Independence of Judiciary : Its Relevance, Responsibilities of the Courts, Status and Duties of Judges

This is a joyous occasion for me. I grab this opportune occasion to be amongst you who are newly born as members of my judicial fraternity and family. By reason of my position being elder brother, I feel that rather being extempore, I should present the text and record of my thoughts to be placed for your consideration and inward digestion. Indirectly, the organisers of this training programme have helped me much in fulfilling my itch to be amongst you - as members of the family.

These are my thoughts. In the context. I reshuffle relevant pages of my experience and consequent reflections. In the context of the subject, it will have to be appreciated that whatever be the source of recruitment, all of you, without any exception, must have belonged to the profession of law. To appreciate the background of the subject, the necessary scope and extent of its areas, it would not be out of place to take a re'sume' of the basic tenets of (he profession of law. Independence of judiciary would necessarily have to be considered in the context of the postulates of the profession of law and the judicial process in the administration of justice.
The professional engaged in any of its kinds and varieties, whether legal or otherwise, are closely knit, admitting individual deviations, by their own internal professional ethics. Therefore, they have their internal contours which bind and control them and regulate their relations interese and otherwise. It is fairly well-known and understood that even the gamblers and dacoits. although their profession is wholly illegal, have a well-knit code of conduct, both in regard to each other and also with reference to the society at large. This regard for professional ethics is age-old and is also the reason of the like-mindedness amongst each other.

The idea of what is right and what is wrong in conduct is largely leamt and imbibed during upbringing, whether in a family or society or trade or even profession. This is the ethical essence. The personality of an Advocate, both for the dignity of the profession and also for better quality of service to the public is built up on certain standards. In the words of Lord Macmillan of the Privy Council, no other profession touches human life at many points. The guardianship of two precious things in life -justice and liberty - vests in the legal profession and this makes the profession honourable with its roots in its long and established traditions. The personality of the Advocate gets, again in the words of Lord Macmillan of the Privy Council, correlated with five functions : namely,

1. Disinterested advice;
2. Intensive effort in the right direction:
3. Owing some time to upholding the profession to distinguish it from business:
4. Intelligent and unselfish within one's own sphere of activity; and, lastly,
5. Preparedness for public cause.

The canons of conduct or deviations are regulated on these postulates. In the context of the subject of today, this aspect would have much relevance.

The court is also the firm supporter of the independence of the Bar, and in the process, treats an Advocate not as a subordinate officer of the Court, but on a much higher level than that, and in a sense, it is largely through the labours of counsel that the Court is enabled to dispatch its business. It is a relationship of the best friendship in the administration of justice, with a spirit that let the heavens fall, but the system of law shall prevail. I would like to emphasise, these above aspects should also reflect relevance when the scope of the independence of judiciary is taken up for consideration of its different facets.

The relationship of an Advocate and his client is essentially of a fiduciary character - a representative and not as a mouth-piece of the client. This rules out reckless and wild allegations even if suitable to the success of the litigation. The relationship is in the process of justice to uphold the dignity and decorum of the institution as well as to prevent its disrepute as a consequence. If any aspect of the situation demands, justice gets blended with temperance so that the blunder of a moment is prevented from its consequences and sorrow, sullying the life and flow of the system of justice and polluting the steady stream of the administration of justice. In my view, this aspect also would go a long way to know what is the independence of judiciary.

There is yet another aspect to be reflected upon in the context of the subject under consideration. We have given to ourselves our Constitution to constitute India in to a Sovereign Socialist Secular. Democratic Republic (as it stands today as amended), and to secure to all its citizen the cherished ideals of Indian life therein. The political and social philosopher Sir Earnest Barker, in his book "The Principles of Political and Social Theories" was so fascinated by these cherished ideals that in the introduction itself he has eulogized the makers for laying down the quintessence of all possible ideals of political and social life of a nation. We have to remember these cherished ideals as a ringing tone throughout and think of independence only through its lens-light.

We must all remind us the realistic note struck by Dr. Babasaheb Ambedkar in this context:

"However good a Constitution may be, it is sure to turn out to be bad because those who are called upon to work, it happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it happen to be a good lot."

As judicial officers taking a note from this, it would be necessary to reason out an attitude of life and then we would be able to see the borders of the field of independence of judiciary.

It would be really vital that in its functional aspects the judicial mind gets concerned with reason through the rational approach. We have to be aware of certain situations that tend to blind reason and encourage emotion on the surface of the thought-process. The aspect would have to be dealt with in details exhaustively and separately at an appropriate stage. However, in regard to casteism, again Dr. Ambedkar has to state which would serve as the approach to many other factors tending to blind reason and nationality which are the main basic postulates to the judicial approach to be adopted in decision-making. The warning is articulated by him as follows :

"Casteism has killed public spirit. Caste has destroyed the sense of public charity. Caste has made public opinion impossible. There is no appreciation of the meritorious. There is no charity to the needy. Suffering as such calls for no response. There is charity but it begins with the caste and ends with the caste. There is sympathy but not for the men of other caste."

