Accusations of bias against judges
THE ARTICLE BY SHRI PP RAO SR ADVOCATE IN THE TRIBUNE CHANDIGARH PROVIDED BELOW ADVOCATES ABOUT HARMONY BETWEEN THE TWO STRONG PILLARS OF DEMOCRACY. AGREED BUT THE TAINT OF BIAS DESTROYS THE CREDIBLITY OF JUDGE . INSTEAD OF DECLARING THE INTEREST AND THEN SEEKING COUNSELS PERMISSION IS A BAD PRACTICE BY JUDGES. THE RULE SHOULD BE THAT – IF THERE IS ANY INTEREST YOU JUST RESCUE YOURSELF. WHY CANT OUR JUDICIARY FOLLOW IT. IMAGINE THE PAIN WHEN YOU COME TO KNOW THAT THE JUDGE HAD INTEREST IN ONE PARTY.
THANKS TO THE MEDIA AND ACTIVIST SUCH ISSUES ARE COMING TO THE FOREFRONT AND IN PUBLIC DISCOURSE IT IS A KNOWN FACT THAT IN HIGH COURTS WHERE PERSON FROM THE SAME HC BAR BECOME JUDGES / OR IN LOWER JUDICIARY A PERSON BECOMES A JUDGE IN HIS OWN STATE – CORRUPTION IS RAMPANT.
IT IS TIME WE CHECKED THE LOOPHOLES RATHER THAN CRITICIZING THE MEDIA
RAVI KANT ADVOCATE , SUPREME COURT OF INDIA
Media must play its role responsibly
ARTICLE PUBLISHED IN TRIBUNE CHANDIGARH BY SHRI PP RAO , SENIOR ADVOCATE /SUPREME COURT OF INDIA
The judiciary and the media are two strong pillars of democracy. They are easily accessible to the people and enjoy popular support, the media as the watchdog and the judiciary as the dispenser of justice. They play a vital role in upholding the rule of law. According to the Press Council of India, before publishing a news item about court proceedings, it will be appropriate for the correspondent and the editor to ascertain its genuineness, correctness and authenticity from the records. Misleading allegations of bias against a judge tend to undermine the credibility of the judiciary and interfere with the administration of justice.
Three news items have appeared recently; first in a newsmagazine of September 05, targeting Justice S.H. Kapadia, the senior-most judge, then in a national daily dated October 13 continuing the attack and thereafter in the same paper dated October 21. This last report, with the headline “Judge has equal RIL, RNRL shares — but he continues on Bench as parties have no objection”, names Justice R.V. Raveendran in addition. The news items give the wrong impression that the judges are guilty of a serious lapse.
In all fairness to Justice Kapadia, the magazine ought to have mentioned the crucial fact that he had made it clear at the very outset that he had shares in the company, which is a party before him and if anyone had objection, he would not hear the matter. A few illustrations would show that this has been the practice.
In the bank nationalisation case (R.C. Cooper vs. UOI), as soon as the Bench of 11 judges assembled, Justice J.C. Shah announced in the open court that some of them had shares in the nationalised banks and if anyone had any objection, they would recuse themselves from the case. Waiving their right to object, all the counsel requested the court to proceed. Nobody questioned the verdict of the Bench as vitiated by bias.
The government was required to give a hearing to a person before blacklisting him, i.e. disqualifying him from entering into any contract with the government in future. Justice K.K. Mathew, one of the judges on the Bench, had earlier decided this very question as a judge of the Kerala High Court. As the case was called out, he mentioned this fact and gave a chance to object. All of us representing the parties said, we had no objection to the judge hearing the matter. Traditionally, while hearing a case, judges have an open mind. They are conscious of their solemn oath to act without fear or favour, affection or ill will. If a judge is impressed with an argument advanced before him, which was not put forward earlier, he would change his mind.
There are instances where the same judge took a different view in a subsequent case in the same court. Justice N.H Bhagwati, who was a member of the Constitution Bench in State of Bombay vs. United Motors, interpreted Article 286 (2) of the Constitution dealing with the levy of tax on the sale or purchase of goods which takes place in the course of inter-state trade or commerce. Subsequently, in Bengal Immunity Company vs. State of Bihar, he over-ruled his decision in the United Motors case, giving reasons for interpreting the same provision differently.
Apprehension of bias could be for any reason. Haryana terminated the services of a judicial officer accepting the unanimous recommendation of the Chief Justice and all the judges of the High Court. When he tried to challenge the order in the Supreme Court directly, apprehending bias on the part of High Court judges, he was asked to move the High Court first. It was because when the judges sit on the judicial side, they are not bound by their own view taken on the administrative side earlier. Hearing the case in the open court, they are free to take and do take an independent decision on the basis of the record and arguments advanced by counsel. There have been several instances where the judges sitting on the judicial side have set aside resolutions of the Full Court to which they were parties on the administrative side. There is no question of reasonable likelihood of bias in such cases.
In Roopa Ashok Hurra’s case, the Supreme Court permitted a person aggrieved by a judgement of the court to file a curative petition, after the dismissal of his review petition, on two grounds. One of them is that the judge who decided the case had failed to disclose his connection with the subject matter or the parties, giving scope for an apprehension of bias. The basic principle is that justice should not only be done, but be seen to be done. Hence the requirement that a judge should disclose his connection with the subject matter or the parties to the case. It is open to any party to object and have the case transferred to another judge.
As Frank, a judge, pointed out, “if ‘bias’ and ‘partiality’ be defined to mean the total absence of preconceptions in the mind of the judge, then no one has ever had a fair trial, and no one ever will. The human mind, even at infancy, is no blank piece of paper.” Because of their training and tradition, judges rise above their predilections and take decisions objectively. This is the basis on which power of review is conferred on judges to correct their own judgements and orders pronounced in open court on the ground that they suffer from errors apparent on the face of the record.
In England, Field, a judge, held that a magistrate who subscribed to the Royal Society for the Prevention of Cruelty to Animals was not thereby disabled from trying a charge brought by that body of cruelty to a horse, observing that a mere general interest in the general object to be pursued would not disqualify. There must be some direct connection with the litigation. Likewise, being a shareholder of the company without any other direct interest in the subject matter of the dispute before the court, does not disqualify a judge from deciding the case. However, law insists that he ought to disclose this fact. The test is whether there is substantial possibility of bias animating the mind of the judge against the aggrieved party.
In the Jammu and Kashmir High Court, the son of a judge who is an advocate could appear before his father if he was sitting with another judge or judges on the Bench, but not when he was sitting alone. In the Supreme Court, judges always sit in Division Benches with one or more brother judges. A judge with a closed mind is a contradiction in terms.
It is well settled that the plea of bias can be waived. Normally, when a judge discloses his interest in the case, the lawyers would not object because of their faith in the honesty of the judge. Two out of three judges of the High Court of Punjab and Haryana who heard Inderpreet Singh Kalhon’s case had been members of an administrative committee which found that the selection of the petitioners was tainted and recommended cancellation of their appointments as judicial officers. When they mentioned this fact, nobody objected.
In the Supreme Court, Justice S.B. Sinha felt that the judges should have recused themselves from hearing the matter, but Dalveer Bhandari, a judge, rightly disagreed with this view. He held that the judges having disclosed the fact that they were members of the committee, in the absence of any objection from the petitioners, there was no illegality in their hearing the matter. As the law stands today, it is unfair to allege bias on the part of judges who had fairly and voluntarily disclosed their share holding in the company and heard the case in the absence of any objection.
Freedom of speech is the birthright of the media. But freedom does not mean licence to denigrate the judiciary and erode the confidence of the people in the institution.Rule of law needs a credible judiciary and a responsible media.
The writer is a senior advocate of the Supreme Court of India.
http://www.tribuneindia.com/2009/20091110/edit.htm#4
Intellectual attainments or material possessions?
I AGREE WITH MR GUPTA ARTICLE PUBLISHED IN TRIBUNE PROVIDED BELOW , BUT IT IS A FACT THAT CORRUPTION HAS PERMEATED IN ALL SPHERES OF OUR LIVES AND JUDICIARY IS NO EXCEPTION. IT IS NOT THAT WE ARE HOUNDING THE JUDGES BUT FOR ASSET DECLARATION OR IN ISSUES OF BIAS BUT ENSURING THAT A PERSON WHO SITS IN THE JUDGE CHAIR SHOULD BE SPOTLESS.HE SHOULD BE BEYOND BIAS. IT IS THEN ONLY JUSTICE WILL BE COMPLETE.
JUST IMAGINE THE SERIOUS CONSEQUENCES OF BIAS IN WHICH A LITIGANT MAY LOOSE HIS CASE BECAUSE OF THE OTHER PARTY BEING CONNECTED TO THE JUDGE OR MONEY POWER INFLUENCING JUDGES.
THERE IS AN URGENT NEED TO CLEAN THE SYSTEM . IT IS NOT AGAINST THE JUDGES BUT A CAMPAIGN TO ENSURE JUSTICE.
RAVI KANT /ADVOCATE
BY JL GUPTA IN TRIBUNE CHANDIGARH
Finally, SC judges declare assets’ is the headline. Have the people gained? Will it improve the quality of justice? I think not. In fact, the whole controversy regarding the declaration of assets by the members of the higher judiciary is unfortunate. The fact that fuel has been added to the fire by some who were once a part of the judicial system makes it worse.
It is true that those who sit in judgement over their fellow human beings should be men of character, intellect and integrity. They must inspire confidence in the minds of people.
But can we stretch it to mean that every person who dons the judge’s robes must live in a glass house? Or that a lawyer who sacrifices his lucrative practice to accept elevation must expose himself to the prying eyes of the public? And can the declaration ensure integrity?
If yes, this would necessarily mean that the judge and his family must not only declare the area of land, houses, money (in bank and hand) but also the number of bags and bangles, beds and bed covers, crockery, cutlery etc.
In other words, the judge must place a list of all the movable and immovable assets on the web site. Would it not enable an unscrupulous litigant to pick holes in the declaration and raise unsavoury controversies everyday? Will it not be a licence to throw stones at the judge knowing that he cannot answer back? Would the whole exercise be not wholly counter-productive?
It is known that members of the higher judiciary come from the Bar and the Judicial Service. The lawyers considered for elevation furnish copies of their income and wealth tax returns to the Chief Justice. After appointment, they have to continue to comply with the tax laws. Similar is the position with regard to the members of the Judicial Service who are picked up for appointment to the High Court. In addition, their annual property returns are invariably with the High Court. Thus, the complete details are always available with the government and the High Courts. Why is that not enough?
Secondly, society needs to understand the onerous nature of the judge’s job. Every litigant believes that his case is good and the cause just. The person who wins is always certain that justice has been done. He has only got his due. However, the side that loses invariably believes that a serious wrong has occurred. Resultantly, with every case that a judge decides, he earns a critic.
The litigant makes all kinds of baseless allegations. It is to protect the judge from such elements that the framers of the Constitution had provided protection to the members of the judiciary. We can violate it only at our own peril.
And then, what are a judge’s real assets? The brain or the bank balance? Fortune or fortitude? Intellectual attainments or material acquisitions? The extent of possessions or the absence of wants?
An ass can carry gold but eats only grass. The man in robes is not very different. Usually, he works like a horse and lives like a hermit. And yet, we complain.
Today, the civil society faces a crisis of character. There is a devaluation of values. Most of us, who talk of values, actually love valuables. In the morning, we pray. Then we spend the whole day looking for a prey. And all of us are a product of the society that we live in.
When the wood is crooked, the furniture cannot be straight. In today’s environment, despite checks, a black sheep can enter the system. However, such situations have always been effectively dealt with. Invariably, the unwanted weeds have been weeded out.
Still more, let us not forget that we are a democracy. Freedom of speech is a guaranteed right. Thus, it is no surprise that almost everyone assumes a right to criticise.
Some of us live only to find faults. They continuously hunt for blemishes. It is a miserable mission. It can be totally destructive. We need to remember that it is difficult to build an institution. Any fool can destroy it.
In India, the judiciary is one institution that has served society well. It has functioned without fear or favour. Let us not ruin it by raising avoidable controversies. As it is, good lawyers are no longer keen aspirants.
If we persist, I suspect that we shall spoil things beyond repair. We need to protect it against malicious vilification.
Truly, no system can be perfect. But we know that the judges work in open court rooms. Under the constant gaze of the parties and their counsel.
Nothing escapes the eagle’s eye. And then their judgements are public property. Open to critical scrutiny by one and all. That is a good check.
Lastly, there is an old saying — ‘Believe less than you hear of a man’s fortune and more than you hear of his fame.’ It is apt in the present context.
Today, we know as to how rich or poor each judge of the apex court is. It makes no difference. A judge’s worth has to be judged on the basis of his work. Tales about his wealth may never be true.
http://www.tribuneindia.com/2009/20091110/edit.htm#6
Just wrong
”The CJI can advise Dinakaran to stop work.”
EDITORIAL IN DECCAN HERALD
It is strange that Karnataka High Court Chief Justice P D Dinakaran, against whom serious charges of encroachment and illegal occupation of public land, acquisition of wealth beyond known means and abuse of office have been levelled, still continues to discharge his judicial duties. The mere existence of charges against a person is no reason to take action against him or her. But in Justice Dinakaran’s case, at least one major charge has been found correct by an authorised government official. The Thiruvallur district collector has confirmed that ‘poromboke’ land in Kaverirajapuram in the district has been encroached upon by Justice Dinakaran. It was also reported that the district’s revenue officials were threatened and there was an attempt to remove evidence of encroachment. The judge’s explanations about the charges do not seem convincing.
His elevation to the Supreme Court has been held in abeyance on the basis of the preliminary enquiry. But the Chief Justice of India has ordered an assessment by the Survey of India to verify the veracity of the collector’s view. This is also strange. When a responsible government official has submitted a report after due consideration of facts, why should a second opinion be sought on the matter? Even if other charges against the judge are found baseless, the charge of encroachment of land makes his elevation to the Supreme Court unacceptable. And if he is not fit for the Supreme Court, he cannot continue as high court chief justice.
