In Search of a Liberal Judiciary

Strange as it may seem , the Indian legal system is in a state of inertia. Even as the USA accepts a Asian as judge in its higher echelons, we have a system that discounts a local to qualify to head the state judiciary. We import life style and marts, divorce patterns and even corporate structures from the west but stay away when it comes to judicial principles and its liberal interpretative process. Our jurisprudential pathway is steeped in secrecy and is often behind the pale of public debate. Contrast this with what happens in the USA. The purpose of the present exercise is not to detail the differences but to move on with the assumption that the hardware and software of a liberal democracy is often dependent on the judicial arteries of the system.
As a system, very often the judicial system tends to err in favour of the state. In fact rulings to the said effect are many. It has over the years shown a marked tendency to slap the citizen rather than kick the Executive. The constitution was designed to be a peoples mandate. It was said to contain the safeguards to limited governance. To go back to Marshal, the law is what the courts declare them to be and thus our constitution is what our judges understand them to be. This is a logical outcome of a healthy balancing power structure. The hidden assumption in the theory is about the judges and how they understand the social document. Needless to point out, therefore, they need to understand primarily that the constitution is a social document actually a socio political document.
It is only reasonable that courts than understand the times in which they are called upon to interpret the language employed. They are also social engineers requiring to constantly balance original content with contemporary demands. Unfortunately the law books are full of instances (judgements) giving us stale wisdom such as: assumption in favour of state action; bonafides of legislation; alternate remedy; threats of heavy costs for alleged abuse of process, jail till bail, persons with serious criminal charges are as good as convicts, no judicial review of policy decisions, transfers should not be interfered with in the normal course, courts do not interfere with contractual matters, keeps away from financial matters and the like.
Each of these stated declarations are supported by a number of judgements, backed by voluminous quotes and some even borrowed from the west. Yet those with a nodding acquaintance with the system will vouch that the system needs attention, correction and progress thereof.
In one of the earlier columns I addressed the need to revisit the policy of transfer of judges and more particularly the cloak in the dagger approach to appointment of chief justices. At a time when the American paradigm can accept a seeming rank outsider into the system why can we not trust our own? Or are we suggesting that the import policy is based on the imposition of the very same catholicity of acceptance of the ‘outsider’.
The judiciary and the Executive function in critical zones and the Indian judiciary as the watch dog of the constitution has over the years been a trifle more conscious of this aspect and has resultantly toned done its critical approach. There have doubtlessly been moments of severe criticism of the functioning of the state by the Judiciary but such moments have been few and far between. We have in the 60 odd years redefined many aspects of our life. Khadi has given way to jeans, the chai walla has virtually disappeared in the presence of Café Coffee Day and the street vendor has been sacrificed for road widening and the new malls. If nothing to keep up with the times in which it operates the Indian Judicial system as a collective not only needs to revisit its utilitarian credentials but keep at bay the twin evils of our times: corruption and lack of transparency in governance.

L. Ravichander.