Judging the judges
Reviewed by Ram Varma

Wake up Call for Indian Republic
By Justice V. R. Krishna Iyer.
Gyan Publishing House.
Pages 220. Rs 540.

IN Plato’s Republic, Socrates asks the overwhelming question, "Who’ll guard the guardians?" In our republic, Justice V. R. Krishna Iyer, a retired judge of the Supreme Court, comes nearest to donning the Socrates’ mantle, and he appropriately asks, "Who’ll judge the judges?" The state of the Indian judiciary, of which he had been a distinguished member, is causing him concern and anguish as he surveys in this book the latest developments that have taken place in that important organ of our democracy.

His foremost concern is about the probity of the judges, as he sees a growing cloud of suspicion creeping over it. He quotes the US lawyer, Robert Ingersoll, who once observed, "Suspicion is the Upas tree under whose shade reason fails and justice dies", and says, "Let us place our judges, like Caesar’s wife, above suspicion". "This glorious group," Krishna Ayer says meaning the judges in his inimitable rhetoric style, "is expected to be incorruptibly above purchase, pollution or pleasure from any quarter, executive or other." He notes with regret that the Kerala government had given Toyota cars to four new High Court judges, and fumes: "Why not the Cabinet propitiate the judges by giving them the Rolls Royce?" He calls it "bribery" on the part of the state government, and reminds them that Jawaharlal Nehru and Indira Gandhi used the common Ambassador cars.

He is a staunch champion of the right to information, which he regards as an integral part of the freedom of expression guaranteed by the Constitution, and adds significantly, that it had not been created by the Right to Information Act. He frowns upon the members of judiciary for their hesitation to make their assets public under this Act. That right existed, he says, under the Constitution and even under the law governing fiduciary functionaries and others with similar powers and responsibilities.

"The Freedom of Information Act," he clarifies, "created a viable machinery for easier enforcement of the right to know. The irresistible conclusion is that the judges, executive echelons and all those who exercise public power are above the plea of secrecy and under a duty to disclose. ‘Satyameva jayate’ is our non-negotiable logo and paramount mandate of public power." This right cannot be nullified, in his view, by any "jejune mask of judicial office". He exhorts them that their life should be an open book like any public servant’s and issues a stern, stentorian warning: "If judges can be secret and safe pickpockets and immune to disclosure, our justice system will suffer the pathology of unearned wealth, covert bribery, illicit accumulations and abundance of benami estates with no therapy of truth to cure this versatile rape syndrome." Most emotively surcharged words these, which only a person like Justice Krishna Ayer can utter!

He is also deeply disturbed about the new system of a Collegium of Judges for the selection of members of the higher judiciary, which precludes government participation in the selection process. It has come in vogue after the Supreme Court ruling in Advocates-on-Record Association vs. Union of India (AIR 1994 SC 268) which was delivered by a nine-member bench by a majority vote of 5:4. Krishna Ayer calls it "a flawsome ruling", inasmuch it negates the earlier practice of "consultation" as against "concurrence", as laid down by Ambedkar in the Constituent Assembly. He fulminates: "Nowhere in the civilised world have judges themselves seized the power to appoint their own brother (and sister) judges. This unhappy judicial hunger for executive power of a high order is an inglorious departure from the basic structure of the Constitution."

There is much else, vitriolic and volcanic, in this book. Thank God for a man of such supreme courage of his convictions.