Drishtikone Newsletter #350: Indian Judiciary - Constitution and Moral Masquerades

Karma assumes the complete absence of an interventionist or judging god.  Your destiny is the final vector of every action, thought, emotion, and energy motion one undertakes.  As the karmic residue bakes into one's being, its historical burden and current accumulation collectively decide one's direction.

That is the paragon of a free existence.  The existence decides, however imperfectly, as to how it wants to exist.  Not some power, however morally superior it may be.

A free society is similar.  When some one or a group of people take it upon themselves to dictate the direction of a society because well, they decide to appropriate superior morals to themselves, then the society is quietly but certainly enslaved.

When the collective social vector is unburdened by one ideological power but is yet the sum of all, then the society has a shot at freedom.

The relationship between the Indian judiciary and the society that gives that institution the raison d'être is the same.

Just that the god of the majority chose not to be the judge and instead let the creation takes its course with the possibility of being liberated fully always available if desired.  While the judges in India decided to play a dictating god instead!

Problem with Morality - Batson's hypocrites

In a very interesting study in 1997, Daniel Batson and his colleagues did an experiment.

The participants in the study were asked to distribute tasks between themselves and an unknown participant.  One task was more fun and rewarding than the other.

Participants were given a choice - they could flip a coin while alone (no one was seeing or monitoring) to make the decision, but it was not required (i.e.; they could just simply take whatever task they desired without justifying their selection).

Half of the participants decided to flip the coin while declaring that was the most fair way to allocate tasks.  The other half did not flip the coin and simply picked the better tasks for themselves.

The interesting thing was that the proportion of coin-flippers who took the better tasks for themselves "by chance" was exactly the same as those who did not flip the coin and simply grabbed the better ones outright - 90%!

While the second bunch had done what they wanted to do, the hypocrisy of the coin-flippers was striking.  

They had a desire to appear fair and just, without having the courage to pay the consequences.

This was known as the Moral Hypocrisy Study.

In 2007, another study was done by Vadesolo and Destono where participants ascribed the participants who grabbed the better tasks for themselves lower score than how they rated themselves when they did the exact same thing!

(Source for these studies - "Moral Hypocrisy, Moral Inconsistency and the Struggle for Moral Integrity", Stanford University)

That is now Batson defined Moral Hypocrisy.

Batson's study and other such research was a continuation of the idea shared by Shelley Duval and Robert Wicklund in 1972 - Objective Self-Awareness.

They wrote a book titled - "A Theory of Objective Self Awareness" which introduced a line of study which introduced two types of self-awareness:

• Objective self-awareness: arises from our comparisons of attitudes, traits, behaviors, or looks between ourselves and others, or to perceived standards.
• Subjective self-awareness: arises from our observation and experience that we are the source of perceptions and behaviors.

Fundamentally, it is the conflict between the Self and Standard.  Dichotomy is uncomfortable and needs to be addressed.

Objective self-awareness has two main systems, self, and standard. The self-system is geared towards achieving the standard. Duval and Wicklund define “standards” as our mental representation of ‘correct’ behavior and traits.⁵ When there is a difference between the self and standard systems, a mental conflict emerges. This is an undesirable scenario, and we’re geared to either fix it or avoid it. We address this conflict by changing our behavior to match the relevant standards, or stopping the self-evaluation process in our head. (Source: Decision Lab)

This dissonance between self and standard is a very real thing even with the highest of the judges.  An empirical study on the federal magistrate judges in the US showed that close to 90% judges rated their judgments to be unassailable (not likely to be overturned).  

Not very far from the hypocrites in Batson's study.

The battle between Self and the Standard is always on.  That is the curse of a standard.  But what is worse is that those who set the standards and make these standards the highest goal, are not willing to pay the consequences that their own standards ask of them.

It is one thing to fight for democracy, fairness, freedoms, and justice.  Quite another to abide by the standards that these values entail.  For, those who really abide by these values have to be ready to pay for the consequences.  The results are not always in your favor or to your liking, but you cannot fake a coin-flip like Batson's Moral hypocrites and get the plum side of nature and yet bat for these high values.  

The basis of justice is that judges are fair and impartial.  That they are above prejudice and bias.  But we all know that this is not true in the real world.  So, what is the solution?

To reduce the possibility of exercising the bias that is inherent.  Strangely, even the right to decide on their own prejudice has been given to the judges by those who wrote their tomes and guidebooks.  

