Judiciary: Attacks and Survival

If an independent Judiciary is regarded as the heart of a Republic then the Indian Republic is at present suffering from serious heart ailment. In fact, the higher (superior) Judiciary of the country has, of late, been under constant onslaughts, external as well as internal, which is bound to cripple the health, welfare and progress of our body politic, as an ailing heart cannot ensure vigorous blood-supply for the sound health of its people. I, therefore, propose to deal with these onslaughts, their justification, if any, with a view to diagnose the ailment, its causes and possible remedies.

At the outset, I would like to observe that a considerable amount of criticism levelled against the judiciary these days is misinformed and springs from ill-appreciation of its true role and function. Is not the Judiciary proving a road block to social and economic progress ? Is it not encroaching upon the legislative fields of Parliament or State Legislatures ? Is it not interfering with the executive functions of the Government ? Those who pose such questions insinuate an affirmative answer to them. Is such affirmative answer justified ? In my view, to answer these questions in the affirmative is to ignore and misunderstand the legitimate role and true function of the Judiciary. Once it is appreciated that the provisions of Part III of the Constitution (dealing with Fundamental Rights) and the provisions of Part IV (dealing with Directive Principles of State Policy) have to be construed by the Courts harmoniously and not antagonistically and that the Constitution itself has cast a duty upon the Judiciary to see that Parliament or any State Legislature does not exceed its competence, powers and limits or does not enact measures that conflict with or abrogate Fundamental Rights forming part of the basic structure of the Constitution as also a duty to keep the executive action within permissible bounds, the futility of the above criticism will become amply clear.

I would like to refer particularly to the criticism made in the context of the concept of distributive justice, that is in the context of reaching justice to the common man. I find that a feeling is being engendered among the people, which is unfortunately fanned by some politicians of the day, that by reason of its attitude and working mechanism the Judiciary is unable to deliver the goods. A point has been persistently made and voiced strongly that the Judiciary has often proved a stumbling block in the enactment and/or the implementation of socio-economic measures intended for the amelioration of the common man, the toiling masses and the weaker sections of the society and the gravamen of the charge is that the doctrine of basic structure propounded by the Supreme Court in Keshavananda Bharati's case AIR 1973 SC 1461 and reiterated in Minerva Mills' case AIR 1980 SC 1789, hampers or comes in the way of enacting and/or implementing socio-economic measures that are contemplated for achieving such objective. It is also loosely suggested that this doctrine comes in the way of the Parliament amending the Constitution in public interest.

I would like to answer this criticism in two ways. In the first place, I would say the criticism is entirely misconceived and in that behalf I may point out that even then the Attorney General of India representing the Union Government, when the present ruling party was in power, had clearly admitted that the doctrine had no such effect. May I recall here that before the judgments in Mrs. Indira Gandhi's election case were delivered, an abortive attempt was made by then Attorney General of India and the Advocate General of Tamil Nadu, to have the decision in Kesavanand Bharati's case reconsidered by a Bench of 13 Judges and you are all aware that the Bench of 13 Judges heard the matter for two days on 10th and 11th November, 1975, but on the third day the Hon'ble Chief Justice informed the parties that the Bench had been dissolved without deciding anything. However, what transpired during the hearing has gone on record, and in particular, I would like to refer to the set of questions and answers that were exchanged between two of the learned Judges on the one hand, and the learned Attorney General on the other. Mr. Justice Khanna specifically put a question to the Attorney General:

"Has this theory of basic structure impeded or come in the way of legislating any socio-economic measure ?"

And the answer was categorically in the negative. Mr. Justice Untwalia asked the following question:

"Is there any example where the Parliament wanted to amend the Constitution in the public interest and has been prevented by Kesavanand's doctrine?"

And again, the answer was in the negative. In fact, the Attorney General wanted to say that the real point was, not whether Kesavanand's case had prevented any amendment of the Constitution in the public interest but that the Parliament did not know where it stood in the matter of amendments since the doctrine of basic structure was incapable of precise definition. (see Seervai's Constitutional Law of India 2nd Edn., Vol. II p. 1532 para 30.39 and p. 1565 para 30.76). The contention that a concept or doctrine would be invalid because it admits of no precise definition is ill-founded and will bear no scrutiny because concepts such as natural justice, reasonableness, negligence etc., though imprecise, are valid concepts and afford much needed relief to injured persons. But the point that I am making is that here is a categorical admission on the part of the then Attorney General, who represented the Union Government, that the doctrine of basis structure propounded in Kesavanand Bharati's case has neither prevented the enactment of socio-economic measures, nor the amendment of the Constitution in public interest.

