“Life has always seemed to me like a plant that lives on its rhizome. Its true life is invisible, hidden in the rhizome. The part that appears above ground lasts only a single summer. Then it withers away -an ephemeral apparition. When we think of the unending growth and decay of life and civilizations, we cannot escape the impression of absolute nullity. Yet I have never lost a sense of something that lives and endures underneath the eternal flux. What we see is the blossom, which passes. The rhizome remains." ― Carl Jung, Memories, Dreams, Reflections
Karma assumes the complete absence of an interventionist or judging god. Your destiny is the final vector of every action, thought, emotion, and energy motion one undertakes. As the karmic residue bakes into one's being, its historical burden and current accumulation collectively decide one's direction.
That is the paragon of a free existence. The existence decides, however imperfectly, as to how it wants to exist. Not some power, however morally superior it may be.
A free society is similar. When some one or a group of people take it upon themselves to dictate the direction of a society because well, they decide to appropriate superior morals to themselves, then the society is quietly but certainly enslaved.
When the collective social vector is unburdened by one ideological power but is yet the sum of all, then the society has a shot at freedom.
The relationship between the Indian judiciary and the society that gives that institution the raison d'être is the same.
Just that the god of the majority chose not to be the judge and instead let the creation takes its course with the possibility of being liberated fully always available if desired. While the judges in India decided to play a dictating god instead!
In a very interesting study in 1997, Daniel Batson and his colleagues did an experiment.
The participants in the study were asked to distribute tasks between themselves and an unknown participant. One task was more fun and rewarding than the other.
Participants were given a choice - they could flip a coin while alone (no one was seeing or monitoring) to make the decision, but it was not required (i.e.; they could just simply take whatever task they desired without justifying their selection).
Half of the participants decided to flip the coin while declaring that was the most fair way to allocate tasks. The other half did not flip the coin and simply picked the better tasks for themselves.
The interesting thing was that the proportion of coin-flippers who took the better tasks for themselves "by chance" was exactly the same as those who did not flip the coin and simply grabbed the better ones outright - 90%!
While the second bunch had done what they wanted to do, the hypocrisy of the coin-flippers was striking.
They had a desire to appear fair and just, without having the courage to pay the consequences.
This was known as the Moral Hypocrisy Study.
In 2007, another study was done by Vadesolo and Destono where participants ascribed the participants who grabbed the better tasks for themselves lower score than how they rated themselves when they did the exact same thing!
(Source for these studies - "Moral Hypocrisy, Moral Inconsistency and the Struggle for Moral Integrity", Stanford University)
Morality extolled - even enacted - not with an eye to producing a good and right outcome but in order to appear moral yet still benefit oneself.
That is now Batson defined Moral Hypocrisy.
Batson's study and other such research was a continuation of the idea shared by Shelley Duval and Robert Wicklund in 1972 - Objective Self-Awareness.
They wrote a book titled - "A Theory of Objective Self Awareness" which introduced a line of study which introduced two types of self-awareness:
Fundamentally, it is the conflict between the Self and Standard. Dichotomy is uncomfortable and needs to be addressed.
Objective self-awareness has two main systems, self, and standard. The self-system is geared towards achieving the standard. Duval and Wicklund define “standards” as our mental representation of ‘correct’ behavior and traits.5 When there is a difference between the self and standard systems, a mental conflict emerges. This is an undesirable scenario, and we’re geared to either fix it or avoid it. We address this conflict by changing our behavior to match the relevant standards, or stopping the self-evaluation process in our head. (Source: Decision Lab)
This dissonance between self and standard is a very real thing even with the highest of the judges. An empirical study on the federal magistrate judges in the US showed that close to 90% judges rated their judgments to be unassailable (not likely to be overturned).
Not very far from the hypocrites in Batson's study.
The battle between Self and the Standard is always on. That is the curse of a standard. But what is worse is that those who set the standards and make these standards the highest goal, are not willing to pay the consequences that their own standards ask of them.
