Looking inward


Judicial activism has been the mantra of the past decade and more and has been seen as a saving grace by many who feel that the legislature and the bureaucracy need courts to keep them in check. Certainly, over the years we have seen a number of decisions which have been aimed at the general good and should have been taken up by the government.

As general respect for politicians waned, the courts emerged as the knight. There were murmurs of dissent that the judiciary was taking over the role of the legislature and the executive. Now the Supreme Court itself is doing some introspection and is wondering whether it is extending its brief.

The case in point is a directive given a couple of years ago for an expert committee, headed by former election commissioner JM Lyngdoh and former CBI director RK Raghavan, to look into ragging and students’ union elections. Now the apex court has set up another committee of five judges to study whether judges can enact law by directive and whether this impinges on the separation of powers.

This is an intriguing legal argument and deals with the very essence of one of the main principles of democracy — the balance of power between the three arms of the state. In a parliamentary democracy like ours, the legislature makes the laws, the executive implements them and the judiciary interprets them. If the judiciary starts to make laws, does it contravene the very principle which it is sworn to uphold?

However important as this point is, it could also be asked if the SC is putting too fine a point on it and getting technical about what is a larger issue. If indeed the courts were making laws, the legislature would categorically not allow it. What the apex court especially has done in recent times is present the incumbent government with directions that it could take rather than undercut the importance of the legislature.

In the Gujarat riots cases, in saving the environment, the budgetary allocations made by the Mayawati government in its statue-building spree, in paying attention to public interest litigations, the apex court has stepped in at crucial times to provide much needed direction.

There have been enough instances where courts have refused to intervene in matters which were the prerogative of the law makers. But as long as the other branches do not honour their obligations, the courts may be the last refuge of the citizen.


What’s in an oath?


The unnecessary controversy over Abu Asim Azmi taking his oath in the Maharashtra assembly has eclipsed the issue of taking action against the goondaism that brutally disrupted proceedings in the House. Should such action go unpunished? And, remain uncorrected? Are such blemishes in India’s parliamentary democracy to remain? There can be little doubt that such action constitutes a breach of privilege. The cameras recorded the entire embarrassment of events. They can identify exactly who is responsible for what. No democracy can survive to maturity if this kind of nonsense holds it to ransom. The correct course of action is for the Speaker to issue breach of privilege notices to those who directly participated in this breach, as well as those who conspired to make it happen. This means notices should go to Raj Thackeray to ask him of his complicity in the conspiracy. If he says he was not part of the conspiracy to disrupt the assembly, he would knock himself down a peg or two on this issue. If he admits his involvement, he must be punished along with the others, albeit by token suspension for the legislators and censure for the non-assembly conspirators. At this stage, to punish by imprisonment would make martyrs of such persons. But, issuing process of breach of privilege is a must. Indian legislative democracy has been bruised too often. The fact that indisciplined elements may react with further disruptions is precisely the reason for issuing process promptly and dealing with the disrupters and conspirators wisely.

No institution, meeting or game can survive without the imposition of such discipline. Erring football stars are sent off the field. Cricketers are fined and banned. Court proceedings take place with dignity and free expression, precisely because of the law of contempt does not permit such disruption in the face of the court. It cannot take place at cabinet meetings — or any meeting for that matter. There is a time and place for protest. The legislative assembly is not a place for disruptive protest with impunity. Democracy works through governance by institutions. If the institutions collapse or become unworkable, democracy will also slowly collapse.

I now turn to the oath. The Third Schedule of the Constitution prescribes such an oath for all ministers, all legislators, judges of the high courts and Supreme Court, the comptroller and auditor general. The president’s oath is separately prescribed (Article 60), as also of the vice-president (article 69) and the governor (Article 159). There was always a Hindi version of the Constitution. But if there is any doubt, the 58th amendment mandates the president to publish an authoritative text of the Constitution and every constitutional amendment of it in Hindi (Article 394A). If someone wants to take their oath in Hindi, they are doing no more than following authoritative text of the Constitution itself!

It should not be necessary to go into the language policy of the Constitution. The Constituent Assembly wrestled with this question with a fear that separatist language demands could prove divisive. Mahatma Gandhi, who wrote evocatively in Hindi, English and Gujarati, put Hindi on the agenda. The Congress adopted a Hindustani (a mixture of Hindi and Urdu) policy in its meeting. When in 1946, R.V. Dhulekar insisted that the assembly’s rules be in Hindi, denying non-Hindi speakers the right to remain in the assembly, his intervention was cut short and a committee’s compromise of Hindi and English was accepted. With foresight, Ambedkar foresaw Hindustani being “Sanskritised” by Hindu writers and “Arabicised” by Muslim writers. The debate on Hindi and English was fast and furious to a point where tempers got frayed. While, initially, Nehru did not want a provision on language in the Constitution, and discussion on the future language to be used in Parliament and state legislatures was postponed, Munshi and Gopalaswami Ayyangar made proposals. In the debate over 300 amendments were made over Hindi, Hindustani, English and the state languages.

The initial constitutional compromise was to continue English for 15 years — to be replaced by Hindi as the official language, with the states being given freedom to develop their own language (Article 343). A National Language Commission would further these goals. Meanwhile, the states were reorganised in 1956 and 1966 on linguistic grounds. There are detailed provisions for both state languages (Articles 345 and 346) and special provisions for minority language within states in the Constitution (Articles 347, 349). Linguistic claims and minorities were to be protected (Article 29, 30 and 350B). The Eighth Schedule of the Constitution now recognises 22 languages which are to be developed and preserved. Hindi was to be developed drawing from Sanskrit and other state languages (Article 351). While parts of the Constitution are also a dustbin for expressing concerns, the language policy was pragmatic with a preference for Hindi and with protection for not just state languages, but those of the minority too. Hindi speakers in Maharashtra cannot be denied a constitutional choice.