The other way of answering the criticism would be to undertake a study to ascertain in how many cases socio-economic measures have been upheld by the Supreme Court and the High Courts rather than struck them down. Socio-economic measures like the Minimum Wages Act, the Factories Act, the Employees' Provident Funds Act, the Slum Clearance Act, the various Rent Acts, and Payment of Bonus Act (excepting for one arbitrary provision) have been consistently upheld by the Courts. Further the Courts have more often than not negatived the challenges to the Town Planning and Acquisitioning and Requisitioning Legislation as also the Remission of Rents and Rural Debts Legislation, even though the same severely curtailed the property rights. Recently all Agricultural Land Reforms Laws of the various States and the Urban Land Ceiling Act (barring one provision) have been upheld, and instances could be multiplied. It is true that in some cases certain measures have been struck down, but that would be inevitable where the legislative competence was found wanting, or the measures conflicted with, or abrogated the fundamental rights forming part of the basic structure; indeed in doing so the Judges have given effect to the intention of the founding fathers expressly embodied in Article 13 (2) which declares any law violating Fundamental Rights to be void to the extent of the violation. Even an empirical study of the decisions rendered by the Supreme Court and various High Courts will, I venture to assert, prove the fact in a vast majority of cases, the Judiciary has upheld the socio-economic measures.

I fail to understand why in spite of all this, such criticism should be persistently voiced that the Judiciary comes in the way of socio-economic measures or hampers justice being reached to the common man, the toiling masses and the weaker sections of the community. I am really surprised that the Tenth Law Commission presided over by Justice K. K. Mathew should include in its latest Questionnaire the following question : "Have the judgments of the Supreme Court regarding compensations payable upon the abolition of feudal rights brought to nought the process of social reforms ?" Much water has flown down the Ganges since those judgments were rendered by the Supreme Court and the current settled view has been that the Legislative measures will not be illegal or void on that count unless the compensation provided for is illusory. Besides, I fail to appreciate the relevance of the question in the context of the 44th Amendment whereby the provisions dealing with the Right to Property as a Fundamental Right have been deleted from the Constitution. The criticism that the Judiciary is proving a road-block to social and economic progress or constitutes a hurdle in reaching justice to the common man, in my view, is a myth which has been exploded long since. I suggest that this bogey, which is being raised again and again, deserves to be buried six fathoms deep. The politicians should not pass the buck of their own failure in reaching the benefits of socio-economic measures to the common man on to the Judiciary.

Dealing next with mechanism of the Judicial system obtaining today, a lot has been said about reforming the same and the Central Government has also decided to appoint a Commission to suggest reforms in the system. However, I would like to point out that considerable amount of loose talk is taking place in this behalf. True, the Judicial system in this country for the last over 100 years has been based and developed on Anglo-Saxon model and though basically sound, it cannot be disputed that over the years two great defects have been noticed in its working, namely, it is both expensive and dilatory and no one is more conscious than I that these two defects are causing great frustration to the litigants. Therefore I do not dispute that measures to avoid procedural delays and to cut down the cost of litigation must be devised and steps in the direction of making justice speedy and inexpensive would be most welcome. But to say that the system is a colonial legacy, that it is alien and does not suit our conditions, that it has become outdated or it has outlived its utility is to decry the same unnecessarily. To describe our Judiciary as "the vestige of British Imperialism and needs to be reorganised" as was done once by the previous Union Law Minister is to indulge in an emotive appeal out of a sense of false partriotism. A sitting Judge of the Supreme Court has, in a recent case made an unwanted and unwarranted judicial pronouncement, denouncing it as 'career ridden' and he has gone on to observe :

"The justice delivery system of this country is utterly alien to the genius of this country. This is a smuggled system from across the shores imposed upon us by the empire-builders for their own political motives and during the foreign rule a class came into existence which has enormously benefited by the justice delivery system to the detriment of the teeming millions and, therefore, they have become protagonists of the system". Such a diatribe against the system and styling it as "a smuggled system" and as having been "imposed on us" clearly amounts to an insult to our founding fathers, who realising the sterling merits of the system, openly and freely adopted it in our Constitution. With a crusader's zeal the same learned Judge has gone on record elsewhere to suggest the scrapping of the Procedure Codes and Evidence Act or something to that effect. In other words, destroy the very instruments with which to work the system. No further comment is necessary but all I ask is : should he not quit the system if he holds these views sincerely and honestly ?