The credibility and prestige of the judiciary depend on the conduct and image of the judges. They have to be completely above suspicion. It is unfortunate that the Supreme Court’s collegium of judges, which recommends the selection of judges, dillydallied in Justice Dinakaran’s case. It had, in the first place, either failed to investigate the charges against him or glossed over them. And now even in the face of credible evidence against him, it has not conclusively rejected his candidature. Justice Dinakaran himself should have voluntarily kept himself away from judicial duties when the charges came into the open. He should have had enough respect for his position to do that. The CJI can advise him to stop attending to judicial work. It is also necessary to take recourse to action, prescribed by the constitution, against an errant judge, and other appropriate actions to penalise him for violations of the law.
http://www.deccanherald.com/content/35089/just-wrong.html
Canons of Judicial Ethics
WHEN THE JUDICIARY IS UNDER ATTACK ON ISSUES RELATED TO BIAS AND ASSET DECLARATION IT IS TIME TO REFER TO THIS SPEECH GIVEN BY JUSTICE SHRI R S LAHOTI , IN 2005
Canons of Judicial Ethics
First M.C. Setalvad Memorial Lecture delivered by
Hon’ble Shri R.C. Lahoti, Chief Justice of India On Tuesday,
22nd February, 2005.
INTRODUCTION
I deem it a matter of pride, privilege and pleasure for having been called upon to deliver the First M.C. Setalvad Memorial Lecture. I do not have the good fortune of having ever met or even seen the legendary figure Motilal Setalvad, but, I can claim to know him well for I have learnt about him not from anyone else, but from he himself.
My close encounter with Setalvad (as I would put it) was in the year 1971. I had put in a few years of legal practice. I had passed through that phase wherein a junior lawyer often acquires the reputation of being a champion of lost cases. I was desperately keen on learning what goes into the making of a good lawyer. My late father, who was also my guru in the profession and also my role model, advised me to read autobiographies and biographies of great lawyers. In a law book shop at Indore (where I had taken my instructions in law), I came across – “My Life, Law and Other Things”. What tempted me at that time to purchase the book was not so much the fact that the book was authored by Setalvad; rather, I felt more fascinated by the fact that the book was published in October, 1970 and within three months a reprint edition had to be brought out in January, 1971. This fact bore testimony to the demand for the book. I thought there must be something worthwhile in it. For the book running into 636 pages well bound in cloth, I paid Rs. 30/- (the printed price) which was out of the hard earned money of a young district court lawyer. Thirty three years hence, a few pages have started leaving the binding. Recently I saw the second edition of the book. On comparison, I found that the only difference between the two editions is a heart-touching but inspiring introduction to the book by Shri Fali S. Nariman, Senior Advocate. I got the introduction photocopied and added to my old possession as I did not want my tested source of inspiration for 33 years to be replaced by anything new.
The book is a must for every lawyer, every judge and every student of law, for the message which it carries for everyone associated with law or legal profession. The book speaks less of Setalvad and more about the contemporaneous events which centred around Setalvad. It is less of a biography and more of a historical document. Setalvad himself said – “I have always disliked talking about myself” and yet he said – “I am naturally proud of what I have been able to achieve in the profession and all the services I have tried to render to the public and the country in different fields. I have attempted in this book to set down an account of my life first of all for my own satisfaction and because it might be an encouragement to others.” Setalvad is right, I can swear and say that.
MOTILAL SETALVAD
Motilal was a worthy son of a worthy father Chimanlal. He not only inherited all the virtues of his great father but also multiplied and refined them to higher planes. Towards the declining years of his life, Chimanlal had the satisfaction of seeing his eldest son tread in his professional foot-steps, and distinguishing himself by his mental powers and forensic ability, which in the end enabled him to rise to the highest rung of the legal ladder, culminating in his appointment first as the Advocate General of Bombay and later as Attorney General for India. The son gave early promise of a brilliant future at the Bar.[1]
A few characteristic qualities of Setalvad as an Advocate need a mention. He was blessed with a stentorian voice which was quite disarming for his opponents. He was invariably full of confidence at the Bar and had the habit of looking around in court during the course of his arguments. He never interrupted his opponents. His arguments were crisp and to the point and were not loaded with personal reminiscences and anecdotes. When Seervai mentioned something personal to himself during the course of the hearing of the RMDC appeals and writ petitions, Motilal made an audible remark that “these autobiographical references must stop”. He practiced the profession in a grand manner like an architect and not like a mason or a tradesman operating on the law of demand and supply. His fees were reasonable and did not vary depending upon the stakes involved in a case.[2] The most conspicuous trait of Motilal Setalvad’s advocacy in Court was his clarity of exposition and brevity. He never repeated an argument or over emphasized it. In the President’s Reference No. 1 of 1964 [(1965) 1 SCR 413], Chief Justice Gajendragadkar paid a tribute to him – “Mr. Setalvad who appeared for the Judges of the Allahabad High Court addressed to us a very able argument with his characteristic brevity and lucidity” (page 435). He had the most impeccable demeanour in court. He did not raise his voice or show any emotion or indulge in levity. No other Attorney General had the gravity which he had and which spontaneously commanded respect from the Bench. As a Law Officer he seemed to have instinctively grasped the true function of a Law Officer which is stressed in English Courts viz., “Counsel for the Crown neither wins or loses. He is there to state the law and facts to the Court”. Setalvad did precisely that.[3]
TODAY’S TOPIC
When Mr. Fali S. Nariman gave me the topic – ‘Canons of Judicial Ethics’ I was a little amused. Who talks of ethics these days? And who listens to ethics?
A patient visited a doctor’s clinic and asked the receptionist – “I want to see a specialist of eyes and ears.
The receptionist said – “There are doctors of ear, nose and throat and there are doctors of eyes. There is no specialist who treats both the eyes and the ears. But then why are you in need of such a doctor?
The patient replied – “These days I do not see what I hear and I do not hear what I see.”
There are three reasons why I have readily and happily agreed to be here this day speaking on the subject. First, the year 2005 is an ‘Year of Excellence in Judiciary’. It is futile to think of excellence in judiciary unless the judges __ howsoever highly or howsoever lowly placed __ were to follow the canons of judicial ethics. Thus, the subject becomes inevitably relevant. Secondly, there is an untold and hitherto unknown affinity between Setalvad and me. Setalvad too was a teetotaller, vegetarian and non-smoker. These qualities of his have made me fall in love with him. Thirdly, I feel nothing could have been more appropriate and befitting the memory of Setalvad __ the professional virtues incarnate, than discussing ethics and this I say on the authority of what Mr. Justice V.R. Krishna Iyer had said in a message – “The late Shri M.C. Setalvad was not merely a great jurist and persuasive advocate of international renown but, most importantly, was one of the tallest figures who set high standards for the Bench and the Bar and, by the very power of his presence, made high professional values operational. Today, when the decline and fall have become deleteriously visible in the two sister professions, the memory of Setalvad will be a necessary admonition.”[4] Fourthly, no Chief Justice of India would refuse to avail an opportunity for speaking on judicial ethics more so when it is before such an august audience and that too in the memory of Motilal Setalvad. It would have been unethical on my part if I would not. Discussion on judicial ethics is a tribute to Setalvad.
The first lecture on Setalvad could not possibly have been on any topic other than ‘Ethics’. Setalvad is a man who lived by values and not only did he live by values but he also believed in creating values. He remained ever a lawyer and never became a judge; rather, never agreed to become a judge. His life story is full of anecdotes delivering messages worth being emulated by the lawyers and the judges. An anecdote or two[5], I am tempted to quote.
In 1956, Setalvad was in Hague to appear before the International Court. The Indian Ambassador there came with a message that Sir Mohammed Zaffarullah Khan, one of the Judges at the Court was anxious to meet Setalvad for old times’ sake. Setalvad responded firmly by saying that it would be wrong for him to meet a sitting Judge even socially. Zafarullah Khan tried to speak to Setalvad on phone. Setalvad was very clear and firm while speaking into the mouthpiece for the sake of courtesy that it would be wrong for him to meet the judge while the case was on. “We shall meet after the case is over,” he said.5
While staying at 11, Safdarjung Road in the capacity of Attorney General for India he had two telephones, one official and one personal. Mrs. Setalvad was having tea with him and Setalvad just left the hall to make a call. The guest present wondered why he did not make a call from the telephone which was there itself. Mrs. Setalvad explained that Setalvad always made his personal calls from his private telephone and the telephone near hand was the official one.5
During his official visits he would meticulously check all the bills to separate such payments which were his personal and immediately drew a cheque for such amounts.
It is well-known that Setalvad publicly disapproved of the former Chief Justice of Bombay accepting a diplomatic post from the Government of India. He heartily disapproved of the executive branch of the Government holding different carrots to the judiciary.5
He would never accept any gifts; not even from his clients. In the Privy Purse matter his client – a Maharaja – sent him some valuable gifts attractively packed, which he promptly declined to accept, even without touching them and told the carrier – “Tell his Highness if he wants to send the fee, it should be by cheque.”5
Motilal had great respect for the judiciary and the judges. Jai Mukhi was associated with Motilal as his junior. Mukhi’s brother Parsa was appointed judge of the Bombay High Court. Soon, on being so appointed, Parsa accompanied Mukhi to Setalvad’s house. Setalvad was in kurta pyjama and ensconced in his favourite chair. He lumbered up from his chair and stood erect to exclaim – “A Judge! One must show respect to a Judge!”5
Setalvad had asserted Judicial Independence when he was still the Attorney General. At the Inaugural Session of the Bar Association of India in 1961, he had indicted the Government, with President Rajendra Prasad, Prime Minister Jawaharlal Nehru and Chief Justice B.P. Sinha present on the rostrum in the Vigyan Bhawan. Setalvad condemned the Governor’s reprieve granted to Nanavati to make the Bombay High Court warrant issued for his arrest unenforceable, when the Supreme Court was seized of Nanavati’s appeal against his conviction for the murder of Ahuja. After Setalvad’s Presidential Speech, at this Bar function, Jawaharlal Nehru was called upon by Setalvad to inaugurate the Bar Association of India, a voluntary organization of the Bar. Jawaharlal Nehru was visibly shaken by the powerful public indictment by Motilal Setalvad. Jawaharlal Nehru fumbled for words as he never used to. Jawaharlal began: “What can I say? I am in the position of an accused!” That was Jawaharlal so full of candour and so transparently sincere. He did not defend the action of the Government. He made it quite obvious that his judgment as Prime Minister had gone wrong in taking a responsible decision, in the zeal to protect Nanavati, albeit temporarily.[6] Commitment to professional ethics and professionally honouring the commitment made were the virtue of Setalvad. R.A. Gagrat, Advocate, past President of the Bombay Incorporated Law Society narrates one of his reminiscences. He had briefed Setalvad in some important cases including the RMDC case which his clients lost in the Bombay High Court. At that time, there was a rumour that Setalvad would be appointed the first Attorney General for India. Gagrat went to congratulate him and also told him that on behalf of RMDC, an appeal was being filed in Supreme Court. The information was a reminder to Setalvad and also an underlying request to Setalvad to inform in his turn the Government to that effect. Gagrat also requested Setalvad to appear for his clients in the Supreme Court and not to take up the matter on behalf of the Government. Setalvad expressed thanks to Gagrat for the information and told him that he would speak to the Government about it. Setalvad kept his promise and appeared for RMDC in the Supreme Court.[7]
While working on the material for the memorial lecture of today I have realized what the meaning of the title “My Life, Law and Other Things” – title which Setalvad gave to his autobiography __ is. His ‘life’ is, of course, the core of the book. The ‘law’ is in plenty in it to read. What was not clear to me earlier was ‘other things’. Now, I understand these ‘other things’ available in the book, are just the ‘Canons of Judicial Ethics’.
CANONS VS. PRINCIPLES
I wonder why not ‘Principles of Judicial Ethics’ and why the ‘Canons of Judicial Ethics’.
‘Principles’ are fundamental truth, the axioms, the code of right conduct. Much of these remain confined to theory or hidden in books. Canons are the type or the rules perfected by the principles put to practice. Principles may be a faculty of the mind, a source of action which are a pleasure to preach or read. ‘Canons’ are principles put into practice so as to be recognized as rules of conduct commanding acceptability akin to religion or firm faith, the departure wherefrom would be not a pardonable mistake but an unpardonable sin. Let us bear this distinction in our mind while embarking upon a voyage into the dreamland called the ‘Canons of Judicial Ethics’.
Canons are the first verse of the first chapter of a book whose pages are infinite. The life of a Judge i.e. the judicial living is not an easy thing. Things in judicial life do not always run smoothly. Performing the functions of a judicial office, an occupant at times rises towards the heights and at times all will seem to reverse itself. Living by canons of judicial ethics enables the occupant of judicial office to draw a line of life with an upward trend travelling through the middle of peaks and valleys. In legal circles, people are often inclined to remember the past as glorious and describing the present as full of setbacks and reverses. There are dark periods of trial and fusion. History bears testimony to the fact that there has never been an age that did not applaud the past and lament the present. The thought process shall ever continue. Henry George said – “Generations, succeeding to the gain of their predecessors, gradually elevate the status of mankind as coral polyps, building one generation upon the work of the other, gradually elevate themselves from the bottom of the sea.” Progress is the law of nature. Setbacks and reverses are countered by courage, endurance and resolve. World always corrects itself and the mankind moves ahead again. “Life must be measured by thought and action, not by time” – said Sir John Lubbock.
Observance of Canons of Judicial Ethics enables the judiciary to struggle with confidence; to chasten oneself and be wise and to learn by themselves the true values of judicial life. The discharge of judicial function is an act of divinity. Perfection in performance of judicial functions is not achieved solely by logic or reason. There is a mystic power which drives the Earth and the Sun, every breeze on a flower and every smile on a child and every breath which we take. It is this endurance and consciousness which enables the participation of the infinite forces which command us in our thought and action, which, expressed in simple terms and concisely put, is called the ‘Canons of Judicial Ethics’.
