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SH Kapadia: Pilgrim of Justice

Posted in CHIEF JUSTICE SPEECHES, JUDICIARY, JUSTICE by NNLRJ INDIA on August 22, 2012

CHIEF JUSTICE OF INDIA SH KAPADIA

BY DINESH NARYAN-  PUBLISHED IN FORBES INDIA

Sarosh Homi Kapadia
Age:
64
Profile: Chief Justice of India. In his long legal career, he has served as a lawyer at Bombay Bar, a Bombay High Court Judge, a Special Court Judge, Uttaranchal Chief Justice, Judge Supreme Court
His Achievement

  • He is one of the finest judges and administrators
  • He has redefined judgeship

A judge, by virtue of his chosen profession, chooses to become an ascetic, distant from the society he lives in, yet immersed in it so deep that he is confronted with the rawness of its existential struggle every day. Chief Justice of India SH Kapadia is a person who understands it too well.

“A judge must inevitably choose to be a little aloof and isolated from the community at large. He should not be in contact with lawyers, individuals or political parties, their leaders or ministers unless it be on purely social occasions,’’ Kapadia said while delivering the MC Setalvad Memorial lecture on Judicial ethics in April 2011.

Since taking over as the Chief Justice on May 12, 2010, Kapadia has worked tirelessly to restore the diminishing dignity and credibility of the Supreme Court as the final forum for justice seekers. With a single stroke of the pen, he stopped reckless mining in Bellary. He disqualified the crucial appointment of Central Vigilance Commissioner  (CVC) reminding the prime minister and his government that processes must stand the test of integrity. In the Vodafone case, Kapadia pointed out that laws are not open to unduly liberal interpretations. A corporate lawyer said that the Vodafone judgement reinforced to the world the independence of the country’s judiciary. In a few days a Constitution Bench headed by Kapadia will decide on the Presidential Reference made to it after the SC quashed 122 telecom licences and asked the government to conduct auctions to allocate natural resources. He is also expected to frame guidelines for the media on reporting on matters that are being heard in court.

Chief Justice Kapadia will be remembered for some of the landmark judgements he delivered. And the way he lived as a judge will never be forgotten. It can only be called exemplary. In a now famous and widely quoted letter that he wrote to former Justice VR Krishna Iyer, Kapadia said: “I come from a poor family. I started my career as a class IV employee and the only asset I possess is integrity…’’

Early days
The destiny of Sarosh Homi Kapadia was uncertain when he was born on September 29, 1947 in a nation that came into existence barely six weeks before him. Not many people in the world who watched the birth of India gave it a chance as a democracy. The odds were stacked against Kapadia at birth because unlike the illustrious Parsis of Bombay, his father had grown up in a Surat orphanage and had worked as a lowly defense clerk. His mother Katy was a homemaker. The family could barely make ends meet but that did not weaken their robust values.

“My father taught me not to accept obligations from anyone, and my mother taught me the ethical morality of life,’’ Kapadia recalled at a Bombay Parsi Panchayet felicitation when he became CJI. Young Sarosh, however, had decided that he would make his own destiny. He wanted to become a judge and nothing else.

At the felicitation, Panchayet trustee Khojeste Mistree talked about his student days. Kapadia would walk down Narayan Dhabolkar Road in Mumbai, past the Rocky Hill flats, where a number of judges lived, and dream that one day he would progress from being an advocate to becoming a judge and have the honour of living in those very same salubrious surroundings, Parsi Khabar, an online community web site, reported Mistree as saying. Many years later, when Kapadia became a judge at the Bombay High Court, he always sat in court room number three on the ground floor, which perplexed many because as judges rose in seniority they also moved up the courthouse building. Kapadia revealed the reason why he was fond of the room when he was invited to tea at the Bar just before taking over as the Chief Justice of the Uttaranchal High Court in 2003. Early in his career as a low-grade employee, he used to end up at the Fountain area near the court for work. He didn’t have anywhere to go to spend his lunch break. For three years lunch often used to be a small cone of roasted chana (gram) and courtroom number three was the place to relax because it let in good breeze. A lawyer in Mumbai who was present says that Kapadia recalled how his interest in law was fuelled by the sessions in that courtroom.

Kapadia began his career as a grade four employee with Behramjee Jeejeebhoy where his main job was to deliver case briefs to lawyers. Behramjee Jeejeebhoy was the owner of seven villages in Bombay and had a lot of land revenue as well as a number of land-related disputes to settle. Those cases were handled by Gagrat and Company where a young lawyer, Ratnakar D Sulakhe, used to work.

“Sarosh used to come very regularly to our offices. That is how I first met him. He had a keen interest in law and I encouraged him to take it up,’’ remembers Sulakhe, who is now legal consultant with the Godrej group. Kapadia studied law and enrolled at the bar. By that time he had a keen grasp of issues related to land and revenue and began taking up such cases. As a junior lawyer, he quickly gained a reputation for his preparation and ability to cite authority while arguing. Kapadia then joined Feroze Damania, a feisty labour lawyer reputed to be partial to poor and marginalised people.

In 1982, Kapadia argued a case for people living in Ghatkopar, a suburb in Mumbai. The area was formerly salt pans and fell under the control of the Salt Commissioner. The commissioner had ordered summary eviction of about 3,000 tenements. Kapadia fought the case which resulted in a landmark judgement laying down the principle that governments cannot invoke summary eviction laws to throw out people when there is a genuine dispute on the title. “It was not about money. He was genuinely interested in the welfare of marginalised people,’’ a colleague who worked with him at Damania’s offices told Forbes India. He did not wish to be named.

