The Supreme Court, on September 7, 2021, , set aside a judgement pronounced by the Allahabad High court for lack of logical coherence, legal clarity, and linguistic transparency. Imagine the quality of a judicial verdict devoid of law, logic, and transparency. The Supreme Court has quashed too many High Court verdicts for illegality and illogicity as part of its constitutional commitment. But there maynot be many examples for quashing the High Court judgements by the Supreme Court for lack of clarity in verdicts. The Supreme Court, in this context, indirectly admits that, at least some judges,their number may be very few, are unfit to write logically coherent, legally valid, and linguistically transparent judgements, due to many reasons. If, even the well-trained legal luminaries of the Supreme Court could not understand anything from the quashed Allahabad HC judgement for itsillogicity, illegality, and opaqueness in writing then, just imagine the fate of the litigant who got the judgement. Any writing, whether it is a legal document or a creative piece of literature, if it fails to follow the grammatical, aesthetic as well as logical rules then, it cannot communicate anything to the reader. The judiciary pronounces judgements not for the legal experts alone but for the laymen also, as laymen are the beneficiaries of the judgements.
Hence, the Supreme Court reminded the high court judges that, “Writing judgement is an art which involves skillful application of law and logic.” The court elaborated its findings and cautioned the High court judges that, “A judgement should be coherent, systematic and logically organized. It should enable the reader to trace the fact to a logical conclusion on the basis of legal principles. It is pertinent to examine the important elements in a judgement in order to understand the art of reading a judgement.” The Supreme Court bench consisting of Justices D Y Chandrachud and M R Shaw which quashed the High Court judgement, also reminded the judges fraternity that judgements should have clarity as nobody would understand anything from a piece of writing which lacks clarity. Writing judgements lacking clarity is an act of absurdity. The absurdity in writing makes it an act of bewitchment of the human mind, by means of language which generates fear and anxiety in the mind of the reader. An act of judiciary is expected to maintain law, order, peace, and harmony in society. Therefore, the warning given by the Supreme Court to the High Court judges who write judgements is relevant and meaningful.
The observations of the Supreme Court on the writing skill of the HC judges and the resultant
judgements reveal the pathetic state of affairs that prevails in the higher judiciary regarding thequality of the judges as well as the judgments pronounced by them. An absurd judgement remains as the monument of lack of proficiency of judges in law and logic and their inability to codify facts from the materials on record to make a meaningful verdict. Unfortunately, an obscure and absurd verdict stands as a stumbling block in the path of administration of justice because it creates fear and chaos in the mind of the readers. Such judgements pave the way for the proliferation of litigation and the denial of justice to the litigants. Therefore, the content of the Supreme Court verdict deserves serious attention in democratic polity because, the functioning of the judiciary plays a pivotal role in maintaining equality, liberty, and fraternity which, are guaranteed by the constitution of India, to every citizen in society. Hence, the question why a group of High Court judges, their number may be less, fail to write cogent and meaningful judgements cannot be ignored as irrelevant one. It deserves serious attention in a democratic society and it must be discussed by the public at large. Why some of the judges selected by the judiciary remain inefficient and ineffective in writing cogent judgements due to lack of logical coherence, legal knowledge, and linguistic transparency is a question which deserves answers from the higher judiciary as well as the Government of India.
Is there any objective mechanism to assess the legal acumen, logical sense, and linguistic ability of the candidate as part of the selection procedure of the judges to the higher judiciary? Is there anything wrong with the process of selection of judges because it provides oppertunity to a few incompetentpersons to act as judges in higher judiciary? Are there any objective rules/norms regarding the modeof the selection procedure? Is there any mechanism to assess the performing appraisal of the judges after being inducted in the higher judiciary? Who is the competent authority to frame therules/norms/customs regarding the regular functioning of the judges? If such rules/norms/customsare available then, what prevents the judiciary from making it available in public domain? Imagine astate of affairs in the judiciary in which a judge regularly hears the cases but refuses to deliver judgements. (Incidentally, I know a judge who heard more than thirty cases while he was acting as ahigh court judge and delivered not a single judgement. But he was elevated to the supreme court for the eritorious services rendered to the administration of justice). Is there any authority to ask the judge to deliver judgements in such a context? Since, justice delayed is justice denied, how can an effective system of democracy tolerate such an inefficient judicial system?
The public do not know anything about the answers to the above questions. The public only knows that there is an entity named collegium that exists in the High Courts and Supreme Courts and collegium takes decisions on the mode of selections of judges in the Higher judiciary. The Collegium is an autonomous body constituted by the judges themselves to complete the process of selection ofjudges to the higher judiciary. The modus operandi of the functioning of the collegium is known onlyto the members of the collegium. It has been accepted as custom that, nobody can question the authority of the collegium because, the higher judiciary believes that, such an act of questioningwould afflict the autonomy of the judiciary as, judiciary must enjoy absolute freedom to protect thespirit of the constitutional validity. The term ‘absolute freedom’ does not mean unregulated freedombecause the basic principle of the constitution of India is that no person/institution/authority can enjoy unregulated freedom. There can be two types of regulations which are equally applicable to person, institution, and authority: regulation by an external agency and regulation by one self.