It is one thing to fight for democracy, fairness, freedoms, and justice. Quite another to abide by the standards that these values entail. For, those who really abide by these values have to be ready to pay for the consequences. The results are not always in your favor or to your liking, but you cannot fake a coin-flip like Batson's Moral hypocrites and get the plum side of nature and yet bat for these high values.
The basis of justice is that judges are fair and impartial. That they are above prejudice and bias. But we all know that this is not true in the real world. So, what is the solution?
To reduce the possibility of exercising the bias that is inherent. Strangely, even the right to decide on their own prejudice has been given to the judges by those who wrote their tomes and guidebooks.
Here is what Blackstone has to say on recusal.
In June of 2009, the US Supreme Court issued a seminal ruling with respect to the bias, prejudice and subsequent recusal of the judge from a case where his impartiality remained questionable. Justice Brent Benjamin of the Supreme Court Appeals of West Virginia did not recuse himself from a $50 million appeal case where the lead defendant firm's CEO had contributed $3 million to Justice Benjamin's campaign.
The 5–4 opinion in Caperton v. Massey was written by Justice Kennedy. He wrote:
“We conclude that there is a serious risk of actual bias – based on objective and reasonable perceptions – when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent. The inquiry centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.” (Source: Brennan Center for Justice)
The underlying assumption in the discussion on recusal standards is that anyone who has a personal conflict of interest will be inherently unable to dispense justice.
In other words, even when the judges are presumed to be upright, fair, and just (a questionable assumption given the studies), a personal interest or advantage can set aside the integrity of a judge as well.
Judges are humans. Fallible with self interest that can trump integrity.
That is a good place to start from.
The Indian Constitution inherently secures equality of status and opportunity. All are humans with the greatness that human consciousness bestows and the failings of mind that we all inherit.
To assume an exalted status for one group, however lofty their standards and ideals, and to hold others down, however great their contributions to humanity and society - is fundamentally in violation with the spirit of the Indian Constitution.
India is a Sovereign, "Secular", Democratic Republic. (Secular was later added by force during emergency by the Congress government disregarding the spirit of every other word in that sentence!)
Let us start with Republic first.
A republic has a prerequisite - the supreme power resides in the body of citizens who are entitled to vote and through that vote they decide the structure and the direction of society's polity.
The word sovereign is informed by the nature of governance. Who can exercise the supreme authority in a society or nation?
The systems are similar but have some differences.
Democracy is also often termed as the "rule of the majority" in how everyone has a vote and the representatives are elected based on a collective vote. So when India was structured as a Democratic Republic - with a parliamentary representative system, the objective was to given supreme power to the electorate so that they could fashion the society as they desired. Unfortunately, the constitution makers and the judiciary had other intentions and issues, as we shall see later in this discussion.
Advocate Mathews J Nedumpara had done an empirical study on the judges in the Indian courts and he found something interesting. (Source: Hindustan Times)
Around 50% of the judges of high courts and 33% judges in the Supreme Court are family members of those in “higher echelons of judiciary”
Let us do a simple test - here are some prominent judges who are related to either someone in judiciary, senior advocates or prominent politicians. We have focused more on the current judges of the Indian Supreme Court more.
Currently there are a total of 31 judges of Supreme Court of India. Out of these 31 judges of the current Supreme Court of India, 13 are related to either some judge, Supreme Court justices, former Chief Justices of the Supreme Court of India, prominent politicians or Senior Advocates. That's 40%!
The whole scenario is known by the phrase "Uncle Judges".
In 2014, when 34% (16 out of 47) the 41st Chief Justice of the Indian Supreme Court, Justice Rajendra Mal Lodha had said this when asked about the phenomenon of "Uncle Judges".
“If somebody is not following the code of conduct or professional ethics, it is for the Bar to take action. The judiciary can’t be blamed. Unfortunately, the role, which the Bar is required to play, is not being played.” (Source: Hindustan Times)
For the record, Justice RM Lodha was himself the son of Justice SK Lodha, a former Judge of the Rajasthan High Court.
The Indian judicial Collegium system under which existing judges appoint new judges to the nation's constitutional courts came about due to three seminal cases collectively known as the "Three Judges Cases."