Judicial Ethics
Judicial ethics is an expression which defies definition. In the literature, wherever there is a reference to judicial ethics, mostly it is not defined but attempted to be conceptualized. According to Mr. Justice Thomas of the Supreme Court of Queensland, there are two key issues that must be addressed : (i) the identification of standard to which members of the judiciary must be held; and (ii) a mechanism, formal or informal, to ensure that these standards are adhered to. A reference to various dictionaries would enable framing of a definition, if it must be framed. Simply put, it can be said that judicial ethics are the basic principles of right action of the judges. It consists of or relates to moral action, conduct, motive or character of judges; what is right or befitting for them. It can also be said that judicial ethics consist of such values as belong to the realm of judiciary without regard to the time or place and are referable to justice dispensation.
Need for
In all democratic constitutions, or even those societies which are not necessarily democratic or not governed by any constitution, the need for competent, independent and impartial judiciary as an institution has been recognized and accepted. It will not be an exaggeration to say that in modern times the availability of such judiciary is synonymous with the existence of civilization in society. There are constitutional rights, statutory rights, human rights and natural rights which need to be protected and implemented. Such protection and implementation depends on the proper administration of justice which in its turn depends on the existence and availability of an independent judiciary. Courts of Law are essential to act and assume their role as guardians of the Rule of Law and a means of assuring good governance. Though it can be said that source of judicial power is the law but, in reality, the effective exercise of judicial power originates from two sources. Externally, the source is the public acceptance of the authority of the judiciary. Internally and more importantly, the source is the integrity of the judiciary. The very existence of justice-delivery system depends on the judges who, for the time being, constitute the system. The judges have to honour the judicial office which they hold as a public trust. Their every action and their every word – spoken or written – must show and reflect correctly that they hold the office as a public trust and they are determined to strive continuously to enhance and maintain the people’s confidence in the judicial system.
Alexander Hamilton once said ___ “The judiciary . . . has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will but merely judgment…”.[8] The greatest strength of the judiciary is the faith of the people in it. Faith, confidence and acceptability cannot be commanded; they have to be earned. And that can be done only by developing the inner strength of morality and ethics.
ATTEMPTED CODIFICATION OF CANONS OF JUDICIAL ETHICS
People are responsible for their opinions, but providence is responsible for their morals (W.B. Yeats in Christopher Hassall). The Constitution of India provides for an independent judiciary. It is insulated against any influence of any other wing of governance or any other agency or authority. Speaking in the Constituent Assembly of India, its President Dr. Rajendra Prasad emphasized the need for the Indian Judiciary to be independent of the Executive and competent in itself. There was a long discussion as to how the twin objects could be achieved. It has been unanimously accepted in all the civilized countries of the world that an independent judiciary is the backbone of civilized governance. It needs to be constantly guarded against external influences. Over the time, the framers of different constitutions have realized that independence of the judiciary and the protection of its constitutional position is the result of a continuous struggle – an ongoing and dynamic process. The constitutional safeguards provide external protection for independence and strength of the judiciary. At the same time, the judiciary itself and socio-legal forces should believe in the independence of the judiciary. It is of paramount importance, that the judiciary to remain protected must be strong and independent from within, which can be achieved only by inculcating and imbibing canons of judicial ethics inseparably into the personality of the judges. Ethics and morality cannot be founded on authority thrust upon from outside. They are the matters of conscience which sprout from within. Sukra Neeti (IV-5-14-15) enumerates five vices which every judge should guard against to be impartial. They are: (i) raga (leaning in favour of a party), (ii) lobha (greed), (iii) bhaye (fear), (iv) dvesha (ill-will against anyone) and (v) vadinoscha rahashruthi (the judge meeting and hearing a party to a case secretly, i.e. in the absence of the other party).[9] Socrates counselled judges to hear courteously, answer wisely, consider soberly and decide impartially. Someone has commented that these four virtues are all aspects of judicial diligence. It is suggested that Socrates’ list needs to be supplemented by adding the virtue of acting expeditiously. But diligence is not primarily concerned with expedition. Diligence, in the broad sense, is concerned with carrying out judicial duties with skill, care and attention, as well as with reasonable promptness.
I read a poem (the name of the poet unfortunately I will not be able to quote, as it was not there, where I read it) which describes the qualities of a judge. It reads,
“God give us men, a time like this demands;
Strong minds, great hearts, true faith and ready hands;
Men whom the lust of office does not kill;
Men whom the spoils of office cannot buy;
Men who possess opinions and a will;
Men who have honour; men who will not lie;
Men who can stand before a demagogue
and damn lies treacherous flatteries without talking;
Tall men, sun-crowned, who live without the fog;
In public duty and in private thinking.
However, they may be trained to strengthen
those who are weak and wronged.”
Late Justice Shiv Dayal during his tenure as Chief Justice of the High Court of Madhya Pradesh brought out Judges’ Diary as an official publication of the High Court. It included Judge’s Prayer running into three stanzas. Invoking the mercy of the Supreme Lord, he described the Judges as “Thy servants whom Thou sufferest to sit in earthly seats of judgement to administer Thy justice to Thy people”. He begs from the infinite mercy of the Supreme Lord, so as “to direct and dispose my heart that I may this day fulfil all my duty in Thy fear and fall into no error of judgment.” In the third stanza, he says ___ “Give me grace to hear patiently, to consider diligently, to understand rightly, and to decide justly! Grant me due sense or humility, that I may not be misled by my willfulness, vanity or egotism”. Rightly, the Judges are something special in the democratic form of government governed by a Constitution and, therefore, the most exacting standards can be none too high.[10]
Speaking of Felix Frankfurter as a judge, New York Times called him great “not because of the results he reached but because of his attitude towards the process of decision. His guiding lights were detachment, rigorous integrity in dealing with the facts of a case, refusal to resort to unworthy means, no matter how noble the end, and dedication to the Court as an institution”.[11] Long back, in 1852, Bacon wrote in one of his essays, “Judges ought to be more learned than witty, more reverend than plausible, and more advised than confident. Above all things, integrity is their portion and proper virtue.”
The book ‘Lives of the Chief Justices of England’ (published, in 1858), reproduced the qualities of a Judge written in his own handwriting by Lord Hale which he had laid down for his own conduct as a Judge. He wrote,[12] ___
“Things necessary to be continually had in remembrance.
“1. That in the administration of justice I am intrusted for God, the King, and country; and therefore,
“2. That it be done, 1. uprightly; 2. deliberately; 3. resolutely.
“3. That I rest not upon my own understanding or strength, but implore and rest upon the direction and strength of God.
“4. That in the execution of justice I carefully lay aside my own passions, and not give way to them, however provoked.
“5. That I be wholly intent upon the business I am about, remitting all other cares and thoughts as unseasonable and interruptions. “And, while on the Bench, not writing letters or reading newspapers.”
“6. That I suffer not myself to be prepossessed with any judgment at all, till the whole business and both parties be heard.
“7. That I never engage myself in the beginning of any cause, but reserve myself unprejudiced till the whole be heard.
“8. That in business capital, though my nature prompt me to pity, yet to consider there is a pity also due to the country.
“9. That I be not too rigid in matters purely conscientious, where all the harm is diversity of judgment.
“10. (Not reproduced)
“11. That popular or court applause or distaste have no influence in anything I do, in point of distribution of justice.
“12. Not to be solicitous what men will say or think, so long as I keep myself exactly according to the rule of justice.
“13. (Not reproduced)
“14. (Not reproduced)
“15. (Not reproduced)
“16. To abhor all private solicitations, of what kind soever, and by whomsoever, in matters depending.
“17. (Not reproduced)
“18. To be short and sparing at meals, that I may be the fitter for business.”
THE CONCEPT OF JUDGESHIP IN GITA
According to Shrimad Bhagvad Gita, a Judge is a person bestowed with ‘excellence’. This concept, I am inclined to mention in the context of the year 2005 being an ‘Year of Excellence in Judiciary’. A judge ought to be bestowed with the sense of complete detachment and humility. He ought to remember that he is not himself an author of his deeds. He is only an actor who has to play his role conforming to the script which represents the Will of the Author-playwright and thus surrendering himself to the will of God. According to Islam, such surrender is the supreme act of religion. While the essence of Christian daily prayer is – “Thy will be done, O Lord!”. A judge, according to religious concepts whether of Hinduism, Islam or Christianity, would never be heard claiming with egotism that a particular judgment was written by him or a particular sentence or decree was pronounced by him. He would always feel and proclaim that all that he had done or he does is to carry out the will of God. His every action he would surrender to the God and thereby be a totally detached and humble person. The seriousness of the function performed by him would never disturb or overtake him in his deeper mental state, just as an actor on the stage may fight, kill or love but he is the least affected one, as he never forgets it is a play after all. This detachment is an equilibrium born of knowledge. The Lord says – “He who is the same to foe and friend and also in honour and dishonour, who is the same in cold and heat, in pleasure and pain, who is free from attachment, to whom censure and praise are equal, who is silent __ uncomplaining __ content with anything, homeless, steady-minded, full of devotion __ that man is dear to me.”[13]
“The essence of the teaching of the Gita is to transform karma into karma yoga: to be active in body but detached in mind.”[14]
Hindu philosophy beautifully compares a judge with a flower which would never wither and remains ever fresh. An anecdote very appropriately explains this concept – “A religious discussion was to take place between Adi Shankaracharya and Mandan Mishra. Sharda or Saraswati was judge. Both were offered similar asanas to sit on. Having plucked fresh flowers, Sharda strung two identical garlands. She put them round the necks of the two scholars and said, “During the discussion, the garlands will decide the winner and the loser. The wearer of the garland whose flowers fade first will be considered to have lost….” Sharda maintained that he who possessed intellectual clarity, power of thinking and self-confidence will be calm and peaceful. His voice will be like the cool spring. Therefore, the flowers will remain fresh for a longer time. On the other hand, one who does not have a clear intellect or a strong sense of logic or whose self-confidence staggers, will be frustrated. His voice will become harsh, the circulation of blood in his veins will become rapid and his breath will become hot. Hence the flowers around his neck will wither sooner.”[15] The fragrance and freshness of flowers become a part of the personality of a judge if what he thinks and what he does are all based on such values as are the canons of judicial ethics.
THREE DOCUMENTS
Canons of judicial ethics have been attempted, time and again, to be drafted as a Code. Several documents of authority and authenticity are available as drafted or crafted by several fora at the national and international level. The fact remains that such a code is difficult to be framed and certainly cannot be consigned to a straitjacket. Mostly these canons have originated in and have been handed down by generation after generation of judges by tradition and conventions. If any reference is required to be made to documents, I would choose to confine myself by referring to three of them : -
(i) Restatement of Values of Judicial Life adopted by the Chief Justices’ Conference of India, 1999;
(ii) The Bangalore Principles of Judicial Conduct, 2002
(iii) The Oath of a Judge as contained in the Third Schedule of the Constitution of India.
(i) Restatement of Values of Judicial Life (1999)
On May 7, 1997, the Supreme Court of India in its Full Court adopted a Charter called the “Restatement of Values of Judicial Life” to serve as a guide to be observed by Judges, essential for independent, strong and respected judiciary, indispensable in the impartial administration of justice. This Resolution was preceded by a draft statement circulated to all the High Courts of the country and suitably redrafted in the light of the suggestions received. It has been described as the ‘restatement of the pre-existing and universally accepted norms, guidelines and conventions’ observed by Judges. It is a complete code of the canons of judicial ethics. It reads as under:
- Justice must not merely be done but it must also be seen to be done. The behaviour and conduct of members of the higher judiciary must reaffirm the people’s faith in the impartiality of the judiciary. Accordingly, any act of a Judge of the Supreme Court or a High Court, whether in official or personal capacity, which erodes the credibility of this perception has to be avoided.
- A Judge should not contest the election to any office of a Club, society or other association; further he shall not hold such elective office except in a society or association connected with the law.
- Close association with individual members of the Bar, particularly those who practice in the same court, shall be eschewed.
- A Judge should not permit any member of his immediate family, such as spouse, son, daughter, son-in-law or daughter-in-law or any other close relative, if a member of the Bar, to appear before him or even be associated in any manner with a cause to be dealt with by him.
- No member of his family, who is a member of the Bar, shall be permitted to use the residence in which the Judge actually resides or other facilities for professional work.
- A Judge should practice a degree of aloofness consistent with the dignity of his office.
- A Judge shall not hear and decide a matter in which a member of his family, a close relation or a friend is concerned.
- A Judge shall not enter into public debate or express his views in public on political matters or on matters that are pending or are likely to arise for judicial determination.
- A Judge is expected to let his judgments speak for themselves. He shall not give interviews to the media.
- A Judge shall not accept gifts or hospitality except from his family, close relations and friends.
- A Judge shall not hear and decide a matter in which a company in which he holds shares is concerned unless he has disclosed his interest and no objection to his hearing and deciding the matter is raised.
- A Judge shall not speculate in shares, stocks or the like.
- A Judge should not engage directly or indirectly in trade or business, either by himself or in association with any other person. (Publication of a legal treatise or any activity in the nature of a hobby shall not be construed as trade or business).
- A Judge should not ask for, accept contributions or otherwise actively associate himself with the raising of any fund for any purpose.
- A Judge should not seek any financial benefit in the form of a perquisite or privilege attached to his office unless it is clearly available. Any doubt in this behalf must be got resolved and clarified through the Chief Justice.
- Every Judge must at all times be conscious that he is under the public gaze and there should be no act or omission by him which is unbecoming of the high office he occupies and the public esteem in which that office is held.
These are only the “Restatement of the Values of Judicial Life” and are not meant to be exhaustive but illustrative of what is expected of a Judge.
The above “restatement” was ratified and adopted by Indian Judiciary in the Chief Justices’ Conference 1999. All the High Courts in the country have also adopted the same in their respective Full Court Meetings.
(ii) The Bangalore Draft Principles
The values of judicial ethics which the Bangalore Principles crystallises are : (i) independence (ii) impartiality , (iii) integrity, (iv) propriety (v) equality and (vi) competence & diligence.
- The above values have been further developed in the Bangalore Principles as under:-
- Judicial independence is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects.
- Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made.
Integrity is essential to the proper discharge of the judicial office.
- Propriety, and the appearance of propriety, are essential to the performance of all of the activities of a judge.
Ensuring equality of treatment to all before the courts is essential to the due performance of the judicial office.
- Competence and diligence are prerequisites to the due performance of judicial office.
