Off The Cuff Remarks Damaging To The System

The system of appointment of judges to the higher judiciary is a serious issue that calls for introspection and debate. But in the name of debate and discussion all sorts of comments are made. The collegium is a judicial creation with doubtful jurisprudential support. The gravitational pull of power has tried to rationalize the usurpation of the authority of judicial appointments, the raison d’être apparently being the independence of the judiciary.

But that is not the point. As long as the judgment remains it is binding and it should be worked as best as possible. The Memorandum of Procedure was finalized by the Union Government and the Supreme Court. It is not to be talked about and criticised in season and out of season. The general public who are the consumers of justice dispensation are interested in the smooth working of the judiciary and disposal of matters resulting in justice delivery. What is intriguing is that there are no timelines and uniform practice. After the judiciary (the collegium) recommends names for appointment, the response of the executive is quite unpredictable, there being no uniform standard or practice. Sometimes recommendations by the judiciary and appointments by the executive happen in a couple of days. Sometimes the executive does nothing for months and even years, for no explicable reason, and that is even after the collegium has considered and reiterated the recommendation which then, as the law now stands, has to be given effect to by making the appointment. It is settled that all public power including constitutional power should be exercised reasonably and never arbitrarily or malafide. This is the legal position even when the provision conferring power speaks of and makes the exercise conditional on subjective satisfaction. Those considerations would, therefore, apply with greater force in the case of judicial appointments. It is equally well settled that every action of the State has to be reasonable which implies it has to be within a reasonable time. Inaction or unexplained delay on the part of the executive in responding and giving effect to the recommendations for months or even years, is certainly unreasonable and unjustified. A constitutional authority cannot do indirectly what it is not permitted to do directly. That is an anathema to our constitutional scheme. Until a new, and of course, a better system, is put in place, it is necessary and important that a time frame is fixed for all steps that are contemplated and appointments made without delay.

The oft aired complaint that the kith and kin of judges get appointed as judges has to be seen from another perspective also. Certainly, nepotism and favouritism should have no place in judicial appointments or in any matter whatever. But if the relative of a judge is, on his own merit, eligible and worthy to be appointed, should he be overlooked or denied for the reason of his relationship alone? That would be doing injustice both to the person and the system and ought not to be disparaged only on the ground of consanguinity. Two or even three generations occupying a seat on the bench have not been rare in India or abroad. To mention just a couple of examples: We have had the legendary Sir Asutosh Mookerjee, his son Justice Rama Prasad Mookerjee and grandson Justice Chittatosh Mookerjee all adorning the bench with singular distinction. Douglas Hogg- Viscount Hailsham and his son, Quintin Hogg, again Lord Hailsham of St .Marylebone were both distinguished Lord Chancellors heading the judiciary in Britain. Justice John Marshall Harlan, the great dissenter in Plessy v. Ferguson remembered for his celebrated dictum ‘Our Constitution is colour blind’ and his grandson Justice John Marshall Harlan II were both eminent judges of the US Supreme Court. Good and bad appointments have taken place under all systems. The point to note is that no system is self-executing. It all depends on the persons who work it. As the great Rajaji, the 50^th anniversary of whose passing was last month, reminded us decades ago, what is important and essential to meaningfully and successfully work any system is national character and national character is the sum total of individual characters.

Court vacations are not a luxury. The sitting hours of the courts are immaterial for judges and lawyers. The work of both begins much before that, often before dawn and goes on late into the night. So also, office hours are not the only hours that lawyers spend on their work. That time is more for meeting clients- for conferences. Reading of briefs alone is wholly insufficient, much more is to be done before and after that. Whether judges should spend that much time reading the briefs is itself highly debatable. Some of our greatest judges like Chagla and Krishna Iyer never ever read the case papers beforehand. In any event as Y.V. Chandracud, CJ perceptively remarked, judges should read the briefs only to meet the lawyers (intellectually, not literally), not to beat them. How wide a lawyer’s and judge’s reading should be is set out by Learned Hand and commenting on which so eminent a judge like Hidayatullah felt, “I had left so many gaps in my reading.” A lawyer (and necessarily a judge also) without history or literature or social sciences is a mechanic, a mere working mason; if he possesses some knowledge of these, he may venture to call himself an architect. Moreover, as Daphtary once advised Fali Nariman, it is more important to think about a case than only reading it. All this means time, and time beyond and apart from sitting/working hours.

The wise admonition of Justice Frankfurter is worthy of recall: Judgments are especially dependent on ample time for private study and reflection in preparation for discussions in conference. Without adequate study, there cannot be adequate reflection; without adequate reflection, there cannot be adequate discussion; without adequate discussion, there cannot be that full and fruitful interchange of minds that is indispensable to wise decisions and persuasive opinions by the Court. This is equally true for the lawyer’s job.

The arrangement of the working hours and vacations is, therefore, intelligible and for a purpose. How well or ill individuals work or use a system is different altogether, but the system cannot be faulted.

All talk about parliamentary sovereignty is ill-informed and misconceived. Both parliamentary sovereignty and judicial supremacy are myths. What obtains in a constitutional democracy like ours with a written constitution and a federal structure is constitutional supremacy alone: That is the Constitution is supreme, all organs have limited powers and have to function within their limits as grantees under the Constitution, the judiciary being the interpreter of the Constitution and the arbiter of the limits of authority of the different organs.

Constitutional scholars now would be increasingly reluctant to use catch phrases like supremacy of Parliament or answer current issues by appeal to some doctrine of sovereignty. Even in the United Kingdom without a written Constitution the concept of absolute parliamentary sovereignty no longer obtains. It is moving towards constitutional supremacy.

The reality is that the Constitution contains a mélange of powers. No single institution or organ is even remotely supreme. It is as it should be and will probably always be so. Some struggle and tension do occasionally arise. One need not be too disconcerted by the various pulls and pressures tending to upset what one believes to be an ideal constitutional balance. Reciprocal influence is an ongoing process. This is the profound truth.

In the field of Constitutional law the delicate balance between various institutions whose sound and lasting quality was likened by Dicey to the work of bees when constructing a honeycomb is maintained to a large degree by the mutual respect which each institution has for the other; and we may add political maturity. This is as much a prescription for the future as it was for the past and equally relevant everywhere.

Author is a Senior Advocate.

Views are personal