The colleague says, at the time Kapadia became interested in Buddhist and Hindu philosophies, especially in the teachings of Ramana Maharishi, Swami Vivekananda and Ramakrishna Paramahansa. Later he became a frequent visitor to Belur Math on the banks of the Hoogly in Kolkata. A monk at the Math says he learnt meditation techniques. He has read everything about Ramakrishna and also what Swami Vivekananda wrote. Kapadia’s worldview is highly influenced by Indian thinkers but is also tempered by the observed realities of the modern world. It has also shaped his thinking as a judge who believes in continuous learning.

“What we need today in India as far as the judges are concerned is a scholastic living,” Kapadia said in December 2008. Delivering the JK Mathur memorial lecture in Lucknow, Kapadia went on to define the context of modern day justice and the legal profession. In that speech he said how important it was for judges to understand the various concepts in different fields, including economics and accountancy. Kapadia himself is a qualified accountant and has vast knowledge of economics. That came in handy in a case where Orissa’s tribals were pitted against a miner.

There were no jobs, hospitals or schools in the area the company wanted to mine. Kapadia analysed the accounts of the company to find out whether it could set aside a portion of profits for tribals’ welfare. He dissected the accounts segment-wise to discover a profit of about Rs 500 crore when without the standard of accounting the profit would be only Rs 15 crore.

“A judge sitting in tax matters knows the accounting standards. It helps us to decide matters in the context of socio-economic justice enshrined in the Constitution… This is where I emphasise the knowledge of the basic concepts.’’

A Mumbai lawyer who knows him from the time Kapadia was a lawyer and later judge, says that he has evolved into a complete jurist. Yet, the Chief Justice has not stopped learning.

In July 2011, the Supreme Court gave a verdict in a case involving limestone mining in Meghalaya’s East Khasi Hills by Franco-Spanish cement company Lafarge Umiam Mining. Almost a year-and-a-half before that, the company had been asked to stop mining by a Bench headed by Justice KG Balakrishnan. When the hearing resumed, Justice Balakrishnan had retired and Kapadia was presiding on the three-judge bench.

As Harish Salve began to argue for Lafarge, Kapadia realised that he did not know enough background. So he asked the senior lawyer to brief the court on the history of environmental jurisprudence. A stumped Salve said that would be like reading a textbook. To which Kapadia replied that he was a Bombay man who understood very little about environmental matters and would Salve not help the court? Every Friday for the next seven weeks the cavernous courtroom turned into a classroom where Salve elaborated on the evolution of environmental jurisprudence in India.

Unshakeable Integrity
There are two qualities of Justice Kapadia that no one disputes— integrity and compassion.

“His humble beginnings are reflected in his outlook and judgements,’’ says senior lawyer Soli Sorabjee. “A litigant may feel disappointed if he loses the case but no litigant goes back [from Kapadia’s court] feeling he was not fairly or fully heard.’’

In his pursuit of flawless integrity, Kapadia has hermetically sealed himself. He even said in a speech that judges and lawyers should work like a horse and live like a hermit. When Forbes India sought to interview him for this profile, the CJ’s office said the strict code of conduct binding Supreme Court judges does not allow him to agree. Kapadia’s personal code of conduct is more severe. Retired Justice VR Krishna Iyer told Forbes India that he had gathered from his colleagues that he was too dignified to even meet other judges, rarely meets anybody at random and when he speaks he is taciturn.

Kapadia does not accept even official invitations if they fall on a working day. He once rejected an invitation to represent India at a conference of the Commonwealth Law Association in Hyderabad because it fell on a working day. On the first day in office as CJI, he cleared 39 matters in half an hour. Kapadia has practically dedicated his life to the profession, rarely taking holidays even.

During the first summer holidays after he became chief justice, Kapadia is said to have come to office everyday to streamline the SC registry.

According to several lawyers, the registry had deteriorated into a corrupt office where ‘bench hunting’ was common. Bench hunting is gaming the allocation process to make sure that a certain matter appears before a certain judge who the lawyer thinks will rule in a particular way. Kapadia has put an end to it and is now said to review the day’s board of case listings and pull up the SC staff if he finds something amiss. The CJ has also stopped out-of-turn mentioning of cases to be taken up urgently, which has caused some consternation among lawyers. Earlier, lawyers could request the judge while the court was in session to take up an unlisted matter because it was urgent. Now they have to file an urgency petition a day in advance. The system exists because there is a mountain of pending cases in the judicial system. And since the SC is the final authority, it gets overburdened. “It will not be long before we have a 100 judges in the SC,’’ says a lawyer. The SC currently has 30 judges, excluding the CJI. The Indian justice system had drawn a lot of flak over the past few years after the integrity of several past and sitting judges was questioned. But Kapadia defended the system in his Law Day speech last November.

“I am an optimist. I do not share the impression that judicial system has collapsed or is fast collapsing. I strongly believe and maintain that with all the drawbacks and limitations with shortage of resources and capacity, we still have a time-tested system,’’ he said. He also said that the backlog of cases is not as huge as is made out to be. “Seventy-four percent of the cases are less than five years old,’’ he said and added that the focus is on quickly disposing of the rest of the cases.

Kapadia has certainly restored the confidence and pride in the Supreme Court of India.

