Rule Of Men, Not Rule Of Law: Why Should Composition Of Bench Matter?

In an article in the Indian Express (02-07-15), Rajeev Dhavan, a senior advocate in Supreme Court of India, mentions a disturbing trend: that in many cases, judgement depends on the composition of the bench delivering it.

Hidden in this statement is the single most important factor that has become the bane of rule of law in all democracies: that judges decide cases in accordance with the political ideology they subscribe to, instead of in accordance with the law. So much so that, in America, each of the parties want to have its candidate as President for one important reason, that he would get to appoint the US Supreme Court judges.

That this has become the case should lead to deep introspection among the law fraternity. After all, 1. It should not matter who is appointing a judge, and 2. It should not matter who is the judge; if indeed it is rule of law that prevails in a country, not rule of men.

But unfortunately it matters. Courts are legislating. Courts’ judgements reflect political and ideological leanings of judges, and sound more like decrees, than judgements.

Courts are legislating chiefly by inventing hitherto unknown meanings of common English words, by twisting meanings of words into unrecognisable shape; in short, by corrupting language. George Orwell warned about 70 years ago that in democracies, tyranny would come by corruption of the language. This has come to pass. Despite having a so called free press, an independent legislature, a robust academia; we see courts making new laws and amending existing laws by reinterpreting the Constitution, by assigning whole new meanings to the words in Constitution and laws, by reinterpreting their own past interpretations of the Constitution.

This is a dangerous trend. Democracies are fast degrading into tyranny of black robes. And it goes without saying that these new tyrants are implementing, unabashedly, the agenda of the Left. What the Left failed to achieve by direct revolution or through electoral majorities, it is achieving through Courts, by making full use of the human trait of the judges, the trait that makes every man love power, by whatever means het gets to acquire it.