(vii) Implementation – By reason of the nature of judicial office, effective measures shall be adopted by national judiciaries to provide mechanisms to implement these principles if such mechanisms are not already in existence in their jurisdictions.
The Preamble to the Bangalore Principles of Judicial Conduct states inter alia that the principles are intended to establish standards for ethical conduct of judges. They are designed to provide guidance to judges and to afford the judiciary a framework for regulating judicial conduct. They are also intended to assist members of the executive and the legislature, and lawyers and the public in general, to better understand and support the judiciary. These principles presuppose that judges are accountable for their conduct to appropriate institutions established to maintain judicial standards, which are themselves independent and impartial, and are intended to supplement and not to derogate from existing rules of law and conduct which bind the judge. There are a few interesting facts relating to the Bangalore Principles. The first meeting to prepare the Draft Principles was held in Vienna in April 2000 on the invitation of the United Nations Centre for International Crime Prevention, and in conjunction with several other institutions concerned with justice administration. In preparing the draft Code of Judicial Conduct, the core considerations which recur in such codes were kept in view. Several existing codes and international instruments more than three in number including the Restatement of Values of Judicial Life adopted by the Indian judiciary in 1999 were taken into consideration. At the second meeting held in Bangalore in February 2001, the draft was given a shape developed by judges drawn principally from Common Law countries. It was thought essential that it will be scrutinized by judges of all other legal traditions to enable it to assume the status of a duly authenticated international code of judicial conduct. The Bangalore Draft was widely disseminated amongst judges of both common law and civil law systems and discussed at several judicial conferences. The draft underwent a few revisions and was finally approved by a Round-Table Meeting of Chief Justices (or their representatives) from several law system, held in Peace Palace in The Hague, Netherlands, in November 2002. ‘Accountability’ as one of the principles which was included in the original draft was dropped in the final draft. It is apparently for two reasons. Firstly, it was thought that the principles enshrined in the Bangalore Principles presuppose the ‘accountability’ on the part of the judges and are inherent in those principles. Secondly, the mechanism and methodology of ‘accountability’ may differ from country to country and therefore left to be taken care of individually by the participating jurisdictions.
(iii) The oath or affirmation by Judge
The Constitution of India obligates the Indian Judiciary to reach the goal of securing to all its citizens __ Justice, Liberty, Equality and Fraternity. How this goal is to be achieved is beautifully summed up in the form of oath or affirmation to be made by the Judges of the Supreme Court and High Courts while entering upon the office.
Swearing in the name of God or making a solemn affirmation a Judge ordains himself:-
- that I will bear true faith and allegiance to the Constitution of India as by law established;
- that I will uphold the sovereignty and integrity of India;
- that I will truly and faithfully and to the best of my ability, knowledge and judgment perform the duties of office without fear or favour, affection or ill-will; and
- that I will uphold the Constitution and the laws.
In my humble opinion, the oath of a Judge is a complete Code of Conduct and incorporates therein all the canons of judicial ethics.
The judiciary has been trusted and hence entrusted with the task of upholding the Constitution and zealously and watchfully guarding the constitutional values. The oath administered to a judge ordains him to uphold the Office as a citadel of public justice and public security to fulfil the constitutional role assigned to the Judiciary.
“The concept of independence of the judiciary is a noble concept which inspires the constitutional scheme and constitutes the foundation on which rests the edifice of our democratic polity. If there is one principle which runs through the entire fabric of the Constitution, it is the principle of the Rule of Law and under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the Rule of Law meaningful and effective. It is to aid the judiciary in this task that the power of judicial review has been conferred upon the judiciary and it is by exercising this power which constitutes one of the most potent weapons in armoury of the law, that the judiciary seeks to protect the citizen against violation of his constitutional or legal rights or misuse or abuse of power by the State or its officers.”[16] This is the principle of independence of judiciary which judges must keep in mind while upholding the Constitution and administering the laws.
Oath of a Judge _ analysed
Every word and expression employed in the oath of a judge is potent with a message. The message has to be demystified by reading between the lines and looking beyond what meets the eyes.
An option to swear in the name of God or to make a solemn affirmation is suggestive of secular character of the oath.
A judge must bear not only faith but ‘true faith’ and ‘allegiance’ to the Constitution of India. The oath demands of a judge not only belief in constitutional principles but a loyalty and a devotion akin to complete surrender to the constitutional beliefs. Why ?
“Under our constitutional scheme, the judiciary has been assigned the onerous task of safeguarding the fundamental rights of our citizens and of upholding the rule of law. Since the Courts are entrusted the duty to uphold the Constitution and the laws, it very often comes in conflict with the State when it tries to enforce its orders by exacting obedience from recalcitrant or indifferent State agencies. Therefore, the need for an independent and impartial judiciary manned by persons of sterling quality and character, undaunting courage and determination and resolute impartiality and independence who would dispense justice without fear or favour, ill-will or affection. Justice without fear or favour, ill-will or affection, is the cardinal creed of our Constitution and a solemn assurance of every Judge to the people of this great country ……. an independent and impartial judiciary is the most essential characteristic of a free society.[17]“ The arch of the Constitution of India pregnant from its Preamble, Chapter III (Fundamental Rights) and Chapter IV (Directive Principles) is to establish an egalitarian social order guaranteeing fundamental freedoms and to secure justice __ social, economic and political __ to every citizen through rule of law. Existing social inequalities need to be removed and equality in fact is accorded to all people irrespective of caste, creed, sex, religion or region subject to protective discrimination only through rule of law. The Judge cannot retain his earlier passive judicial role when he administers the law under the Constitution to give effect to the constitutional ideals. The extraordinary complexity of modern litigation requires him not merely to declare the rights to citizens but also to mould the relief warranted under given facts and circumstances and often command the executive and other agencies to enforce and give effect to the order, writ or direction or prohibit them to do unconstitutional acts. In this ongoing complex of adjudicatory process, the role of the Judge is not merely to interpret the law but also to lay new norms of law and to mould the law to suit the changing social and economic scenario to make the ideals enshrined in the Constitution meaningful and a reality.[18]
The sovereignty and integrity of India has to be upheld. Constitution itself would cease to exist, if, God forbid, the sovereignty and integrity of India were lost.
The duties associated with the Office of a judge are too sacrosanct and hence demand the judicial functioning with ‘the best of ability, knowledge and judgment’ of the judges. It is not enough to be a law graduate or to have put in a number of years of practice or to have gained experience by serving as a judicial officer for a specified number of years. Their ability and knowledge associated with the clarity of purpose and methods which the judges display enables the judicial system to perform to its optimum efficiency. The role of the judge obligates him to continue to invest in up-dating his knowledge of law and skills of justice dispensation. The holder of the Office if not able and knowledgeable would not have the confidence to function, much less with independence. It is said :
Strange, how much you’ve got to know;
Before you know, how little you know.[19]
Independence and Impartiality
‘Independence’ and ‘impartiality’ are most crucial concepts. The two concepts are separate and distinct. ‘Impartiality’ refers to a state of mind and attitude of the court or tribunal in relation to the issues and the parties in a particular case, while ‘independence’ refers not only to the state of mind or attitude, but also to a status or relationship to others __ particularly to the executive branch of Government __ that rests on objective conditions or guarantees.[20]
According to Chief Justice Lamer : “The overall objective of guaranteeing judicial independence is to ensure a reasonable perception of impartiality; judicial independence is but a “means” to an end. If judges could be perceived as “impartial” without judicial “independence”, the requirement of independence would be unnecessary. However, judicial independence is critical to the public’s perception of impartiality. Independence is the cornerstone, a necessary prerequisite for judicial impartiality.”
The concept of judicial independence has been described in golden letters in one of the judgments of the Supreme Court of India. “To keep the stream of justice clean and pure, the Judge must be endowed with sterling character, impeccable integrity and upright behaviour. Erosion thereof would undermine the efficacy of the rule of law and the working of the Constitution itself. The Judges of higher echelons, therefore, should not be mere men of clay with all the frailties and foibles, human failings and weak character which may be found in those in other walks of life. They should be men of fighting faith with tough fibre not susceptible to any pressure, economic, political or of any sort. The actual as well as the apparent independence of judiciary would be transparent only when the office-holders endow those qualities which would operate as impregnable fortress against surreptitious attempts to undermine the independence of the judiciary. In short, the behaviour of the Judge is the bastion for the people to reap the fruits of the democracy, liberty and justice and the antithesis rocks the bottom of the rule of law.”[21] Unless the judges function without fear and favour, the question of their being impartial or independent does not arise. “Judges owe their appointment to the Constitution and hold a position of privilege under it. They are required to ‘uphold the Constitution and the laws’, ‘without fear’ that is without fear of the executive; and ‘without favour’ that is without expecting a favour from the executive. There is thus a fundamental distinction between the master and servant relationship between the government and the Judges of High Courts and the Supreme Court.” [22]
Independence and impartiality and objectivity would be tall claims hollow from within, unless the judges be honest __ honest to their Office, honest to the society and honest to themselves. “…the society’s demand for honesty in a judge is exacting and absolute. The standards of judicial behaviour, both on and off the Bench, are normally extremely high. For a judge, to deviate from such standards of honesty and impartiality is to betray the trust reposed in him. No excuse or no legal relativity can condone such betrayal. From the standpoint of justice, the size of the bribe or scope of corruption cannot be the scale for measuring a Judge’s dishonour. A single dishonest Judge not only dishonours himself and disgraces his office but jeopardizes the integrity of the entire judicial system. A judicial scandal has always been regarded as far more deplorable than a scandal involving either the executive or a member of the legislature. The slightest hint of irregularity or impropriety in the court is a cause for great anxiety and alarm. ‘A legislator or an administrator may be found guilty of corruption without apparently endangering the foundation of the State. But a Judge must keep himself absolutely above suspicion; to preserve the impartiality and independence of the judiciary and to have the public confidence thereof.” [23]
To perform the duties of judicial office without fear or favour, affection or ill-will is the same thing as performing the duties with independence, impartiality and objectivity. In order to achieve this a certain degree of aloofness is required to be maintained by the judges. According to Justice P.B. Gajendragadkar – “Judges ordinarily must observe certain rules of decorum in their social behaviour. A little isolation and aloofness are the price which one has to pay for being a judge, because a judge can never know which case will come before him and who may be concerned in it. No hard and fast rule can be laid down in this matter, but some discretion must be exercised.”[24] The concept is best demonstrated in a real life anecdote which I would like to reproduce in the words of Justice Gajendragadkar himself. He records –
“Another feature which I did not very much appreciate was that judges used to accept invitations for dinners from lawyers far too frequently. I consistently refused to join such dinners. When S.R. Das was due to retire, there were a number of dinners and S.K. Das found that I was not accepting any one of these invitations. He came to me and said: “Brother, accept at least one so that the Chief may not misunderstand you.” So I did accept one and, when we met to dine in a hotel, I was amazed to see that we were not dining in an exclusive room but in the general hotel itself, which was otherwise crowded by other diners and it was a lawyer who was entertaining us as a host to the large number of visitors present in the hotel. With my Bombay background, I did not relish this prospect at all; and not feeling happy about such dinners I conveyed my views to S.R. Das. With his characteristic tact, he said, “Yes, I see your point.” [25]
However, it is interesting to note that R.A. Jahagirdar (who has contributed a beautiful preface to the autobiography and, in fact, he is the one who was successful in persuading Justice Gajendragadkar to write his memoirs) has put an asterisk on the words ‘Bombay background’ and inserted a footnote which reads – “The Bombay background has considerably changed. Cases of judges being entertained in luxury hotels are not infrequent and have been discussed in the Press”.
Justice Gajendragadkar goes on to record –
“The undesirable and perhaps intended motivation for such invitation for dinners became patent in another case. That was a dinner arranged ostensibly by a lawyer who was a benamidar of the proprietor of a hotel chain. So far as I know, I and K.C. Das Gupta did not attend. Most of others did. The dinner was held on a Saturday at a hotel. On Monday next, before the Bench over which B.P. Sinha presided and I and K.C. Das Gupta were his colleagues, we found that there was a matter pending admission between the management of the hotel chain and its workmen. I turned to Sinha and said: “Sinha, how can we take this case? The whole lot of supervisors and workmen in the hotel is sitting in front and they know that we have been fed in the hotel ostensibly by the lawyer but in truth at the cost of the hotel, because the very lawyer who invited the judges to the dinner is arguing in the hotel’s appeal.” Sinha, the great gentleman that he was, immediately saw the point and said: “This case would go before another Bench.” [26]
A sad incident is quoted by Justice V.R. Krishna Iyer while describing how he refused to budge an inch though tremendous pressure was sought to be built upon him, by none else than the then Law Minister Late Shri Gokhale who himself has had a brief stint as a judge in Bombay, to pass an absolute order of stay on the judgment of Allahabad High Court in the case of Indira Gandhi vs. Raj Narain. The narrated incident has a lesson to learn. I may quote –
“By way of a distressing deviation, I may mention an anecdote of a few years ago. A vacation judge was telephoned by an advocate from a five star hotel in Delhi. He mentioned that he was the son of the then Chief Justice and wished to call on the vacation judge. Naturally, since the caller was an advocate, and on top of it, the son of the Chief Justice, the vacation judge allowed him to call on him. The ‘gentleman’ turned up with another person and unblushingly told the vacation judge that his companion had a case that day on the list of the vacation judge. He wanted a ‘small’ favour of an ‘Interim stay’. The judge was stunned and politely told the two men to leave the house. Later, when the Chief justice came back to Delhi after the vacation, the victim judge reported to him about the visit of his son with a client and his ‘prayer’ for a stay in a pending case made at the home of the Judge. The Chief Justice was not disturbed but dismissed the matter as of little consequence. ‘After all, he only wanted an interim stay’, said the Chief justice, ‘and not a final decision’. This incident reveals the grave dangers of personal visits to judges’ residences under innocent pretexts. This is the way functional felony creeps into the judiciary. A swallow does not make a summer may be, but deviances once condoned become inundations resulting in credibility collapse of the institution”[27]
He says – “Judgeship has diamond-hard parameters”.
