A commoner’s view on SC elevations

The controversy surrounding the elevation of judges to the Supreme Court, has not left the common man unruffled

He stands a trifle confounded. The controversy surrounding the elevation of judges to the Supreme Court, while it has taken the legal fraternity by not an unparalleled storm, has also not left the common man unruffled. Consider this old, time wizened, once farmer, now residing with his son who practises law in the tehsil kutcheri. TV educated he retains his earthy wisdom.

Wouldn’t the layman in the village or in the city street not be understandably befuddled at observing such a great deal of fuss being created at how, as his lawyer son tries to explain in common parlance, new members to empty slots of the highest panchayat of the country are to be selected.

He asks his boy in visible trepidation: “But are the time tested and generally accepted fair considerations not enough for selection of men of provenance who judge and decide disputes? There should be no difficulty in finding men of tested experience, acknowledged brains and proven honesty from which to choose those adept at dispensing fair justice among the people. We have often selected, with much less row, such persons in communal jirgas benefitting from the aggregate wisdom of all.”

A quizzical furrow spreads over the old man’s brow enquiring under slow breath: “Maybe the wise old sarpanch is getting ideas of leaving a legacy behind. He remembers instances of desires for creating and leaving behind malleable apni panchayats in discrete deference to the concerns of the area chaudry.” He shakes his greying head as things do not seem to settle into easy comprehension.

The man in the village or street may not understand ponderous legalese, yet he is sure he has heard and lived it all over his long laborious years. His lawyer son tries explaining in plain language the pretentiously somber legal maxims being bandied around by men in black robes and gowns. He listens carefully but is not overly overawed for they seem to be common old homilies garbed in grandiloquent nonsense, he grumbles.

His son garbles out a cryptic mumbo jumbo : ‘justicio fiat ruat caelum’ which his aspiring lawyer brood explains means, ‘justice must be done even if heavens falls’. That Ceaser’s wife is not keen to acquit herself above suspicion does not amaze him from personal experience nor that justice is not a clossetted virtue. He is not at all impressed hearing that justice must not only be done but seen to be done.

Things have over time fallen into sad decrepitude, the benign rustic ruminates. The bull of democracy, long encaged, hurtles and careens in the street not used to walking by itself. Restraint has been cast out of the window like a bucket of dirty water, he rues. But yet there is a sense in which he feels sanguine and assured. He can live out his remaining years, he hopes, in the calm certainty that a fair system of justice shall prevail providing peaceful satisfaction that his encroached patch of land will be restored to him while he is still alive.

In the recent controversy surrounding nomination and appointment of judges to the Supreme Court the common man has understandably experienced consternation. He is nonplussed as to how the most illustrious of legal personages in the land, to whom he and others look towards as the last repository of justice and fairness, have not been able to agree upon an acceptable and transparent manner of filling of vacancies in the highest judicial forum. He has witnessed with growing concern different arguments being thrown around in hot contention, creating a sense of uncertainty at a level of decision-making where he expects reassurance, strength and equanimity. It is at that level that of the common man in the village, town or city, that each institution of state in a democracy must derive its rudder, ready acceptance and legitimacy.

The present debate revolves around questions of both who will make the nominations and on what basis or criteria. There have been arguments for and against the practice of unqualified discretion opposed to seniority. Some have spoken for clear criteria to be laid down before the elevations are made, while others have proposed each member of the JCP to recommend one name for each of the vacancies and selection being made on whoever secures highest number of aye votes.

The layman’s mind is jumbled up with various ideas. Inexplicable questions arise. Is there no way, our commoner ruminates, that all the so many wise SC high judges, in concert with the chief justices of all high courts representing the highest legal minds in the country, of incomparable talent and probity, through mutual consultations, can evolve formulae or rules that are acceptable to all.

The old man’s son reminds that we could take a leaf from other democratic countries where, in certain cases select number, say five, of the senior most judges make the initial recommendations rather than the sarpanch singlehandedly bearing this great burden of a responsibility, opening him up to chances of questioning of his decisions by others. Human judgement with all its wisdom and care can be best protected from avoidable fallibility by the collective wisdom of a multiplicity. Recourse to such procedures would help in removing doubts, add to transparency and accrue in bestowing unquestioned stature, dignity and credibility on the newly elevated justices.

The extent to which the highest organs of state in a society are perceived to be in observance of principles and values of justice through transparency has an unmistakable impact upon the community. Such norms filter down into and shape society.

While the role of the legislature, the executive, political parties and the media cannot be discounted, the prominence of the judiciary in creating a rule observant society cannot be overstated.

Openness to rational and temperate debate, to which legal minds, academia and civil society contribute, upon issues relating to the ideal procedure for elevation of judges to the highest judicial pedestal, is eminently healthy and reformative. And so is the contribution of our dear old countryman, the commoner. For in the last resort it is from support and willing acceptance of him and his likes that the whole structure of governance and justice obtains its validation.

Published in The Express Tribune, October 15^th, 2022.

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