Here is what Blackstone has to say on recusal.

In June of 2009, the US Supreme Court issued a seminal ruling with respect to the bias, prejudice and subsequent recusal of the judge from a case where his impartiality remained questionable.  Justice Brent Benjamin of the Supreme Court Appeals of West Virginia did not recuse himself from a $50 million appeal case where the lead defendant firm's CEO had contributed $3 million to Justice Benjamin's campaign.

The 5–4 opin­ion in Caper­ton v. Massey  was writ­ten by Justice Kennedy.  He wrote:

“We conclude that there is a seri­ous risk of actual bias – based on object­ive and reas­on­able percep­tions – when a person with a personal stake in a partic­u­lar case had a signi­fic­ant and dispro­por­tion­ate influ­ence in placing the judge on the case by rais­ing funds or direct­ing the judge’s elec­tion campaign when the case was pending or immin­ent.  The inquiry centers on the contri­bu­tion’s relat­ive size in compar­ison to the total amount of money contrib­uted to the campaign, the total amount spent in the elec­tion, and the appar­ent effect such contri­bu­tion had on the outcome of the elec­tion.” (Source: Brennan Center for Justice)

The underlying assumption in the discussion on recusal standards is that anyone who has a personal conflict of interest will be inherently unable to dispense justice.

In other words, even when the judges are presumed to be upright, fair, and just (a questionable assumption given the studies), a personal interest or advantage can set aside the integrity of a judge as well.

Judges are humans.  Fallible with self interest that can trump integrity.

That is a good place to start from.  

The Indian Constitution

The Indian Constitution inherently secures equality of status and opportunity.  All are humans with the greatness that human consciousness bestows and the failings of mind that we all inherit.

To assume an exalted status for one group, however lofty their standards and ideals, and to hold others down, however great their contributions to humanity and society - is fundamentally in violation with the spirit of the Indian Constitution.

India is a Sovereign, "Secular", Democratic Republic. (Secular was later added by force during emergency by the Congress government disregarding the spirit of every other word in that sentence!)

Let us start with Republic first.

A republic has a prerequisite - the supreme power resides in the body of citizens who are entitled to vote and through that vote they decide the structure and the direction of society's polity.

The word sovereign is informed by the nature of governance.  Who can exercise the supreme authority in a society or nation?

The systems are similar but have some differences.

Democracy is also often termed as the "rule of the majority" in how everyone has a vote and the representatives are elected based on a collective vote.  So when India was structured as the Democratic Republic - with a parliamentary representative system, the objective was to give supreme power to the electorate so that they could fashion the society as they desired.  Unfortunately, the constitution makers and the judiciary had other intentions and issues, as we shall see later in this discussion.

Basis of Indian Judiciary: Familial and Ideological Nepotism

Advocate Mathews J Nedumpara had done an empirical study on the judges in the Indian courts and he found something interesting. (Source: Hindustan Times)

Let us do a simple test - here are some prominent judges who are related to either someone in the judiciary, senior advocates, or prominent politicians.  We have focused more on the current judges of the Indian Supreme Court.

Currently, there are a total of 31 judges in the Supreme Court of India.  Out of these 31 judges of the current Supreme Court of India, 13 are related to either some judge, Supreme Court justices, former Chief Justices of the Supreme Court of India, prominent politicians, or Senior Advocates.  That's 40%!

The whole scenario is known by the phrase "Uncle Judges".  

In 2014, when 34% (16 out of 47) of the Supreme Court judges were found to be "Uncle Judges", the 41st Chief Justice of the Indian Supreme Court, Justice Rajendra Mal Lodha had said this when asked about that phenomenon.

“If somebody is not following the code of conduct or professional ethics, it is for the Bar to take action. The judiciary can’t be blamed. Unfortunately, the role, which the Bar is required to play, is not being played.” (Source: Hindustan Times)

For the record, Justice RM Lodha was himself the son of Justice SK Lodha, a former Judge of the Rajasthan High Court.

Enter the Collegium

The Indian judicial Collegium system under which existing judges appoint new judges to the nation's constitutional courts came about due to three seminal cases collectively known as the "Three Judges Cases."

