Divinity of a Judge
- Part 2 -

A Romenkumar Singh *

The High Court Complex at Chingmeirong Imphal on April 07 2012 :: Pix - Bullu Raj

K. PRINCIPLES OF LAW LAID DOWN BY THE SUPREME COURT IN V.K. JAIN V. HIGH COURT OF DELHI, (2008) 17 S.C.C. 538 – PAGE 564 PARA 58 TO PREVENT EROSION OF CREDIBILITY OF JUDICIARY.

58. When we examine the facts of the instant case in the light of the judicial decisions spreading over a century, the following principles of law can be culled out:

I. Erosion of credibility of the judiciary in the public mind, for whatever reason, is the greatest threat to the independence of judiciary.

II. Judicial discipline and restraint are imperative for the orderly administration of justice.

III. Judicial decorum makes it imperative that the courts' judgments and orders must be confined to the facts and the legal position involved in the cases and the courts should not deviate from propriety, moderation and sobriety.

IV. Majesty of the court is not displayed solely in cracking the whip on mistakes, inadvertent errors or lapses, but by persuasive reasoning so that the similar errors and mistakes are not repeated by the judicial officers.

V. Majesty of the court would be enhanced by practising discipline and self-restraint in discharging of all judicial functions. All actions of a Judge must be judicious in character.

VI. The role of superior courts is like a friend, philosopher and guide of the judiciary subordinate to it. The judicial officers have to be treated with parental care and affection.

VII. The approach of the superior courts ought to be correctional and not to be intended to harm or ruining the judicial career of the officers.

VIII. The superior courts should always bear in mind that the judicial officer is not before it and should ordinarily refrain from passing strictures, derogatory remarks and scathing criticism. The passing of such an order without affording a hearing to the judicial officer is clearly violative of the principles of natural justice.

IX. The superior courts should always keep in mind that disparaging and derogatory remarks against the judicial officer would cause incalculable harm of a permanent character having the potentiality of spoiling the judicial career of the officer concerned. Even if those remarks are expunged, it would not completely restitute and restore the harmed Judge from the loss of dignity and honour suffered by him.

X. The superior courts should convey its messages to the judicial officers concerned through a process of reasoning, highlighting the correct provisions oflaw, precedents and proper analysis of evidence and material on record, but rarely by passing harsh and derogatory remarks.

XI. The superior courts must always keep in mind that it is a Herculean task for the judicial officer to get the derogatory remarks expunged by the superior court. He is compelled to take assistance from lawyers and such a practitioner may be appearing before him. It is embarrassing, humiliating, time-consuming and an expensive exercise.

XII. The superior courts must always keep in mind that the much cherished judicial independence must not be presented only from outside but from within, by those who form the integral part of the judicial system. Damage from within has much larger and greater potential for harm than danger from outside. We alone in the judicial family can take care of it.

XIII. The superior courts should not use strong, derogatory, disparaging and carping language while criticising the judicial officers. They must always keep in mind that, like all other human beings, the judicial officers are also not infallible. Any remarks passed against them may result in incalculable harm resulting in grave injustice.

XIV. The superior courts' Judges should not be, like a loose cannon, ready to inflict indiscriminate damages whenever they function in judicial capacity.

XV. The superior courts should keep in mind that infliction of uncalled for, unmerited and undeserved remarks clearly amount to abuse of the process of the court.

XVI. The superior courts should not allow themselves even momentarily the latitude of ignoring judicial precaution and propriety.

A Judge who has not committed an error is yet to be born : Justice Bhandari (2008) 17SCC538-Para 58 (VIII)

XVII. It must be remembered that the subordinate judicial officers at times work under charged atmosphere and are constantly underpsychological pressure with all the contestants and their lawyers almost breathing down their necks and more correctly up to their nostrils.

XVIII. To err is human and no one is infallible. A Judge who has not committed an error is yet to be born. Judicial decorum has to be maintained at all times and even where criticism is justified. It must be in a language of utmost restraint always keeping in view that the person making the comment is also fallible.

XIX. Judges of the superior courts have a duty and obligation to ensure judicial discipline and respect for judiciary from all concerned. The respect for the judiciary is not enhanced when Judges at the lower level are criticised intemperately and castigated publicly. Our legal system acknowledges the fallibility of the Judges and provides for appeals and revisions.

