Independence of judiciary A political concept

Dr. Shahdeen Malik
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Our colonial heritage of law often obscures the fact that justice, after all, is a political concept. For the colonisers, it was imperative that they present a benign version of the legal system introduced in India and that necessitated the ideology of 'neutral and impartial' justice.

However, the notion of justice includes both 'neutrality and impartiality' as well as bias and partiality. This bias and partiality inherent in any notion of justice make it a political concept a dimension which often escapes our attention. This un-attention to the political dimension of justice stems from our colonial heritage of learning and understanding law and justice.

The colonisers repeatedly insisted that laws and the legal system introduced and established by them were non-political and were founded on 'neutral and objective' morality. The acceptance of their characterisation of 'neutral and objective' was the essential pre-condition for the acceptability and functioning of laws and the legal system. In other words, if the laws and the legal system were not perceived as 'neutral and objective', but were seen as manifestations of a political ideology, these would not have been acceptable and, hence, effective.

A good present-day analogy would be the notion of the Care Taker Government. The notion and the introduction of the Care Taker Government were grounded on the perception that a retired Chief Justice and the Advisors chosen by him would be neutral and non-partisan. Neutrality and objectivity of the Care Taker Government were central to its acceptance and functioning. If it was not presumed or accepted that such a government would be neutral and objective, it could not perform the primary designated function, i.e., conduct a general election fairly and without bias.

Now, within less than a decade of the introduction of Care Taker Government, the initial assumption of 'neutrality and objectivity' is being questioned, particularly by those who introduced and struggled to realise the idea. Questions and doubts about the underlying premise, i.e., a retired Chief Justice and Advisers chosen by him would be 'neutral, non-partisan and apolitical, are no longer taken as axiomatic. In other words, it is being increasingly realised that political ideology and bias can impinge and the institution (Care Taker Government) can be political.

Law and justice are but expressions of political ideology. This simple fact often escapes our attention primarily due to our colonial heritage. The issue of the independence of judiciary, a core notion in the functioning of the legal system, therefore, is also a political issue and resolution of this issue hinges on political considerations and conflation of political forces.

The fact that neither the last government (concededly over a lesser period of time) nor the present one has taken any meaningful measure for realising the independence of the judiciary in terms of the directives of the Mazdar Hossain judgement needs to be understood and underscored in political terms, rather than by some vague notions of justice and just order.

Since law, largely, is politics, any major change in the legal order is, almost by definition, a change in the political order as well. And a change in the political order is a "political issue" to be resolved by the political forces.

The independence of the judiciary has mostly been perceived as a 'legal' issue and, therefore, agitated most by persons concerned/connected with legal issues, i.e., the legal community lawyers. Lawyers are, and have been, important in the political arena, but they are not the central political forces. Since the issue of the independence of the judiciary is a central political issue (in understanding law as largely politics), the efforts of lawyers, without the direct, meaningful and forceful involvement of the political forces, have so far remained unrealised.

The political parties safely label the issue of the independence of judiciary as a legal issue, and, thereby, succeed in skirting it. Similar to the colonial powers, the political parties can and have taken recourse to 'neutrality and objectivity' of the legal system to deny the politics in law and justice and left the issue to lawyers and the legal community to resolve.

Unless and until the issue of the independence of the judiciary is accepted as an issue of politics, of political rights essential for the realisation of other fundamental rights, our judiciary would remain un-independent and un-separated from the (political) executive.

One aspect of the issue of appointment of judges is being resolved. Following the directives of the Mazdar Hossain judgement, it now seems that the government is finally going to create the Judicial Service Commission. The government seems to have ran out of options for delaying the creation of the Judicial Service Commission, particularly in view of the embargo put on the Government regarding the appointment of judges by the Public Service Commission. This embargo was brought about by a public interest litigation to realise one aspect of the directives of the Mazdar Hossain judgement, i.e., appointment of judges of the sub-ordinate judiciary (district court) by an independent Judicial Service Commission, instead of the Public Service Commission.

However, the other aspect of appointment of judges, i.e., judges of the Supreme Court, remains unresolved. In the wake of numerous non-confirmation of additional judges as judges of the High Court Division of the Supreme Court in recent times, cases were filed to challenge the current procedure of 'confirmation' of judges. The issue of confirmation is an issue of appointment of judges.

Appointment of judges of the highest court has also become a domain of separate judicial commissions in the neighbouring countries. Judges of higher courts in the neighbouring countries are now appointed by commissions consisting of senior-most judges of the highest judiciary. The President does retain the power of appointment, but such power is notional only as the selection is done by these commissions and the Presidents in the neighbouring countries do not have the power to over-ride or veto the recommendations of the commissions. Sooner or later we would have to go down that path as well.

Again, whether the political parties would retain the power of appointment of judges of the highest court or would give away that power to other bodies or commissions is also a political question a question of political power. Hence, the resolution would have to proceed from political quarters as well.

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Dr. Shahdeen Malik is an Advocate of the Supreme Court.