Which is experienced about the caste can naturally travel with the same effect and speed to other obvious manifestations, considerations of religions, race, regionalism and other separatist tendencies blinding reason and rationality.

I feel that the Constitution provides for the right and proper attitude in this context in Part IV-A. Firstly, it is to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem. Secondly, it is to cherish and follow the noble ideals which inspired our national struggle for freedom. To uphold and protect the sovereignity. unity and integrity of our country, and to defend the country and render national service when called upon to do so. Thirdly, it is to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities and to denounce practices derogatory to the dignity of women. We have to value and preserve the rich heritage of our composite culture, in a sense to protect and improve the natural environment. Fourthly, it is necessary to develop the scientific temper, humanism and the spirit of inquiry and reform, to strive to look after public property and to abjure violence. Lastly, the Constitution expects all of us to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievements.

Brothers and sisters, if these facets are kept in mind, pondered upon and inwardly digested, there would not be any difficulty to see that the Constitution resolves to secure to all of us the slogans of the historical French Revolution: Liberty, Equality, and Fraternity, all for the purpose of securing social, economic and political justice. There also would not be any difficultuy to know that India cherished and cherishes to be the Sovereign, Socialist Secular Democratic Republic. It is elementary thai Liberty means to all and in that sense the concept enters into the realm of the principle of Equality and this further merges with the concept of Fraternity - assuring the dignity of the individual and the unity and integrity of the nation. The scope and province of the independence of judiciary has to be understood as meaningful in the above context of our constitutional aspiration.

Although the trinity principle of liberty,equality and fraternity might appear to be the watchwords of the French Revolution and therefore of passion and power, they must move our hearts and stir us to action. The word "secular" need not be considered as opposed to religion in the context of the State not supporting any religion, still, as per Arts. 25 and 26, does not penalise or prohibit the practice and profession of any religion and consequential rights of management in regard thereto.

Apart from other relevant provisions of the fundamental rights and directive principles, in the context of the independence of judiciary, the basic correlative character of independence is not possible to be ignored. The aim of educational qualifications and intellectual capacity as observed by John Ruskin in his lecture "Sesame and Lillies" is acquisition or knowledge and necessary character. The aim of knowledge is in search of truth and life. It is not necessarily for getting into good society or a gratification for the thirst for applause; but striving for eager maintenance of those conditions of life in which every one of us would be able to develop the personality to the best. Even according to the father of this nation, Mahatmaji, it must be remembered, there are three curses of humanity in general : knowledge unaccompanied by necessary character, science also unaccompanied by necessary considerations of humanity; and money too unaccompanied by corresponding requisite labour. In my view, any one amongst us venturing to think of independence must dwell on these postulates of independence.

Independence gets essentially with individual freedom. "Freedom from want" and "freedom from fear" are, in the context basic insiincts cherished historically even by the primitive man and his efforts in the process of living. In the context of the subject, to proceed with, I take it that all of you have accepted judicial officers' position on your own choice. It would then be consequently axiomatic knowing full well that the position is such that you would not consider yourself wanting in all its respects. You will need to accept the situation that you need not consider yourself in wanting. The effort in this direction to achieve resultant condition of contentment would have to be made continuously throughout your life as the first step to realise the fruits of an attitude of independence. This is the penance required to be insistently and continuously performed. It would be a tryst of every moment hereafter. In a society round about where wealth outweighs values and principles, ends justify, noble and or ignoble means, where society ostensibly prospers when men decay, the basic anchor effect of a feeling of not wanting alone would hold balance and equanimity.

The present society would frequently offer you trying moments which would shake anchorage of the above requirement of a feeling that you should always consider yourself as not in wanting under any circumstances. This is by reason of your position of being the judicial officers. It will have to be remembered always that hereafter none will tell you that you are in error or you are wrong or you have committed any mi stake in your behaviour. You will always have to remember that the houses on the heights are glass-houses with door open for peeping. Yet you would continue to be the member of the society occupying territorial jurisdiction under your control. The society would obviously be the heterogeneous combination of all rapid changes attributable to the shifting sands of time. It would be under these living atmosphere and conditions that the above anchorage alone would make your position in the context of independence meaningful. In other words, the position of a judicial officer can be considered to be that of a lotus (lower originating in the mud, but with a grace and grandeur, glam-our and fragrance yielding apparently but remaining untouched and unblemished, as a result of the anchorage.

