Reviews
Auditing the Supreme Court
The Judge in a Democracy
by Aharon Barak; Princeton University Press; pp 332, $ 29.95.
A G NOORANI
O
Judges of the court have a strange attitude towards the media. They meet its members privately, but are touchy about its criticisms. For the last two decades, at least almost every retiring chief justice of India (CJI) has given a press conference or interview boasting of his accomplishments. So have some incoming CJIs, including one, whose tenure was all too brief and was clouded, after his retirement, by disclosures which his reputation could well have done without. Justice J S Verma gave an interview while still on the Bench in which inter alia he boasted of a quick temper. He threatened a chief minister for speaking to the press, which he was obliged to as head of government, while ordering the press not to publish remarks by judges during the hearings and attribute the remarks to them, as is the practice worldwide, but as remarks by “the Bench”. The press has supinely complied. “The Bench” speaks only through a unanimous judgment, divided the judges speak for themselves, the majority constituting the judgment of the Bench. It is individual judges who speak during the hearings and most helpfully, too. The Bar is enabled to understand the judge’s reaction and tries to answer the points raised. The public understands better the drift of the proceedings and that particular judge’s mind. The order flouts the fundamental rights of both the public and the media. It is unsupported by law.
Unique Supreme Court
In other respects too the apex court of our democracy is unique. In other courts all too rare is the judicial “outburst”. Not so in our Supreme Court. They are concerned purely with the law. One gets the impression that our court is concerned also with good governance. But such is the state of our polity that the excess is welcomed. We are better informed by the affidavits on their finances, which election candidates are required to file by judicial edict. It is another matter that it is unsupported by statute. The reform was one for government to sponsor in Parliament and for Parliament to make. Neither did its duty all these years.
Nor is there any critique about the language, style and length of judgments. P B Gajendragadgar J began writing mini-theses 40 years ago. Hidayatullah J revelled in Latin tags and archaisms. Successors seized on telling quotes from American judges to Tagore. “A word is the skin of a living thought”, a judge once wrote. The infection caught on and the aphorism came to be repeated for a good few years. Long-winded judgments in indifferent prose are of little assistance. The sad truth is that while elsewhere judges are elevated to the highest court after they have acquired a reputation for learning – except, of course, in the hideously politicised US’ supreme court – one cannot think of a single judge of our Supreme Court who had won note for learning in constitutional law before his elevation. They are esteemable men who won note on the high court bench.
Nor, truth to tell, is the Supreme Court Bar richly endowed with men of learning and scholarship. It is hard to think of any of its leading figures writing a single work of the kind Geoffrey Robertson QC or David Pannick QC have written or for that matter the scholarly essays Anthony Lester QC, now Lord Lester, has written. H M Seervai was the last of this tribe and the last also of the tribe of constitutional lawyers of the kind India produced in the past like M K Nambyar, M C Setalvad, Alladi Krishnaswamy Ayyar and Tej Bahadur Sapru. Able advocates are not necessarily erudite lawyers as well.
In Decline
There are things that need to be said to arrest the decline. The law of contempt is in a perilous state. The system of appointment to the Supreme Court bench and to the high court bench is a sham; both, thanks to judgments of the Supreme Court.
There is a good example of audit. It is by George H Gadbois, Jr in a brilliant essay entitled ‘Selection, Background Characteristics, and Voting Behaviour of Supreme Court Judges 1950-1959’ published in Comparative Judicial Behaviour edited by Glendon Schubert and David J Danelski, Oxford University Press, 1969.
A study of comparative judicial behaviour can help a lot. The author of the book under review here is president of the supreme court of Israel and has been a judge of that court for 26 years. The book testifies to this learning and insights. It address the fundamental question: the role of unelected judges in a democracy governed by men elected by the people. Judicial review is indispensable to correcting wrongs and excesses by the elected. Judges become a menace to democracy when they commit their own excesses and impose their preferences over those of Parliament.
Discourse in India tends to be simplistic. Human rights activists, for instance, laud “judicial activism” little realising that it is not synonymous with being liberal.
It would be a mistake to define an activist judge as a liberal judge and a restrained judge as a conservative judge. Liberal and conservative are appropriate terms to valuate the result of the judicial activity. For example, from the turn of the 20th
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century until the end of the 1930s, the US supreme court was an activist conservative court that invalidated a number of statutes that sought to recognise individual rights. The Warren court of the 1970s was an activist liberal court. And today’s US supreme court, whose majority is conservative, behaves as an activist court in many areas of law. A judge may not impose his personal views on the society in which he judges. A judge who does so acts outside the bounds of law. Every exercise of judicial discretion must take place within the values recognised by society, reflecting its basic perspectives. There is no connection between activism and personal views, just as there is no connection between activism and tossing a coin. Neither is a case of judicial activism but rather of illegitimate judicial activity.
The object in each case must be to promote the democratic process and to uphold the Constitution, which safeguards it. It has become fashionable to say that no judge can be objective. That is not true.
The objectivity required of a judge is difficult to attain. Even when we look at ourselves from the outside, we do so with our own eyes. Nonetheless, my judicial experience tells me that objectivity is possible. A judge does not operate in a vacuum. A judge is part of society, and society influences the judge. The judge is influenced by the intellectual movements and the legal thinking that prevails. A judge is always part of the people. It may be true that the judge sometimes sits in an ivory tower, though my ivory tower is located in the hills of Jerusalem and not on Mount Olympus in Greece. But the judge is nonetheless a contemporary creature. He progresses with the history of the people. All of these elements contribute to the judge’s objective perspective. Moreover, the judge acts within the limits of a court. He lives within a judicial tradition. The same spark of wisdom passes from one generation of judges to the next. This wisdom is mostly unwritten, but it penetrates little by little into the judge’s consciousness and makes his thinking more objective. The judge is part of a legal system that establishes a framework for the factors that a judge may and may not consider. The heavier the weight of the system, the greater the objectification of the judicial process (italics mine, throughout).