• 1981: S. P. Gupta v. Union of India or the “Judges’ Transfer Case (Source - India Kanoon)
• 1993: Supreme Court Advocates-on Record Association vs Union of India (Source - India Kanoon).  Supreme Court held that “The process of appointment of Judges to the Supreme Court and the High Courts is an integrated ‘participatory consultative process’ for selecting the best and most suitable persons available for appointment; and all the constitutional functionaries must perform this duty collectively with a view primarily to reach an agreed decision, subserving the constitutional purpose, so that the occasion of primacy does not arise.”  It held that no such appointments could be made unless it conforms to the opinion of the Chief Justice of India (CJI) (Source)
• 1998: In re Special Reference 1 of 1998 (Source - India Kanoon)  This was not really a case.  It was an opinion delivered by the Indian Supreme Court to President KR Narayanan who had, under his constitutional powers, raised a question on the collegium system.

There have been many challenges to this closed-loop system of Judicial appointments in India.  Let us check some of them and see how the esteemed justices of the highest court in land have handled those challenges.

Public Interest Litigation not maintainable

In January 2013, Suraz India Trust, an NGO, filed a Public Interest Litigation (PIL) to challenge the Collegium System of judicial appointments.  Despite the advice of Amicus Curiae about the locus standii of petition, the three member bench led by Chief Justice of India Altamas Kabir, summarily rejected the PIL on the ground that it was not maintainable!

Thus ended the first challenge.

Go Change the Constitution!

In July 2013, Chief Justice of India P. Sathasivam lashed out at attempts for changing the collegium system of appointing judges saying that there was no need to change the collegium system.  

That a sitting Chief Justice of the Supreme Court believed in the canard that corruption in Indian judiciary is negligible should make us sit back and think at the utter disconnect that the judicial elites have with the public at large!

For context, the Transparency International survey in 2006 done in South Asia showed the exact opposite!  It showed that in India, both - the Police and the Judiciary - were probably at par when it came to corruption.  The worst of all the institutions!

So much for representation.

And, in terms of changing the existing system of judicial appointments, while rejecting the change in the collegium system suo moto, Justice Sathasivam had a way forward.

His suggestion?

The government should bring a Constitutional Amendment bill and change the current Collegium system.

The Chief Justice of India, P Sathasivam, on Saturday defended the collegium system for appointment of judges in higher judiciary but said it is a prerogative of the Centre to bring a bill to change it.  “Now as CJI, I am not going into the contents of the bill and how it was passed as it is the prerogative of the government and it is for the people to accept it or not. It is too early for me to say anything on Judicial Appointment Commission or Committee,” Justice Sathasivan said while inaugurating a seminar on Rule of Law. (Source: The Hindu)

The government did just that.

Constitutional Amendment and the Unconstitutional Verdict

On September 2013, The Constitution(120th Amendment) bill, 2013, that amends articles 124(2) and 217(1) of the Constitution of India, 1950 was passed in the Rajya Sabha.  The bill sought to establish the National Judicial Appointments Commission.

The appointment of the judges would be on the recommendations of the NJAC.

In October 2015, the question of NJAC came in front of a five-judge constitutional bench of the Indian Supreme Court.

They called the Constitutional Amendment that sought to set up NJAC unconstitutional.  Simply.

And for good measure, the bench asked for suggestions to "improve the collegium system."  Really?!

To understand the fundamental flaws in the collegium system further, let us evaluate how the appointments of the judges are made in other countries, specifically where British common law formed the basis of the legal system.

What about Judges Appointments in Other Countries

It is instructive to see that in the United States, United Kingdom, Canada and Australia, the executive has an important and in some cases central role in the appointment of the judges to the courts, specifically the Supreme Court of those countries.

Interestingly, the judges' appointment process in the UK was changed in April 2006.  With that change, the judicial appointments were the responsibility of an independent Judicial Appointments Commission.  One of the important reasons for the change in the process was - "judges were appointed in the image of the existing judges rather than solely on merit."

Before this appointments were made on the recommendation of the Lord Chancellor, who was a Government Minister. The Lord Chancellor’s Department made its own enquiries as to the most eligible candidates. It was considered that the appointment process was open to the criticism that a member of the government should not have the sole responsibility for appointing judges. It was also considered that judges were appointed in the image of existing judges rather than solely on merit from a pool of widely drawn eligible candidates. (Source: Courts and Tribunals Judiciary UK)

NJAC was akin to the JAC in the UK.  A trend in most of the Commonwealth countries. (Source: Judicial Appointments in the Commonwealth: Is India Bucking the Trend?)

A process and situation that is replete with the proliferation of bias and prejudice.

