Concept Of Legitimate Power Of Reciprocity
While considering the issue of securing the independence of Judiciary, the Hon’ble Supreme Court, in the NJAC judgment titled as Supreme Court Advocates on Record Association and Another vs. Union of India, applied the so called “Concept of Legitimate Power of Reciprocity” to hold that the participation of the Union Law Minister in the process of selection of judges would be disastrous to the “Independence of Judiciary” (Para 310-315).
Hon’ble Justice Khehar held this and three of the brother judges concurred with him and thus the case was decided with a majority of 4:1. Hon’ble Justice Khehar in para 310 states that a little personal research resulted in the revelation of the concept of the “Legitimate Power of Reciprocity”. Referring to some articles/books written possibly by those associated with psychology, he also refers to an article written by a critic of the American system of appointment of judge. She claims that gratitude and loyalty can have powerful influence on a Federal Judge undertaking to decide a case. According to her, gratitude and loyalty were closely connected. A beneficiary could show gratitude to a benefactor through an expression of loyalty.
Having referred to these articles, the Hon’ble Judge states that, in the Indian Cultural System, moral obligation to reciprocate can be found in relationships of child and parents, teacher and taught, master and servant, and the like. He then states :-
“…In the existing Indian cultural scenario, an act of not reciprocating towards a benefactor would more often than not be treated as an act of grave moral deprivation. When the favour extended is as important as the position of judgeship in the higher judiciary, one would best leave it to individual imagination to determine the enormity of the reciprocal gratitude and loyalty.”
Thereafter, in para 315, he further states as under:
“315. The consideration recorded hereinabove endorses the view that the political-executive as far as possible should not have a role in the ultimate/final selection and appointment of Judges to the higher judiciary. Specially keeping in mind the enormity of the participation of the political-executive in actions of judicial adjudication. Reciprocity and feelings of pay back to the political-executive would be disastrous to “independence of the judiciary”. In this, we are only reiterating the position adopted by Dr B.R. Ambedkar. He feared that with the participation of the political-executive, the selection of Judges would be impacted by “political pressure” and “political considerations”. His view finds support from established behavioural patterns expressed by psychologists. It is in this background that it needs to be ensured that the political-executive dispensation has the least nexus with the process of finalisation of appointments of Judges to the higher judiciary.”
It is pertinent to mention here that in the NJAC case, the participation of political executive in the process of appointment of judges, was by way of its representation through one out of the six members i.e., Union Law Minister.
None of the Hon’ble Judges concurring with Hon’ble Justice Khehar, have commented upon these findings about the concept of reciprocity.
I am not concerned here with the ultimate outcome of the case, but I am really perplexed about the judicial acceptance of the aforesaid concept of reciprocity in relation to the appointees in judicial offices. Hitherto, the Hon’ble Courts itself have been holding that a person holding a judicial office must have traits as mentioned in some of the judgments discussed below:
The Hon’ble Apex Court in the case of R. C. Chandel v. High Court of M.P. and Ors has observed that:
37…A Judge must be a person of impeccable integrity and unimpeachable independence. He must be honest to the core with high moral values. When a litigant enters the courtroom, he must feel secured that the Judge before whom his matter has come, would deliver justice impartially and uninfluenced by any consideration. The standard of conduct expected of a Judge is much higher than an ordinary man. This is no excuse that since the standards in the society have fallen, the Judges who are drawn from the society cannot be expected to have high standards and ethical firmness required of a Judge. A Judge, like Caesar's wife, must be above suspicion. The credibility of the judicial system is dependent upon the Judges who man it. For a democracy to thrive and rule of law to survive, justice system and the judicial process have to be strong and every Judge must discharge his judicial functions with integrity, impartiality and intellectual honesty.
In D.K. Parihar v. Union of India , the Rajasthan High Court observed that:
31.Judicial office is essentially a public trust. Society is, therefore, entitled to expect that a Judge must be a man of high integrity, honesty and required to have moral vigour, ethical firmness and impervious to corrupt or venial influences. He is required to keep most exacting standards of propriety in judicial conduct. Any conduct which tends to undermine public confidence in the integrity and impartiality of the Court would be deleterious to the efficacy of judicial process. Society, therefore, expects higher standards of conduct and rectitude from a Judge. Unwritten code of conduct is writ large for judicial officers to emulate and imbibe high moral or ethical standards expected of a higher judicial functionary, as wholesome standard of conduct which would generate public confidence, accord dignity to the judicial office and enhance public image, not only of the Judge but the Court itself. It is, therefore, a basic requirement that a Judge's official and personal conduct be free from impropriety; the same must be in tune with the highest standard of propriety and probity. The standard of conduct is higher than that expected of a layman and also higher than that expected of an advocate. In fact, even his private life must adhere to high standards or probity and propriety, higher than those deemed acceptable for others. Therefore, the Judge can ill-afford to seek shelter from the fallen standard in the society.