As I said earlier the system is basically sound and subject to the two defects which I have mentioned above it has been working quite satisfactorily. The suggestion that the present system should be discarded outright or thrown over board lock, stock and barrel and that we should have Nyaya Panchayats or other indigenous system of justice is difficult to accept. Nyaya Panchayats in Taluk areas and villages where the society is ridden by illiteracy, casteism and now by the neo-political hawks is bound to prove dangerous and result in negation of justice. A glaring instance of how Members of Nyaya Panchayats functioned in Maharashtra has gone on record and I would like to mention it here. A small money-claim was lodged by a claimant with a Nyaya Panchayat and when the opponent did not appear in response to the summons served on him, the Members of Panchayat, instead of allowing the claim ex parte, took it as an offence and issued contempt Notice for disobedience of the summons against the opponent and eventually imposed a fine on him. Needless to say that the order imposing fine was quashed in revision by the High Court.

After all, the successful working of our Judicial system in the sense of reaching justice to the common man depends upon the persons who work it. A few do's and don'ts, if observed by the Judges and Lawyers who are working the present system will go a long way to relieve the litigants of their frustration. I have always felt that while making judicial pronouncements, Judges should not indulge in prefaces and exordial exercises, perorations and sermons and thesis and philosophies because a judgment of a Court of law and a thesis for a Doctorate in Law are two distinct exercises. It cannot also be forgotten that to a litigant half an ounce of relief is more satisfying than several pages of learning and precept — an exercise often indulged in to project one's image. The Anglo-Saxon model does not tell a Judge to indulge in sermons and philosophies while delivering judgments; the Anglo-Saxon model does not tell him to project his individual image at the cost of the Court's image; the Anglo-Saxon model does not tell him to delay his judgment for several months or for a year or two years; nor does it tell him to leave his Court work half-way-through for fulfilling other engagements foreign or otherwise. The tradition of putting the Court-work above everything else has been exemplified by Chief Justice Warren in America and Chief Justice Chagla in India — by refusing to meet a high dignitary during Court working hours. If Judges do not indulge in these things justice would be available to the common man rather quickly. On the other hand, lawyers, particularly Seniors, should see to it that matters are not put off for their convenience and that full effect is given to the amended provision contained in Order 17, Rule 1, Civil Procedure Code, 1973. On the aspect of cutting down the cost of litigation the State Governments can give relief by abolition of ad valorem Court-fees and I hope that the Union Law Minister's efforts to secure State Governments' co-operation in that behalf will bear fruit. I may mention that the Supreme Court has amended its Rules so as to do away with the deposit of security for costs while preferring an appeal to it. But on the aspect of making the litigation inexpensive for the litigants much lies with the lawyers and the do's and don'ts in that behalf are very clear. As was aptly put by the Chief Justice of India the other day lawyers should humanise their services to the society and not commercialise them. I would only add that even commercial morality deprecates questionable modes of recovery.

An attempted onslaught, if I could use that expression, striking at the very foundation of the Supreme Court, has emanated from an unexpected quarter in January this year in the form of a Questionnaire issued by the Tenth Law Commission of which Justice K. K. Mathew is the Chairman. Since merely views have been elicited and report is yet to be made I call it an attempt. In this behalf only first two questions (Q. No. 1 (a) and (2)) need be recalled and considered in proper perspective and background. These questions are :

1. Should the Supreme Court be replaced by a constitutional Court dealing exclusively with constitutional matters?
2. Are you in favour of the establishment of a Court of Appeal as the final arbiter of disputes of law (other than constitutional law) leaving the Supreme Court to concentrate on only constitutional issues ?"

