From “judging to justicing” : A letter to young judges of the future….

You are studying hard for the exam. This is a formative phase. You are trying not to get tempted and stay true to your lessons! The foundations that you build now would hold you in good stead for your entire judicial career. Most judges who make it have a fairly robust understanding of the letter of the law. But let me tell you, and mind you, I speak from experience, what makes one a good judge is the sheer love for ‘Justice’. An unremitting desire to give every man/woman his/her due. An almost yogi-like zeal to transcend above one’s own biases, preconceived notions, predilections, likes, dislikes, ideologies and achieve a level of objectivity, almost too pure to be reduced to words; but at the same time, retaining that human sensitivity and responsiveness, without being too moved/emotional (as that hampers judgment!).

One of the most important things that a young judge (or a aspiring young judge) needs to be mindful of is the sheer power that he/she holds. The ability to transform lives, for good or for bad. With great power comes great responsibility. Even the most powerful of equipment can be rendered useless (or even worse, catastrophic) if it is rudderless. The moral compass of a judge needs to be intact. A young judge should, therefore, connect himself/herself with a higher purpose. This ensures that judicial power (and its exercise) is not only canalised towards a worthy end but also ensures that a young judge remains humble and grounded and never the law unto himself/herself. The young judge should always keep reminding himself that it is the chair that he adorns is what commands respect/compliance and not him, as an individual. Like that story of an idol of Shiva atop a work animal, who, in his naivety ends up thinking that it is him to whom the entire town bows! Such delusions of grandeur should be avoided, lest one stops learning and growing. A young judge needs an anchor (and not a millstone, and there is a difference between the two). A constant endeavour to find truth and justice is a worthy end and this search is what the young judge should align himself/herself with. 

A young judge should engage continuously with questions such as :

  • What is Justice?
  • What is Fairness?
  • How is one man’s Justice another’s Injustice?
  • What is a Just Society ? How to create it? What institutions ? What economic system would best serve it?
  • A democracy or a benign dictatorship ? Market or State owned, both?

A young judge should grapple with conundrums such as the one below, which is borrowed from Amartya Sen’s remarkable – ‘Idea of Justice’:

“Take three kids and a flute. Anne says the flute should be given to her because she is the only one who knows how to play it. Bob says the flute should be handed to him as he is so poor he has no toys to play with. Carla says the flute is hers because it is the fruit of her own labour. How do we decide between these three legitimate claims?”

Who does one give the flute to ? A socialist/economic egalitarian would give it to Bob; whereas a utilitarian might find better worth in Anne’s claim; while a market apologist would definitely go in for Carla. Each one of them would see the situation from their own prism of justice (Where you stand (on issues) depend on where you sit, remember!). The subjectivity of it all. A young judge should not be daunted by the enormity of the task; or throw up his hands in resignation and shrug his shoulders over the fact that there is no single correct answer. A young judge should remember that the idea is to persist; persist in the pursuit of the idea of justice, howsoever, elusive it may seem.

A young judge should confront himself with questions such as :

  • Whether it is fine for a person to kill one to save five ?
    • Whether one life is always more valuable than five ?
    • Who decides?
    • Who decides which one dies?
    • Whether the process of choosing makes a difference?
    • Is this view of thinking capable of degenerating into minority oppression and majoritarian authoritarianism?
  • Is it okay for one to torture a terrorist ? Easy ?
    • What about a terrorist’s six year old daughter (with rosy cheeks and ponytails, for effect) to coerce the terrorist into revealing the place of the bomb? Suddenly not that easy, is it ?
    • What about many lives being more valuable than one, eh? Can torture be ever justified?
  • Should alcohol/smoking be banned?
    • What about revenue from sales, which fills up coffers and can be used for medical cover for the people?; or
    • Is it that any revenue gains are hugely offset and outweighed by the health costs that the State has to incur for providing medical aid to those suffering from alcohol/tobacco related diseases/ailments; and if it is indeed as simple as that, why hasn’t this been done, till date!
  • Whether prostitution should be decriminalised ?
    • What alternatives would then be made available for such women?
    • Is the welfare state in a position to provide for them?
    • Difference between legalisation and decriminalisation? Which one is more preferable?
  • Is the move to ban commercial surrogacy really grounded in reason ?
  • Bail outs for the failing banks ? Good or bad? Are the big banks really too big to fail? And bail out by whose money ? tax payer or the depositor?
  • Progressive taxation? Does it kill business (the fire in the belly and incentive to work hard);
  • Patenting for life saving drugs ? Should the states move-in for compulsory licensing (refuse or minimise private patenting) to make such medicines easily available and affordable ? But does that take the incentive to research and produce more such drugs away for the companies (as it majorly cuts into their profits)?
  • Is death penalty good ? But is our decision making infallible?
  • Should a 16 year old be treated as an adult? What about studies (in neuroscience) that show that the human mind never really achieves its powers of impulse control and decision making (frontal lobe of the mind) till the age of 25?
  • And other such conundrums…

A young judge should read : Sandel’s ‘Justice – what’s the right thing to do’ for more such conundrums. A constant grappling with these issues keeps the mind from rusting and the moral compass – alive and ticking.

Is it fair to criminalise begging? How about prostitution? Does a 16 year old, who has spent his life working at a beedi factory, deserve to be treated as an adult, if he finds himself in the throes of a crime? Does the current system of gradation between (designated) senior advocates and advocates, where only some can afford the former and not all, amounts to denial of equal opportunity and access to justice ? Whether this is discriminatory towards individuals who cannot afford their services? Is the bail system anti-poor, since it overwhelmingly leans in favour of a property-oriented/surety based approach? Is sentencing by Criminal Courts too arbitrary, in absence of guiding principles/sentencing guidelines? Has the adversarial system of justice dispensation served us well, all these years?

Not very easy questions to answer, by any means. But the key is to keep asking and keep trying to find out. Perfect justice is elusive, and by its very definition unattainable, but as Sen says, let’s minimise injustices (at least, the glaring ones) as much as we can and wherever we find them. Rome wasn’t built in a day. One responsive order after the other. One sensitive judgment after the other. The key, my friends, is not to lose that love for ‘Justice’ and hate for ‘Injustice’; remember how a child feels slighted if the other sibling gets more and says “its unfair!!” The key is to retain that childlike ‘fine perception of justice and injustice” and make each order/judgment an instrument of social engineering ! Very few people get this privilege of judging; make the most of it; remember the Gandhian Talisman; you retain the office as TRUST for the most marginalised, the underdog, the ones who need you the most!

With that, Happy justicing, my friends! Merry Christmas and a very Happy New year.

Written by Bharat Chugh




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