32.In Krishna Swami v. Union of India, (1992) 4 SCC 605 : (AIR 1993 SC 1407), it was held by the Hon'ble Supreme Court that the holder of office of the judge of the Supreme Court or the High Court should, therefore, be above the conduct of ordinary mortals in the society. The standards of judicial behaviour, both on and off the Bench, are normally high. There cannot, however, be any fixed or set principles, but an unwritten code of conduct of well-established traditions is the guideline for judicial conduct. The conduct that ends to undermine the public confidence in the character, integrity or impartiality of the Judge must be eschewed. It is expected of him to voluntarily set forth wholesome standards of conduct reaffirming fitness to higher responsibilities.
33.To keep the stream of justice clean and pure, the Judge must be endowed with sterling character impeccable integrity and upright behaviour. Erosion thereof would undermine the efficacy of the rule of law and the working of the Constitution itself. The Judges of higher echelons, therefore, should not be mere men of clay with all the frailties and foibles, human failings and weak character which may be found in those in other walks of life. They should be men of fighting faith with tough fibre not susceptible to any pressure, economic, political or of any sort. The actual as well as the apparent independence of judiciary would be transparent only when the office-holders endow those qualities which would operate as impregnable fortress against surreptitious attempts to undermine the independence of the judiciary. In short, the behaviour of the Judge is the bastion for the people to reap the fruits of the democracy, liberty and justice and the antithesis rocks the bottom of the rule of law.
34.Thus :-
(i) Judges, like Caesar's wife, should be above suspicion.
(ii) Lord Hewart's observations made in R. v. Sussex Justices (1924) 1 KB 256 (259) that it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done, have to be kept in mind.”
The oath prescribed in the Constitution of India for a person who has to occupy a judicial office in superior judiciary reads as under :-
“IV
Form of declaration to be made by the judges of the Supreme Court
“I, A.B., having been appointed Chief Justice (or a judge) of the Supreme Court of India do solemnly and sincerely promise and declare that I will bear true faith and allegiance to the Constitution of India as by law established, that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or illwill and that I will uphold the Constitution and the laws.”
“VIII
Form of declaration to be made by the judges of a High Court
“I, A.B., having been appointed Chief Justice (or a judge) of the High Court at (or of) do solemnly and sincerely promise and declare that I will bear true faith and allegiance to the Constitution of India as by law established, that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or illwill and that I will uphold the Constitution and the laws.”
If a person to be appointed to a Judicial Office, according to the Hon’ble Supreme Court, by human nature would reciprocate to its benefactors then what kind of independence of judiciary can one hope to achieve. Whether the traits of a judge which the Courts have pronounced must exist, are merely sermons for the impossible and whether the oaths taken under the Constitution are merely ceremonial.
The Hon’ble Justice Khehar, by making the concept of Reciprocity as the basis for holding that a person taking favour from a minister in political executive at the time of appointment would certainly compromise the independence of judiciary in a judgement having binding effect upon the whole nation has, as a matter of fact, declared that there is no possibility or hope for the independence of judiciary. The effect of such a judicial pronouncement is that the people cannot legitimately expect that the judges would invariably decide cases without fear or favour because they will not be knowing as to whose favour the judge would be required to reciprocate and when.
The claim that the judiciary can be hoped to be independent only when the appointments are made by the judiciary itself would also be a myth, in the light of this pronouncement, as it has not been explained as to why this concept of Human Weakness would not apply to the nominees for appointments, whose cause has been pushed or confirmed by the judges. Even in the case of the Collegium System, if the matter is routed through various levels of the Executive, it has not been explained as to why there would be no situations when a person whose name has been recommended would not be receiving favours from the Executive, during this process, which he certainly will have to reciprocate. The Hon’ble dissenting judge has quoted Hon’ble Justice Ruma Paul and Hon’ble Justice Krishna Iyer to say this:
“1221. Transparency is an aspect of rationality. The need for transparency is more in the case of appointment process. Proceedings of the Collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks. Justice Ruma Pal is on record—
“Consensus within the Collegium is sometimes resolved through a trade-off resulting in dubious appointments with disastrous consequences for the litigants and the credibility of the judicial system. Besides, institutional independence has also been compromised by growing sycophancy and ‘lobbying’ within the system.” [ “An Independent Judiciary” — speech delivered by Ms Ruma Pal, J. at the 5th V.M. Tarkunde Memorial Lecture on 10-11-2011]
1222. One beneficial purpose the induction of representatives of civil society would hopefully serve is that it acts as a check on unwholesome trade-offs within the Collegium and incestuous accommodations between Judicial and Executive Branches. To believe that members of the judiciary alone could bring valuable inputs to the appointment process requires great conceit and disrespect for the civil society. Krishna Iyer, J. cautioned—
“74. … And when criteria for transfers of Judges are put forward by the President which may upset past practices we must, as democrats, remember Learned Hand who once said that the spirit of liberty is ‘the spirit which is not too sure that it is right’. That great Judge was fond of recalling Cromwell's statement: ‘I beseech ye in the bowels of Christ, think that ye may be mistaken.’ He told a Senate Committee. “I should like to have that written over the portals of every church, every school and every court-house, any may I say, of every legislative body in the United States. I should like to have every court begin ‘I beseech ye in the bowels of Christ, think that we may be mistaken.’ (Yale Law Journal: Vol. 71 : 1961, November part).” [Sankalchand case, (1977) 4 SCC 193, p. 255, para 74.]”
