Judgments and Decision making

A decision made by a judge issues out as a judgment. Judges are also human beings. Therefore, they go through the same decision-making process as anybody else.

It is common knowledge that a banker first decides to lend or not to a particular borrower and then the credit proposal or justification for sanction / rejection is phrased accordingly. This is the reason why many loans are born out of impressions. While arriving at decisions affecting others, we always go by perceptions or impressions about others. This normal sequence involved in decision making, that is conclude first and then reason it out, may appear to be putting the cart before the horse. But it saves a lot of time and avoids prolonged haziness or dilemma.

In the court of law, there is bound to be adversarial interpretations about the crucial 'facts'; hence, perceptions of the presiding judge becomes significant. In the Jayalalithaa appeal case, the Karnataka High Court judge Mr.Kumaraswamy has drawn extensive support from a 1977 Supreme Court decision in the matter of Krishnananda Agnihotri vs State of M.P. This case dealt with amounts less than Rs.2 lacs of disproportionate assets. The Supreme Court found that assets were out of proportion to known sources of income by a marginal amount which was less than 10% and therefore the accused was held not guilty. Justice Kumaraswamy considered this a relevant precedent whereas another judge having a different perception about Jayalalithaa or politicians in general might have dismissed this case as irrelevant in view of incomparable amounts.

If there is an appeal in the Supreme Court, we do not know what the apex court will say. But we know for sure that perceptions will play a major part there also. In essence, it appears tricky to side with the sessions judge or the High Court judge. It is however entertaining to hear Karunanidhi quote Mahatma Gandhi ("there is a higher court namely the conscience") or Kushboo ask how Jayalalithaa can get sleep!

Credibility of news reports

A news agency report claims:

"AIADMK MPs distribute sweets: AIADMK MPS in Parliament are distributing sweets after Jaya's acquittal. In Chennai, celebrations outside Jayalalithaa's residence, supporters dance and burst crackers. Celebrations also inside Courtroom 14 after charges against Jayalalithaa are dropped. The court has also acquitted co-accused, N Sasikalaa, J Elavarasi and V N Sudhagaran.

: Experts and political commentators say that there is no doubt that J Jayalalithaa will return as the chief minister of Tamil Nadu, reports rediff.com. The only question is when she will takeover. Today and tomorrow are Ashtami and Navami, both auspicious days, which she may want to take advantage of."

This probably is the first time that one comes across ashtami and navami as auspicious days. So much for the research of news agencies.

"Live and let live" judiciary

In September, 2014, a special court in Bangalore sentenced Jayalalithaa to four years of rigorous imprisonment and levied a fine of Rs.100 crore. The Hindu claimed  'Despite the protracted and tortuous course that the legal process took in this case, justice seems to have been finally done.' 

In May 2015, the Karnataka High Court upholds Jayalalithaa's appeal against the judgement of the special court. Evidence is the same. Two judges reach diametrically opposite conclusions. Judges are human and therefore are pliable. Judgements depend on prejudices, ideological / political predilections and, sad to add, venality of judges. It is no wonder that the common man has lost confidence in the judiciary as a bulwark of justice.

Only one thing is clear. A poor unfortunate person is a victim of judicial vagaries whereas the rich can exploit the same vagaries till they get relief. Salman Khan and Jayalalithaa will be protected by the court whatever be their infraction; the poor will be punished even if they are law-compliant. Indian judiciary has been captured by the rich and the powerful.

British elections

The Conservatives have become the majority party on their own in the House of Commons. Like Indians, the British voters have pooh-poohed the rule "Once a coalition, always a coalition'.

David Cameron did his party proud by not allowing the erstwhile alliance partner, the LibDems, to dictate terms to him or to the Conservative party. Consequently, the Liberal Democrats could not deliver all that they promised in the 2010 elections. There is no surprise therefore that the voters rejected the Liberal Democrats. The Labour party was trounced in Scotland and hence was only a poor second to the Conservatives.

David Cameron did not trivialise politics by indulging in 'coalition dharma' a la Manmohan Singh. Cameron was not overly attached to power and hence could do what was good for the country. This year's budget was not a populist one and the prime minister did not ask his Chancellor of Exchequer to sugar-coat any of his proposals. One can expect David Cameron to handle emerging problems like retention of Scotland in Great Britain (in the light of Scottish National Party's phenomenal success in Scotland), the country's continuance in European Union etc. with similar elan.