According to the Indian systems of thought, regulation by oneself or self-regulation is the best form of regulation. If a person/institution/authority practices self-regulation then, nobody would ever tryto regulate him or her by an external agency. If a person/institution/authority fails to practice self-regulation then, it is the duty of the society to impose rules to regulate them. Unregulated freedom is only another name for anarchy and anarchy annihilates order and creates chaos. Nobody/nothing, including the judiciary, can work freely in a chaotic context. Nobody can enjoy freedom in chaos because, only in an ordered society, the person/institution/authority can enjoy freedom and freedom is the essential precondition for theproper functioning of democracy. Hence, the components of democratic polity namely, legislature,executive, judiciary, and the media which, express the public opinion, should be regulated by rules,either self-imposed or prescribed by an external agency. The founding fathers of the constitution ofIndia envisaged self-regulated boundaries to each constitutional component of the democraticrepublic. The legislature is the constitutionally competent body to make laws based on the policy of the government in conformity with the constitution. The legislature is constituted by the electedrepresentatives of the people of India. As, people are the masters in a democratic polity, the masters must make the laws of the land. Since, the law is the supreme force in a democracy, the legislature makes laws to regulate the various functions to be discharged by the different components of thedemocratic polity. Exercising the powers conferred by the constitution, the parliament made anenactment to regulate the selection process of the officers in judiciary. But the act itself has been struck down by the Supreme Court declaring it as ultra-vires to the spirit of the constitution. The irony of the judgement is that the judiciary acts both as the judge and the litigant at the same time.
The judiciary is the competent institution to scrutinize the constitutional validity of the laws enacted by the legislature. Hence there is nothing wrong in the decision of the supreme court to declare the law as null and void.
Hence, the judiciary, at present, enjoys unregulated freedom in the selection of judges to the higher judiciary because, there is no law to regulate judiciary and there is no authority to prescribe laws andrules to regulate judiciary in the selection procedure of judges. It is in this context that the process ofself-regulation by the judiciary attains public attention. The judiciary must formulate rules by itself to regulate the process of the selection of judges and they owe the responsibility to make the rules public to relieve themselves from the sin of secrecy. Is it not the responsibility of the collegium to see that competent persons who possess legal acumen, logical sense and linguistic ability alone be selected to the bench from the bar to get verdicts having logical coherence and legal clarity, andlinguistic transparency? A judge, after his retirement from the Supreme Court, revealed that a certainpercentage of the judges in the judiciary were corrupt. He did not present any evidence tosubstantiate his allegation. If, considerable percentage of the judges in the judiciary are corrupt, as
alleged by the judge then, the collegium which selects the judges cannot escape from the responsibility of selecting corrupt-prone persons as judges. So, if inefficiency and corruption exist in the judiciary, it justifies the need of transparent and objective parameters to measure out the integrity and efficiency of the candidates considered for the position of judges.
It is advisable to make such parameters available to public notice to attain more credibility, reliability, and transparency in the selection procedure. The public have genuine doubts regarding the allegedfamily fiefdom that exists in the judiciary. The son of a sitting or retired judge may be the most suitable candidate to occupy the position in the higher judiciary. But in the absence of the publiclyknown parameters, that selection generates natural doubts in the minds of the people who are unaware of the selection procedure regarding the merit of the selected candidates. The public needsa logically satisfactory clarification from the part of the judiciary to clear out the doubts that whyjudges are being selected from the family of judges as a constant process. It is the merit of a personthat makes him competent to occupy positions in a democratic polity not the positions held or held by the members of his family makes him eligible and competent to occupy the positions.
Democracy maintains the principle of personal merit as the basic norm to get positions in society while monarchy believes in the heredity and tradition of the family as the criteria to get positions in society. The monarchy believes in the inheritance of power, wealth, and positions from father to son. Democracy provides space to the layman to become the ruler of the state if people select him as their leader. The rule of the family fiefdom deteriorates the quality of the regime in every field ofactivity because it minimizes the field of choice. The great poet Kalidasa narrates the deterioration and degeneration of the quality of the dynastic regime in his great epic poem, the RAGHUVAMSA. The poet narrates the saga of the kings of Raghu dynasty which, starts from the story of a great andjust king Dileepan and ends in the mis-reining of Agnivarna who immersed himself in unrighteous activities and witnesses the disintegration of the physical kingdom and the deterioration of the moral universe. This is the sad story of dynastic rule everywhere in any field. The judiciary also has to make
introspection to effect corrections to strengthen the process of democracy.