Courts are a service institution. In a system pledged to the rule of law, a civilised society on a daily basis, lives by a pattern of determined socio political grammar. `We the people’ gave to ourselves a constitution in 1950 and decisively announced to a fast changing world that we will live by a liberal set of laws governing our ‘democracy’. Historically, democracy was evolving in different directions in the post-war era. Some still believe that as a nation we were fortunate to have leaders like the Mahatma, Pandit Nehru, Sardar Patel, BR Ambedkar and the like and it is to them that we owe the liberal space we live in. Our leaders seriously believed in the concept of limited governance. The makers of the constitution gave the judiciary an important positioning in the physics of the nation. There can be no gain saying therefore that ours is a democracy of functional constitutionalism. We cannot therefore undermine its socio political utility. Every one in our republic is accountable to the judiciary. A hallowed institution indeed!
How is it from within? House keeping is never an interesting job. To say the least, it is visited with challenges and embarrassments that you are called upon to deal with, clean and some times even put under the carpet or in to the cupboard. The purpose of this article is not to weep about corrupt judges being caught in bail scams or about the promptitude with which the system was willing to cleanse itself. On the other hand it is to deal with the question as to whether the judicial system is a judge based pattern or a lawyer based mechanisation?
Many believe that judges deliver good or bad judgements dependent on what assistance from the Bar. Move beyond lawyer jokes and Henry Cecil novels and you would realise that the working of the system is an intricate challenge. However a serious by product of this question, is how the Bar and the bench interact.
In a very recent occurrence a Senior Counsel (and a former advocate general at that!) was told by the senior judge of a bench that he need not repeat himself, the counsel immediately responded that repetition is a reiteration to ensure understanding. This brings me the core issue as to whether judges must design for themselves a code of conduct to behave with lawyers. Many many years ago when I addressed a lady judge as Her Ladyship, she took offence and said here all were Lords! It sometimes rings true!! The High Court also had another judge who would heckle lawyers and would come with the serious belief that he knew it all. A Daniel come to judgement!
To lay the question in proper perspective, I would believe that the judiciary is designed to be a utility service for the citizen. The citizen’s concern is voiced through the lawyer. Often judges see lawyers and for that matter even the citizen as an unwarranted occurrence in their profession. Judges as dispensers of the law, seem to look at the citizen as the predictable wrong doer. The hassled citizen approaches the court with problems – genuine or cosmetelogically designed. Courts and judges in their wisdom are required to make the difference and deliver judgement. Yet, the citizen must have some clarity.
Let’s see a recent example. A political battle is fought fraught with politics and the High Court directs an investigation by the CBI. Taking this a precedent, another side of the coin wants to make the same noise and is rejected.
In yet another case a citizen brings to the notice of the court that some action needs to be taken in connection with the connectivity between the powers that be and the huge liquor scandal in the state. The case is rejected, but surprisingly with a huge bill attached to it. Constitutional promiscuity and structural one up man ship are not intended designs of our constitution.
It is believed (with differing degrees of naïveté) that we as a nation would like to build a nation that would the Mahatma proud. It was Gopalakrishna Gandhi who said : “His (Gandhi) soft ‘relevance’ makes it almost obligatory for our films to have a Gandhi lithograph in every court scene, right above His Lordship, heightening the credibility of the judiciary, of course, but also giving the trauma of legal miscarriages that ironic extra edge. Gandhi appears in those celluloid frames hurt and helpless, mortified and mute; powerless in his benevolence as villainy – at least for the moment – carries the day.”
Somewhere there is a message and surely it cannot be missed by the Learned Lords.