A complete seclusion from society might result in judges becoming too removed from society and the realities of social life. Common knowledge of events and robust commonsense need knowledge of human behaviour but for which the judge may be incapacitated from doing complete justice or exercising discretion in the given facts of a case before him. An isolated judge runs the risk of viewing facts in a vacuum which in its turn may lead to an unjust decision.
To strike an equitous balance between the need for maintaining certain degree of aloofness and the necessity for moving in society to understand it so as to be a practical judge, he shall have to conscientiously keep a vigil of his own movements and decide thoughtfully where to go and where not to go. Experience and caution would be the best guide of a judge in this regard. He ought to remember that what he thinks of himself is not so material as how people would perceive and interpret his movements and presence at a given place.
RANDOM THOUGHTS :
Four Qualities in a Judge
A judge has to be possessed of excellence not only from within but he should also visibly display the functional excellence which is necessary to fulfil the constitutional promise of justice by the judiciary as a whole. Four qualities are needed in a judge which are symptomatic of functional excellence. They are: (i) Punctuality (ii) Probity (iii) Promptness; and (iv) Patience.
Justice Hidayatullah has placed observance by judges of the punctuality of time on a very high pedestal. According to him a judge who does not observe punctuality of time does not believe in rule of law.
Probity is uprightness; moral integrity; honesty.
According to Justice V.R. Krishna Iyer the judges who do not pronounce judgment in time commit turpitude. He notes with a sense of sorrow –
“It has become these days, for the highest to the lowest courts’ judges, after the arguments are closed, take months and years to pronounce judgments even in interlocutory matters – a sin which cannot be forgiven, a practice which must be forbidden, a wrong which calls for censure or worse.”[28]
Lord Denning puts it mildly by way of tendering good advice for a new judge. He says that when judgment was clear and obvious it was for the benefit of the parties and the judge himself that judgment should be delivered forthwith and without more ado. Though, the art is difficult and requires great skills but practice can enable perfection.[29] However, not all judgments can be delivered ex tempore; there are cases in which doubts are to be cleared, law has to be settled and conflicts are to be resolved either by performing the difficult task of reconciling or the unpleasant task of overruling. Such judgments need calm and cool thinking and deep deliberations. Such judgments must be reserved but not for an unreasonable length of time.
Conduct of Judge in private
When a judge sits on trial, he himself is on trial. The trust and confidence of ‘we the people’ in judiciary stands on the bedrock of its ability to dispense fearless and impartial justice. Any action which may shake that foundation is just not permitted. Once having assumed the judicial office, the judge is a judge for 24 hours. It is a mistaken assumption for any holder of judicial office to say that I am a judge from 10 to 5 and from 5 to 10 it is my private life. A judge is constantly under public gaze. “Judicial office is essentially a public trust. Society is, therefore, entitled to expect that a Judge must be a man of high integrity, honesty and required to have moral vigour, ethical firmness and impervious to corrupt or venial influences. He is required to keep most exacting standards of propriety in judicial conduct. Any conduct which tends to undermine public confidence in the integrity and impartiality of the court would be deleterious to the efficacy of judicial process. Society, therefore, expects higher standards of conduct and rectitude from a Judge. Unwritten code of conduct is writ large for judicial officers to emulate and imbibe high moral or ethical standards expected of a higher judicial functionary, as wholesome standard of conduct which would generate public confidence, accord dignity to the judicial office and enhance public image, not only of the Judge but the court itself. It is, therefore, a basic requirement that a Judge’s official and personal conduct be free from impropriety; the same must be in tune with the highest standard of propriety and probity. The standard of conduct is higher than that expected of a layman and also higher than that expected of an advocate. In fact, even his private life must adhere to high standards of probity and propriety, higher than those deemed acceptable for others. Therefore, the Judge can ill-afford to seek shelter from the fallen standard in the society.” [30]
Patience and Tolerance:
The greatest quality of a Judge is to have patience which is sister virtue of calmness. Calmness is as essential as fearlessness and honesty to the exercise of good judgment in times of aroused feelings and excited passion.
Patience implies the quietness or self-possession of one’s own spirit under sufferance and provocation. Since it has a tranquillising effect, patience is the best remedy for every affliction. The Bible says that if patience or silence be good for the wise, how much the better for others – unwise or not so wise. Sometimes we turn our anger upon the person responsible for hurting us; we are also likely to blame someone for any kind of mishap. By learning to be patient, one can cultivate the art of reigning in bad temper and hasty decision-making. Patience yields many good things. It is also a necessary ingredient of genius. Patience can solve problems, avert wars and disasters, and lead us to the path of truth.
The power of patience leads us to self-inspection, to the admission of errors and the capacity for forgiveness. A learned man tells us that misfortune can be turned into fortune through wisdom. The acquisition of wisdom needs five steps. The first is patience, the second is listening, the third is understanding, the fourth is pondering and the fifth is practice – all qualities needed in a judge. To be patient one has to be humble. To cultivate patience, anger management plays a crucial role. “He who is slow to anger is better than the mighty and he that rules his spirit than he who takes a city.” The world exists only because of self-restraint exercised by the mighty. Power coupled with impatience can be very dangerous. Leaders and Judges who are impulsive are greatly feared and are considered impractical. Anger begets violence and cannot be easily repressed. At times anger is provoked by misunderstanding and may actually have no basis in reason. Anger can be subverted with forgiveness.
One of the ways to be patient is through tolerance. Tolerance recognizes individuality and diversity; it removes divisiveness and diffuses tension created by ignorance. Tolerance is an inner strength, which enables the individual to face and overcome misunderstandings and difficulties. A tolerant person is like a tree with an abundance of fruits; even when pelted with sticks and stones, the tree gives its fruit in return. Without tolerance, patience is not possible. Tolerance is integral and essential to the realization of patience. [31]
Rational Utilisation of Time
On the day I was sworn in as a Judge of the High Court, Chief Justice (Retd.) G.G. Sohani, an illustrious Judge of the High Court of Madhya Pradesh, later the Chief Justice of Patna High Court very affectionately told me a few do’s and don’ts for any judge. Amongst other things, he told me that working hours of the court are meant for discharging only judicial work. No part of judicial working hours should be diverted to administrative work. Full Court and Administrative Committee meetings should be invariably held on non-working days or, before or after court sitting hours. The judges are not supposed to proceed on leave unless and until the absence is unavoidable. The judges are also not supposed to participate in ceremonial functions like inaugurations or delivering lectures by abstaining themselves from the court. All this does not tantamount to saying that a judge should neither relax nor rejuvenate himself. Vacations are meant for rejuvenating the health of the judges so that they feel fit and also for reading so as to update their knowledge of law. They must also spend a fixed time every day and in weekends with their family members so as to concentrate on judicial work during working hours. I would treat this as a part of judicial ethics.
I am reminded of a Chief Justice, who speaking at a farewell function, marking the occasion of his demitting the office, made a witty remark ___ “After my retirement, I would like to interview the wives of the Judges and collect information from them as to what prevented them for not divorcing their husbands so far”. Justice Devitt wrote in ‘Ten Commandments for the New Judge’ ___ “The greatest deterrent to a judge’s taking himself too seriously in any respect is a wise and observing wife who periodically will remark, ‘Darling! Don’t be so Judgey’ ”.[32]
EPILOGUE
An eminent jurist, Justice G.P. Singh, former Chief Justice and later Lokayukt of Madhya Pradesh, needs a mention here. He believes that canons of ethics cannot be learnt simply by listening or be taught only by being told. One must live by values to preach and emulating is the best way to learn. His life as lived is full of examples and he has never delivered any precepts. His brevity, lucidity and clarity in judgments is comparable with Privy Council decisions. He has always believed in simple living and high thinking. His principles of statutory interpretation (Nine Editions, published) and Law of Torts both of international standards, speak aloud of the height of his learning.
Great persons live great lives and leave behind indelible imprints on the sand of time. The imprints are not faded though several foot-steps have crossed them. A very inspiring anecdote has been narrated by Fali S. Nariman, Senior Advocate.[33]
A Chief Justice of the New York State Court of Appeals on his first appointment as Chief Judge proudly showed his wife the chair in the court-room of his illustrious predecessor-in-office of nearly half a century ago Chief Justice Benjamin Cardozo (a legend amongst Judges of the United States). And he said to his wife in a reverential whisper – “See – this is Cardozo’s chair and this is where I will sit”. His wife responded not very reverentially: “Yes – and after fifty years and five more Chief Justices it will still be Cardozo’s chair”!
The times would run through and yet Motilal Setalvad would be remembered as Motilal Setalvad with none who could surpass him.
*********
[1] P.B. VACHHA, Famous Judges, Lawyers and Cases of Bombay, p. 153
[2] Source – SOLI J. SORABJEE, Senior Advocate and Former Attorney General for India
[3] Source – T.R. ANDHYARUJINA, Senior Advocate, Supreme Court and Former Solicitor General of India.
[4] The Indian Advocate, Vol.XIII, 1991, p.72
[5] Source __ J.M. MUKHI, Bar-at-law
[6] G.L. SANGHI Remembering M.C. Setalvad, The Indian Advocate, Volume XXIII, 1991 Part II
[7] The Bombay Incorporated Law Society, Centenary, Volume 1894-1994, pp. 270-271
[8] E.C. GERHART, Quote It, p.300
[9] M. Rama Jois, Trivarga Siddhanta, p.85.
[10] Nyay Diary, 1976
[11] E.C. GERHART, Quote It, p.289
[12] E.C. GERHART, Quote It, pp 297-298
[13] Gita, XII.18-19.
[14] K.S. Ram, ‘The World’s a Stage: We’re Mere Players’, The Speaking Tree, The Times of India
[15] Amrita Pritam, Fifty Fragments of Innerself, quoted in Sacred Space, The Times of India
[16] S.P. Gupta v. Union of India, 1981 Supp. SCC 87, para 27.
[17] S.C. Advocates-on-Record Association & Ors. v. Union of India, (1993) 4 SCC 441, para 273, per Ahmadi, J..
[18] C. Ravichandran Iyer v. Justice A.M. Bhattacharjee & Ors., (1995) 5 SCC 457, para 41, per K. Ramaswamy, J.
[19] Anonymous
[20] University of New Brunswick Law Journal, Vol. 45, 1999, p.81.
[21] C. Ravichandran Iyer v. Justice A.M. Bhattacharjee & Ors., (1995) 5 SCC 457, para 23, per K. Ramaswamy, J..
[22] Union of India v. S.H. Sheth, (1977) 4 SCC 193, quoted in K. Veeraswami v. Union of India & Ors., (1991) 3 SCC 655, para
[23] K. Veeraswami v. Union of India & Ors., (1991) 3 SCC 655, para 79, 80, per Sharma, J.
[24] P.B. Gajendragadkar, To The Best of My Memory, p.138.
[25] ibid p.137.
[26] ibid pp.137-138
[27] V.R. Krishna Iyer, A Living Legend, p.130
[28]ibid p.138
[29] Edmund Heward, Lord Denning, A Biography, 2nd Edn., pp.35-36.
[30] C. Ravichandran Iyer v. Justice A.M. Bhattacharjee & Ors., (1995) 5 SCC 457, para 21, per K. Ramaswamy, J.
[31] Ezekiel Malekar, Lessons on Patience and Tolerance, The Speaking Tree, The Times of India.
[32] E.C. GERHART, Quote It, p.290
[33] First Nani A. Palkhivala Memorial Lecture, 16th January, 2004
Assets disclosure by SC judges may create new row
BY DHANANJAY MAHAPATRA IN TIMES OF INDIA
Bold public disclosure of assets by Supreme Court judges, instead of scripting a happy epilogue to an intense debate, has stirred an unusual spate of recusals that could sprout fresh controversies.
World over, society expects impeccable standards of probity and fairness from judges. That is why a judge offers to stay away or recuse himself from deciding a case where his interests, howsoever minor, are involved. Following are commonly accepted reasons for recusal of a judge:
* He is related to a party, advocate or spouse of either party
* He is a material witness or had prepared any document that was being questioned
* He has previously acted as an advocate for a party
* He has previously handled the case as a trial judge
* Judge has personal or financial interest in the outcome.
Indian judiciary has not blinked to these standards. For, in Sub-Committee on Judicial Accountability vs UOI [1991 (4) SCC 699, a five-judge constitution Bench had said, “It is true that society is entitled to expect the highest and most exacting standards of propriety in judicial conduct, and any conduct which tends to impair public confidence in the efficiency, integrity and impartiality of the court is indeed forbidden.”
Given the long list of controversies hounding the judiciary, the times are such that `if you follow these accepted principles, you are condemned and if you do not then God alone help you’. The judiciary seems to be caught in this time warp.
The judge recuses himself and gets rid of the case from his docket. But can we say the same thing about professionals, bureaucrats and politicians? Do all journalists desist from writing reports about companies in which they hold shares? Do politicians, especially those who become ministers, not influence policy decisions on issues in which they have substantial personal interest? Do bureaucrats not use their raw power to force people to arrange things for them and reciprocate the favour?
Or, does one expect probity only from public figures and constitutional authorities? “Charity begins at home” appears to be the most abused adage in India. The finger-pointing culture is on the ascendancy.
Be that as it may, judiciary would do well to follow the 1991 advice rendered by the constitution Bench. Warning that laws may not always provide an answer to tricky questions on conflict of interest, it had gently touched the moral string asking judges to look inward and question with fortitude: “Am I doing the right thing?” If he fails to find an answer, then he should seek the advice of the Chief Justice of India, the Bench had suggested.
It’s not a question of pecuniary interests alone that a judge should recuse himself. Justice R V Raveendran exemplified it recently in the RIL-RNRL case, though the late dawning of information about his daughter’s employment with a law firm that had advised RIL in a different case remains a small wonder for the public.
This also formed the core of a 1998 decision of House of Lords relating to Chile dictator Pinochet Ugarte. One of the Law Lords (Lord Hoffman) did not recuse even though he had links with Amnesty International, which was a party to the case against Pinochet. On learning this, Pinochet sought review of the decision.
