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In Defense of A Committed Judiciary
|by Kamal Wadhwa|
Workshop # 17
Indeed, if the idea and substance of a committed judiciary is not revived soon, the Indian republic, beset as it is by pressures from within and without, may not see the turn of the next decade.
In essence, all judges are committed because they hold values such as the proper and adequate dispensation of justice, fair play and the maintenance of an orderly and law-abiding society. Judges cannot aspire or pretend to live in an ivory tower away from the hurly burly and din of Indian society and the shifting realities of daily life.
Cloistered judges may have high ideals and impeccable credentials but they cannot perfect or master their vocation until they are brought into contact with the vagaries of the day and the conditions present in the environment at large.
A sheltered judiciary risks becoming profound but inept, learned yet impractical, philosophically detached, but materially irrelevant. Notwithstanding its vast erudition, it may well become a pariah in a society that so badly needs its knowledge and expertise to free it from the tentacles of creeping capitalism and the excesses committed by the industro-legal complex.
Only a committed judiciary can bring a sense of purpose and authority to encourage public interest litigation that is not frivolous but provides benefits to the deprived and denied sections of Indian society.
Committed judges are not mute witnesses to the ongoing drama of social and economic change but active participants with a big stake in the outcome. Committed judges are not idle or wealthy so as to be cut off from the pulse of the people. They are hardy individuals who spend equal time within and without the courts.
Committed judges are respected and held in awe by the people not because of their personalities but because of the high office they occupy. They are small men in the service of a big cause; hence they too grow big. They must project an aura of firmness and decisiveness so that litigation does not drag on and on. They must be brave enough to withstand criticism by the Press and the attacks mounted against them by yellow journalists.
A committed judiciary is secure and principled. It must not retract verdicts in the face of fire and fury from obscurantist and fundamentalist groups. It must be guided not just by forms and procedures but must adjudicate substantive legal issues. Whenever possible, judicial officers must exercise influence outside the courts to right social and civil wrongs.
A committed judiciary does not run the courts like a business but as a socially - minded institution that serves and protects the public interest. It sides with great causes and great movements of the day. It is not necessary for judges to wax eloquently in fancy foreign languages; they should know the lingo of the masses also.
Committed judges should be sharp of mind, alert to detail and mindful of the duties of their office. They interpret the Law so as to make it a living organism that grows with time.
A committed judiciary respects the needs and aspirations of the downtrodden. It does not respect blind authority. If a committed judiciary is put in office, the people will eagerly approach it for redress of their grievances because it is not a reactionary institution. Committed judges are not individuals from the past but men who live in the present and look forward to the future.
Committed judges lead and follow social causes. They are servants of the people first and foremost and then officers of the Law. Judges should not be judged on personal qualities but rather by the qualities they bring to the office they occupy. They must be selected on merit not seniority.
Justice is a relative and changing concept and Law evolves in the light of new knowledge. There are no absolute and eternal canons of justice except those that draw sustenance and inspiration from the society at large. Similarly, law and order are not abstract and immutable ideas but concepts that come alive in the context of the people who benefit from them.
Indeed, law and order serve the ends of the people not the State. Moreover, the Law is a cooperative enterprise not a disciplinary tool. The ends of Law are achieved when the people are served.
Jawaharlal Nehru sensed the futility of having a fixed and unalterable constitution in perpetuity and rightfully believed in the Legislature’s power to amend it. Those members of the legal profession (and there are many eminent ones) who quarrel with Nehru’s view have a vested interest in promoting litigation and the power of the Indian Bar because immutable constitutions offer, what in their eyes, are permanent truths about the human condition. Unfortunately, there are no permanent legal verities except those put forth by the legal profession
A committed judiciary does not work at cross-purposes with the Executive or the Legislature in a bid to maintain a balance of power, but actively cooperates with these branches of government to promote the well being of the people. While the Legislature has the right and duty to pass laws it deems necessary, a committed judiciary must not flinch from questioning the merits of a new law if it does not pass the test of relevance and applicability.
Constitutions are expensive and cumbersome documents. They yield a vast terrain for quibbling and the semantic battles from which the legal profession, particularly in India, draws its sustenance and welfare. Hence arises the resistance to all change in the legal system.
Laws can be adapted and discarded according to the conventions and mores of the day. Constitutions are not defaced or defiled by new amendments; rather, it is the quality of the amendment that could undermine and subvert the national charter.
Moreover, the quibbling and semantic battles waged over the interpretation and wording of the Constitution could pose a great threat to the legal system. In the final analysis, the will of the people must prevail not the Law.
The attack against the concept of a committed judicial system ironically was mounted by invoking Anglo-Saxon canons of jurisprudence. However, in British conflict of law rules (prior to unified EU rules) courts in the UK did not enforce foreign judgments that offended British morality or went against UK public policy. Clearly, then, judges too are bound by the popular will.
In Pakistan Prime Minister Zulfikar Ali Bhutto excluded the Ahmeddiyas from the pale of Pakistani society because most people believed this community to be non-Muslim. Similarly, before the unification of British laws with the EU legal system, jurisprudence in the UK was not based on any immutable canons of law and justice, but on the Common Law of the British people.
Practically, too, it makes little sense to talk of immutable principles of law and justice. Suppose the proposed construction of an interstate highway is blocked by a widow’s house in its path. Invoking absolute standards of justice would inevitably lead to the scrapping of the highway project because the right to property may be a fundamental right in that country. Accordingly, the widow’s right to property must be protected if this reasoning is applied.
However, the public good or public interest may require the widow to relocate elsewhere. To compensate her, a lump sum would be paid to her for the relocation and the psychological trauma of shifting to new and unfamiliar surroundings. This is the logical course of action not scrapping the highway project. Here, the public interest is superior to the fundamental right to own property.
Even in countries where ownership of property is a fundamental right, the concept of the public good or public interest has generally overtaken the individual and fundamental right. A committed judiciary, therefore, must deviate from the so-called ‘immutable’ principles of law if the public good is of greater importance and significance.
Workshop # 17
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