Brothers and sisters, I have snatched this opportunity to be before you to convey my thoughts with the above background. I have always loved my function, like Thomas Carlyle, with the devotion that work is my worship. I believe that I am doing God's work with steadfast devotion.' My God has no religion. I have the idealist view of life. I believe that simply because there is the security that God's love will succeed, the struggle does not become unreal. My God is not simply love and truth, but also justice. The liberty or independence or even freedom to adopt or change one's mind is not true liberty. I have always believed that God will not forgive the criminal, even when he repents, because the moral or social order which is conceived or understood always in love and not in hatred essentially requires that wrong doing .should also have its inevitable and natural consequences. I cannot understand myself to be passed over by leaving the situation to God's judgment and decision. I prefer not to hide in the bowels of the situation incognito or to choose to leave everything to my God. I consult myself every moment whether my approach and conduct is just, may be of an exceptional character, I have always understood and accepted the situation that I must suffer if I have put emotion and anger in the forefront ignoring that justness and reasons, and not anger and emotion are essentials of the human personality finding expression through the power of thinking, the freedom of expression and the exercise of choice as specific attributes of a human personality. 1 have always accepted that anger and emotions are instincts and instincts are always to be controlled. They are not attributes of justness and the blunders in regard thereto are always required to be repaid sometimes also in sorrowful tears.

I have come before you for some loud thinking in the present context of time. Occasions like this provide opportunities not only for an inward digestion, but also settles amongst ourselves accounts for a better future with healthy connections with the glorious past of the judicial activity in the administration of justice. We would ponder individually as well as collectively and this would essentially be for the organised and systematised effort for the development for the best in ourselves.

Judicial institutions in functional aspects get concerned with the judicial officers presiding, lawyers and advocates appearing and also litigating and/or otherwise, public approaching and expecting justice according to law through them. Therefore, to appreciate descriptive boundaries of the independence of judiciary, it will never be uninteresting to appreciate and scrutinise interaction, interplay and interweaving of these trinity elements on the basis of experience, established notions and ideal experiments in regard thereto. Public image in regard to these facets of the institution of judiciary is also the concern of the situation and this has given me an opportunity to activate you to ponder in the context of my above thoughts.

The process of administration of justice has the aim to trace out the truth of the situation, try to avoid impediments in the adversary system of administration of justice- In 1993, the Retired Chief Justice of Madhya Pradesh High Court in his article recounted his professional days and recorded that at his time that if any client found and was advised that every thing was against him, he dared not enter or step to depose falsehood on oath. He used to accept advice tendered. In the process, if it is imbibed that giving evidence is not to state anything on oath, much of the glory of the past can be restored. We alone and none else can do it.

The situation, though at present under debate, is that the judicial officers are normally answerable to themselves at least. Acceptance of post by them is not an enforcement but a choice with a sense of responsibility. All around we find hue and cry in every kind of pitch. It is in this situation that introspection is necessary periodically and at various regular intervals. I cannot but remember in the context an interview of Justice Tulzapurkar on his retirement as the Judge of the Supreme Court. Justice Tulzapurkar commenced his judicial career as the Judge of the Bombay City Cvil and Sessions Court, the High Court of Bombay and then of the Supreme Court, I was personally touched by a statement that during all the years of his judicial life, Justice Tulzapurkar was not absent even for a day - not to speak of casual leave. 1 also remember in this context Chief Justice Chagla's "Roses in December" and reference therein that there was not a day when the Bombay High Court functioned and he did not preside over the Bench. This is very necessary as a reminder.

It has become necessary to tell ourselves as a preliminary to proceed to consider independence of judiciary, more than seriously that we have to be above clerical tendencies relating to enjoyment of casual and other leaves. My expression is a product of a feeling of community with you which should be appreciated in the context of multi-facet critical altitude against the judicial system of the day in the context of holidays and judge-days. Chief Justice Chagla and Justice Tulzapurkar are my ideal examples in the context, both for myself and to be placed before you.

Before considering the subject of independence of judiciary, f have opened my mind as above with a feeling passionate for the rule of law. not by way of a rambling discourse, but with a sincere desire to share my views with all of you illustratively and not exhaustively. It would be a heartening feeling on my turn, if you really feel and get attracted to have second mental look at these facets of loud thinking with a desire to draw there from mental notes for the store of future. I feel and I have faith that appointments of all of us arc placements of God. It is the bounty conferred upon us by the God. In Maharashtra, the Saint Samurtha Ramdas in this context, in his compendium or requirements and requisites of wisdom,— दासबोथ— has in a scattered way enumerated these bounties of God. If translated the bounties of God are: Justice, Personal Morals, Wisdom, Thoughts, Necessary Courage on the occasion. Nice Virtues, and sharp and penetrative logic for considered thoughts. These verses are my heritage from paternity. I personally feel and believe that if all of us are equipped in the above sense, we arc all poised as eligible for independence.