In the first place both these questions would be relevant and appropriate for a Judicial Reforms Commission which might be concerned with the problem of restructuring the higher Judiciary, but are only tenuously relevant to the main object of this Questionnaire namely, "to embark upon a study of the problem of evolving a methodology for speedier disposal of matters coming before the Supreme Court and High Courts" as is stated in the forwarding letter accompanying the Questionnaire. How these questions are related to speeding up the disposal of cases is not understood ? Secondly, the questions, though innocuous in themselves, threaten to become loaded questions when read with the background notes given below each. Thirdly, though we are assured in the forwarding letter that the background notes appearing below each of the questions do not represent the views of the Commission, the Chairman, at a Press Conference called by him following the issuance of the Questionnaire, had clearly stated that he favours a Constitutional Court dealing exclusively with constitutional matters. In other words, the addressees have to deal with a body whose Chairman has already reached his tentative conclusions at least on these two questions. Fourthly, the reason which the Chairman gave in his public statement favouring a Constitutional Court was that competence and intellectual equipment needed to adjudicate upon constitutional issues was possible only in an atmosphere of leisure — a claim which is not borne out by the record of three decades of Supreme Court. For instance, in Gopalan's case AIR 1950 SC 27, which was decided in 1950, when the Judges had greater leisure, the majority construed the phrase "Procedure established by law" occurring in Article 21 in a limited manner and held that no person shall be deprived of life and liberty except by procedure established by law, howsoever harsh or unreasonable the procedure might be and it was only in Maneka Gandhi's case AIR 1978 SC 597, which was decided in 1978, when the Judges were working under great pressure of other work that the Court found time to add a new dimension to that concept by holding that the law contemplated by Article 21 had to be, both in its substantive and procedural aspects, fair and reasonable; similarly a significant advance has been made by the Court in the field of administrative law by invoking the principles of natural justice in that field since its decision in Kraipak's case AIR 1970 SC 150 in 1970 and onwards, when the Judges of the Court had more pressure of work and less leisure. In other words, the theory of leisure given as a ground for favouring a separate Constitutional Court is not valid. Fifthly, Government's proclaimed antipathy to Kesavanand's doctrine (unamendability of the basic structure of the Constitution) and its desire to have it set aside are well known; and lastly the attempt to have that decision reconsidered failed in the year 1973; instead the doctrine got reaffirmed in Minerva Mill's case. If in the light of this perspective and background a cross-section of responsible and competent professional opinion entertains grave suspicion that the proposal to replace the Supreme Court by a Constitutional Court is an indirect attempt to bring about the desired result of getting rid of the decision in Kesava-nanda Bharati's case, can it be faulted ? Since a threat to the very existence of the Supreme Court as it is now constituted is clearly involved the questions need serious thinking before they are appropriately answered.

I would like also to refer to Q. No. 7 which has a direct bearing on the independence of Judiciary. That question reads :

"Q. 7. Should appointees to the Judgeship of Supreme Court and the High Courts have a political background ?"

The question needlessly seeks to revive a debate on the theory that had been propounded by late Shri Mohankumarmangalam in Parliament on 2nd May, 1973 in the context of supersession of three Supreme Court Judges, namely, that the Government had a prerogative as well as a duty to take into account the social and political philosophy and outlook of the persons to be appointed to the Judiciary and that it was entirely within the discretion of the Government of the day to appoint persons considered in its eyes as the most suitable to occupy the high offices.

First, the theory does not seem to accord with the scheme envisaged by our Constitution in the matter of making appointments to the Supreme Court and the State High Courts. Articles 124 and 217 of the Constitution contain a procedure that contemplates the installing of a highly trained non-political Judiciary whose independence has been elaborately safeguarded by other relevant provisions in the Constitution, while the theory propounded by Shri Mohankumarmangalam clearly implies that the Government of the day will have the power to appoint such persons as Judges whose social and political philosophy and outlook will be in tune with the Government's philosophy and therein lies the danger to the independence of the Judiciary. The greatest enemy of a strong and independent Judiciary would be the sychophant element within it — I mean Judges whose pre-dispositions and value systems are attuned to those in power and whose dispositions and value systems keep on changing every time the ruling party changes and let me say that packing the Judiciary with such elements would in the long run prove dangerous to whosoever be in power. The need to keep the executive participation in making appointments to the minimum cannot be overemphasized and the least that could be done in that behalf is to see that the initiation of the proposal rests with the Chief Justice of the State High Court alone and the primacy to advice of the Chief Justice of India is restored by constitutional amendments.