Dhritharashtra was so enamoured of power that he did not hesitate to tolerate immoral and unethical activities by his sons and associates. Manmohan Singh, having tasted the charm of prime-ministership, was prepared to ignore any illegality perpetrated by his alliance partners and was more than willing to be a sycophant to the Gandhi family. He cared more for comfort than for honour. David Cameron followed a more desirable path.

Leaders of the Labour party and LibDems have accepted their responsibility for their defeat and have resigned. So has the leader of UKIP. They do not belong to the Gandhi family and so are not averse to owning responsibility. But there is no meaning in blaming the Gandhis when the Congress party with so many capable individuals finds nothing wrong in being led by them.

Salman Khan

Justice has the habit of catching up so late that people start wishing away justice and developing sympathy for the guilty. Justice delivered after 13 years of occurrence of the grievous misdeed of Salman Khan is a classic example.

The 2002 hit-and-run case perhaps marked a watershed in the actor's life. He is supposed to have become philanthropic after that. His brethren and sistren in Bollywood have expressed their support to him though it is difficult to know how sincere their support is. Non-expression of support may anger the actor.

The sessions judge has upheld all the charges including culpable homicide not amounting to murder. Salman Khan has not confessed and even after the judgment, he told the judge that though he was not driving the vehicle, he would abide by what the judge said. His driver, Ashok Singh, in a belated move 'confessed' that he was driving the vehicle when the tragic incident occurred. Ashok Singh should be tried for perjury so that it will deter others from resorting to this ruse. Could Ashok Singh have been so masochistic in the absence of consideration from the actor?

'Able' lawyers are of course (off course may be more meaningful) there to keep Salman Khan away from prison.

What do we need: Judicial oversight or judicial activism?

Justice Kurian Joseph does not hesitate to express his views however extreme they may be. Delivering the 5th Lala Amarchand Sood Memorial Lecture on Judicial Legislation in salubrious Shimla, he asserted that

"Judicial activism is our duty against legislative adventurism" and went on to pronounce that  

'Courts dare and ought to say what the law is and what the law should be’. Legislature and executive may claim they are activist and it is judiciary which is adventurist. Though discussions are welcome, this rhetoric will only fan further polarisation of views. One of the desirable qualities in a judge is circumspection. It is not incumbent on a judge to be vocal about all his opinions. Perhaps the topic of the memorial lecture provoked the irascible judge. We need more judicial oversight rather than activism. (Oversight has two meanings and it is not necessary to stress which meaning is implied here.)

In a recent judgment of the apex court, Justice Kurian Joseph has been candid in declaring that misplaced sympathy will give room to suspect institutional integrity. His declaration that leniency for corrupt officials will weaken judiciary is unexceptionable. It is interesting to note that though a pious Christian, he transcended his religious dogma and concluded that there is no scope for reform of an official convicted of corruption.

All said, Kurian Joseph is a fertile source for many spirited discussions.

National Judicial Appointments Commission (NJAC)

The Supreme Court is now hearing the case relating to appointment of judges in the High Courts and the Supreme Court. The Collegium system is in vogue now under which the names for filling up the vacancies are recommended by senior judges of the apex court and approved by the executive.

The executive wanted a greater role in judicial appointments and thus NJAC was sought to be formed. Requiring the court to sit in judgment over legality of NJAC is prima facie odd since the judiciary will not willingly let go its autonomy over appointment of judges. Whatever else may or may not be the ills of judiciary, it is never free from possessiveness. Some of the observations made by the 5-judge Bench hearing the case are a cause for concern.

The cosy club of judges does not want to give up the sole right to appoint their brethren and occasional sistren. It is strange but enlightening to hear the following confession from Justice Khehar who is heading the Bench: "The collegium, when it selects a name for appointment as judge, looks at only the candidate's judicial capability. It is left to the executive to do a profile check on the candidate's moral and professional integrity." Has he deliberately scored a self-goal? Does he expect the executive to be more concerned about the ethics than the judiciary?

The Bench has asked the attorney-general the following :

“How many names were recommended by a high court collegium but the Supreme Court returned them on the ground of doubtful integrity… How many names were referred by the Supreme Court collegium but the government returned them on the ground of doubtful integrity… How many names were sent back by the Supreme Court collegium after the government returned them on the ground of doubtful integrity?”

Is this information not available with the court? Is doubtful integrity such an open and shut case that it is transparent for the whole world to see and be unanimous about?

Prashant Bhushan has opined that NJAC may be as bad a system as the collegium. He may be cynical, but he seems to be clairvoyant too. If we are unable to trust either judiciary or the executive, the situation is rather grim.