ACCESS TO justice is basic to human rights and Directive Principles of State Policy become ropes of sand, "teasing illusion and promise of unreality", unless there is effective means for the common people to reach the court, seek remedy and enjoy the fruits of law and justice. Undeniably, the most strategic office in the overall scheme of governance of the country is the Judiciary. How judges are appointed, functionally trained and disciplined, transferred and elevated, surely become a matter of national concern. Forensic supremacy and operational independence emphasise the necessity for making the selection of the `robed brethren' a matter of transparency and for some form of public opportunity to know and be heard. An old Roman adage runs: "Whatever touches us all should be decided by all." Not in that extreme elective form as in some States in the U.S. but in a manner that involves some participation, publicity and surrogacy, which brings into the process of choice of judges an element of democracy.

The judge interprets and applies the Constitution and the laws in cases coming before him or her. The Constitution enshrines a social philosophy, an economic radicalism and political perspective, which form its soul. Its Preamble speaks for the millions who hunger for justice social, economic, and political. Its diction is grand and proclaims a solemn promise. Its bells toll for "the butcher, the baker and the candle-stick maker" (Justice Vivian Bose), the bonded labourer, the shelterless sister, the hapless tribal and victim of torture. "We, the People of India," whose voice the Constitution projects in vibrant print, demand of the judges to transform the social order by hermeneutic declarations and decisional directions.

Once we grasp this puissant authority judges command in case after case we realise how exalted their fiduciary office is, how profound the confidence vested in them to make the text of the Constitution shape the dimensions and direction of the nation's development. A feudal society, a colonial system, a class-riven, cast-ridden, communally lunatic humanity steeped in medieval, unequal ethos, was India before Independence. The revolutionary task of the judicial instrumentality was to promote a Sovereign, Socialist, Secular, Democratic, Republic. Under Article 144 all authorities, civil and judicial, in the territory of India, shall act in aid of the Supreme Court. Every judge in India vicariously shares this immense authority and responsibility.

So it follows inevitably that every judicial personality who is to fill the high office must be an activist who shares the vision, the mission and the passion of the value-packed Constitution. Judges, after all, are under the Constitution not over it, activist, not inert, teleologic, not lexical.

Here comes the most crucial issue. When you look for a judicial candidate what credentials, what antecedents, what abilities, what professional inclinations and social philosophy do you consider as relevant? Theodore Roosevelt in his Presidential message to Congress (December 1908) wrote in prophetic ink what holds good for India as well: "Every time they (judges) interpret contract property, vested right... they necessarily enact into laws parts of a system of social philosophy... The decisions of the courts on economic and social questions depend on their economic and social philosophy."

His own idiosyncrasies may deflect his judgment away from the socialist, secular, democratic and people-oriented fundamentals of the Constitution. A judge, true to his oath of office, has to be free from fear or favour, affection or ill-will. These qualities demand a degree of integrity, intelligence, independence and impartiality, with considerable commitment to the constitutional philosophy of which he is the catalyst. In this context, it is not inappropriate to quote Lord Justice Scrutton in an address delivered to the Cambridge Law Society (1920):

"Where are your impartial Judges? They all move in the same circle as the employers, and they are all educated and nursed in the same ideas as the employers. How can a labour man or a trade unionist get impartial justice? It is very difficult sometimes to be sure that you have put yourself into a thoroughly impartial position between two disputants, one of your own class and one not of your class." (P-173 : Politics of the Judiciary)

Professor Griffith shared the view that judicial selection is often from an elite class and their perspective is alienated from the common people and their lot. Justice Cardozo, in his classic work `The Nature of Judicial Process', suspects the subconsciousness of the judge often influences him in arriving at conclusions. Judges, being human, cannot escape their personal prejudices and political tendencies. Therefore, it is imperative that while handpicking a judge special attention is paid not merely to his lucrative practice or academic attainment or seniority as District Judge but to his antecedents as a man, his social philosophy as a member of the society, his general outlook on public affairs and his incorruptible past as well as freedom from vices. His belonging to an affluent group may give him influence, which is a negative factor and his belonging to an underprivileged group is prone to shape his sympathy with the common people.

In the past, judicial selection has often ignored these important considerations. On the contrary, `merit' is often confused with large practice at the Bar, with big corporations and landed gentry as clientele, or high connections and dynastic links as favourable factors. Prof. Ghouse once wrote a pamphlet to establish his thesis, with copious instances, that judges of the Supreme Court, during the span covered by him, were the conscience-keepers of the propertied classes. The blame is not really on their performance but on the lack of scrutiny of their appointments which later manifests as disappointments vis-a-vis social justice, privy purses of princes, nationalisation of industries, gender justice, environmental protection, the defence of the humbler sections of society and their `right to life', including food and shelter and other basic needs, and equal opportunities.

Some persons are apt to be arrogant or likely to be of intemperate habits or moving in bad company. On the Bench, they may prove to be gross misfits. An `unruly horse', with robes on, may be difficult to deal with or remove. So it is of paramount importance that the candidate must be carefully, circumspectly and comprehensively autopsied before elevation. The vast and versatile spaces of constitutional law, which challenge the pro-mono inclinations of judges, and the expanding horizon of public interest litigation with its developing jurisprudence make the judge a key actor in the fulfilment of the aspirations of the people.

Whenever there is a discussion about a National Commission or other instrumentality for selection of judges, rarely do we turn the focus on the dominant criteria to be adopted in the light of the conditions of the country, the values of the Constitution and the creative role the court is expected to perform in the context of a developing country with a progressive socialist bias and obligation to eradicate poverty and promote the public sector as a means of transformation.

People may wonder why I involve myself in this delicate, perhaps dangerous, dialectic about judicial appointments and disappointments. My provisional answer is a quote from David Pannick's marvellous book:

"Some politicians, and a few jurists, urge that it is unwise or even dangerous to tell the truth about the judiciary. Judge Jerome Frank of the US Court of Appeals sensibly explained that he had little patience with, or respect for, that suggestion. I am unable to conceive... that, in a democracy, it can ever be unwise to acquaint the public with the truth about the workings of any branch of government. It is wholly undemocratic to treat the public as children who are unable to accept the inescapable shortcomings of man-made institutions... The best way to bring about the elimination of those shortcomings of our judicial system which are capable of being eliminated is to have all our citizens informed as to how that system now functions. It is a mistake, therefore, to try to establish and maintain, through ignorance, public esteem for our courts. (Judges...P-205)

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