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Supreme Court postcard: Judging new judges, the bar’s insane expectations and those larger than life

Elevation: From Ranji Trophy winner to benchwarmer?
Elevation: From Ranji Trophy winner to benchwarmer?

Swearing in ceremonies, such as Tuesday’s induction of three newcomers, are those rare occasions when every single judge of the Supreme Court can be found in one place. It is also when you realise for the first time that the metaphorically larger than life Justice Markandeya Katju is, in fact, actually larger than life. He stands a full head taller than almost every other judge and dominates proceedings without having to say a word.

The Chief’s Court is packed with government law officers, leading senior advocates, relatives and friends of the new judges. The plain curious along with the press corps are squashed into the back struggling for a glimpse of the proceedings between the shoulders of the crowd. After the swearing in ceremony all the judges enjoy a tea break where they presumably exchange high fives with the initiates as lawyers wait for the day to begin.

Then, almost immediately after being sworn and barely a day after most have flown into Delhi, they’re on the bench disposing of matters with the rest of their brethren and sistren.

But after the initial excitement of being admitted into the highest judicial fraternity in the country it can be a bit of a let down to have to spend the rest of the day disposing of routine criminal appeals and service law cases. Especially, one imagines, when those sworn in have been chief justices (or at least the senior most judge) of large high courts dealing with many important and politically sensitive matters. It’s a bit like going from being the captain of your state’s Ranji Trophy team to being the 12th man on the Indian cricket team.

That doesn’t mean that expectations of the Supreme Court bar are lower than lawyers’ at respective high courts.

The benching bar

Judges, contrary to plaintive pleas in the media and academic journals, are being judged all the time by the bar though parameters change depending on whether your case is heard by one.

A judge should be smart and sharp, quick to grasp the facts and the law in the matter. No matter how bad the drafting or the arguments. And ideally they shouldn’t comment on how bad the drafting and the arguments are{source}
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A judge should not be “negative” but must be “relief oriented” when one is the petitioner. When one is the respondent they must be “careful” and “conservative”.

A judge should be deferential and respectful of the senior advocate you’ve just engaged but should be quick to dismiss the obvious lies and misrepresentations made by the senior advocate from the other side.

And let’s not even get started on how they should deal with the government as a litigant.

All of this has to be done in the intense glare of the national (read: Delhi) media, English and vernacular.

Ronald Dworkin’s Hercules himself would quail at the thought of being elevated to the Supreme Court of India.

Meeting the bar

Still there have been and are judges who not just meet but simply transcend these seemingly impossible expectations. They leave behind a strong legal legacy in their judgments, convince litigants that the court is a place where one can get justice, and uphold the dignity of the institution to the satisfaction of both lawyers and their fellow judges.

The late Justice MC Chagla, of the Bombay High Court and Chief Justice AP Shah of the Delhi High Court are two exemplars.

Some measure of the respect and admiration they inspired in both the bar and the bench can be seen in the heartfelt and deeply grateful speeches leaders of the bar give on their retirement from respective High Courts. Men of the standing of HM Seervai or Nani Palkhivala or Dr Upendra Baxi are not in the habit of handing out empty platitudes for craven reasons and undoubtedly reflect the general feeling of the bar and academia.

And yet neither made it to the Supreme Court, for exactly the same reason.

The judges then on the Supreme Court did not want them there. In one case, on a matter of principle (seniority); in the other, a matter of pure personal dislike (Kapadia was said not to like Shah)

It should be vaguely disconcerting (at least) that somehow, sixty years apart, we still haven’t been able to figure out a manner in which the best judge of the country holds the highest judicial office in the country. Amid the decade long, Kurukshetric war over the independence of the judiciary and the wrestling for control over appointments with the executive, the Supreme Court has not always been the place to find the all the best judges in the country.

Veterans of the major high courts will give you a list of half a dozen fantastic judges of their high court who should have been elevated to the Supreme Court over some of the rather mediocre ones who were actually elevated.

Poker face

We know very little of what the judges themselves think in all this. Chagla seems to have taken the snub with grace, accepting that his elevation did not come through on a valid principle. Shah on the other hand has made the hurt caused by the snub widely known.

What is worse is that what should be the subject of strong and vigorous debate in a public forum is now the exclusive purview of corridor gossip and intrigue. Who will make it to the Supreme Court and why is almost always a favourite topic of conversation among lawyers, with none the wiser as to why X made it and Z didn’t. Those with access to senior government officials or judges in the hallowed collegium are always sought after in the corridor, canteen or chamber by those seeking the latest odds on the elevation roulette. This is a state of affairs that sadly the Supreme Court has itself brought about.

For all the talk of of a National Judicial Commission or a Judicial Accountability and Standards Bill, the fact remains that any real change will happen only once the judges of the Supreme Court embrace the spirit of transparency and accountability in the appointments process. It cannot be imposed on them and they cannot be dragged kicking and screaming to it.

Ultimately, the bar and the public at large, as opposed to a privileged, secretive few, should be considered worthy of having a say in the process of appointment to the highest judicial body in the country.

Nothing is more necessary for a body that calls itself a defender of civil liberties.

Court Witness is an advocate of the Supreme Court of India and now tweets @courtwitness1.

Court Witness’ previous postcards:

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