Different strokes and criticism hypersensitivity?

There are many cases where the prejudice and bias of the courts and the judges come out in ways that have provoked widespread reaction and criticism.  Two cases that are specifically exemplary in the difference in their treatment are those of Nupur Sharma and Mohammad Zubair - the guy who instigated Muslims to attack Nupur and her supporters such that the gory and sordid drama of beheadings and killings has still not ceased!

The widespread criticism made the Indian Chief Justice NV Ramana call those reactions "ill-informed and agenda-driven".

The tweets of a guy who instigates violence are his right to freedom of expression and a safety valve (Source: "Dissent is the safety valve of democracy"), but the criticism of the judges and courts is "agenda-driven"?

Decides who?  Who gets the privilege of having her/his dissent tagged as a safety valve or as a threat to democracy and how?

For the head of a closed-loop organization, social media should provide disparate yet diverse threads of feedback from the citizens of the country coming via every channel they have at their disposal.

Those who are the sine qua non of any republic - citizens - are shouting hoarse at how they have been sidelined in the Republic of India by the keepers of the very Constitution that promises them participation!

And, that brings us to the fundamental question of who reigns supreme in the Democratic Republic.  The parliament - elected from the representatives of the public - OR the Judiciary under a closed collegium system.

Parliamentary Sovereignty Vs Judicial Supremacy - who reigns supreme?

Two Supreme Court cases are foundational in understanding this question: Golaknath Vs State of Punjab and the Kesavananda Bharati v. State of Kerala.

Let us look into them.

In the Golaknath vs State of Punjab case (Source: Indiankanoon) the most fundamental issue which was decided upon was related to the powers of the parliament.  The Petitioners' stance was that the fundamental rights enshrined in Part III of the Constitution cannot be changed.  The Respondents argued that the founding fathers of the Indian Constitution did not want the Indian Constitution to be rigid and inflexible.

The Supreme Court bench led by Chief Justice K. Subba Rao and comprising Justices KN Wanchoo, M Hidayatullah, JC Sikri, RS Bachawat, V Ramaswami, JM Shelat, Vishishtha Bhargava, GK Mitter, and CA Vaidyialingam decided that the parliament cannot amend the fundamental rights.

In another landmark case - the Kesavananda Bharati v. State of Kerala - the largest bench in Indian judicial history decided that "reasonable abridgment" of the Fundamental Rights can be effected in the public interest by the parliament.  However, the Basic Structure of the Constitution cannot be changed.  This case set the "Basic Structure Doctrine" within the Indian Constitutional context.

And, this became the basis of the curtailment of parliamentary powers of the amendment, which had hitherto been held as unfettered.

The question of Parliamentary Sovereignty Vs Judicial Supremacy was thereafter tilted to the latter as the courts kept expanding the "Basic Structure Doctrine" and curtailing the right of the parliament to make changes.

Constitutional Morality and Moral Masquerades

Here is advocate Sai Deepak on the anomalies of the collegium system and the need for the citizens to raise their voices against it to safeguard their representation in the direction of India's society as the judiciary takes control over the Constitutional Morality business.

When one branch of governance gets unfettered powers to fashion the society and bring in changes under the garb of "Constitutional Morality" then it is imperative that the citizens have a say in it.

Specifically when the very formulation of the concept of "Constitutional Morality" runs counter to the norms of representative democracy itself.

Two things are problematic here.

1. Constitutional Morality has to necessarily be counter-majoritarian
2. Constitution (as interpreted by closed-loop Courts) Vs "Fickle morals of the People"

That the writers of the Constitution and the landmark judgments had an elitist and condescending attitudes towards the will and the voice of people and indeed the very fabric of the country is quite instructive.

Ambedkar, for example, said in the Constituent Assembly in November 1948 that "Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic"

That, in a country, where democracy was elevated to the level of a deity - "Samajnana" - did not factor in with the Constitution makers is astonishing!

In Rig Veda (last Sukta of the 10th Mandala), Rishi Angiras offers his prayers to a special deity who is the keeper of the "Collective, general and national consciousness of an entire people, the political consciousness which is spread evenly (Sambhavenu) among all classes, making up the total population of the country." (Issue #337: The Procrustean Indian Judiciary System)

As Chief Justice Ranjan Gogoi said in his speech at the 3rd Ramnath Goenka Memorial Lecture titled "The Vision of Justice" - that in the eyes of the judiciary, societal morality is subservient to constitutional morality as defined and formulated by the courts!

