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Author: Anupama Soumya, V year of BBA LL.B from Chanakya National Law University, Patna

Judges are appointed to Judge the common citizen of India, but who will be appointed to “Judge” the Judges?

Rolling back the arms of the clock, if we look upon the era since 1950, we can very well deduce that three types of judges have been sitting on the place which belongs to the highest judiciary of the country. First, some Judges have Political Agenda. Second, Judges have Social agenda, and interestingly the third one, there are Judges without any agenda. For the development of law in due course of time, it is most significant to note that the Judges belonging to the third category have been the most numerous. If all of the Supreme Court of India's judges had a political motive and vented their opinions (as Justice Subba Rao did) or if any of our supreme court's judges had a social agenda and designed their decisions accordingly (as Justice Krishna Iyer did), there would have been a huge public outcry. But it is because there are few Judges with an agenda that they are remembered for long.

In the northern hemisphere, there is a constellation that is only apparent in winter. Astronomers call it Ursa Major, regarded more generally as the Great Bear. The cluster is made of Seven Bright Stars. These stars, identified as Saptarshi, reflect the Seven Rishis in Indian Astronomy. Among these, the two stars are pointers. They show the path, that is to say, they point to the Pole Star. During these 70 odd years, there have been many bright and brilliant stars in the judicial firmament. Many of them, like the judgments of Justice Vivian Bose, Chief Justice S.R.Das, and judgments of the brilliant and versatile Justice P.B. Gajendragadkar, have written judgments lucidly and learnedly, capable enough to adorn the law reports. The reality that some of their decisions are now being used for guidance and pleasure is a sheer credit to these jurors. But the pointers, the pathfinders, were a handful and at this juncture, we can name just two, Justice K. Subba Rao and Justice V.R. Krishna Iyer. Both were unique and different in their way. They inspired Judicial innovative thought above all else in the decades of the 1960s, 1970s, and 1980s. They illuminated new, difficult (and various) paths.

The overshadowed storey of the Indian unelected Judiciary and the long-lasting criticism upon it is not new. If we can turn the pages of judicial history, several instances will pass through in front of our eyes where the decision of the Judges or any judicial act has been criticised to its core by every common man of society. Here, the authors would like to pen down an instance pertaining to the time of Emergency, which was imposed in the year 1975 by the Indira Gandhi Government. ChanderKishanDaphtary (better known as C.K. Daphtary) was an eminent Indian lawyer and was the first Solicitor General of India from 1950 to 1963. Senior Advocate of the apex court, Fali S Nariman has quoted an instance in his autobiography, Before Memory Fades, where Mr. Nariman and Mr. Daphtary had a conversation during the June 1975 emergency after the spate of punitive transfers of Judges of different High Courts (unfortunately, who decided the cases against the Indira Gandhi government). Mr. Daphtary said to Mr. Nariman once, “Fali, what we need now is a Subba Rao”[i].

It was not out of malice or anger, but out of desperation, that he regretted the 1974 "supersession" of Judges (J M Shelat, K S Hegde, and A N Grover) and bitterly reflected on the success of the man who superseded them, i.e., Justice A N Ray, the lone dissenter in an 11 judge bench who had supported the government's argument in the R. C. Cooper vs. Union of India[ii], best regarded as the Bank Nationalisation Case. As a nominated member of the Rajya Sabha, Daphtary encapsulated in his Upper House speech the ignominy of the entire "supersession" in only 11 words: "The boy who wrote the best essay got the first prize." The "boy" was Justice A N Ray, the "best essay" was the lone dissent of Justice Ray in the Bank Nationalisation Case, and the "first prize" was when Justice Ray overran three senior judges and became CJI.

The instances and the stories related to the Indian Higher judiciary, which are jotted down in the above paragraphs are just intended to showcase both sides of an unelected Judiciary. Gone are those days, where even the proper election process would not have produced such Judges which the procedure of nomination and elevation continued to do so. In a country like India, where we have a democratic set up to elect the legislators by the free will of people and subsequently form the government, there is no process of electing the Judiciary or through a proper selection process. Out of three pillars of Democracy, two pillars i.e., Legislative and Executive are either being elected or are nominated to the respective post after gruelling examination and selection procedure. Then, keeping aside the higher judiciary from such approach and course of action has always raised the eyebrows of many intellectuals from time to time. Sometimes, Judges sitting on the other side of the bench are unaware of the extent or limitations of such power or do not have the sensitivity to exercise judicial restraint when justified, which only means that those Judges are simply not equal to the supremely difficult task of judging entrusted to them under the constitution. It merely indicates that it may be time we adopt a better method of selecting judges for our higher judiciary. Many modern-day judges, whether in India or elsewhere, may not often know the solemnity and significance of the functions which need to be done by them.

It is well known that the Lawyers with the highest level of connection or Jugaad gets the privilege of being elevated to the Judicial Side. For years, most of the Judges belong to the family of eminent senior lawyers and Judges. The question is not upon their calibre and talent to maintain the prestige and stature of the post. The heart-throbbing issue lies in the fact that many hidden talents who could have rubbed shoulders with the Jurists continue roaming in the corridors carrying the case files and dealing with clients. Several articles on this issue have already been addressed by different authors indicating the number of families all over the country that have covered the complete arena of higher Judiciary in India.

We all know that political voices have great influence in the decisions of the collegium system which appoints or transfers the Judges, be it the High Court or Supreme Court. Merit, which was supposed to be the basis for selection as repeatedly emphasized in the Second Judges Case[iii] has been completely overlooked. What counts are factors like seniority and proximity of candidates to members of the Collegium or being perceived to be pro or anti-government. The NJAC Judgment[iv] of the constitutional bench headed by the then CJI Khehar has made the situation worse rather than clearing the clouds.

In politics, this kind of system is termed dynasticism, while on the other hand, our Bollywood industry labels it as Nepotism which is also a contemporary issue these days. This system prevailing in India and around the different corners of the world is not new. Turning the pages of Hindu Mythology, we will find similar instances where the successor of King has always been valued and prioritised over other similar talents. One such incident can be noted down here of neglecting Karna and imparting the education to Arjuna by Dronacharya just because the former was not a ruler’s son and belonged to a lower caste.

At the flag end of this article, being an optimist and remaining on a positive note, one day, the rising Sun will witness the free and fair election of Indian Judiciary imparting proper and unbiased Justice to every common man of India.

[i]Nariman, Fali S., Before Memory Fades, An Autobiography; Hay House India Publication, 11thReprint, 2014, p. 323.

[ii](1970) 1 SCC 248.

[iii]Supreme Court Advocates-on-Record Association and another vs. Union of India, Writ Petition (civil) 1303 of 1987

[iv]Supreme Court Advocates-on-Record Association and another vs. Union of India, Writ Petition (civil) 13 of 2015


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