Moreover, I would like to observe that the theory is based on an erroneous hypothesis, for, the truth of the matter which is sadly forgotten is that after the appointment as a Judge of a State High Court or the Supreme Court the incumbent has to decide and decides every matter coming before him on its own merits whatever be his personal view, outlook, philosohpy, predilections or prejudices concerning the case. By equipment and training and by the oath of the office Judges have to rise above their personal predilections or prejudices and instances are not wanting where the Judges have done so. I can refer to one such instance of Justice Vivian Bose of the Supreme Court who while deciding a case under the Preventive Detention Law where the petitioners concerned belonged to a party of certain political hue observed thus :

"It is perhaps ironical that I should struggle to uphold these freedoms in favour of a class of persons who, if rumour is to be accredited and if the list of their activities furnished to us is a true guide, would be the first to destroy them if they but had the power, but I cannot allow personal predilections to sway my judgments of the Constitution."

In making these observations Justice Bose derived support from what Justice Holmes of the United States Supreme Court, said, speaking on the American Constitution:

"If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate".

(S. Krishnan v. State of Madras, 1951 SCR 621 p. 654) : (AIR 1951 SC 301 at p. 313) :

A word about public interest litigation which the Supreme Court has commenced entertaining will not be out of place. Though it is a happy augury to find that the Supreme Court has started entertaining complaints in the form of post cards or letters addressed to individual Judges of the Court and treating them as regular petitions with a view to help redressal of the grievances which the poor and helpless may not be able to ventilate, I am perturbed by some unseemly trends that are emerging in this kind of litigation. In the first place a practice which is threatening to develop should not be allowed to become an established one, namely, to have such communication (treated as a petition) placed before the Judge to whom it is addressed and that Judge should hear the matter along with another brother Judge, because such a practice would result in conferring a privilege on the complainant to have a Judge or forum of his own choice, which is clearly subversive of the judicial process which enjoins that no litigant can choose his forum; moreover it will result in the erosion of the administrative powers of the Chief Justice. Instead, the normal healthy practice should obtain, namely, every such communication should be forwarded by the addressee to the Registrar of the Court, who should, after obtaining the requisite directions of the Chief Justice as usual, place the matter before any Bench in normal course. I must hasten to add that the requisite steps in this behalf are being taken.

Secondly, in the name of alleviating the grave public injury in this kind of litigation the Court cannot and should not arrogate to itself the role of an administrator or an overseer looking after the management and day to day working of all non-functioning or malfunctioning public bodies or institutions. For instance, the numerous orders that have been passed from time to time by the Court over the last one and half years, during which a complaint-petition against the maladministrated Government Protective Home for Women at Agra is kept pending, leaves one with a feeling that the Home is at present being run under the supervision and directions of the Court and the officials of the Home are afraid to do anything without reference to the Court : Take the case of Bhagalpur blindings. The Court's sensitivities about human dignity were greatly offended — and rightly so, by the inhuman and cruel treatment inflicted on the under-trials in police custody by the police personnel and therefore the State Government through the CBI were directed to launch prosecutions against the police officers and doctors who might be responsible for such barbarity. So far so good, but should the Court, in its anxiety to see that the culprits should not go unpunished, call from the C. B. I. a list of the names of the police officers and doctors to be prosecuted, copies of charge-sheets filed against them, names and witnesses and other particulars furnished to the accused and reserve further directions in the matter after observing:

"Since this case is now before us and we are anxious that those who are guilty of barbarity are brought to book, we consider it our duty to supervise and over-see the conduct of the prosecution in order to ensure that the prosecution is pursued vigorously and trial is held speedily and effectively ?" What is meant by ensuring vigorous prosecution and effective trial cannot be misunderstood. With the highest Court of the land supervising and over-seeing the progress and conduct of the case against them with a view to ensure vigorous prosecution and effective trial, will the concerned accused, the police officers and doctors, feel assured of a fair trial? Is not the Court violating the spirit of Article 21 which according to Maneka Gandhi's case must ensure just and fair procedure for a trial?

Similarly, is it the function of the Supreme Court to undertake or direct a parallel investigation in cases of unnatural deaths of young brides ? A young and educated bride of 31 years died of severe burns in Hyderabad : the husband claimed it to be a suicide but the victim's relatives suspected foul play by the husband. The police are investigating the case and have taken charge of a suicide note left by the victim in her own hand and signed by her. Claiming the note to be fake, a Women's Organisation of Delhi approaches the Supreme Court suggesting the complicity of the husband in the alleged murder and the Court at the request of the Organisation directs the police to file an affidavit stating that investigation has been carried out, what is the stage reached in the investigation and production of post-mortem report before it and further permits inspection of original documents by the Women's Organisation. If the police investigation was found to be improper or dishonest any aggrieved party could have got it entrusted to the C. I. D. or C. B. I. or other investigating agency by approaching the appropriate authorities and the Supreme Court could have asked the Women's Organisation to move in that behalf. There would be numerous cases of such suspicious deaths of young brides where the normal police investigation may have to be regarded as improper or dishonest but should the Supreme Court arrogate to itself the role of a supervising investigator in all such cases ? These are some of the disturbing trends emerging in this kind of litigation that require serious thought and consideration.