“He will certainly be remembered for the landmark Vodafone decision,’’ says Percy Billimoria, senior partner at corporate law firm AZB and Partners.  “Whenever anyone complains about the retrospective amendment of the tax law on this issue, I always retort by reminding them that the fact that the decision held that the government’s stand on a matter with such far reaching revenue implications was contrary to the law at the time shows that at least our judiciary is fair and independent.’’

By the time Kapadia hangs up his cloak and collar on September 29, he would have left an indelible mark on India’s judicial history. Former Justice VR Krishna Iyer told Forbes India: “While I have seen during the last 97 years of my life among good judges with great credentials, there was hardly anyone to compare with Kapadia the like of which no eye had seen, no heart conceived and no human tongue can adequately tell.’’

http://forbesindia.com/article/independence-day-special/sh-kapadia-pilgrim-of-justice/33592/0#ixzz24DsdyUtX
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Justice KGB’s resignation is a moral imperative

Supreme Court of India

BY KALEESWARAM RAJ IN THE NEW INDIAN EXPRESS –  EXPRESS BUZZ

The allegations raised against the former Chief Justice K G Balakrishnan are serious in nature.After the decision in Veeraswamy’s case (1991(3) Supreme Court Cases 655), even for registration of criminal cases and initiation of prosecution against a retired judge of the Supreme Court or High Court, no previous sanction by the government is required.

Likewise, a probe under the Commissions of Enquiry Act, 1952 also is quite possible. Such a course may help in making the matters known to the public. As it is often said, “sunlight is the best disinfectant”.Justice Balakrishnan has got a duty to respond. His silence may be taken as giving unpleasant messages to the people of the country. It would also pose challenges to the legitimacy of the institutions. “Human factors” in the institutions are inseparable from the institutional factors in a working democracy. To quote Prof B O Nwabueze, “however carefully the institutional forms may have been constructed, in the final analysis, much more will turn upon the actual behaviour of (these) individuals” .

To say that the question of assets of the relatives is not a matter of concern for Justice Balakrishnan would be naive, if not irresponsible.Allegations of corruption are very often connected with acquisition of wealth not only by the person against whom allegations are made but also with his or her close relatives. The linkage between corruption and acquisition of wealth is often quite obvious. Generally speaking, money/wealth may not be the only means of corruption. However, in developing countries, it still remains as a prominent means.

Why Justice Balakrishnan should quit?

Continuation in a key post amidst the allegations would amount to a disservice to society at the expense of the state. However, according to Section 5(1) of the Protection of Human Rights Act 1993, the Chairperson of the NHRC could be removed from his office only by the order of the President on the ground of proved misbehaviour or incapacity.There has to be a reference to the Supreme Court by the President.Only after an inquiry by the Supreme Court and only on the basis of a finding regarding the proved misconduct as the chairperson of NHRC, he could be removed. Such misbehaviour should also be one associated with his conduct as chairperson of NHRC.According to Section 5(2) of the Act, the President can order the removal of chairperson of NHRC for the limited reasons like insolvency, paid employment, infirmity of mind or body, conviction in criminal cases etc. Therefore, it is clear that the removal of Justice Balakrishnan from the post of chairp e r s o n o f NHRC would be practically difficult, if not impossible.It is also doubtful whether the allegations with respect to his tenure as the C J I would be sufficient for his removal from the present post, going by a strict interpretation of Section 5 of the Protection of Human Rights Act 1993.The legal hurdles in removing Justice Balakrishnan should not, however, justify his continuation.

On the other hand, the resignation of Justice Balakrishnan from the chairpersonship of NHRC becomes all the more a moral imperative due to these legal impediments.

A case for reformation

The Balakrishnan episode also puts forward a strong case for judicial reformation in the country.Unless and until we put an end to the system of judges appointing judges, no judicial reformation would be possible. The method of selection of judges to the High Court and to the Supreme Court by the collegium should be abolished.A legislative activism towards a constitutional amendment in these lines is the need of the hour.The present system is the direct result of the judgment in the second and third judge’s case reported in 1991(3) SCC 655 and AIR 1994 SC 268 respectively.

According to these judgments, the appointments of judges in the Supreme Court and High Court can be done only with the concurrence of the Chief Justice of India and the collegium headed by him.The word ‘consultation’ used in Articles 124 and 217 of the Constitution was virtually rewritten by the Supreme Court as ‘concurrence’ in the 2nd and 3rd judge’s case. Thus, without the concurrence of the CJ1 and the collegium headed by CJI, presently no judge can be appointed in the High Court or in the Supreme Court.It is apparent that consultation does not mean concurrence.Nor it can be so interpreted.

In fact, the question as to whether the appointment of judges requires the concurrence of the Chief Justice was seriously debated in the Constituent Assembly.Dr Ambedkar responded to the said suggestion in the following words: “With regard to the question of the concurrence of the Chief Justice, it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment.I personally feel no doubt that the Chief Justice is a very eminent person. But after all, the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I, therefore, think that is also a danger proposition”.(Constituent Assembly debates quoted by T.R.Andhyarujina Judges and Judicial Accountability Universal, 2003 P.113).

Ambedkar belongs to history.And history is the best test for his words.

There is a clear negation of Ambedkar’s wisdom in the judgments in the 2nd and 3rd Judge’s cases which altered the constitutional scheme in the guise of interpreting it. In the words of T.R.Andhyarujina: “The new dispensation of appointment and transfer of judges laid down by the Supreme Court has not been well received in India.The Bar has been critical of it. A judiciary which has total control over its own composition would have a conformist or club like outlook. Judges tend to find virtues in others who display the same outlook.

