THE function of a judge is to take a given matrix of facts and then apply the law, as it was on a relevant moment in time, to return a decision on the question posed to him. A judge is not a law maker and a judgment is incapable of conferring a right or a duty on any person. Judgments are only endorsements of the rights or duties already attached to people, but which may have been disputed or called into question.
Really, a person claiming to be the rightful purchaser of a disputed property cannot say that the court or the judge gave him the right to have the property; at best, he can only claim that the judge vindicated his claim and rejected the contentions of his opponents.
A writ petition before a High Court or a Supreme Court bench is essentially to be treated in the same manner. The judge deciding a case where the petitioner claims the violation of his right to life, or of personal liberty or free speech — or of any other right that “We the people” have conferred on him — may only examine all the facts before him and decide whether that right has actually been conferred upon him by the Constitution or a statute and in breach direct the government or other persons to restore what was rightfully his, to begin with.
A court of law is, therefore, a restorative forum at best. It is not a forum for social or economic or cultural change at all. A court must only function within the confines of the conditions which the people, acting through the legislature, have enacted in the form of laws. If the people are unhappy with a particular rule or law, then the supreme and exclusive power to change it rests exclusively with their chosen representatives, and it is patently indefensible and unjustifiable for a judge to substitute his will or conscience and go against that law.
A law made by a parliament or a legislature represents the will of the majority of the people, and neither their motives nor their intent may be questioned by a judge.
A judge may, of course, examine the process which leads to the making of the law and determine whether or not the process satisfied the procedures (again, only the procedures prescribed by the people in laws authorising their representatives to legislate). If the judge finds the procedure adopted by the legislators to be contrary to those procedures, he may hold the law to be badly made. But for a judge to go into the motives of the legislature cannot be justified, not in a democracy at least.
It is quite instructional to read the oath which every judge is obligated to swear while being sworn in. The oath, itself prescribed in the Constitution, enjoins a judge to be true to the Constitution but makes neither demand nor requirement for the judge to owe any form of allegiance to the font of all authority, the common man, who collectively with his peers makes up “We the people”.
This has two connotations. One, the judge has no right to empathise with or to be revolted by any litigant or cause. Two, the judge is subservient only to the law — and the law as given to him by Parliament and legislatures. There is no other law nor source nor conscience which he may obey.
Judges, unfortunately, express their frustration at the manifest injustice being caused by particular pieces of legislation in their judgments. Latin and Greek maxims are often the chosen vehicles of such transgressions and in wanting to appear to do justice, judges inadvertently perform the greatest disservice possible to the law.
The most desirable characteristic of any law is its predictability. The law ought to be a predictable set of rules and, given the same set of facts and circumstances, must return only the same one answer each time. A legal system which depends on the personality of the actors — the litigants, counsel or the judges — may well be a great social system, but is a poor system.
When judges start tweaking the law to make it seem more just as per their individual conscience, they introduce the “x” or the uncertainty variable into our interactions. Judges can’t possibly be expected to comprehend each and every ripple that would be caused by their plucking at a single strand in the fabric of the law as it exists and often end up causing unthinkable effects.
While saying that judges cannot “make the law”, I also contend that judges can’t even opine about what the law is going to be, even a moment into the future. To change the law or to wipe it out all together is the exclusive domain of the legislature, and for a judge to premise his judgment on a future expectation would be equally fallacious.
Democracy by definition means that if we can get enough people to agree to the same thing, then our representatives can enact it as a law and even the minority which doesn’t agree with it must still abide by those rules.
Now if a judge feels, with all the strength of his conscience, that a particular rule is unjust — generally, or in a given case — even then he must not try to mould the law to his personal prejudices. Not only because it makes the law arbitrary and unpredictable, but also because it goes against the collective will of the majority. The presumption must be that every law which is on the statute books is desirable and essential to the majority of the people. One must also acknowledge that most of the judicial misadventures are largely due to the extremely persuasive and misplaced advocacy of advocates and counsel.
The most vocal critics will, of course, point out that the executive and the legislature have abdicated their responsibilities and have forced the constitutional courts to “legislate”. If there has been a vacuum in good governance, then it is because either the legislature or the executive has been failing in its duties. The failure of the executive should possibly trigger off a rethink of our entire system of civil service and warrant its revamp or abolition. The failure of the legislature may possibly be because we don’t want better legislators representing us in Parliament. But neither possibility, horrifying as it may be, warrants the flexing of judicial muscle.
If a Judge feels that the law is imperfect and he is unable to impose it in its full majesty, let him resign rather than be untrue to his oath. But let not a judge feel that he alone can save this overburdened land from its unruly masses.
An oft-speaking judge, said Francis Bacon, is like an ill-tuned cymbal. And that unfortunately is the reason why a cacophony is emanating from our courts today. Judges have got used to speaking through their judgments and can rarely restrain themselves from proselytising. Extremely learned judges have written literature in the guise of judgments; but for a lay person to comprehend the implications of the “flowing of the Ganges under the bridge” is a tall order, indeed.
THE function of a judge is to take a given matrix of facts and then apply the law, as it was on a relevant moment in time, to return a decision on the question posed to him. A judge is not a law maker and a judgment is incapable of conferring a right or a duty on any person. Judgments are only endorsements of the rights or duties already attached to people, but which may have been disputed or called into question.
Really, a person claiming to be the rightful purchaser of a disputed property cannot say that the court or the judge gave him the right to have the property; at best, he can only claim that the judge vindicated his claim and rejected the contentions of his opponents.
» Read more: Judges vs Judges – Court is not for making laws