The review was allowed and the case was sent for reconsideration. Holding that Lord Hoffman was disqualified to hear the case, the House of Lords had said, “The principle that a judge was automatically disqualified from hearing a matter in his own cause was not restricted to cases in which he had a pecuniary interest in the outcome, but also applied to cases where the judge’s decision would lead to the promotion of a cause in which the judge was involved together with one of the parties.”
dhananjay.mahapatra@timesgroup.com
THE LINK TO THE ARTICLE
Assets disclosure by SC judges may create new row
Dhananjay Mahapatra
Bold public disclosure of assets by Supreme Court judges, instead of scripting a happy epilogue to an intense debate, has stirred an unusual spate of recusals that could sprout fresh controversies.
Conflict of interest rules need to be clear
Somasekhar Sundaresan / New Delhi November 09, 2009, 0:21 IST IN THE BUSINESS STANDARD
The concept of conflict of interest in commercial jurisprudence is hogging the headlines. A judge of the Supreme Court has recused himself from adjudicating a high-profile corporate war since his daughter now works for a law firm that had been involved in scripting a document that the court would have to interpret.
The judge also held shares in companies under the control of each party to the dispute, but when he had made that disclosure, the parties had expressed their faith in his professional judgement i.e. they had waived any potential conflict-of-interest objection they could raise. Senior legal counsel for the two sides are reported to have attempted to persuade the judge in the court room not to withdraw himself over his daughter’s employer, but later in the evening were engaged in a public spat over who had engineered the exit.
Another Supreme Court judge recused himself from another hearing involving one of the parties to the dispute because he realised that his wife held shares in one of the parties. In yet another development, the Supreme Court has issued a notice on a contempt petition against a lawyer who gave an interview insinuating judicial corruption by stating that a judge had ruled in favour of a mining lease awarded to a company in which he held shares.
In those proceedings, the judge had apparently disclosed his shareholding interest and continued to preside over the proceedings after parties waived potential conflict-of-interest objections and reposed confidence in the judge. The judge has now recused himself from hearing a case involving another dispute involving the same corporate group because of such shareholding.
All in all, shareholding in corporate India and the conflict of interest that it may pose for the judiciary has never taken on a greater focus in public debate. If we would like good quality lawyers to become judges and add to the strength of the judiciary, we need to devise a framework to deal with the issue comprehensively and transparently. After all, any reasonably successful lawyer would end up having investments either through discretionary portfolio managers or directly in shares of several companies. When he becomes a judge, his shareholding interest could pose a conflict of interest.
Of course, the ideal approach for any judge would be to follow the standard principle of not offering to recuse from a hearing but to simply steer clear of controversy by staying away entirely when a potential insinuation of a conflict could emerge. However, the concept of conflict of interest is an unruly horse. What is clear as daylight to one is not so clear to another, particularly in the area of commercial jurisprudence.
Strangely, the law that governs corporates and commerce in India is replete with codified provisions that deal with conflict of interest. The Reserve Bank of India (“RBI”) disallows directors on the boards of borrowers of banks from being directors of the bank. The appointment of a head of a foreign bank in India was brought under cloud by the RBI because she had the standing to be requested to join the global board of a multinational manufacturing company.
Indian company law requires disclosure of interest of directors in specific contracts, and a failure to make the disclosure results in an immediate loss of office. Contracts for supply of goods and services executed by any company with a private company or with a firm in which a director of the executing company is also a shareholder, are required to adopt special modes of approval, including government approval.
The Securities and Exchange Board of India (SEBI) has specific regulations on how people associated with an issuer of securities should not act as merchant bankers to the issuer. SEBI has norms requiring provision of “independent” valuations and fairness opinions on specific transactions. SEBI also has requirements for appointment of “independent” directors on the boards of listed companies.
Not all these norms are clear. In fact, many are imprecise, requiring lawyers to give opinions confirming compliance. The more clear and precise these norms, the better it would be for society. For example, if there were a law on a reasonably low shareholding threshold, either in terms of percentage or value or both, that would determine an interest or the lack of it in a dispute being adjudicated by judges, one would not have any controversy over perceived conflicts in the judicial mind.
Institutional governance in India would be best served by clear rules rather than vague principles. Even the most average Indian prides himself on how the Indian human mind is very ingenuous. Vague and abstract principles such as “thou shalt not cheat thy client” have been found to be severely wanting in jurisdictions such as the United Kingdom. It can only get worse here. After all, we have Union Cabinet ministers overseeing entire ministries without any Chinese-Walled mechanism, in industries where they have a direct commercial interest. There is a crying need for attention in this space across all walks of Indian society.
(The author is a partner of JSA, Advocates & Solicitors. The views expressed herein are his own)
http://www.business-standard.com/india/news/conflictinterest-rules-need-to-be-clear/375746/
Pendency Of Cases / Speedy Justice
By Justice B N Aggarwal , Judge Supreme Court of India (Retd)
We had the fortune of hearing illuminating talks by the learned speakers of this evening before this August gathering. In the Lecture Series organised by the Supreme Court Bar Association in 2004, I had spoken on “Measures for Betterment of Judiciary and Controlling Docket Explosion” and it is almost three years since then; questions on the credibility of judiciary to deal with the mounting arrears of cases, delay in disposal and high cost of obtaining justice are still being raised, but to blame the judiciary alone for it is wrong as other limbs of the State need also play their role in solving this problem. But those who say that justice delivery system is on the verge of collapse make such statements by looking at the overflowing dockets only without peeping into the real scenario. These are the people who need to be told that influx of cases is also a sign of faith reposed by the people in the administration of justice and it is that faith which, inter alia, is one of the reasons for docket explosion. It is a matter of satisfaction that the public at large continues to hold our judicial institutions by and large in high esteem despite their shortcomings and handicaps. There is no gainsaying the fact that justice delivery system in our country suffers from deficiencies requiring immediate steps to improve its performance so as to render prompt and inexpensive service to the litigants. It is because of the concern voiced by different sections of the society that I have chosen to speak on the topic “Pendency of Cases and Speedy Justice”.
Our Constitution provides for an independent and efficient justice delivery system. Delay in disposal of cases, not only creates disillusionment amongst the litigants, but also undermines the capability of the system to impart justice in an efficient and effective manner. On account of such deficiencies in the system, huge arrears of cases have piled up in courts at all levels, and ways and means are required to be found out urgently, to bring them to a manageable limit, so as to sustain the faith of common man.
Judicial institutions in most of the developing countries in the world are currently confronted with serious crisis, mainly on account of delay in the resolution of the disputes and we are no exception. The concerns being voiced are with regard to huge pendency of cases in the High Courts and courts subordinate thereto. A look at the statistics of institution and disposal in 1999 and 2006 in the High Courts would show that the total institution has gone up from 11,22,430 to 15,89,979 and disposal from 9,80,474 to 14,50,602. Similarly, in the subordinate courts also the institution has gone up from 1,27,31,275 to 1,56,42,129 and disposal from 1,23,94,760 to 1,58,42,438.
These figures of institution and disposal go to show that while the disposal has increased to a considerable extent, the overall institution continues to exceed disposal and that the pendency has been increasing not due to the decline in the rate of disposal but because of rapid increase in the institution. Though the pendency of cases is always highlighted, what is never spoken of are the figures of annual filing and disposal. The increase in the institution is partly because of increase in the number of cases under Section 138 of the Negotiable Instruments Act and Section 498 A of the Penal Code and enactment of new legislations in the recent past like the Protection of Women Against Domestic Violence Act, 2005, the Right to Information Act, etc. besides inaction on the part of the Union Government, the Governments of various States and Union Territories and their instrumentalities in observing rules apart from maladministration. When I joined the Bench of the Patna High Court in 1986, without fear of being contradicted, I venture to say 60% of the cases which are filed today in courts against the various Governments and their instrumentalities were not being filed then and the citizens used to get what they deserved in ordinary course without any loss of time. While addressing the Conference of Chief Ministers of States and Chief Justices of the High Courts in 2004, even Hon’ble Dr. Manmohan Singh, the Prime Minister of India, expressed concern about the backlog in courts and admitted that one way of reducing it is to reduce the number of cases that come to the courts and referred to the survey conducted in Karnataka according to which in 65% of civil cases the Government was a litigant and in 95% the appeals filed by it failed.
It is a matter of regret that in spite of so much concern shown by the Prime Minister, the bureaucracy has not responded and no steps whatsoever have been taken in this regard.
In order to reduce the pending litigation between various Governments and the helpless citizens in the High Courts, tribunals, other fora and subordinate courts, there is an urgent need to set up an internal mechanism at the Central, State and district levels in the government offices by the respective heads for resolving the disputes and for making bona fide attempts to resolve the same with an open mind. I have no doubt that such efforts would never go in vain and disputes in vast majority of cases are bound to be resolved whereby not only public time, energy and money would be substantially saved but people’s faith in all the three limbs of the State would be resuscitated which is the need of the day. Similar exercise should be made by instrumentalities of the State at all levels in relation to pending cases.
All Governments and their instrumentalities should ensure that genuine cases are resolved at pre-litigation stage itself at their level so that poor and helpless citizens may not be compelled to unnecessarily knock the door of courts and in this manner sizeable number of cases by or against Governments and their instrumentalities can be reduced. Only those cases may be taken to courts where it is not possible to resolve the dispute because of legal intricacies.
The tendency amongst the ministerial staff of all the three limbs of the State viz. the legislature, executive and judiciary to harass the citizens for extraneous reasons is galloping fast, which can be minimised, if not eradicated, by strong, independent and tactful administrators at all levels. I feel time has come that those at the helm of affairs in these three limbs of the State should bestow their thoughts to find out suitable measures to curb such a tendency for the well-being of common man.
There is one more area which needs immediate attention of the executive, about which it has been reminded in the past as well and i.e. vacancies of judges both in the High Courts and courts subordinate thereto, increase in strength of judges in various courts, keeping in mind the pendency of cases as well as the trend of institution of fresh cases and not the rate of disposal, providing adequate infrastructure to the existing judges by renovating the old dilapidated court buildings and making more space available to the courts. The Law Commission, in its 120th report, submitted on 31-7-1987 recommended optimum figure of 107 judges per million by 2000, the ratio achieved by USA in the year 1981. It also recommended ratio of 50 judges per million of population, within a period of 5 years which was endorsed by the Standing Committee of Parliament headed by Shri Pranab Mukherjee, in its 85th report submitted in February 2002. The Supreme Court also directed increase in judges’ strength to 50 per million in a phased manner. But despite all this, the strength of judges has not been increased, that is why also the judiciary is facing difficulties in tackling the problem of mounting arrears. Let us hope that in near future the Central and the State Governments would make all possible efforts to address these problems.
Having regard to the large volume of cases in courts, I think it is high time that we should put at least some limit on the oral arguments to save court’s time. There may be some resistance to it in the beginning but soon counsel would realise its value as once this practice is put in place counsel would know when to expect his or her case in the cause-list, when the case above his or her case is likely to finish and would come fully prepared to argue his or her case within the time allotted. On this, I would like to take you back to the year 1985 when the then Chief Justice of India, Shri P.N. Bhagwati, speaking on the occasion of Law Day, said that there was a need to cut down the length of oral arguments and insisted on written submissions. 22 years have passed since then, but it is still a debatable issue. I think time has come for the Bench and the Bar to sit together, deliberate on this issue and come to an understanding so that the length of oral arguments is restricted to save public time.
I would now advert to some of the positive measures that have been taken in the past which have already started showing results and are significantly contributing in increasing disposal in subordinate as well as the High Courts and those which are still required to be taken for dispensation of speedy and affordable justice. The measures that have already been taken are: setting up of Fast Track Courts of Sessions Judges, introduction of shift system in subordinate courts, setting up of mobile courts, Lok Adalats, ADR system, insertion of Chapter XXI-A in the Code of Criminal Procedure about plea bargaining and setting up of e-committee, etc.
Fast Track Courts
On the recommendation of the 11th Finance Commission, 1734 Fast Track Courts of Sessions Judges were sanctioned for disposal of old pending cases and the said scheme was to end on 31-3-2005. Out of 18,92,583 cases, 10,99,828 have been disposed of by these courts. Keeping in view the performance of Fast Track Courts and contribution made by them towards clearing the backlog, the scheme has been extended till 31-3-2010.
In view of the contribution made by the Fast Track Courts of Sessions Judges towards clearing of backlog, and number of huge pendency of cases triable by Magisterial Courts being 1,66,77,657 as on 31-12-2006, there is an urgent need to formulate a similar scheme for setting up of Fast Track Courts of Magistrates in each State and Union Territory.
Mobile courts
Mobile courts are also being set up which would not only educate the rural folk about their rights and responsibilities and provide swift justice and create a feeling of law and judiciary being very close to them, but will also help declog the expanding docket of our overburdened courts.
Shift system in subordinate courts
The State of Gujarat has taken a lead in introducing shift system in subordinate courts w.e.f. 14-11-2006. 60 evening courts are already in place in different parts of the State. As per the figures made available, the number of cases that have been disposed of from 14-11-2006 to 31-3-2007 is 57,384, which is highly commendable. Introduction of shift system in courts would be far less burdensome to the exchequer as existing courts could be made to function in two shifts with the same infrastructure by utilising the services of retired judicial officers, reputed for their integrity and ability, who would be paid only the difference between the salaries and emoluments payable to serving officers of the same rank and their pension. It is, therefore, high time that shift system is introduced in subordinate courts all over the country as it would help reduce the backlog considerably. In my view, apart from regular court hours, shift system should be introduced; two hours in the morning from 8.00 a.m. to 10.00 a.m. and in the evening from 6.00 p.m. to 8.00 p.m. and these courts should be manned by retired judicial officers as far as they are available but, in case of their non-availability, on part-time basis the services of local lawyers, particularly, young promising ones should be availed of on payment of fixed remuneration—in the morning shift one batch and evening another. So far as ministerial staff and officers are concerned, we should avail the services of retired personnel for working in the morning and evening shifts. I find that 52 lakh cases relating to petty offences were pending where only fine could be awarded as punishment out of total pendency of cases viz. 2.49 crores as on 31-3-2007 throughout the country in District and subordinate courts. Such cases should be placed before these courts and the same can be decided with utmost expedition by a short order. By adopting such methodology the pendency would be reduced by 20%. If the shift system works well and if those courts require more cases we may entrust certain other types of cases to them out of 70 lakh police cases pending in Magisterial Courts. In this way young Bar would not only grow but may have sustaining power for continuing in the profession.