XX. It is the duty and obligation of the Judges of the superior courts to ensure that independence of judiciary is not compromised and every judicial officer should feel that he can freely and fearlessly give expression to his own opinion. This is absolutely imperative in maintaining the independence of the judiciary.

XXI. The superior courts' Judges must always bear in mind that no greater damage can be caused to the administration of justice and to the confidence of people when Judges at superior courts express lack of faith either in ability or integrity of subordinate Judges

L. JUDGING THE DISABILITY OF ABILITY
(2011)5 SCC (J) 1

In March, 2008, the Judicial conference of the United States adopted Rule for Judicial Conduct and Judicial Disability Proceedings. Article 1(3)(C) defines "disability" as a temporary or permanent condition rendering a judge unable to discharge the duties of the particular judicial office. Examples of disability include substance abuse, the inability to stay awake during Court proceedings, or a severe impairment of cognitive abilities".

Probably, taking a cue from this rule, the Government prepared a proposal. It was reported sometime back in a prominent daily that, "The late-latif SC and H.C. judges have got away simply because of the absence of any mechanism to chastise holders of constitutional posts". [Times of India, 1.1.2010] It warned, if you doze, you may be in the dock. And added, "Anyone who finds a judge not punctual or not devoted to duty dozing off once too often during hearing or being habitually late in delivering judgements, could lodge a complaint against the judge with an Oversight Committee". The report quoted the Minister-in-charge as saying, "accountability was a must to erase delays plaguing the justice-delivery-system".

M. COURTS ARE OPEN – AIR THEATRES.

In our country the Courts are open-air theatres. The moment a case is called and counsel stands up the Bench poses a Pertinent question. The lawyer and the litigant instantaneously know that the judge has done his homework. In some courts, it would be obvious to even a lay man that the judges are as well aware of the facts on the file as the counsel. The open discussion in the presence of the parties inspires the citizen's confidence in court. The growing number of cases bears testimony to the fact that people look up to the courts and not the politicians or executive for the redressal of their grievances.

"Howsoever, high you be,
The law is above you"

N. NON-AVAILABILITY OF BENEFIT OF PRECEDENT

At the time when the benefit of precedent is not available before a judge, the task to interpret the constitution is a real challenge for him similar to what BENJAMIN CARDOZO described as :-

"When the colours do not match and the indexes fail and there is no decisive precedent, the serious business of the judge begins. At this stage it is the creative interpretation of the judge which is at work and in doing so, the judge not only lays down the law for the litigants before him, but he does it for future generations."

[The Nature of the Judicial Process : Justice Benajamin N. Cardozo]
In interpreting the constitution, as done by Justice Bose, it is required to consider the basic elements of its language, history, tradition, precedents in other jurisdiction in the context of its purpose in our constitution and its consequences.

"We must use our courage to ensure the judiciary not governed by the daily polls but by the rules of law, serving not the special interest of the few but the best interest of all, devoted not to self-preservation, but to the preservation of those great constitutional principles which history has bequeathed to us."

We must also bear in mind that our justice system is too exotic, too elitist, too expensive, too protracted and too pyramidal for the weaker section to seek and secure justice but we must ensure that "JUSTICE IS NOT WEEPING IN SILENCE UNNOTICED"

"Even so, the creed of judicial independence is our constitutional "religion" and, if the executive use Article 222 to imperil the basic tenet, the court must "DO OR DIE."

KRISHNA IYER
O. JUDICIAL INDEPENDENCE
(2011)5 SCCJ (1)

The history and importance of judicial independence has been highlighted thus:-
Historically, judicial independence and constitutional review evolved in different ways………. trials by jury starting in the twelfth century, the Magna Carta in the thirteenth century, and the seventeenth century revolutionary fight against the courts of royal prerogative. The 1701 Act of Settlement granted judges' lifetime appointments as well as independence from Parliament. The mechanisms of judicial independence were transplanted by England as part of common law tradition into its colonies, including the United States……

Our constitution ensures judicial independence. It has worked well. Judiciary is a good institution. It is in our interest to protect it. Thomas JEFFERSON has aptly said : "The Judiciary……….is a body which, if rendered independent and kept strictly to their own department, merits great confidence for their learning and integrity."

Concluded....