It is most unlikely that a Denning or Kirby, or a Bora Laskin or a Krishna Iyer would be appointed under this system.

A collegium which decides the matter in secrecy lacks transparency and is likely to be considered a cabal. Prejudice and favour of one or other member of the collegium for an incumbent cannot be ruled out”. (Ibid.P.120)

Justice Balakrishnan’s episode puts forward a strong case for introspection. It also calls for immediate steps for a constitutional amendment to ensure that the power to appoint judges does not vest with the judges themselves.As often demanded, there is a need for National Judicial Commission for selection of judges to the High Court and to the Supreme Court. Such commission should include not only the Judge(s) but also the representatives of the political executive (government), the Opposition Leader, the representatives of the Bar, academic circles or/and intelligentsia and also such other eminent persons.There has to be a participative and transparent selection process.Even a public debate is desirable.The present ailment is so serious that it requires treatment right from the process of selection . The hurdles to the reformative process created by the judgment in the Judge’s cases could be removed by an appropriate constitutional amendment.

(The author is a lawyer at the High Court of Kerala.Kaleeswaram@yahoo.co.in)

“I don’t think corruption is a major threat to the judiciary”

Posted in CHIEF JUSTICE SPEECHES, SUPREME COURT, UNCATEGORIZED by NNLRJ INDIA on May 10, 2010

JUSTICE KG BALAKRISHNAN CHIEF JUSTICE OF INDIA

J. Venkatesan In The Hindu

Interview  with Chief Justice of India K.G. Balakrishnan.

Chief Justice of India K.G. Balakrishnan lays down office on May 11 after three years and four months at the helm of the nation’s judiciary. He spoke to The Hindu on his achievements, failures and hope of having contributed to strengthening the foundation of the judiciary. Excerpts:

Are you satisfied with your overall performance? Do you feel much more could have been done?

Nearly three and a half years as Chief Justice of India. It is a tough job in a big country like India: handling judicial work and administrative work, appointment of judges, legal education, and communication with the various High Courts. I hope I have done reasonably well in improving the infrastructure in the judiciary, though it is an ongoing thing. I can say that the number of judges in the High Courts has increased, judicial officers were appointed in many states. For the first time, government has come out with Rs.5,000 crore for the development of infrastructure in the judiciary; it is not a small amount. Basics for improvement have been laid down. It is a big institution and it will take time to get results. 1,800 judges got judicial training from the National Judicial Academy, legal education has been streamlined. Over all, I feel I have achieved something in my tenure.

There is an allegation that you got a close relative appointed as Judge in the Kerala High Court.

I never suggested the name of Mr. Ravikumar for judgeship. The [then] Advocate-General of Kerala suggested his name to the then Chief Justice H.L. Dattu. I never knew about this. I have served in the High Courts of Kerala, Gujarat and Madras. In fact, many of the Chief Justices have asked me to suggest some names. But I have never recommended any name — relatives or friends — for judgeship in any of these courts. I have so many bio data with me. I feel it is not proper. Even in the case of Mr. Ravikumar, when his name came to the collegium, I told Justice B.N. Agrawal and Justice Arijit Pasayat that they can do whatever they want. They can reject the name or defer the consideration. Why should I stop somebody else’s judgeship? Why should I say that he should not be considered?

Is there any proposal from the Law Ministry for change in the Memorandum of Procedure of appointments to give more say to the executive in judges’ appointments?

The collegium method was evolved from two Supreme Court judgments of 1993 and 1998. We only follow the procedure from these judgments. If the Centre wants to change the system, it must seek review of the judgments, whether on its own or through some other method.

The collegium system is based on judicial decision, not on statute. How can it be changed? Many people criticise us, including those judges responsible for creating the system. We can’t change everything. We understand there are drawbacks to the system. The Chief Justice of the High Court is asked to select four or five persons from 6,000 lawyers for judgeship. On what basis can the selection be made? We understand there are practical problems. If you want a better candidate you need a better system. We welcome any change but we can’t violate the directions in the two judgments. I am leaving the government’s proposal to my successor to deal with it.

Do you feel the need for creating four supreme courts of appeal in four regions and a constitutional court in the capital?

We have to look for some changes in the system, as judges are overburdened. This year, the number of cases filed in the Supreme Court is expected to touch 84,000. Though the disposal rate is correspondingly high, it cannot continue for a long time. The present system can continue for another 10 years, and, thereafter, we must look for some change in the system. Jurisdiction can be curtailed; people should have a different forum that can be done region wise or subject wise.

Honour killings are taking place in many parts of the country. Do you feel that a separate law is necessary to deal with such crimes?

We have got sufficient number of laws. Even if there is a law, if things are done clandestinely, what can be done? What will you do if persons are ostracised by society. What is required is that society must change. Anyway, it is for Parliament to decide whether to come out with legislation or not.

Has the controversy over Justice P.D. Dinakaran finally settled?

It is an unfortunate thing. But I never interfered either in the [initial] inquiry or any other thing. The matter [removal proceedings] is now before a committee. I don’t want to say anything.

Can the Justice Sirpurkar committee [investigating the grounds for impeachment of Justice Mr. Dinakaran] be expedited? Enquiry into allegations against Calcutta High Court Judge Soumitra Sen is also pending.

These things can be decided expeditiously by the committees concerned. I don’t interfere in these things.