Lok Adalats
In order to achieve the objective enshrined in Article 39 A of the Constitution of India, the Legal Services Authorities Act, 1987 was enacted to provide free and competent legal service to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. To achieve that objective, Lok Adalats are being held at various places in the country and a large number of cases are being disposed of with lesser costs. Mobile Lok Adalats are presently in place in different parts of the State of Bihar and on the lines of steps taken by the High Court of Patna of holding mobile Lok Adalats, the other High Courts need also work on the same lines so that speedy and affordable justice could be made available to the litigants at their doorsteps.
Alternative Dispute Resolution mechanisms
The philosophy of alternate dispute resolution system is well stated by Abraham Lincoln—
“Discourage litigation, persuade your neighbors to compromise whenever you can. Point out to them how the normal winner is often a loser in fees, expenses, cost and time.”
Litigation through the courts and tribunals established by the State is one way of resolving the dispute which is an adversarial method of dispute resolution which leads to win-lose situation whereas in Alternative Disputes Resolution what is tried to be achieved is win-win situation for both the parties. There is nobody who is loser and both parties feel satisfied at the end of the day. The ADR mechanisms include arbitration, negotiation, mediation and conciliation. Section 89 of the Code of Civil Procedure has been amended w.e.f. 1-7-2002 with a view to bring alternative systems into the mainstream. The challenge that we are facing today is bringing about awareness among the people about the utility of ADR and simultaneously developing personnel who will be able to use ADR methods effectively with integrity. The person who occupies the position of a mediator or conciliator in the Mediation and Conciliation Centre has to be known for unique qualities such as skill, poise, tact, art of persuasion, human behaviour and psychology. The mediator should have impeccable integrity and ability to persuade and create conviction among the parties. Such centres have already started functioning in many High Courts and subordinate courts and training is also being imparted to the mediators and conciliators so that the desired objective is achieved. National Judicial Academy has also prepared a National Plan for Mediation which envisages systemising and institutionalising mediation, training of mediators, preparation of training materials, organising awareness programmes and setting up of Mediation Centres, in three phases, spread over a period of five years, for resolution of disputes through settlement. This will not only provide speedy and inexpensive justice and reduce litigation, but will also bring peace and harmony in the society.
Setting up of e-committee
From this very platform, just three years ago, I had suggested that one of the best ways of effectively achieving the betterment of the judicial components in the country was adoption of information technology-based systems in the judicial framework to make the judiciary more effective in providing speedy and timely justice to the litigants. Information technology was for the first time introduced in the Indian judiciary by Mr Justice G.C. Bharuka in the year 1991 in the Patna High Court when he was a baby Judge of a few months and there was some headway so long he remained in Patna, whereafter it remained standstill. After Mr Justice Bharuka was transferred to the Karnataka High Court it was a boon in disguise for the people of Karnataka where he had done extensive work for introduction of IT in Indian judiciary and was conferred a doctorate degree. His famous treatise “Rejuvenating Judicial System through E-Governance & Attitudinal Change” was published in the year 2003. Appreciating the outstanding work done by Dr. Justice Bharuka in the field of IT, the Union Government constituted an e-committee under his chairmanship.
Keeping in view importance of the project, in June 2006, the Union Cabinet declared the project to be one of the Mission Mode Projects under the National E-Governance Plan and in February 2007 accorded sanction to the budgetary requirements for its implementation. For the first phase funds to the tune of Rs 441.80 crores have been approved. The e-courts project is to be implemented in three phases over a period of five years and the first phase, which extends over a period of two years, has already commenced by providing laptops to all the judicial officers throughout the country and three months’ training would be provided to each and every judicial officer. In the first phase, the goals that are sought to be achieved, inter alia, are; capacity building of the judges—primarily, the subordinate court Judges for delivery of speedy and quality justice, availability of ICT modules for assessing work performances and case-flow management of all courts in the country particularly the District and subordinate courts, online accessibility of orders, judgments and case related data, instant availability of status of cases, judgments and orders of all courts through internet, kiosks and judicial service centres, facility for e-filing in the Supreme Court and High Courts. In the second phase, the steps intended to be adopted are facilities of video-conferencing at all court complexes and e-filing in all the District and subordinate courts. In the third phase, online information between the courts, prosecuting and investigating agencies, prisons, land records and registration offices and biometrics and scientific tools to help in identifying habitual criminals, professional witnesses and litigants and in resolution of complex factual disputes would be available.
I am certain that once all the three phases of the e-committee are complete by the rich knowledge and experience of Dr. Justice Bharuka in the field of information technology, the goals sought to be achieved by setting up the e-committee would be fulfilled, the judicial productivity would be enhanced—both qualitatively and quantitatively—so as to make the justice delivery system affordable, accessible, cost effective, transparent and accountable. It is hoped that the Supreme Court would give a helping hand to the e-committee. One thing must be remembered by all concerned that people of India would not tolerate attempt by anybody to tinker with the working of e-committee.
Setting up of Gram Nyayalayas
It is understood that the Ministry of Law and Justice is drawing a Gram Nyayalayas Bill with an objective to secure justice, both civil and criminal, at the grass-root level to the citizens, which would be the lowest court of subordinate judiciary and shall provide easy access to justice to litigant through friendly procedures, use of local language and mobile courts wherever necessary. If established, I hope such Gram Nyayalayas would genuinely make justice accessible and affordable to the common man at their door.
Plea bargaining
With the insertion of new Chapter XXI-A in the Code of Criminal Procedure by Act 2 of 2006, the concept of “Plea Bargaining” became a reality and part of our criminal jurisprudence. The practice of plea bargaining is prevalent in western countries, particularly the United States, the United Kingdom and Australia. In the United States, plea bargaining has gained very high popularity, whereas it is applied only in a restricted sense in the other two countries. Plea bargaining benefits both the State and the offender; while the State saves time, money and effort in prosecuting the suspects, the latter gets a lenient punishment by pleading guilty. One of the merits of this system is that it helps the court to manage its load of work and hence it would result in reduction of backlog of cases. Therefore, I suggest that, while issuing summons to an accused, he may be informed of the provisions of plea bargaining contained in Chapter XXI-A of the Code of Criminal Procedure, 1973. If more and more accused come forward and bargain the plea, the reform could reduce the enormous backlog of cases in our courts.
Plea bargaining apart, if the list of compoundable offences is widened and more offences are included therein and made compoundable, it too will help in making a dent in the mounting arrears and saving time of the courts.
There are some more measures which, if taken, would be helpful in dispensation of speedy and qualitative justice which I propose to touch now.
National Law Schools were set up in India with the objective, inter alia, to advance and disseminate learning and knowledge of law and legal processes and their role in national development, to develop in the student and research scholar a sense of responsibility to serve society in the field of law by developing skills in regard to advocacy, legal services, legislations, law reforms and the like and to make law and legal processes efficient instruments of social development. Is the objective that was sought to be achieved while setting up these schools being achieved? Are the products of these schools contributing in the service of the society and playing any role in national development? My answer is emphatically in the negative as according to the statistics available 85% fresh law graduates of these law schools and other reputed institutions are joining the corporate world and only 15% are joining legal profession. If the newcomers give preference to profession than corporate sector, it would, undoubtedly, improve the Bar. A strong Bar is a sine qua non for an independent and strong judiciary which plays an important role in the democratic set-up. We all know that legal profession is the bedrock of the judicial system and legal skills are at the heart of the profession. Skills can, to some extent, be taught in the college. But skills have to be acquired by experience and learning from the experienced members of the Bar. It requires greater patience for young lawyers to observe the skills of expert lawyers and emulate and practise them. After their court work how may young lawyers today are prepared to sit in a court hall and observe the way any senior lawyer or a good lawyer is arguing or the way a judge is proceeding with the case? The vocation of lawyers is a profession and not business where earning is the motto. The motto must be to earn by serving and not to serve by earning. Having chosen law as a professional career, if in the beginning the entrant does not run after money, the day is not far off when money would follow him.
One of the reasons behind their decision to prefer the corporate sector than the legal profession may be to repay the hefty loan that they might have taken to pay the fee. Though it appears to be a genuine reason, but how to achieve the objective then?
I have one suggestion to make and that is; that we can take ten toppers from twenty law schools and other equally reputed law colleges/universities every year and ensure each one of them Rs 30,000 per month for practising in metros and Rs 20,000 in cities where there is High Court seat for a period of three years which may help the objectives of enriching the Bar. Initially, this scheme may be started for a period of three years and if it works well, it may be extended further. The total fund that would be required for a period of three years would be Rs 43.20 crores, which, keeping in mind the objective behind it, does not appear to be a very big amount especially when the contributing agencies should be many viz. the Central Government, Bar Council of India, State Bar Councils, NALSA and counsel of eminence having lucrative practice. In this way, the funds required for the first year would be Rs 7.20 crores and Rs 14.40 crores and Rs 21.60 crores for the second and third years respectively. A nodal agency should be created either at the level of the Supreme Court or the Bar Council of India or the Supreme Court Bar Association. I think this is high time that on this issue the Bench, Bar, NALSA, Bar Councils and Law Ministry should dilate upon and work out the modalities.
Regarding appointment of judges, both at the entry level and in the High Courts, in view of the falling values in public life and to sustain confidence of the public, I think a time has come that we should look for persons having outstanding merit and transparent integrity, to adorn the Bench. In my view, firstly, persons of outstanding merit and transparent integrity should be picked up and if not available, those who are very good in merit having transparent integrity should be considered and in case persons in the aforesaid categories are not available, then those, who are good in merit and are of high character may be considered. While considering persons for appointment in the High Courts, members of the Supreme Court Bar, who are outstanding in merit and having transparent integrity should be persuaded for their own High Court and such persons should be picked up at the age of 40+ lest they may not accept judgeship by the time they attain the age of 45. While principles of ethics and morality are concerned, they have to be told and taught to the entrants in judicial service at the threshold and then reaffirmed periodically in such a way that they are imbibed into the personality of the holder of judicial office. It is needless to say that in the matter of appointment to any public office, much less a judicial one, the sole consideration should be interest of the institution of which we are the trustees.
The process for appointment in district and subordinate judiciary should commence sufficiently in advance so that immediately on retirement the next incumbent takes over.
I am certain that with the measures already taken, which measures are already showing positive results, and the measures suggested today by me and the other learned speakers, the mounting arrears would be reduced considerably. But over and above the measures suggested, what I feel is that there should be aptitudinal change in the Bar and the Bench. Judges should develop knack of deciding cases in shortest possible time and the members of the Bar should be able to place their points without loss of public time. After all the Bar and the Bench both owe a duty to the litigant who has come to seek justice.
‘You can’t reform individuals but you can reform the system. Even corrupt officials won’t deviate from the system’
TAKEN FROM THE IDEA EXCHANGE COLLUMN , INDIAN EXPRESS , SUNDAY NOVEMBER 8 2009
UNION LAW MINISTER VERAPPA MOILY
MANEESH CHHIBBER: You have just released a vision document for your ministry. What are the major bottlenecks you plan to remove in the judicial system?
I have prevailed upon the PM to open additional courts. Also, we will tighten factors related to the prosecution of cases. We would like to create a separate cadre of prosecutors—the head of the prosecution must be of secretary grade so he enjoys enough autonomy. We would like to put all CBI and corruption cases on a fast track.
Corrupt people have no fear of the law and hence corruption continues and the rule of law is a casualty. We do not want that. We are also considering expediting regular murder cases and appeals. Fast track courts have begun to function, and we would like to extend them to other cases. We have civil cases where the suits have been rendered infructuous. That will have to be sorted out. Also, there are petty cases like traffic challans or accident claims that should be sorted out immediately. We want to give priority to cases pertaining to senior citizens, disabled persons, widows and victims of atrocities. Wherever such cases are pending, including at the Supreme Court, they must be put at the top of the agenda.
Another major issue is that of the government, at the Centre or in the states, becoming the prime litigant. It is totally irrelevant and unnecessary and due to a lack of accountability on the part of the officers. They do not want to take decisions and even if they do, they are evasive. One exercise I started immediately after taking over was to write to all the Central ministries and to the chief ministers asking for details of pending cases. They are all writing to me with the particulars. I am now classifying them.
SHEKHAR GUPTA: What about tax cases?
We will put those cases on a fast track. Although I don’t agree with the criteria and indicators used by the World Bank, its report said that doing business in India is very difficult. That is because of our system. I have already prepared the Commercial Courts Bill. It has been circulated to various ministries and I will present it to the Cabinet soon. I would like to introduce it in Parliament during the winter session. The Bill will mainstream commercial courts. They will be established at all the high courts, may be for high-value cases involving Rs 2 crore and more. With this Bill, we hope to mainstream the entire administration of justice in commercial courts so that the perception that we are slow will be wiped out. We need more courts; we should have the physical infrastructure, manpower and Information Communication Technology (ICT). All this costs money. I have drafted a Bill under the Central Court Fee Act for enhancement of the court fee so that we can generate resources from within our system.
SHEKHAR GUPTA: Should Mukesh and Anil Ambani pay Rs 5 crore per hearing?
In Singapore, they charge for even an adjournment delay. I will not go to that extent. But we can decide a murder case in a matter of hours. And, unless there is good reason, a hearing should continue from start to finish.
M.K. VENU: The gas case hearing involving the Ambanis took one month for oral submission, another month to write the submission and there are about 18,000 documents. How will the judges read these documents?
Everything has to be on ICT. The other issue is the time limit for the judgment. There is already an SC judgment that says a judgment has to be delivered within 15 days or, three months in certain cases.
VINAY SITAPATI: If you want to reduce government litigation, the official who decides not to appeal must be insulated from corruption charges, or he or she must be penalised for a wrong appeal. What are your proposals?
One of our proposals is to have a responsible law officer in every litigant department. Officers at that level are expected to take decisions and be accountable. We are quite conscious of the fact that they are afraid of the Central Vigilance Commission (CVC) or corruption charges. I have always believed that you cannot reform individuals but you can reform the system. Even a corrupt officer will not deviate from the system. We need to develop a culture where they respond to the system. If a system is in place, ultimately, it takes the responsibility, not the individual officer who has taken the decision. It is possible and we can do it.