Recently, the Supreme Court, which is at the apex of the Indian Judiciary, has been under attack from within and without. Let me say at once that Judges who discharge their duties, "Without fear or favour, affection or ill-will" do not fear or resent criticism of their judicial work, nor is such criticism hurtful to a Judge's dignity, for "that must rest on surer foundations" as Lord Denning aptly put it (1968-2 QB 150) but before I speak of these surer foundations, let me say that I am not worried by ill-informed political attacks on the Judiciary, for when put to the touch, as in the Judges case, they vanished into thin air. There is the political stick of the laws delay to beat the judiciary with; but it broke when it was shown in the Judges case that a large number of vacancies in the High Court had not been filled in for months and years; that judicial strength was not kept under periodical review, nor was it increased to cope with the spate of legislation demanded by a modern State. Today there are 4 vacancies in the Supreme Court and over 90 vacancies in the High Courts. Which politician can throw stones at Judges when he fails in his duty to see that vacancies are promptly filled and that judicial strength adequate to discharge judicial duties is maintained and increased ? Similarly, I am not worried even by the motivated attacks made on the Judiciary by politicians and ministers who enjoy having confrontation with the Judiciary and who are out of denigrate or villify the Judiciary, for, time and course of events, show such persons their place and the Judiciary is avenged. Two conspicuous instances in that behalf immediately come to my mind and you are aware of them. You all know how poetic justice was done to two such leaders — the previous Union Law Minister and your previous Chief Minister. I need not elaborate. I may also add that the public obviously discounts political attacks on the Judiciary as is clear from the frequent demands made for a judicial inquiry — whether it be for an air-crash, or police firing or a damaging explosion or the like.

But attacks on the Judiciary from within pose a graver danger to the public confidence in Judges as well as to their position and dignity; it is of these attacks that I wish to speak to you today. I need hardly say that the Beach and the Bar are an integral part of the administration of justice and the decisions of Judges reflect, to a large extent, the assistance which they have received from the Bar. Judicial research, not subjected to critical examination by the Bar has time and again proved a costly failure. Therefore, our traditions require mutual respect, courtesy and understanding between the Bench and the Bar if justice is to be done effectively by our Courts. Indecorous or intemperate attacks by the Bar on the Bench and by the Bench on the Bar not only injure the administration of justice but they tend to lessen respect for Judges and Advocates alike.

Since memories are short let me refer to a painful episode that occurred in April of this year. Judges of the Supreme Court invited the Supreme Court Bar Association's views on the Judges' proposal to cut down hearings in open Court in certain types of matters to speed up the disposal of cases. In doing this the Judges showed the courtesy due to the Bar and showed also their recognition of the Bar's knowledge and experience of the problems involved in the Judges' proposal. If the Bar found those proposals unsound, a reasoned reply, which our Advocates are trained to draft, would have commanded the most earnest attention of the Judges. At the meeting of the Association, the proceedings of which were reported in the press, the response of the Advocates was angry, which is intelligible but it went further and took the form of indulgence in intemperate and disparaging remarks being made about the Supreme Court Judges. These remarks not only repaid the Judges, courtesy with insult, but were calculated to lower the public esteem for Judges, which a Bar fighting for Judicial independence ought to be loath to do. Let me quote from responsible press-reports which have not been contradicted. One senior member remarked: "With the kind of Judges we have today, it was impossible to get justice in Chamber sittings; even during the open hearings the decisions of the Judges left much to be desired." Another senior member said: "Computers would perform better than some Judges any way". Yet another senior counsel felt that the Supreme Court Judges were "slaughtering 90% of the special leave petitions, especially criminal and with the proposals implemented, they would slaughter 99%." In making these remarks the speakers forgot what Lord Denning has said for his Majesty's Judges, namely, "All we would ask is that those who criticise us will remember that from the nature of our office we cannot reply to their criticism. We cannot enter into a public controversy" (1968-2 QB 150 at p. 155).