During your tenure did you ever feel that corruption is a major issue in the judiciary.

By and large, at least in the Supreme Court there is no corruption. At the High Court level, we receive some complaints without any details;but if we want to probe, they will not come forward. Regarding lower judiciary, in some of the states it is a problem. We can’t say corruption is not there at all; some may be susceptible. But these are only minor aberrations. In Kerala I can say it [lower judiciary] is corruption free. But I don’t think corruption is a major threat to the judiciary.

You are being portrayed as anti-Right to Information Act.

I am in favour of giving information. Certain information about Chief Justices discussed in the collegium cannot be given to the press. Then they will start discussing unfounded allegations against Chief Justices. It is not a desirable thing for our country. I said I had some reservations only on a very limited area. I only said that the office of the CJI is not a public authority under the Act. In all major countries of the world — England, Australia, America — the judiciary is absolutely exempted from RTI.

During my visits abroad, people say the Indian judiciary is highly respected. They say: we see justice system is working in India, people come to courts in India in large numbers. The system is working so well; it is visible.

As a Dalit who occupied the highest post in the judiciary, what do you have to say about suppression of Dalits.

Some incidents still occur in many parts. This is a social problem. It is still there, may be due to lack of education … so many factors are there. In the last 60 years, some change has taken place. But still, of those below the poverty line, more than 30 per cent are Dalits. Awareness must be created. For this, school education should be improved.

To judge or not to judge

Posted in CHIEF JUSTICE SPEECHES, JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on December 1, 2009

BY JUSTICE J S  VERMA FORMER CHIEF JUSTICE OF INDIA IN THE INDIAN EXPRESS DECEMBER 1 2009

Is the Dinakaran imbroglio really a puzzling question? I do not think so. The Chief Justice of India, K.G. Balakrishnan, is right that the collegium is bound to follow the Supreme Court decisions on the point relating to the appointment of judges, till the law is changed. The real issue is: on that basis, is the solution for the problem not obvious? Once again my answer is in the affirmative. I have no doubt that the credibility of the appointment process and the image of the judiciary must not suffer further damage, shaking the public confidence which is the true strength of the judiciary. This factor impels me to write this piece.

The blame for the current situation is attributed mainly to the Supreme Court decision in the 1993 Second Judge’s case (AIR 1994 SC 269), which gave primacy to the opinion of the judicial collegium in the matter of appointments. As the author of that opinion I must dispel that impression — indicating that the decision does carve out to the executive the area of non-appointment of a person on the ground of doubtful antecedents. The executive, therefore, is not helpless if in such a situation the judicial collegium’s recalcitrance to withdraw the recommendation continues. It is the duty of both organs to ensure that a known doubtful appointment is not made of a judge at any level, more so in the apex court.

Let me say at the outset that I neither know Justice Dinakaran, nor do I comment on the merits of the allegations made against him. I speak only on the basis of the information in the public domain brought out by media reports of the uncontroverted facts, which to my mind are sufficient for his non-appointment to the Supreme Court on the above ground.

A brief reference to the existing law governing the appointment of Supreme Court and high court judges on which the appointing authorities rely is useful. The recognised principle stated in the 1982 First Judge’s case to govern the exercise was reiterated in my separate opinion in the K. Veeraswami case (1991(3) SCC 655), thus: “The collective wisdom of the constitutional functionaries involved in the process of appointing a superior judge is expected to ensure that persons of unimpeachable integrity alone are appointed to these high offices and no doubtful person gains entry. It is, therefore, time that all the constitutional functionaries… should be fully alive to the serious implications of their constitutional obligation and be zealous in its discharge in order to ensure that no doubtful appointment is made even if some time a good appointment does not go through. This is not difficult to achieve.” (Emphasis supplied.)

In the 1993 Second Judge’s case the majority opinion, which I wrote, held: “The process of appointment of judges of the Supreme Court and the high courts is an integrated ‘participatory consultative process’ for selecting the best and most suitable persons available for appointment… There may be a certain area, relating to suitability of the candidate, such as his antecedents and personal character, which, at times, consultees, other than the Chief Justice of India, may be in a better position to know. In that area, the opinion of the other consultees is entitled to due weight, and permits non-appointment of the candidate recommended by the Chief Justice of India… If the non-appointment in a rare case on this ground turns out to be a mistake, that mistake in the ultimate public interest is less harmful than a wrong appointment… Non-appointment for reasons of doubtful antecedents relating to personal character and conduct, would also be permissible.” (Emphasis supplied.)

Thus, the settled law on the point is: a person of doubtful integrity or antecedents should not be appointed a judge of the Supreme Court; the area of non-appointment on this ground is clearly in the executive domain, notwithstanding the recommendation for appointment made by the CJI; it is safer and in public interest to not appoint a doubtful person, even if it turns out later to be a bona fide mistake. The executive is not powerless to thwart the appointment of such a person; the Supreme Court decision expressly empowers the executive in this behalf.

In Justice Dinakaran’s case, the media reports, based also on the statements of the CJI, say that the report of the district collector sought on some allegations pertaining to land grabbing is adverse to the candidate and that the outcome of a further inquiry by another authority is awaited. If the available material is sufficient to create a reasonable doubt warranting further inquiry, the test for non-appointment laid down judicially is satisfied and it is difficult to appreciate the propriety of keeping alive the issue of his appointment to the Supreme Court. I for one, with experience of the office of CJI and as the author of the opinion that lays down the existing law, find the persistence with the recommendation embarrassing and contributing to an erosion of the image of the institution. I wish the imbroglio ends soon with withdrawal of the recommendation.

