A constitution bench of the Supreme court has reserved orders on the ‘review’ of Suresh Kumar Koushal vs. Naz Foundation, by which a bench of two judges of the Apex court had set aside the orders of Delhi High court holding Sec.377 IPC- criminalizing gay sex- was unconstitutional.
Was the judgment born of ‘personal and family values’ of the learned judges? It was called regressive and a step backwards towards the LGBT (Lesbian, Gay, Bisexual and Transgender) equal rights and recognition. The Court should have taken a ‘liberal’ view and legitimized homosexuality, ran the critique. The top court has also reserved orders on the Sabarimala entry issue. Many more of such genre, are in the pipeline. Time then to debate on the ‘biases and prejudices’ based on the ‘value systems’, the judges are believed to have grown up with.
“Let me be clear, unequivocally and under oath: Not once in my 26 years of defending my nation did my personal opinions impact any official action I took,” Peter Strzok, deputy director of FBI, USA,( since removed) said in an opening statement at a public hearing in Congress.
Strzok was removed from heading the investigation, when Robert Mueller, special counsel going into the Russian interference in Trump campaign, found out about thousands of private text messages, some of which showed disdain for Donald Trump, sent to Lisa Page, a former FBI lawyer with whom he was allegedly having an affair.
The whole of America was gripped by the ten-hour testimony of Strzok, in which the Republican Congressmen, tore into his SMSs sent to his girlfriend. This, despite the Inspector General of Justice Department having concluded that Strzok had ‘conscientiously performed his tasks both in the Hillary Clinton email probe and Trump enquiry and there was no element of bias or prejudice in his professional role and there was no impact in the investigation process or the end result in the Clinton e mail probe’.
The debate in America is not whether the FBI is the handmaiden a.k.a. caged parrot of the Government of the day. For, it is Donald J Trump who is the commander-in-chief. The debate is on ‘Whether individuals such as Judges, policemen, FBI and Intelligence personnel can function professionally, ignoring their personal biases and prejudices ingrained in them from their upbringing in growing years? A very loaded and pertinent question in our midst too.
We had the spectacle of the nomination of Chief Justice K.M. Joseph, Uttarakhand High court, being ‘stalled’ by Modi government presumably due to the embarrassing verdict, authored by him in restoring Congress Government, which was dislodged. Equally, we have the tug-of-war in the finalisation of the ‘Memorandum of Procedure’ between the Collegium and Union of India, to ‘have the upper hand or right of refusal’. All for what?
It is oriented towards ‘managing’ the appointments, and it arises primarily from the known expectation that Judges are ordinary men and women with disclosed philosophies and their decisions from the bench are likely to reflect it. The Congressional confirmation hearings, in US, are premised towards dwelling deep into the ‘philosophies’ of the nominees, be it to Judgeship or FBI et al. In India, we do not have any such ‘process’ in place but it all takes place hush -hush from intelligence gathering, which is expected to be intelligent in its gathering.
Recall the old saying, “can a good lawyer be a good person, which is truly at the heart of the moral inquiry into the ethics of lawyers?’ Telescope this enquiry into Judges, whether a good Judge is a good person and whether his professional decisions “are based on his moral or religious values or political and cultural beliefs?” Honest Judges have always admitted that ‘they carry their baggage to the bench’. But lesser mortals among them claim to “have the magic wand to disengage themselves of such baggage”. That is a moral and philosophical debate, which may never end and so be it.
On reading the judgments reported in Media, you can hear the ordinary folk say, “typical of the Judge. He is known to have a heart for the poor and oppressed.” or “the Government is berated yet again, for the Judge is anti -establishment to the core”. Well, the corridors, as Motilal Setalvad, India’s first Attorney General said, are full of “stories and anecdotes and experiences exchanged among the practitioners as to whether to move an application of a genre before this bench or that for a favourable turn?”
Justices Oliver Wendell Homes, Benjamin Cardozo - (“Judges do not stand aloof on these chill and distant heights: and we shall not help the cause of truth by acting and speaking as if they do. The great tides and currents which engulf the rest of men, do not turn aside in their course, and pass the judges by”) -, Denning, Krishna Iyer and the like, openly confessed that they had their “philosophies from growing up which inevitably sat with them on the bench, yet they always kept them in a tight leash, but their decisions alas, always betrayed them”.
If that be so, for the giants they were, it would be impossible for those who followed them to be devoid of it. To put it simply, in Justice Holmes’ words “the law is the witness and external deposit of our moral life’.
Neither the Judges nor the Police or investigative personnel can claim to be angels from beyond that they can insulate themselves totally from their ‘personal biases, prejudices’ and perform professionally as if from a cocoon. No, not possible. More correctly, We The People ought to know better.
Even as the Judges take their oaths to defend the Constitution, it must be accepted as not totally divorced from their ‘biases and prejudices’ too. We expect them to do by their ‘conscience’ despite their ‘biases and prejudices’ and not be driven by it, ‘but never ever without an overhang of it when they decide ’as Lord Denning confessed.
Eighty years ago the great American trial lawyer Clarence Darrow observed that: “Jurymen seldom convict a person they like, or acquit one that they dislike. The main work of a trial lawyer is to make a jury like his client, or, at least, to feel sympathy for him; facts regarding the crime are relatively unimportant.” Similarly, United States Judge Jerome Frank asserted that “Mr. Prejudice and Miss Sympathy are the names of witnesses whose testimony is never recorded, but must nevertheless be reckoned with”.
To clarify, the ‘bias and prejudice’ one is alluding to is not ‘impartiality’. But ‘feelings, emotions, family values rolled up in the DNA of any nominee’. Truth to tell, it would be impossible to be totally immune to them, for after all ‘judges are as human as they come’ as Justice Hand put it.
As the debate in America rages on, we in India would do well to remember that be it judges or policemen, or those in positions of power, are humans with their ‘biases and prejudices’ too, but they rise to ‘greatdom’ when their professional decisions are driven by ‘conscience’ which has the training and resolve to overwhelm ‘biases and prejudices’. True?
(Author is practicing advocate in the Madras High Court)...