Valson Thampu

Laws, said Leo Tolstoy, are created by the elite. The laws thus created are meant to favour the elite. No one expects the socio-economic elite to be saintly. One joins the elite club largely through predatory gains either in person or via inheritance. There is no moral route to astronomical material gains. Nor is the ideal of the equality of human worth acceptable to the socio-economic elite who deem themselves exempted from the limitations that bind the common man.
I remember the indignation with which a colleague of mine in the national commission, a retired high court judge, reacted to the arrest of Mansoor Ali Khan, the Nawab of Pataudi, for poaching the endangered blackbuck in 2005. To the hon’ble retired judge, Pataudi was no ordinary person. As the scion of a former dynasty he had the right to hunt as he pleased; never mind what the law prescribed. He was being honest about it, which he could in the closeted security of his chamber in the national commission. Judges, as a rule, are circumspect and discrete. They don’t air their views in public –barring exceptions like Justice Arun Mishra of the Supreme Court flattering the Prime Minister opportunely. But one is naïve, if one assumes that judges are inoculated against social angularities and the entitlements of dominant classes. Judges are human, after all. We have no right to expect them to rise above the norms and assumptions that we create, institutionalise, and practice. If an aristocrat and a poor man come into our midst, we are sure to treat the former obsequiously and the latter causally.
In his spiritually profound novel, Resurrection (1899) -the last written by him- Tolstoy depicts the nonchalance with which the accused from the social underclass are treated by judicial officers. Dmitri Ivanovich Nekhlyudov is one of the judges who try the girl whom he seduced and abandoned to the street. He becomes a party to condemning her to exile in Siberia. Conscience-stricken, Nekhlyudov decides to follow her to Siberia, in a desperate bid to make amends for the injustice he has done to her. Tolstoy adumbrates in this novel his conviction and indignation that the judicial system is callous towards the poor and hospitable to the hypocrisies of the elite.
Consider now the much-vaunted judicial dictum, ‘Even if a thousand guilty men go scot-free, not a single innocent one should be punished’. Really? What about the tens and thousands of under-trials in our prisons, who have been languishing there for years and years, waiting for their trials to begin? Many of them are accused of petty crimes. It is estimated that they comprise about 70 per cent. Had they been tried and convicted, the extent of their imprisonment would have been less than the period they have already spent in jails. Do we care? Does ‘equality of all in the eye of law’ apply to them?
In recent times, yet another major distraction to the independence of the judiciary has emerged. It goes under the nomenclature of media trial. As a judge of the Delhi High Court remarked a few years ago, ‘Judges also read newspapers’. Of late, the media has tilted over to buttressing elite interests. Clever and clamorous media anchors go to any extent in creating a climate of opinion favourable to whoever they favour. And it is an open secret that the media, by and large, favours the elite. It would be interesting and instructive to investigate the extent to which media trials colour judicial objectivity.
I have had the occasion to serve, for a while, in a quasi-judicial capacity. Lawyers used to argue before the three-member bench of which I was a part. I know the vast difference between one lawyer and another. So I can understand why competent lawyers are paid outlandish sums for daily court appearances. Judges listen to lawyers based on their merit, which influences the ‘merits’ of the cases they plead. Only a handful of lawyers are competent and persuasive. The rest are taxing and wearisome. It takes extraordinary patience to listen to them. Only such are affordable for the common man.
That given, I am unable to endorse the dogma of the independence of the judiciary. ‘Independence’ is not an end in itself. It has to be a purposive attribute. Being ‘independent of’ cannot make sense without being clear about what the judiciary is ‘independent for’. In that sense, the judiciary can be deemed independent vis-à-vis the goal of administering justice only if judicial processes are rendered immune to money-power, of the purchasing power of offenders, which is unlikely ever to happen. Money safeguards the aura and security of the elite. Its circumambient influence on the practice of law and the dispensation of justice is likely to swell rather than decline, given that development today serves to aggravate social inequalities to astronomical extents. Even as that happens, the independence of the judiciary will become, if I may borrow a legal rag, ‘a teasing illusion’.