VINAY SITAPATI: Are you thinking of a law for this?
We will do whatever is necessary. Often we think of changing laws and the Constitution but governance is what we require. We have enough rules and provisions to take care of everything but the question is, what if, even with all that, an officer shirks responsibility? He has to be held accountable for the loss he is causing by sending a matter to court.
DHIRAJ NAYYAR: Who, in your view, should appoint judges?
According to a memorandum of procedure drawn up by the government and the judiciary in 1996, collegiums of the high court make proposals for high court judges, the remarks of the Governor and the Chief Minister are called for and then the Chief Justice writes to the law minister. I process it. Subsequently, I send it to the collegium and to the Chief Justice of India. Meanwhile, I would have received reports from IB and other sources. We forward the proposal to the CJI with our remarks and then the SC collegium sends its recommendations, which I have to approve and forward to the prime minister. Then the PM sends it to the President.
The impression given to the public is that judges appoint themselves, but I do not agree. There are important, responsible acts that are performed by the constitutional authorities. Some infirmities have been appearing in the appointment of judges and we need to address those. I do not say it is altogether satisfactory. There are times when we discover things. When I read the SC judgment (on the appointment of judges) and the memorandum of procedure, I found that the memorandum was not strictly in accordance with the judgment of the SC.
There is a national debate on the possibility of an independent and objective collegium. Maybe we will introduce one, either with the consent of the judiciary or with an amendment to the Constitution—that will add a lot of objectivity to the selection of the judges.
UNNI RAJEN SHANKER: What background checks are done before appointing judges?
As a constitutional authority, we have a responsibility and that responsibility includes checks and counter-checks, either through independent bodies, through IB or through other bodies. But that happens after the first proposal comes to us from the high court. I have referred a few cases back. Earlier, additional judges to high courts were appointed and confirmed as a matter of course. But in one or two cases, I stopped them. I found enough reason not to confirm them and the SC collegium agreed with my views.
SEEMA CHISHTI: Why were these persons made additional judges in the first place?
I am planning to take up the Judges Standards and Accountability Bill, which will be very comprehensive. What happens now is that even if 50 MPs sign and move for an impeachment, the resolution will undergo another committee review. Impeachment of judges is an extreme measure. Many issues like reinstatement of the values as enunciated by the Supreme Court in 1997, misbehaviour and misconduct will be dealt with in this Bill. Even the declaration of assets and liabilities by judges will be a part of this Bill and the clause pertaining to confidentiality will go.
SEEMA CHISHTI: There have been cases such as Reliance where the judges have offered to recuse themselves saying they had stakes in the company or other personal connections. Will you be looking at such cases?
Conflict of interest will be a part of the Standards and Accountability Bill. We will also define conflict of interest—not by perception but by certain parameters and those parameters will be laid down.
MANEESH CHHIBBER: If the SC collegium decides to reiterate its first decision on the elevation of Chief Justice PD Dinakaran to the Supreme Court, what will your stand be?
We will not go by perception and impression but on hard facts and evidence. It will be seriously looked into, I can tell you that. You need to judge whether the representations against him were correct or not. I cannot pass any value judgement across the table. However, I must ensure that the constitutional authority, which includes the government, is totally convinced about the case—otherwise we will not do it.
VINAY SITAPATI: Controversies regarding Justice Dinakaran’s appointment suggest that somebody at some stage must not have done his or her job.
How can you say that? Maybe they did their job very well, but there can be vested interests. Judges will always evoke sharp criticism and this is why we say they must have independence, they must work in a fearless atmosphere. They cannot think they will be criticised because of their decisions. The day the judges start thinking that, they will not render fearless justice.
COOMI KAPOOR: What about the accountability of lawyers?
The conduct of lawyers will be regulated by the Bar Council of India (BCI). We have interacted with the Bar Council and they are proactive on this issue. Regulatory authorities will have to discharge the duties for which they have been created. They will have to maintain professional standards, which include accountability. We are contemplating some amendments to the Bar Council Act. We are thinking of system-based changes. In the 1970s, there was a call to pre-train the advocates but the SC struck it down because of technical reasons. At the national consultation on removal of pendency, it was decided that the first phase of judicial reforms will deal with the disposal of arrears and the next phase will pertain to legal education and also dealing with regulatory authorities.
VINAY SITAPATI: The problem is that BCI works as an interest group rather than a regulatory body.
Regulation and legal education are the two things with the BCI today. The SC has already given a decision on the subject and laid down certain parameters. We have had discussions on these issues. Perhaps within a month or two, we will come up with a solution.
DHIRAJ NAYYAR: What is your stand on the entry of foreign law firms in India?
The issue is now pending before the Bombay HC. The next hearing is in mid-November. Recently in London, I met a group of 80 upcoming young Indian lawyers. They had graduated from Indian law school universities. The very fact that students from such universities are going to corporate law firms abroad is not a good reflection because their services are not available here.
In the UK, there was resistance to the entry of US law firms initially; similarly in China, but it ultimately melted away. Today or tomorrow, it will happen here, but we have to take along our lawyers. I am going to have a brainstorming meeting with vice-chancellors of all the 14 law school universities. Then I would like to talk to BCI.
SHEKHAR GUPTA: Is it a trend that good lawyers do not want to become judges? Can you make the job of a judge more attractive?
As I often say, there is enough for need but not for greed. You cannot tempt people with money because there is no end to it. We need to create an atmosphere where intelligent people, who love the country, sign up.
SUBHOMOY BHATTACHARJEE: There is a perception that it is the composition of tribunals like CAT and TDSAT that often decides how the case will be decided. Also, CAT judgments often produce contradictory decisions back to back.
There is nothing wrong with the concepts behind setting up these tribunals—they are done with the best of intentions. But we do need to take steps. We need to decide on a uniform upper age for its members, we need to reaffirm the purpose for which they have been established. I may take another two months to finalise this. Even the SC has said that the law department has to regulate these. We plan to come up with a strategy to firm up these things—either they should function within the parameters and for the functions they have been set up or irrelevant tribunals can be asked to wind up. This is an area that is of great concern to the government.
PRAGYA KAUSHIKA: Do you have any plan for improving law education in the country in conjunction with HRD?
We need to take a big step forward as far as law education is concerned. I have already started the process. The HRD minister is also a lawyer and I can take advantage of this fact. I am determined to bring in reforms. I pioneered the law school university concept in Bangalore. Now we have 14 such law colleges and we are going to increase the number. We would like to have four such colleges that will offer a post graduate degree and will prepare faculties.
UTKARSH ANAND: Should court hearings be photographed and videographed?
Yes. Sam Pitroda recently interacted with us via video conferencing from Chicago and I, along with several judges, heard him. This is the biggest programme of UPA II vis-a-vis legal reforms. There are a lot of cases pending and 70 per cent of prisoners in our jails are undertrials. Within six to eight months, these cases will have to be closed. Normal court hearings can also be videographed. A day will come when all court hearings will be videographed.
RAJ KAMAL JHA: You came to this ministry after Hansraj Bhardwaj was removed. Did you discuss anything with your predecessor?
No, he was not removed. I had called on him the same day I joined the Cabinet. We have talked many times. Now he is in my state and I discuss things with him.
Transcribed by Utkarsh Anand
THE LINK TO THE INDIAN EXPRESS ATRICLE
You can’t reform individuals but you can reform the system. Even corrupt officials won’t deviate from the system’
In an Idea Exchange moderated by Special Correspondent Maneesh Chhibber, Law Minister M. Veerappa Moily
Confused signals
K VIVEK REDDY IN THE INDIAN EXPRESS NOV 07, 2009
If it is reasonable to think that a Supreme Court justice can be bought so cheap, the nation is in deeper trouble than I had imagined.” The recent recusal by Justice Raveendran from the RIL-RNRL case reminds one of the stirring words of Justice Antonin Scalia. He refused to recuse himself in a case where the former Vice-President Dick Cheney’s actions were being questioned, although he had earlier gone on a duck-hunting trip with a group which included Cheney.
There has been a spate of recusals from the Indian Supreme Court. What is puzzling is that Justice Raveendran, whose judgements reflect a rare combination of depth and simplicity, has in the same case and within few days offered two different standards for recusal of a judge. At the beginning of the RIL-RNRL dispute, Raveendran offered to recuse himself since he held shares in RIL and RNRL and counsel did not object to his presence. Within a few days after the hearing commenced, Raveendran recused himself because his daughter was working in a law firm which was advising (as opposed to the daughter herself) RIL in a global acquisition completely unrelated to the dispute before the court. And to add to the confusion, Justice Kapadia offered to recuse himself on account of holding shares in Sterlite when a case related to that company came up before him, while Justice Katju recused himself since his wife held shares in RIL when the RIL-NTPC dispute came up before him.
When faced with a conflict of interest what standard should judges across the country follow? Should judges recuse, or should they offer to recuse? The Supreme Court precedent and past history offer a clear guide.
The Supreme Court from its inception has consistently made a distinction between pecuniary and non-pecuniary interest. In case of a pecuniary interest, the judge has to automatically recuse himself and no further inquiry is required; once a judge has an interest in the outcome of the case, he is no longer an independent adjudicator. But in case of a non-pecuniary interest, the judge should recuse if there is a reasonable ground to believe that he will be biased on account of it. (Manak Lal v. Prem Chand, AIR 1957 SC 425)
Raveendran’s recusals are indeed ironical; he has offered to recuse when he ought to have recused on account of his pecuniary interest and actually recused himself when the
non-pecuniary interest did not create any reasonable basis to attribute bias.
The Court’s history offers a useful guide. In 1964, Chief Justice P.B. Gajendragadkar was presiding over a bench examining the validity of the quantum of compensation paid for a land acquisition. Purushottam Trikamdas, the lion of the Bar, speaking for the landowners, asserted that Chief Justice Gajendragadkar should not hear the case since he had a pecuniary interest in the subject-matter, because he was a member of a co-operative society for which the land was being acquired. The Chief Justice asked the Attorney General C.K. Daptary whether he should recuse, and Daftary told the Chief Justice that he should. The Chief Justice reconstituted the Bench headed by Justice Subba Rao which declared the actions of the government unconstitutional.
The Supreme Court’s 1997 resolution titled “Restatement of Values of Judicial Life” — mandating a judge to disclose his shareholding interest and proceed with hearing the case only if there is no objection from the parties — does not accurately restate the legal position and should be revised for several reasons.
First, it is inconsistent with the law laid down by the Supreme Court. Holding shares in a company is a clear case of pecuniary interest, and the SC itself right from 1952 has affirmed that a pecuniary interest, however small, automatically disqualifies the judge. Even if a judge has a majority or a significant shareholding in a company, the 1997 Resolution allows the judge to proceed if counsel does not have any objection. The law declared by the SC is binding and prevails over a resolution.
Second, the resolution relies upon waiver by the counsel to shield the judge from any imputation of bias. When discretionary powers of judges have tremendously increased over the years, trusting counsel who routinely appear before the same judges in several cases day in and day out to object to their participation in one case is not exactly an ideal mechanism.
Raveendran’s final recusal from the bench raises a larger question. Should a judge recuse merely because a party before the Court is a client of the law firm which employs a relative, irrespective of whether the relative is actually involved in advising the client? By this standard, any judge who has a relative working in a leading law firm would be barred from hearing any case of that firm. While Raveendran’s offer of recusal diluted the recusal standard in case of pecuniary interest, Raveendran’s recusal has over-extended the standard in case of non-pecuniary interest.
The writer practices in the AP High Court
express@expressindia.com
THE LINK TO THE ARTICLE IN INDIAN EXPRESS
Confused signals
Working out the Supreme Court’s history of recusals…
Enforcing the rule strictly
EDITORIAL IN THE HINDU NEW DELHI
It is a well-settled principle of law that the presence of a conflict of interest — actual or potential — is sufficient to disqualify judges from participating in legal proceedings. The rule against bias emerges from the maxim ‘Nemo judex in causa sua’, which means no man should be a judge in his own cause. The withdrawal of two Supreme Court judges on a single day is a reminder of the principles of judicial recusal and the importance of satisfying a fundamental tenet in the administration of justice — that justice should not only be done but also be manifestly seen to be done. The recusal of Justice R.V. Raveendran in a high profile gas dispute case involving the Ambani brothers on learning that his daughter was associated with a solicitor’s firm advising one of the two parties underlines a basic point about the applicability of the rule of bias. It is nobody’s case that Justice Raveendran’s judgment would have been influenced or impaired by his daughter’s link with the firm; conflicts of interest in the judicial realm are rarely about real bias. Rather, they relate to what is described as apparent or unconscious bias, concepts founded on the principle that there should not be even a smidgeon of doubt about external factors interfering in the course of justice.
Justice Raveendran, who had offered to pull out of the case earlier on the ground that he had shares in companies promoted by both the Ambani brothers, was persuaded to stay by the opposing lawyers. Strictly, the principles governing pecuniary bias demand that any financial interest, however small, disqualify a person from adjudicating. Justice Markandeya Katju was right in informing the two sides that he could not participate in another case involving Reliance Industries since his wife owned shares in the company. That even the slightest appearance of bias is enough to ruin a case is reflected in one relating to Chile’s General Augusto Pinochet, who challenged an adverse order by Britain’s House of Lords on the ground that one of the law lords, Lord Hoffman, was a Director of a registered charity connected with Amnesty International, a party to the case. Pinochet’s lawyers did not allege actual bias, but a challenge on appearance of bias was sufficient to have the order set aside (see www.parliament.the-stationery-office.co.uk/pa/ld199899/ldjudgmt/jd990115/pino01.htm). It is not uncommon for judges to withdraw from cases in India. The present system of a judge merely declaring his interest and leaving it to the lawyers to object to, or accept, his hearing a case is clearly unsatisfactory. The rule against bias needs to be applied strictly and the recusal of a judge who has any kind of interest should be automatic and be done at the earliest.
THE LINK TO THE ARTICLE :
Enforcing the rule strictly
It is a well-settled principle of law that the presence of a conflict of interest — actual or potential — is sufficient to disqualify judges from participating in legal proceedings. The rule against bias emerges from the maxim …