There have been many challenges to this closed-loop system of Judicial appointments in India. Let us check some of them and see how the esteemed justices of the highest court in land have handled those challenges.
In January 2013, Suraz India Trust, an NGO, filed a Public Interest Litigation (PIL) to challenge the Collegium System of judicial appointments. Despite the advice of Amicus Curiae about the locus standii of petition, the three member bench led by Chief Justice of India Altamas Kabir, summarily rejected the PIL on the ground that it was not maintainable!
Thus ended the first challenge.
In July 2013, Chief Justice of India P. Sathasivam lashed out at attempts for changing the collegium system of appointing judges saying that there was no need to change the collegium system.
That a sitting Chief Justice of the Supreme Court believed in the canard that corruption in Indian judiciary is negligible should make us sit back and think at the utter disconnect that the judicial elites have with the public at large!
For the context, the Transparency International survey in 2006 done in South Asia showed the exact opposite! It showed that in India, both - the Police and the Judiciary - were probably on par when it came to corruption. The worst of all the institutions!
So much for representation.
And, in terms of changing the existing system of judicial appointments, while rejecting the change in the collegium system suo moto, he had a way forward.
His suggestion?
The government should bring a Constitutional Amendment bill and change the current Collegium system.
The Chief Justice of India, P Sathasivam, on Saturday defended the collegium system for appointment of judges in higher judiciary but said it is a prerogative of the Centre to bring a bill to change it. “Now as CJI, I am not going into the contents of the bill and how it was passed as it is the prerogative of the government and it is for the people to accept it or not. It is too early for me to say anything on Judicial Appointment Commission or Committee,” Justice Sathasivan said while inaugurating a seminar on Rule of Law. (Source: The Hindu)
The government did just that.
On September 2013, The Constitution(120th Amendment) bill, 2013, that amends articles 124(2) and 217(1) of the Constitution of India, 1950 was passed in the Rajya Sabha. The bill sought to establish the National Judicial Appointments Commission.
The appointment of the judges would be on the recommendations of the NJAC.
In October 2015, the question of NJAC came in front of a five-judge constitutional bench of the Indian Supreme Court.
They called the Constitutional Amendment that sought to set up NJAC as unconstitutional. Simply.
And for good measure the bench asked for suggestions to "improve the collegium system."
This behavior of blocking every attempt to review the current closed-loop appointment system which shuts out any input from the citizens of India or their representatives while throwing the fig-leaf of "suggestions to improve the current system" that at this moment is responsible for 40% of the Supreme Court judges being beneficiaries of such a closed-loop "Uncle Judge" system - is eerily reminiscent of Batson's Moral Hypocrisy study participants who wanted to throw the coin in a room alone to look "fair and just" but ended up in exactly the same place as those who chose to grab the plum tasks themselves anyway. Facade of moral integrity without the courage to pay for the consequences of one's own standards!
To understand the fundamental flaws in the collegium system further, let us evaluate how the appointments of the judges are made in other countries, specifically where British common law formed the basis of the legal system.
It is instructive to see that in the United States, United Kingdom, Canada and Australia, the executive has an important and in some cases central role in the appointment of the judges to the courts, specifically the Supreme Court of those countries.
Interestingly, the judges' appointment process in the UK was changed in April 2006. With that change, the judicial appointments were the responsibility of an independent Judicial Appointments Commission. One of the important reason for the change in the process was - "judges were appointed in the image of the existing judges rather than solely on merit."
Before this appointments were made on the recommendation of the Lord Chancellor, who was a Government Minister. The Lord Chancellor’s Department made its own enquiries as to the most eligible candidates. It was considered that the appointment process was open to the criticism that a member of the government should not have the sole responsibility for appointing judges. It was also considered that judges were appointed in the image of existing judges rather than solely on merit from a pool of widely drawn eligible candidates. (Source: Courts and Tribunals Judiciary UK)
NJAC was akin to the JAC in the UK. A trend in most of the Commonwealth countries. (Source: Judicial Appointments in the Commonwealth: Is India Bucking the Trend?)