That is the heart of the matter. Does the judge respect the “legal system” or does he flout it to promote his own ideas of governance?
The author discusses certain traits which
judges naturally acquire and others they
need to acquire by effort.
First, the judge ought to be aware of his power and his limits. A judge has great power in a democracy. Like all power, judicial power can be abused. The judge ought to recognise that his power is limited to realising the proper judicial role. From my experience, I know that it takes considerable time for a new judge to learn his role on a court. Naturally, the judge knows the law and the power it grants to the judge, but he must also learn the limits imposed on him as a judge; he must know that power should not be abused and that a judge cannot obtain everything he wants. Second, a judge must recognise his mistakes. Like all mortals, judges err. A judge must admit this. According to the well known statement of justice Jackson, “We are not final because we are infallible, but we are infallible only because we are final”. Third, in our writing and in our thinking, judges must display modesty and an absence of arrogance... Fourthly judges should be honest.
The US has been torn apart by the neocons
but even before they arrived in full force,
men like Richard Nixon promoted the
doctrine of “strict constructionists” which
developed as “the original intent” of the
farmers of the Constitution. Aharon Barak strikes a good balance.
Admittedly, the past influences the present, but it does not determine it. The past guides the present, but it does not enslave it. Fundamental social views, derived from the past and woven into social and legal history, find their modern expression in the old constitutional text. Justice Brennan expressed this idea well in the following remarks: “We current justices read the Constitution in the only way that we can: as Twentieth Century Americans. We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be, what do the words of the text mean in our time? For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. What the constitutional fundamentals meant to the wisdom of other times cannot be their measure to the vision of our time. Similarly, what those fundamentals mean for us, our descendants will learn, cannot be their measure to the vision of their time.” The same idea was advanced by justice
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Michael Kirby of the High Court of Australia, who said that our Constitution belongs to the 21st century, not to the 19th.
In the author’s felicitous phrase “A judge who interprets the constitution is a partner to the authors of the constitution. The authors establish the text; the judge determines its meaning. The authors formulate a will that they wish to realise; the judge locates this will within the larger picture of the constitution’s role in modern life. The judge must ensure the continuity of the constitution. He must strike a balance between the will of the authors of the constitution and the fundamental values of those living under it.”
Court’s Service
The Supreme Court of India has over the years rendered great service to the cause of constitutional sanctity, the rule of law and human rights. Only the dishonest would allow its lapses – some very grave like the habeas corpus ruling during the Emergency – to obscure the court’s services. Its very existence is a deterrent to legislative and executive excess. The remedy of public interest litigation preceded similar innovation elsewhere.
The book is useful for its reflections on some rulings of Israel’s supreme court. One deserves particular mention – the doctrine that ministers are trustees. In 1996 the Supreme Court of India relied on a 1994 ruling on “misfeasance in public office” and held that “a minister is in a position of a trustee” in respect of the public property in his charge. In 1999, another bench dismissed this as “a philosophical concept” (Common Cause vs Union of India (1999) 6 Supreme Court cases 667).
Israel’s supreme court developed this concept in a series of decisions, which chief justice Barak cites in his book. One such case deserves to be quoted in extenso:
The supreme court of Israel adopted a similar approach when it considered the cases of a cabinet minister indicted for bribery and a deputy minister indicted for making false entries in corporate documents and for fraud, who both refused to resign their positions despite these serious charges. The petition before us challenged the prime minister’s decision not to dismiss the cabinet minister and deputy minister. We decided in both cases that the prime minister unlawfully failed to exercise his power of dismissal and ordered him to dismiss them. They resigned before the power of dismissal was exercised. In the petition referring to the deputy minister, I said: The government, the prime minister, and all other ministers are public trustees. They have nothing of their own. All that they have, they have for the good of the public... From this fiduciary duty derives the law
– a general law that applies to every governmental authority, including a government, a prime minister, and other ministers – that discretion granted to a public authority must be exercised fairly and honestly, making reasonable use of relevant considerations alone... The fiduciary duty of the prime minister, the government and each of the ministers imposes a duty to consider whether to terminate the tenure of a deputy minister who has been indicted... Neither the prime minister, nor the government, nor any of its ministries may say: “the law has given us power to terminate the tenure of a deputy minister; if we wish, we may terminate it, and if we wish, we may refrain from doing so. The discretion is ours, and we will exercise it as we see fit.” Every power given to a branch of state must be exercised fairly and reasonably. Every power has limits. We do not recognise “absolute” discretion, bereft of any limits or restrictions?
To adopt the ruling in an English case Julius vs Bishop of Oxford, it was a power coupled with a duty.
The book ends with these moving words “I am aware of the chains that bind me as a judge and as the president of the supreme court. I have repeatedly emphasised the rule of law and not of the judge. I am aware of the importance of the other branches of government – the legislative and executive
– which give expression to democracy. Between those branches are connecting bridges and checks and balances. I view my office as a mission. Judging is not a job. It is a way of life. Whenever I enter the courtroom, I do so with the deep sense that, as I sit at trial, I stand on trial.” Every judge should remember that he is himself on trial all the time. 
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