court posts are lying unoccupied. The venerable Lord Hailsham had referred to judicial office as “a privilege, a pleasure and a duty”, but it appears that this aphorism is lost on the many able young women and men who have declined offers.
The travails of judicial life have been well catalogued, particularly withdrawal from society and the financial handicaps that accrue, but there are several who have sacrificed thriving litigation practices in order to offer their services to the public. These and others form the majority of the judges in our courts, and the few who are found to be otherwise need not discourage new candidates. What the new candidates do need, however, is a gentle primer on what pitfalls to avoid while they tread the path with gavel in hand.
The first is to eschew ambition. Lord Denning said, “Once a man becomes a judge, he has nothing to gain from further promotion”. Such is the regard attached to the station, and for it to remain so, the attractions of Chief Justiceship or post-retirement sinecures ought to be cast aside. It is true that from the early years of Independence, judges have been nominated or elected to Parliament, appointed to gubernatorial office, and accepted diplomatic postings, none of which reflects the values that the court was to uphold. But then, it would be unfair to overlook the hundreds of others who have slogged for the judiciary with no other motive than to do justice, and who have overcome personal and professional challenges in doing so.
The second is to banish sycophancy. Flattery is often found to be a useful tool, either to toady up to judges in the collegium or to be at the receiving end of obsequious attention. As Burke said, it corrupts both the receiver and the giver. The reward is the office itself, and any puffery is utterly inconsequential.
All judges should exercise independence. Even a puisne judge is a high constitutional officer in his own right. There ought to be no hesitation in disagreeing with a colleague’s unjust opinion no matter the gap in experience or reputation. Where the position becomes untenable, there is always the softer option of recusing oneself from the Bench. Recusals are indeed utilised for less palatable purposes by less agreeable individuals, but those are aberrations not to be emulated.
It is important to be innovative. Digital screens and online databases have become integral tools to dispensing justice. Timetables are being set, costs imposed for tardiness, and adjournments are no longer de rigueur . Even set patterns of conduct are being questioned, reviewed and rebooted if they are broken or inefficient. For example, many younger presiding judges in the Supreme Court have broken with the tradition of finishing work on admission days before lunch, and have decided to stay on and dispose of cases finally.
They must show character. The Uncle Judge syndrome continues unabated. Even if many colleagues have relatives practising profitably in the same court without demur or receiving empanelments from corporations and governments, it does not create a new normal. As Charles Marshall said, “Integrity is doing the right thing when you don’t have to — when no one else is looking or will ever know — when there will be no congratulations or recognition for having done so.” Justice A.K. Patnaik and his son did precisely that, by ensuring that the latter did not commence practice at his home High Court and then shifted abruptly from the Supreme Court upon his father’s arrival, thereby happily paying a price that must have been substantial.
Power and responsibility
Judges need fear nothing. With security of tenure and constitutional protections, a judge can remain undaunted by external influence, least of all by the executive. They can soar to unimaginable heights with the wide power that is theirs. And this power, as the New Testament tells us, must be used wisely, “to admonish the idle, encourage the fainthearted, help the weak, be patient with them all.” [1 Thessalonians 5:14]
The true stars of India’s justice system are the thousands of judges who toil over dusty briefs. It is they who will never make headlines and never seek it, but take a clear conscience and a straight spine to their well-earned rests. For their sake, and for the sake of this nation, the time has come to induct a new generation of heroes.
Gopal Sankaranayanan is Senior Advocate, Supreme Court of India