The power of withdrawal is inherent and need not be specified. There are precedents of withdrawal of recommendations even to the Supreme Court on discovery of adverse material subsequently. I myself, as CJI, withdrew a recommendation for appointment of a judge as chief justice of a high court on further information regarding his antecedents. I wish this matter ceases to get curiouser every day. That is not good for the institution, which is bigger than any individual.

It must be remembered that elevation to the Supreme Court and continuance in the high court are two different issues. Merely non-appointment to the Supreme Court does not automatically call for removal of the judge from the high court, which can be done only for “proved misbehaviour or incapacity” under Article 124(4). For non-appointment, a reasonable doubt, as indicated above, is sufficient; and for removal further inquiry ending with proof based on authentic materials of the allegations of misconduct or misbehaviour is necessary. In the case of Justice Dinakaran, his non-appointment on this material is at present the only issue.

I write this piece with the hope that it helps to end the imbroglio soon, satisfactorily.

The writer is a former Chief Justice of India

express@expressindia.com

http://www.indianexpress.com/news/to-judge-or-not-to-judge/548235/0

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Address to the Nation by the Chief Justice of India, K. G. Balakrishnan

Courtesy , The Hindu

The following is the full text of the Address by the Chief Justice of India, K.G. Balakrishnan on the eve of the National Law Day. November 26 is celebrated as National Law Day because it was on this day in 1949 that the Constituent Assembly of India adopted the Constitution, which then came into effect on January 26, 1950.

My Fellow Citizens,

I extend my warmest greetings to all of you on the eve of the 60th Law Day of our country. The legal and judicial fraternity of our country, as well as people at large, celebrate November 26 of each year as National Law Day because it was on this day in 1949 the Constituent Assembly of India had adopted our Constitution, which subsequently came into effect on January 26, 1950.

Law Day is an occasion on which we pay our humble tribute to the unique vision and genius of the framers of our Constitution. It prompts us to reflect upon and renew our pledge to protect, preserve and extend the values enshrined in our Constitution. The very first goal of the Constitution, is to secure justice to all — social, economic and political. This mandate not only shapes the rights of the people but also serves as a command to all those who wield authority in the name of the State. As the head of the Indian judicial system, it is my duty to keep the nation informed about the state of affairs in this branch of government.

An independent, accessible and efficient justice-delivery system is a pre-requisite for maintaining healthy democratic traditions and pursuing equitable development policies. In the last six decades Indian courts have played a leading role in protecting constitutional values and upholding the rule of law in our country. The vital social role of the courts has been strengthened by the creative reading of ideas such as ‘equal protection before the law’ and ‘personal liberty’. Especially with the evolution of the Public Interest Litigation (PIL) movement over the last three decades, the understanding of rights has expanded in many directions. From conferring guarantees of a civil-political nature, the fundamental rights have been interpreted to include positive socio-economic obligations on the State. This means that the courts of law are unique spaces where just solutions are devised, in spite of the socio-economic inequalities between the litigants.

     JUSTICE KG BALAKRISHNAN CHIEF JUSTICE OF INDIA

JUSTICE KG BALAKRISHNAN CHIEF JUSTICE OF INDIA

India is a diverse country where we are still grappling with social stratification and discrimination on the grounds of caste, religion, gender, language, race and ethnicity among other factors. Conflicts that arise out of such identity-based differences or those related to the distribution of material resources are often very complicated since they involve multiple interest groups. Adjudicating such disputes often calls for a departure from the norm of adversarial litigation and the judges have accordingly devised procedural innovations to respond to the needs of litigants. This means that the role of a judge is not only that of applying the existing rules in a mechanical manner but also interpreting them in a creative manner in order to pursue the ends of justice.

I am deeply gratified by the trust and confidence that the people of this country repose in our judicial system. About 1.8 crore fresh cases had been filed in Indian courts in 2008, reflecting a steady increase in the rate of institution of fresh proceedings over the years. Against this, approximately 14,000 judges disposed of about 1.7 crore cases in 2008, demonstrating a disposal rate of about 1,200 cases per year by each judge. This was achieved notwithstanding the severe shortage of judges and their very heavy work load, abysmal infrastructure and a very challenging environment.

In all, Indian courts processed some 4.8 crore cases in 2008 — which is one of the largest volume of cases faced by any national judicial system in the world. Expert studies have suggested that our judicial strength is only very minimal and large expansion is required to dispose of this case-load. It is therefore quite natural that most cases take several years to be completed. Such is the shortage of judicial officers that, on average, an Indian judge has a total of about 25 minutes to devote to each case.

A significant consequence of the severe shortage of judges is that a substantial number of poor people are unable to obtain the protection of courts to preserve and strengthen their rights. This ‘docket exclusion’ does not bode well for the country as affected people may turn to alternative (including violent) means for securing their rights. On the contrary, there is an urgent need to promote ‘docket inclusion’. There is also a widespread perception that many people are being deterred from approaching the courts on account of apprehensions about undue delay in the delivery of justice. This may indeed be true in some parts of the country where the number of civil cases being instituted are very low in proportion to their respective population-levels. Therefore, any meaningful agenda for judicial reforms must account for the twin problems of high pendency levels as well as the limited access to justice for some sections of society.