In the beginning, I have already set up that "Freedom from Want" and "Freedom from Fear" are (he basic aspirations in demand by every human being. I have delved upon the first one as far as we arc concerned by placing before you that all of us accept and also cultivate that we are not in wanting in any sense of the situation. This would not be possible unless we adopt an attitude that we have already which is with us and we don't want at all what is not with us. The judicial attitude must have this aspect as a postulate, as a stepping stone to "Freedom from Fear" in (he context of the independence of judiciary.

In the context of the independence of judiciary, it would be necessary to be cautious and guard ourselves with reference to certain situations. It is said and also believed that ambitious nature leads to compromises with requirements of an independent attitude. It is also said that various kinds of constraints, restraints and pressures of situations also possibly yield to take us at a distance from the path of an independent attitude. It is also said that the present scenario also presents situations difficult to have faith in values and fairness in conduct. All that I want to convey is not to tell you not to be ambitious, but in the context there must be a desirable and proper balance with regard to means in relation to the ambitious end.

In its functional aspect, the need is to maintain certain value-standards. Values are a set of standards guiding the thoughts and actions of individuals, social forces - cultural, international and personal - shape the values. It is commonly believed that values are founded on traditions. In every society, the behaviour of the individual is guided by the values internalised by him. His judgment and evaluation are always based upon how he internalised the values of the society in which he lives. Values are structured hierarchically on the basis of their importance from the point of view of society to enable choice between alternatives available and resolving of conflicts and making of decisions. As far as we are concerned, our Constitution has determined for ourselves the set of values and choice in regard thereto. Individual interests vis-a-vis social interests cannot have primacy.

We find that laws enacted for achieving the constitutional objectives are not yielding the desired results. The reason appears to be lack of commitment on those concerned. Individual values and pre-disposition clash with the stated objectives of the laws, leading the disadvantaged section's to seek solution outside the purview of the law. The value system available as flowing from the constitutional provisions concerning governance of our welfare State is definitely targeted at achieving good governance for the entire society. It docs not countenance crime, corruption and inefficiency. It appears to be the settled belief that all this is pervasive, gaining ground that there is all immunity from the judicial efforts and even verdicts. It is not necessary that I should tell you about the process of polarisation even to the extent that the terrorism is also not an end itself but an attempt to achieve ends by questionable and illegal, ignoble means not enjoying any kind of social backing.

The genuine forces of the law available to us by the constitutional net work must be woven with valid principles of the past into a new pattern of value-standards requiring radical changes in our social outlook and needed insight. May be that we are required to be equipped ourselves to reorganise our religious thoughts and practices to recover its conquering force and power to advance, penetrate and consequently even to fertilise the world order.

In the context, also comes the question of our accountability. The subject has always been on the anvil of debate, as it has already percolated into every sphere of human activity .The subject is also as old as Marbury v. Madison giving birth to the concept of the judicial review. As far as you are concerned, the eternal words of Benjamin Cardozo in 'The nature of Judicial Process" :

"We may try to see things as objectively as possible. Nonetheless, we can never see them with any eyes except our own."

would guide the situation for you.

You have to administer justice to the causes that come up before you, according to law. You will have to concentrate on the factual matrix before you and determine factual questions to be settled and decided. With reference thereto, you have to apply necessary statutory provisions, it" necessary, with the help of the binding decisions in regard thereto. In the process of the approach, you have to act with the faith in the system of justice and the rule of law. In the process you have to bear in mind that your conduct does not result either in giving dent to the faith, or putting the system into disgrace or destroying the very edifice of the institution. I would prefer not to elaborate further. Under the programme, you have assembled here to refresh and enlighten yourselves, to educate yourselves. Assembling together with a purpose is a Vedic Idea. The well-known Vedic purpose is known as "तेजार-वर्णावधातिमस्तु", an opportunity to find put the real purpose. Legal profession and judicial life is my eternal platonic love, and therefore, to you, as new entrants to the judicial fraternity, it is my advice that this is the occasion and time to take a decision to, accept the life of the judicial officer as मजहब which is none other than what I have contemplated upon until now that there is no substitute for hard work, character and judicial integrity. Please have faith. In the words of Saint Augustine, "Faith is to believe what we do not see and the reward of this faith is to see what we believe."

In the end, my feelings for you would be such that it you tell me (not call me), I will come before you to sing the Psalm of Judicial Life. I do not judge people. I judge causes before me. I love all and do not like to waste time in that, in the way of Mother Teressa. Thank you.

Author Name: Hon’ble Justice V V Kamat