Some of you could be wondering about how these judgments are even related. They are not. But, they are, at the same time. Dissimilarity is that the first one originates in a very intimate, private sphere of life and the other two originate in what everybody seems to want to have a say in – the matters of faith. But, it is the similarity that should be the take away. The judgments beyond their bare letter, say that, societal morality is fickle and not that, but constitutional morality that ought to dictate terms. As an Israeli judge Aharon Barak points out, it is not the transient spirits of time but the fundamental values that should be the guiding voice. (Source)

The message from the makers of the Constitution and the judiciary has been clear:

And, therein lies the most critical problem with India's judiciary.

This elitist and closed-loop institution is disdainful of the very basis of a Republic's formation - the citizen.

The Democratic Republic that India was conceived to be is an ideal that is at peril in the hands of the judiciary by its own formulations!

If democracy and its character as a republic are the ideals then there needs to be a certain realization - that your idea cannot be the only dictating ideal that should be thrust upon everyone else.

In the give and take of a Democratic Republic, everyone has a set of rights that are predicated on the assumption that everyone also needs to sacrifice the ideal of unfettered and unbridled freedom that has no consequences.  Only when I am on board with giving up my infinite freedom to allow the voice of another, can our collective rights be promised.

No human, no organization, and no institution can have infinite and unbridled rights and powers without consequences and yet ensure the functioning Democratic Republic.

But that is what the Constitution-makers and thereafter the judiciary have set forth to do.

You see, freedoms and democratic ideals are not configured from the confines of an office or a court.  Rather the final vector of a democratic republic is shaped by everyday actions and decisions as well as the give and take of society at large with its citizens contributing to each small movement at a time.  It may not be always ideal, but it has the collective will baked in.  That is what democracy as a sport entails.

The faith is not in top-dressing (as Ambedkar foolishly called for) but in a collective enterprise of competing yet respectful evolution of society.  That no one is thrusting his/her ideological superiority on the rest disdainfully but rather submits to larger wisdom - is the essential condition of a democratic republic.

So, if we have to have a "keeper of the Constitution" - the collective social agreement upon which our freedoms, our rights, and our government are based - who ensures that the letter and the word are being followed, then that keeper needs to submit to the fundamentals of the democratic process as well.

As Batson said in his article titled "Moral masquerades: Experimental exploration of the nature of moral motivation", that the evidence for moral integrity is very thin.  Instead, Moral Hypocrisy is the fundamental motivation of people - "Appearing moral yet, if possible, avoid the cost of being moral."

Why do people act morally – when they do? Moral philosophers and psychologists often assume that acting morally in the absence of incentives or sanctions is a product of a desire to uphold one or another moral principle (e.g., fairness). This form of motivation might be called moral integrity because the goal is to actually be moral. In a series of experiments designed to explore the nature of moral motivation, colleagues and I have found little evidence of moral integrity. We have found considerable evidence of a different form of moral motivation, moral hypocrisy. The goal of moral hypocrisy is to appear moral yet, if possible, avoid the cost of being moral. To fully reach the goal of moral hypocrisy requires self-deception, and we have found evidence of that as well. Strengthening moral integrity is difficult. Even effects of moral perspective taking – imagining yourself in the place of the other (as recommended by the Golden Rule) – appear limited, further contributing to the moral masquerade. (Source: "Moral masquerades: Experimental exploration of the nature of moral motivation")

Moral high-ground, as an argument, is a nonsensical, fascist, and undemocratic one.  Throughout human history, that was the most commonly used credo of every genocidal dictator and fascist.

The Indian Judiciary can no longer appear to enforce the basic structure of the Indian Constitution while having no intention or integrity to pay for the consequences of its basic building blocks - Democracy and Republic.

Here is a very insightful discussion on the Indian Judiciary and the Constitution by Advocate Sai Deepak.

Video Corner: The Happiest Man on Earth

He is the self-proclaimed "happiest man on earth" - Eddie Jaku.  A holocaust survivor who was interned to many camps ultimately ending up in Auschwitz.  He was 99 years old at the time of this video in 2019.

Happiness is not a pursuit.  It is a state of being.  Those who keep running after happiness achieves nothing.  Those who keep themselves happy as a constant state, remain joyful all their life.

Watch this video with some time (12 mins) to spare.

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