This means that even as we devise strategies to combat the existing backlog, we must also prepare for the further expansion of court dockets in the coming years. With gradual improvements in development indicators such as income-levels, access to education and healthcare, we should expect the previously marginalized sections to approach the judicial system in larger numbers, enhancing “docket inclusion”.

In many cases, the undue delay in disposal is a consequence of hurdles placed in the procedural steps involved in litigation. In the course of a legal proceeding, there is a likelihood of delay at various stages from the service of notice upon the parties, the framing of issues, submission of pleadings, examination of witnesses, production of documents and the counsels’ arguments. If a party apprehends an adverse result, there is a tendency on part of litigants or practitioners to place obstacles in these proceedings. The logical response to this endemic problem is that judges need to be more proactive in managing the flow of proceedings before them. Attempts to delay the proceedings should be treated firmly but it must also be kept in mind that the desire to improve procedural efficiency should not compromise the quality of justice being delivered. As inheritors of the common-law tradition, we are bound to follow the principles of natural justice, namely that ‘no man shall be a judge in his own cause’, that ‘no persons shall be condemned unheard’ and that ‘every order will be a reasoned order’.

Even though the judges are the main actors in the justice-delivery system, their efficiency is closely related to the behaviour of advocates, litigants, investigating agencies and witnesses among others. While public scrutiny is rightly being directed towards the performance and accountability of judges, there is also a need to examine the responsibilities of all the other participants in the judicial system. In particular, there is an urgent need to tackle the institution of frivolous claims and the giving of false evidence. Judges can perform their fact-finding and adjudicatory roles in a satisfactory manner only if they receive the co-operation of all the stakeholders. In this sense, the judicial function is as much a collective enterprise as the other wings of government.

A meaningful shift will only occur if attitudes change among the bar. Ultimately it is the responsibility of legal practitioners to advice their clients on the suitability of resorting to litigation. For resolving many categories of disputes, adversarial courtroom litigation is not appropriate since disputes can be amicably resolved at the pre-trial stage. With the objective of promoting awareness about these methods, full-time Mediation Centres have been established in the various High Courts as well as some of the District Courts. Their function is to not only provide mediation services but also to impart training about the same.

I must also emphasize that a large portion of the increase in litigation rates can be attributed to stronger remedies that have been introduced through Central and State legislations over the years. In particular, our trial courts are confronted with a disproportionate number of cases involving the dishonour of cheques, motor accident compensation claims, domestic violence and corruption-related cases. This is of course a natural consequence of the fact that litigant-friendly procedures and remedies were incorporated to address such grievances. Hence, there has been an incentive for parties to come forward and file cases in these categories. However, there has not been a commensurate increase in the strength of judges needed to decide these cases.

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

In recognition of this fact, the strength of the Supreme Court and the various High Courts has been gradually increased. However, it is the strength of the subordinate courts which calls for a drastic increase. I have repeatedly called for targeted interventions by way of increasing the strength of the subordinate judiciary, while emphasizing the need for establishing more Family Courts, CBI Courts and specialised magistrates’ courts. In recent months, a lot of attention has been drawn to the proposal for establishing ‘Gram Nyayalayas’. Under the Gram Nyayalayas Act, 2008 judicial officers of the rank of Civil Judge (Junior Division) will be appointed to function at the block-level. The intent of course is to bring the justice-delivery system closer to rural citizens who have to otherwise travel to distant district centres. It is estimated that nearly 5,000 judicial officers will be needed to occupy these positions.

Since 2007, some important steps have been taken to improve the quality of justice-delivery. Hundreds of judicial conferences have been organized through the National and State Judicial Academies as well as National and State Legal Services Authorities on the topic of delay and arrears reduction as well as enhancing timely justice to raise awareness about the problem and develop effective strategies. There has been substantially increased attention to the use of Alternate Dispute Resolution (ADR) techniques, in particular mediation and Lok Adalats. A system of planning and management is being developed and recommended to High Courts for their consideration. A National Judicial Infrastructure Plan, A National Judicial Education Strategy and a National Mediation Plan have been developed and are in different stages of implementation. The results of these massive initiatives have been encouraging. Reversing earlier trends, filing of new cases as well as disposal has gone up at the national level. However, aggregate pendency has increased because the increase in filing has been faster than the rate of disposals in general.

I must also comment on the importance of Legal Aid programmes, especially those which seek to impart legal literacy in remote and backward areas. We must acknowledge that access to legal education is still confined to a privileged few and that the existing pool of judges and lawyers is not adequate to bring about the changes that we desire. In recognition of this fact, a Committee headed by a sitting Supreme Court judge has been recently appointed to oversee the training of motivated young individuals as paralegals, who can then expand the reach of the legal aid programmes. We are also in the process of designing a project dedicated to the improvement of access to justice in the North-Eastern region of our country. It is our hope that improved awareness and access to legal remedies will help in mitigating the socio-political conflicts in troubled areas.

Efforts are also being made to incorporate Information Technology (IT) based solutions in order to strengthen the judicial system. Under the E-Courts project, most judicial officers in the country have been provided with computers, printers and access to legal databases. Steps are also being taken to digitize precedents as well as the permanent records of courts at all levels. At present the daily cause-lists, orders and judgments of the Supreme Court and the respective High Courts are freely available online through the Judgment Information System (JUDIS). In the coming years, the objective is to ensure that materials pertaining to all subordinate courts as well as tribunals will also be made freely available through this system.