It has also not been explained as to why this Principle of Reciprocity will apply only when one seeks favour at the time of appointment as a judge. What about the favours one receives throughout his life and on hundreds of occasions, when needed by him. Why the man occupying the august office of a judge would reciprocate the favour given by a person belonging to political executive, at the time of his appointment, and would forget all the favours received by him, prior to that, in his life and may continue to receive subsequent to his appointment, if needed in a given situation.
I believe, the Hon’ble judges already gave several reasons for striking down the 99th Amendment in the Constitution and the NJAC Act, 2014. I fail to understand, the compulsions under which the concept of Reciprocity needed a judicial acceptance in a matter of such crucial importance and the acceptance of which has likely impact of tarnishing the image of the entire judicial system. This Principle of Reciprocity, when accepted in a judicial pronouncement of the Apex Court, certainly shakes the faith of people in the independence of those occupying a judicial office.
It would be important to note that:
Firstly, there was nothing to suggest about the authenticity of opinion relied upon, to accept it as universally applicable concept for all human beings in all situations, so as to qualify for being a judicially accepted principle to test the validity of any legislation or Constitutional Amendment. Secondly, there is no discussion about the impossibility of this human nature being overcome by individuals while performing a given duty and particularly with reference to the judicial functions. Thirdly, when the Hon’ble Judge refers to Dr. B.R. Ambedkar’s opinion to justify the invocation of the Concept of Reciprocity, with regard to the political Executive, he fails to mention that the same was also said by Dr. Ambedkar, while referring to the Hon’ble Chief Justice of India.
Fourthly, when in para 309, the Hon’ble Judge expresses his dismay about the observations of Dr. Ambedkar, as to the Chief Justice of India also being a man with all the failings, he could not fathom that these observations were with reference to his administrative Constitutional functions and did not relate to the judicial functions of any judge.
Fifthly, it did not occur to the Hon’ble Judge that as per established pronouncements of Hon’ble Supreme Court itself, the man while discharging judicial duties can overcome all the human failings.
Lastly, to add insult to injury, the Hon’ble Judge, after propounding this concept of Reciprocity, also brought in the principle of bias qua the entire political executive and also the availability of plea of conflict of interest to the litigants, which is beyond the imagination of any one knowing something about these principles.
What is more interesting is that the Hon’ble Judges, dissenting with the dissenting Hon’ble Judge, did not say a word about the questions he posed in the first paragraph of his judgment, which are reproduced as under:
“Jasti Chelameswar, J. (dissenting)— We the members of the judiciary exult and frolic in our emancipation from the other two organs of the State. But have we developed an alternate constitutional morality to emancipate us from the theory of checks and balances, robust enough to keep us in control from abusing such independence? Have we acquired independence greater than our intelligence, maturity and nature could digest? Have we really outgrown the malady of dependence or merely transferred it from the political to judicial hierarchy? Are we nearing such ethical and constitutional disorder that frightened civil society runs back to Mother Nature or some other less wholesome authority to discipline us? Has all the independence acquired by the judicial branch since 6-10-1993 been a myth — a euphemism for nepotism enabling inter alia promotion of mediocrity or even less occasionally—are questions at the heart of the debate in this batch of cases by which the petitioners question the validity of the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014 (hereinafter referred to as “the 99th Amendment” and “the NJAC Act”, for the sake of convenience).”
Further, three of the Hon’ble Judges (a majority) have expressed that everything is not well in the Collegium system and it requires relook.
I believe that every human being has instinctive qualities bestowed by the nature and certain innate weaknesses. Life of a person itself is a continuous process of evolution; it is making endeavour to overcome the weaknesses and to inculcate what is treated as virtuous. There is no natural weakness, which a person cannot overcome, when he has a duty to perform. Every duty has its distinct demands and there is no dearth of people in this country, who can resist every kind of allurement, if the duty assigned, demands it. It is the sense of duty, which distinguishes a human from animal. It has aptly been said:
“आहार-निद्रा-भय-मैथुनं च समानमेतत्पशुभिर्नराणाम् ।
धर्मो हि तेषामधिको विशेषो धर्मेण हीनाः पशुभिः समानाः ॥
हितोपदेश श्लोक २५”
(Eating, sleeping, sex, and defense—these four principles are common to both human beings and animals. The distinction between human life and animal life is "Dharma")
May everyone know the “DHARMA”.