What was the Judges' reaction? With the memory of the selfless fight for Judicial independence put up for months by lawyers all over India still fresh, and with the judicial temper which is appropriate to Judges they did not repel insult with insult. On the contrary, a dignified reply was sent to the Secretary by the Chief Justice through the Registrar merely stating that "unrestrained criticism of the Judges must in all events be avoided and it is hoped that the views expressed by a couple of members at the meeting did not represent the views of the Association." The members of the Association should have also realised under what tremendous pressure of heavy workload the Judges are discharging their functions and surely the problem of mounting arrears, over which every one is exercised, cannot be solved by issuing thoughtless threats of 'indefinite strike'. If I have referred to this episode it is because such attacks tend to undermine the independence of Judiciary in the defence of which the Bar of India showed a remarkable unanimity.

I now turn to the Judiciary and to what Lord Denning called the more solid foundation on which the dignity of Judges must rest, namely, the Judges' own conduct for their vindication against criticism. I view with great anxiety situations which are developing, which if not checked would be a serious attack on the Judiciary from within and if I refer to these situations it is because I believe that the best safeguard of Judicial independence and Judicial dignity is to be found in the" existence of an enlightened and vocal public and professional opinion.

The conduct of a Judge is governed by conventions. At the opening ceremony of the Federal Court of India, Sir Maurice Gwyer said : "It is not without significance that in the happy tradition of our profession all Judges are brethren to each other", but situations have recently arisen in which Judges have openly and publicly decried and devalued their colleagues in unbecoming language. During the last Presidential contest an ex-Chief Justice of India issued a public statement condemning and devaluing his former colleague as the most unfit person to hold the Presidential post because of the views expressed by him in two momentous decisions — in Kesavanand Bharati and A. D. M. Jabalpur. This was certainly not a laudable performance from the view-point of maintaining judiciary's image with which alone I am concerned. I am not viewing it in context of any political or legal issue at all. By all means criticise his judgments but should you devalue your ex-colleague who is entering the contest for the Presidential post in vindication of the democratic process ? I have it on high esteem." What is the use of such apology tendered privately when the damage was already done by issuing a public statement ?

In a recent litigation (Judges' Case) allegations were made in an affidavit against the Chief Justice of India. He had no option but to deal with them in a Counter Affidavit and he did so in a carefully drawn one. This did not make him a litigant before the Court, for he had no personal interest in the litigation. And yet a senior sitting Supreme Court Judge in his judgment described the Chief Justice of India as 'any other litigant' and further described the averments in the carefully drawn counter-affidavit as 'vague and indefinite', 'delightfully vague', 'a little intriguing' and 'the constitutional incantation'! Such language was indulged in despite the fact that exactly a month before the distinguished former Attorney-General, Mr. C. K. Daphtary, whose urbanity and sense of humour never desert him had at a public function issued a gentle admonition : "It appears that when lawyers refer to each other as 'my learned friend' they mean it but when Judges call their colleagues 'my learned brother' they do not mean it." I need not say anything of my own on this discourteous language. The enlightened professional opinion, of which I spoke has done so. Eminent jurists have deplored this language.

If this disapproval of his language by a competent professional opinion had its effect on the learned Judge I would not have dealt with this situation any further but the same Judge has in his later judgment on capital punishment mentioned by name 5 Supreme Court Judges, past and present whose presence on the Bench could be regarded as unfortunate by condemned prisoners. When this was reported in the Press he issued a clarificatory statement apparently to soothe the wounded feelings of the named judges, saying that his judgment had been misreported and things not said by him had been wrongly attributed to him. I wish no clarificatory statement had been issued, for, side by side publication of the clarificatory statement and the exact relevant portions of the judgment has merely helped to confirm the lay reader's impression that the earlier report of the judgment by the correspondent was correct and fell within the permissible limits of fair comment. It is true as claimed by the Judge that it was Prof. Blackshield who in his analysis, of the Supreme Court's judgments between April, 1972 and March, 1976, undertaken with a view to suggest incoherence and arbitrariness in the matter of awarding death sentence, had named three ex-Judges of the Court, whose presence on the Bench, he said, "may have been unfortunate for the appellants involved." But by quoting this analysis with approval the Judge made the analysis his own and further re-inforced it by saying that a similar analysis if undertaken for further period will reveal the same pattern of incoherence and arbitrariness in awarding capital punishment and has gone on to name two more Judges, Justice A. P. Sen (sitting Judge) and Justice P. S. Kailasam (Retired Judge) and has said : "If they had constituted the Bench for the hearing the case (named therein), one could hazard a guess, that perhaps the death sentence of the accused would have been confirmed." What is wrong if the correspondent concluded that the Judge has named five Judges whose presence on the Bench could be regarded by condemned prisoners as 'fatal' to their cases ? It should have been realised that naming individual Judges in such a strain in the context of award of capital punishment, apart from injuring their feelings, adversely affects their image and reputation as fair and impartial Judges in the eyes of that class of litigants and may, in the case of sitting Judges, even prompt them to apply for transfer of their cases from their Bench to some other Bench. Situations like this tarnish the fair name and bright image of the Court. I now understand that by issuing an errata the Judge has deleted the reference to the five individual Judges by their names from his judgment. The errata, though good in a way, can hardly retrieve the damage already done.

