Are we moving from a designedly liberal to an increasingly opinionated
equation? This cynical question has come to increasingly haunt me as a lawyer.
With over three decades at the Bar, there are times when I believe this is
perhaps the best time with a whole set of young ‘willing to listen’ judges. At
the same time my experience also seems to draw my attention to some discerning
scribbles on the wall.
It was just the other day I stood up before the court to argue a matter. The
judge hearing the matter would believe he had the answer to all the issues that
my client required no mercy (read no hearing) and therefore the matter required
a summary closure. This leads to the basic question on how the institution
works or is designed to work. Does the judge really know so much that the
lawyer does not? In the division of tasks between the Bar and the Bench is the
submission of arguments an inferior task to the verdict rendering exercise? Is
the judge with the aura of constitutional authority to encourage debate or
stifle it in the context of time and docket management?
Arguably time is at a huge premium in an institution where dockets are bursting
in the seams and the heavily weighed system is fighting for speed. To take a
look at the issue from another stand point: are judges required to be system
managers or arbiters of causes. Surely in a system so loaded in inequalities
and inequities people are bound to believe they have a chance. Hope is their
chance. Our democratic polity has developed many cracks and legal issues are
intricately connected to social isms and philosophy. “Don’t lecture, this is a
court hall” is an oft heard judicial command. I have never had the wisdom of
delineating law from philosophy and have often erred in combining the two. The
mother and the child have the need to travel along and this I have often seen
the red signal that comes I thought under an automation rather than as a single
requiring my special silence. Of course causes have counsels and counsels may
not be specialists in time management. So are not judges. Do not lecture is a
poor refrain and suggests a statement of power not really traceable to any
known healthy source in the debating structure of law courts. Why sometimes
even the expression ‘debate’ is frowned at!!
Just as the moot question who will police the police has found no answer, who
will judge the judges may end in a poor echo. The Bar as a collective must the
Learned Bench at all levels that to silence the Bar even in the name of docket
burden is not a healthy sign and certainly not in tune with the physics of the
present legal system. The vigour of the legal system in the country lies in its
transparency which includes a detailed open hearing of all matters. Some judges
are truly gifted. They are jurisprudential heirs of a Voltaire or a Subba Rao.
Not all are. The system therefore requires them to hear before their pronounce.
Neither of the tasks is a routine or a formality. Even a suggestive suspicion
that it is being reduced to a formality would lead to cynicism and thereby loss
of confidence.
It is not out of context to quote Alexander Solzhenitsyn who said: Justice
is conscience not a personal conscience but the conscience of the whole of
humanity. Our system frowns at despotism of any kind and law
courts are not above the designer patter. Even in the hotly contested OJ
Simpson case it is not out of context to state that Marge Simpson said You
know, the courts may not be working any more, but as long as everyone is
videotaping everyone else, justice will be done. In short, she
was advocating visible debate. She was calling for a pattern that does not
depend on a particular whim but an informed set of alternatives. There lies the
fulcrum. That is crucial. The Lords are Lordships in grace and in task. If the
twain were to part, than the definition may take a beating. The American
novelist James Baldwin put it succinctly: If one really
wishes to know how justice is administered in a country, one does not question
the policemen, the lawyers, the judges, or the protected members of the middle
class. One goes to the unprotected–those, precisely, who need the law’s
protection most!–and listens to their testimony.
There lies the strength. Sometimes, strain not muscle is strength.