Another important element of judicial reforms is that of organising educational programmes, which are held at the National Judicial Academy (Bhopal) and the various State Judicial Academies. These programmes are periodically held for the benefit of sitting judges from all levels. They are designed to raise awareness about the latest legal developments as well as the strengthening of skills for court-management, research and writing. Special efforts are made to sensitise judges to the complex interactions between law and social realities. These programmes also serve as a common forum for judges serving in different parts of the country to interact and learn from each others’ experiences.

Recently, the Union Minister for Law and Justice has also unveiled some proposals for systemic reforms. There are plans to establish a ‘National Arrears Grid’ which will compile reliable statistics on the institution, disposal and pendency of cases at all levels. The top law officers of the Central Government have also resolved to reduce the extent of litigation which involves governmental agencies. A ‘National Litigation Policy’ is being designed wherein administrative remedies will be strengthened in order to reduce the burden before the courts. A comprehensive legislation dealing with the subject of standards and accountability in the higher judiciary is also on the anvil.

To conclude, I would like to extend my heartfelt gratitude to all my colleagues who are serving at the various levels of the judicial system. I hope that they will all strive to uphold the high standards of dignity and integrity that are expected from anyone who holds a judicial office. I must also place on record my gratitude to the administrative staff members who have been working hard to keep pace with the increasing case-load. Like any public institution, the quality of justice-delivery also depends on the trust and confidence of the larger public. We rely on an active bar, a free press and a vigilant citizenry to point out our unintended mistakes so that we can improve our functioning. I sincerely hope that the dialogue between the judiciary and the various stakeholders in our society continues to take place in a cordial and constructive manner.

Jai Hind!

http://beta.thehindu.com/news/national/article54845.ece?homepage=true

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:

  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.

(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.

  1. The above values have been further developed in the Bangalore Principles as under:-
  1. 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.

  1. 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.

  1. 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.

  1. Competence and diligence are prerequisites to the due performance of judicial office.

(vii)   ImplementationBy 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:-

  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.”[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

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CHIEF JUSTICE OF INDIA SPEECHES 2009

Posted in CHIEF JUSTICE SPEECHES, CJI SPEECHES 2009 by NNLRJ INDIA on September 17, 2009

    INDEPENDENCE DAY MESSAGE OF CJI

    Posted in CHIEF JUSTICE SPEECHES, CJI SPEECHES 2009, JUDICIAL REFORMS, JUDICIARY by NNLRJ INDIA on August 17, 2009

    Independence Day Celebrations

    By Supreme Court Bar Association (SCBA)

    (New Delhi – August 15, 2009)

    Address by Hon’ble Mr. K.G. Balakrishnan, Chief Justice of India

    ——————————————————————————————

    Esteemed brother judges,

    Members of the bar,

    And Ladies and Gentlemen,

    I would like to convey my greetings to all of you on the completion of 62 years since the declaration of our country’s independence. This day is not just another symbolic occasion. It is a living reminder of an important part of our self-identity as citizens in the world’s largest democracy. It is also a commemoration of the extraordinary sacrifices made by our freedom fighters. Each generation must of course respond to the particular social, economic and political challenges before it. In keeping with the vision and the foresight of the framers of our Constitution, we must also do our best to respond to the problems faced by our society.

    There is no doubt that democratic values can be deepened only if we ensure that all of our citizens have access to basic entitlements such as nutrition, housing, education and healthcare. To borrow the terminology developed by Professor Amartya Sen, our understandingof concepts such as ‘niti’ (design of our public institutions and policies) and ‘nyaya’ (the pursuit of substantive justice) should be geared towards developing the capabilities of our citizenry. If the government can play the foundational role of ensuring equitable access to such basic entitlements, then the resourcefulness of citizens themselves will lead them to personal and collective empowerment.

    This might be a simple idea to communicate but is indeed the existential question for examining our approaches to governance. The legal system must also contribute to the vital agenda of improving the capabilities of citizens. This places a special duty on both judges and lawyers who are often called upon to play central roles in resolving disputes about resource allocation. Whether it relates to questions about admissions to educational institutions, the provision of job opportunities or even the delivery of social welfare schemes designed to ensure better access to food and healthcare, it is imperative for the courts to give priority to concerns of distributive justice rather than those of benefits to private parties. In some cases,judges and lawyers have been confronted with underlying tensions between the competing notions of ‘justice for the masses’ and the ‘rights of a few’. These tensions have become prominent on account of increasing competition for resources such as land, employment and investment opportunities. In a gradually liberalizing economy, we need to be vigilant about the widening of existing socio-economic inequalities. Judicial interventions have been the instruments of distributive justice in the past and even more difficult questions will be brought before the courts in the future.

    We may disagree with each other on how to deliver justice in particular cases, but I hope that there is a broad consensus on the understanding of our constitutional values amongst the legal community. Ideas such as the ‘rule of law’, ‘equal protection before the law’, the protection of ‘personal liberty’ and the promotion of civicvirtues are at the core of these values. There are of course complications on account of the wide disparities among our people, but the first premise of a functioning democracy is that its citizens  must learn to look past their mutual differences and resolve their disagreements through peaceful means.

    It is my hope that all of us who are part of the legal system will take the lead in promoting these values in our society. The true worth of a judge or lawyer cannot be gauged by the length of judgments or the amount of earnings alone. Real merit comes to be gauged by the social impact of the arguments and ideas presented in the courtroom. Independence Day is a good opportunity to remind ourselves about what our priorities should be.

    Thank You!

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