The practice of various assemblies in India has concentrated on the content rather than the linguistic form of the oath. The important value attached to the oath is to defend the Constitution and accept the rule of the Constitution as not just the rule of law but also the rule of the heart. It is reported that in Madhya Pradesh and Punjab members have taken their oath in Sanskrit. In Chhattisgarh, MLAs took the oath in their own dialect. In West Bengal, so proud of Bengali, oaths have been taken in various other languages, including Nepali. In Andhra Pradesh, MLAs have taken their oaths in Hindi and Urdu.

Sometimes “oath-taking” in a particular language becomes a symbolic political statement. In Punjab, BJP MLA Lakshmi Kanta Chawla took his oath in Sanskrit — an odd favourite from time to time. In 2008 in Jammu and Kashmir, 11 members of the BJP insisted on oath taking in Dogri whilst Abdul Rashid took his oath in Kashmiri.

Most important to our present controversy is the fact that the Maharashtra Ekikaran Sangam members in Karnataka took their oath in Marathi. So, a Marathi speaker can take the oath in Marathi in some other state, but in the latest fracas a linguistic minority speaker was denied the right take his oath in a language of his choice in Maharashtra! What is even

more ironical is that even in the Maharashtra assembly, two BJP members took their oath in Sanskrit (Girish Bapat, Girish Mahajan). Congress members took their oath in Hindi (Amin Patel, Ramesh Singh Thakur) and English (Baba Siddique). It is said the Samajwadi Party MLA, Abu Asim Azmi, drew attention to himself and his choice of language. Suppose he did, so what?

India is a multi-lingual country whose Constitution affords linguistic choice as a constitutional right. To make a plea for a language is permissible. To do so with violence in the state legislature with disruptive and divisive aims and ends is not.

The writer is a senior advocate at the Supreme Court


Constitution Bench to decide on judicial legislation


NEW DELHI: A two-judge Bench of the Supreme Court on Wednesday referred to a fivejudge Constitution Bench, important questions of law on whether the judiciary by its orders could legislate to fill the vacuum in the laws in a particular field.

A Bench of Justice Markandey Katju and Justice A.K. Ganguly made this reference differing with the order passed in 2006 by a two-judge Bench headed by Justice Arijit Pasayat (since retired) to streamline student union elections in colleges and universities and a subsequent order to control the ragging menace.

The Bench said the initial order directing the implementation of the report of the J.M. Lyngdoh Committee was wholesome and the court also directed the manner of implementation. The Bench felt that the proper course should have been to send the recommendations to the Parliament to make a law or to the Universities concerned so that they could take a decision on implementation.

Giving a direction for implementation of the recommendations, prima facie amounted to judicial legislation, the Bench said and pointed out that it came across a large number of similar cases from across the country.

Hence it said the matter required to be examined by a Constitution Bench. The Bench broadly framed issues, viz whether the September 22, 2006 order directing implementation of the Lyngdoh Committee report amounted to judicial legislation and if so whether the judiciary could legislate; whether the court could pass an order for the pressing social problem on the ground that the Legislature was not enacting a law.

The Bench also said that questions relating to the doctrine of separation of powers between the Executive, the Legislature and the Judiciary were involved for interpretation in this case and hence the matter should be decided upon by a five-judge Constitution Bench.

Earlier, Solicitor-General Gopal Subramanian submitted that after the implementation of the two reports, student union elections had been streamlined and the ragging menace had come down. He wanted the earlier orders to continue till the Constitution Bench rendered its decision. The Bench agreed and said the earlier order would continue.

When Mr. Subramanian said that a social problem like ragging had to be tackled firmly and the court order had its effect across the country, Justice Katju orally observed “there are several pressing social problems like price rise, unemployment etc. Can the judiciary solve these problems? Do we have the expertise? Tomorrow, we can’t abolish Parliament and say we are Parliament and start legislating. These are exclusive domains of the legislature and the executive. It was improper and dangerous for the judiciary to take over the functions of the legislature and the executive. All the three organs have their own respective roles to play. Judges must exercise restraint. Otherwise, it is bound to create big reactions.”

The Bench while referring the matter to the CJI for posting it before a five-Judge Bench, requested that the matter be heard by the Constitution Bench expeditiously since important questions of law were involved for interpretation.


Restatement of Values of Judicial Life (1999) – CODE OF JUDICIAL ETHICS

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:

  1. 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.
  2. 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.
  3. Close association with individual members of the Bar, particularly those who practice in the same court, shall be eschewed.
  4. 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.
  5. 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.
  6. A Judge should practice a degree of aloofness consistent with the dignity of his office.
  7. A Judge shall not hear and decide a matter in which a member of his family, a close relation or a friend is concerned.
  8. 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.
  9. A Judge is expected to let his judgments speak for themselves.  He shall not give interviews to the media.
  10. A Judge shall not accept gifts or hospitality except from his family, close relations and friends.
  11. 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.
  12. A Judge shall not speculate in shares, stocks or the like.
  13. 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).
  14. A Judge should not ask for, accept contributions or otherwise actively associate himself with the raising of any fund for any purpose.
  15. 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.
  16. 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.

The oath or affirmation by Judge- CONSTITUTION OF INDIA

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:-

  1. that I will bear true faith and allegiance to the Constitution of India as by law established;
  2. that I will uphold the sovereignty and integrity of India;
  3. 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
  4. 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.” 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.“ 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.

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.

The Bangalore Draft Principles on Judicial Ethics 2002

The values of judicial ethics which the Bangalore Principles crystallises are :

(i) independence

(ii) impartiality ,

(iii) integrity,

(iv) propriety

(v) equality

(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.