So when the bench comprising justices J S Khehar, J Chelameswar M B Lokur, Kurian Joseph and A K Goel adjudged the creation of NJAC as "unconstitutional", they were furthering the role of Nepotism (both relational/familial as well as ideological) over Merit.
A process and situation that is replete with the proliferation of bias and prejudice.
There
are many cases where the prejudice and bias of the courts and the
judges comes out in ways that have provoked wide-spread reaction and
criticism. Two cases which are specifically exemplary in the difference
of their treatment are those of Nupur Sharma and Mohammad Zubair
- the guy who instigated Muslims to attack Nupur and her supporters
such that the gory and sordid drama of beheadings and killings has still not ceased! Click the Video link on India Today coverage.
Video Link here (https://youtu.be/jxUfe3QwRkw)
The widespread criticism made the Indian Chief Justice NV Ramana call those reactions "ill-informed and agenda-driven".
The tweets of a guy who instigates violence is his right to freedom of expression and a safety valve (Source: "Dissent is the safety valve of democracy"), but the criticism of the judges and courts is "agenda-driven"?
Decides who? Who gets the privilege of having her/his dissent tagged as a safety valve or as a threat to democracy and how?
For the head of a closed-loop organization, social media should provide disparate yet diverse threads of feedback from the citizens of the country coming via every channel they have at their disposal.
Those who are the sine qua non of any republic - citizens - are shouting hoarse at how they have been sidelined in the Republic of India by the keepers of the very Constitution that promises them the participation!
And, that brings us to the fundamental question of who reigns supreme in the Democratic Republic. The parliament - elected from the representatives of the public - OR the Judiciary under a closed collegium system.
Two Supreme Court cases are the foundational in understanding this question: Golaknath Vs State of Punjab and the Kesavananda Bharati v. State of Kerala.
Let us look into them.
In the Golaknath vs State of Punjab case (Source: Indiankanoon) the most fundamental issue which was decided upon was related to the powers of the parliament. The Petitioners' stance was that the fundamental rights enshrined in Part III of the Constitution cannot be changed. The Respondents argued that the founding fathers of the Indian Constitution did not want the Indian Constitution to be rigid and inflexible.
The Supreme Court bench led by Chief Justice K. Subba Rao and comprising Justices KN Wanchoo, M Hidayatullah, JC Sikri, RS Bachawat, V Ramaswami, JM Shelat, Vishishtha Bhargava, GK Mitter and CA Vaidyialingam decided that the parliament cannot amend the fundamental rights.
In another landmark case - the Kesavananda Bharati v. State of Kerala - the largest bench in the Indian judicial history decided that "reasonable abridgment" of the Fundamental Rights can be effected in public interest by the parliament. However, the Basic Structure of the Constitution cannot be changed. This case set the "Basic Structure Doctrine" within the Indian Constitutional context.
And, this became the basis of the curtailment of parliamentary powers of the amendment, which had hitherto been held as unfettered.
The question of Parliamentary Sovereignty Vs Judicial Supremacy was thereafter tilted to the latter as the courts kept expanding the "Basic Structure Doctrine" and curtailing the right of the parliament to make changes.
Here
is advocate Sai Deepak on the anomalies of the collegium system and the
need for the citizens to raise their voice against it to safeguard
their representation in the direction of India's society as judiciary
takes control over the Constitutional Morality business (click Video link)
Video Link: https://www.drishtikone.com/content/media/2022/07/Sai-Deepak---Collegium.mp4
When one branch of governance gets unfettered powers to fashion the society and bring in changes under the garb of "Constitutional Morality" then it is imperative that the citizens have a say in it.
Specifically when the very formulation of the concept of "Constitutional Morality" runs counter to the norms of representative democracy itself.
Two things are problematic here.
That the writers of the Constitution and the landmark judgments had an elitist and condescending attitudes towards the will and the voice of people and indeed the very fabric of the country is quite instructive.
Ambedkar, for example, said in the Constituent Assembly in November 1948 that "Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic"
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Source: https://www.drishtikone.com/drishtikone-newsletter-350/ |