There is another tradition dictated by good sense and by the Judges' Oath, that once a Judge has delivered his judgment his work is done. It is not for him to hawk it about or to defend its merits extra-judicially to show how much he is the "people's Judge" or a champion of "the Establishment", for, if he does this, nobody will believe that he can decide cases in terms of his Oath, "without fear or favour, affection or ill-will". History has condemned Judges who flattered the King and did his Will. History will condemn Judges, who flatter the people or the State and do their Will. A Judge who hawks about his judgment in this country injures the judiciary in the eyes of our own people but when he takes to hawking it about out-side the country — either to enlighten the recipients or to secure some foreign assignment — he injures the Judiciary in foreign countries as well. Surely, it is essential to maintain the sound tradition that the Judges' task is done when he has delivered his judgment, that his reputation will rest on what he has done and what he is and not on what he proclaims himself to be.

There are other situations, which if not taken in hand, or to vary the metaphor, which if not branded by public or professional opinion as unworthy, will gravely injure the Judiciary from within and injure its image before the public. No one is obliged to become a Judge but if he decides to become one, he must accept restrictions on his conduct, to which others are not subject. He need not be a hermit but he must maintain certain detachment imposed upon him by his office, by his Oath and by what simple and honest people will think of him as a Judge. Above all he must decide "without fear or favour". Will anybody think that a Judge will do so if he sends fawning and flattering congratulations to political leaders on assumption of office ? Or if ha goes to the airport or railway station with a garland or. a bouquet to welcome or see off Prime Minister or other Ministers on their numerous trips ? Or if he seeks favours for himself or for his children or relatives from any quarters— official, business or otherwise? Similarly Judges should realise that if they enjoy hospitality of a Minister whose personal case is before them they disqualify themselves from hearing it any more. So also situations will have to be avoided by them where even remote insinuations or suggestions could be made that they are hobnobbing with Ministers or Govt. officials or mofussil lawyers for favour of retainers or work for their practising relatives. Indisputable favour must be repaid with favour and that is what a Judge cannot do without disgracing himself and bringing disgrace upon the Judiciary in the public esteem. It is no answer to say that today we are living in a climate of ethical degeneration, falling standards and collapsing values all around. On the other hand great care must be taken to see that judicial corridors are not polluted by such climate. And as the poet has said, "the aids to noble life are from within". If I have dwelt on tendencies which threaten to undermine the high reputation of our Judiciary it is because I believe that once public and professional opinion is aroused to these tendencies, it will make itself felt and help to stop attacks against the Judiciary from within.

Let me conclude by saying that it is demanded of a Judge that he should do justice to the best of his ability, blind to all allurements of personal gains or powers. That is what people expect of him; that is what our Constitution demands from him by making him as independent of the Executive as is possible; and that is the duty which he owes to the country, for, he must hold the scales of justice even between high and low, rich and poor and those in power and those out of power. There are few beautiful words which sum up what I would like to say of the "Judge that smiles contrary to the law". Sydney Smith said : "Nations fall where Judges are unjust, because there is nothing which the multitude think worth defending; but nations do not fall which are treated as we are treated, but they rise as we have risen, and they shine as We have shone, and die as we have died, too much used to justice and too much used to freedom to care for that life which is not just and free" (Oxford Book of English Prose, pp. 537-38). This was the faith of those who fought for our freedom, and they embodied it in our Constitution, for ordinarily, without freedom there can be no justice, and without justice there can be no freedom.

Author Name: Hon’ble Justice V D Tulzapurkar