Over 35 years after he signed off — with the majority on a five-judge bench of the Supreme Court — to rule that even the right to life could be abrogated, former Chief Justice of India P N Bhagwati today said he was sorry for that ruling.
“I was wrong. The majority judgment was not the correct judgment. If it was open to me to come to a fresh decision in that case, I would agree with what Justice (H R) Khanna did. I am sorry (for the judgment),” Bhagwati told The Indian Express today.
In the 1976 ADM Jabalpur vs Shivkant Shukla case, popularly known as the habeas corpus case, Justices Bhagwati, A N Ray, Y V Chandrachud and M H Beg agreed with the then Indira Gandhi government that even the right to life stood abrogated during the Emergency. The verdict constitutes one of the darkest chapters in the history of the court as it struck at the very heart of fundamental rights.
“I don’t know why I yielded to my colleagues,” said Bhagwati. “Initially, I was not in favour of the majority view. But ultimately, I don’t know why, I was persuaded to agree with them. I was a novice at that time, a young judge…I was handling this type of litigation for the first time. But it was an act of weakness on my part.”
Justice H R Khanna, incidentally, was the only judge on that bench who dissented with the majority view arguing that the Constitution didn’t permit the Right to Life and Liberty to be subject to any executive decree. This cost him the job of CJI.
He claimed that his later judgments dealing with fundamental rights did uphold the Constitution. Was it the lure of high office? “I can’t say this. It would not be right for me to say this,” he said.
Incidentally, during the Emergency, Bhagwati praised the Indira government but after the Janata Government came, he was critical of her. After Indira’s return, he sent her a gushing letter: “…I am sure that with your iron will and firm determination, uncanny insight and dynamic vision, great administrative capacity and vast experience, overwhelming love and affection of the people and above all, a heart which is identified with the misery of the poor and the weak, you will be able to steer the ship of the nation safely to its cherished goal.”
As Justice Soumitra Sen of the Calcutta High Court faces impeachment proceedings, the focus is back on corruption in the Indian judiciary, often accused of opposing measures to introduce transparency and accountability in an institution that also judges the works of the Legislature and the
During the debate on the resolution in the Rajya Sabha to remove Justice Sen, cutting across party lines, MPs attacked the judiciary for corruption, lack of accountability and the collegium system of appointments, in which the executive hardly has any role to play. No wonder, in his farewell speech, Justice VS Sirpurkar of the Supreme Court described the statements against the judiciary as “indigestible”.
Should the Judiciary be under Lokpal?
Gandhian Anna Hazare, who had been on an indefinite fast since August 16 to demand a strong Lokpal (anti-corruption ombudsman), first demanded that the judiciary be brought under the Lokpal. However, team Anna is now said to have agreed to keep the judiciary out of the purview of the Lokpal if the government simultaneously brings the Judicial Standards and Accountability Bill with strong provisions to deal with judicial corruption.
“Judiciary can’t be covered by this (proposed) Lokpal. It should be covered by another alternative mechanism. We call it the National Judicial Commission,” leader of Opposition in the Rajya Sabha Arun Jaitley said on August 18, during the debate on Sen’s impeachment.
According to former Chief Justice of India PN Bhagwati, bringing the judiciary under the Lokpal would “seriously” affect its independence. Only a “specialised agency” should be entrusted to ensure accountability in the judiciary, whose autonomy could be compromised if brought under the Lokpal, Bhagwati said in an open letter to Hazare.
The Judicial Standards and Accountability Bill, 2010
The UPA government introduced the Judicial Standards and Accountability Bill in the Lok Sabha on December 1, 2010. It proposes to lay down judicial standards, provide for the accountability of judges, and requires them to declare their assets and liabilities, and also that of their spouse and children.
The Bill requires judges to practise universally accepted values of judicial life, such as prohibition on close association with individual members of the Bar who practise in the same court as the judge and allowing family members who are members of the Bar to use the judge’s residence for professional work.
Law Commission Vice Chairman KTS Tulsi terms it a historic step, saying, “For the first time judges’ conduct is being defined by a statute.”
The proposed law is to replace the Judges (Inquiry) Act, 1968 that lays down procedure for removal of the Supreme Court and high court judges. But most importantly, it empowers the common man to file complaints against judges of the high courts and the Supreme Court.
The numbers game
Under the present system provided for in the Judges (Inquiry) Act, 1968, the process for removal of a judge can be initiated through a resolution either by 100 Lok Sabha members or 50 Rajya Sabha members.
After the MPs submit a duly signed motion to the Lok Sabha speaker or Rajya Sabha Chairman, the presiding officer constitutes a three-member committee to probe the allegations and determine if it is a fit case for initiating the impeachment process.
If the panel indicts the judge, the resolution for removal has to be passed by two-thirds majority in both Houses in the same session. The resolution is then sent to the President, who orders removal of the judge. The judge is given an opportunity to defend him/her.
While retaining the reference procedure, the Bill proposes to introduce a complaint procedure to empower the aam admi to file complaints against judges of the high courts and the Supreme Court.
It seeks to establish two authorities — a National Judicial Oversight Committee and a Scrutiny Panel — to investigate complaints against judges.
The Oversight Committee will comprise a retired Chief Justice of India as the chairperson, a judge of the Supreme Court nominated by the sitting Chief Justice of India, a Chief Justice of the High Court, the Attorney General for India, and an eminent person appointed by the President. The scrutiny panel shall comprise a former Chief Justice and two sitting judges of that court.
A Parliamentary panel on Law and justice is said to have recommended inclusion of one MP each from the Lok Sabha and the Rajya Sabha in the Oversight Committee. Initial complaints will be made to the Oversight Committee, and they will be referred to the scrutiny panel constituted in the Supreme Court and in every High Court.
If the scrutiny panel feels there are sufficient grounds for proceeding against the judge, it shall report on its findings to the Oversight Committee.
When the panel finds that the complaint is frivolous, or that there not sufficient grounds for inquiring against into the complaint, it shall submit a report to the Oversight Committee giving its findings for not proceeding with the complaint.
If the scrutiny panel recommends investigation into a complaint against a judge, the Oversight Committee will constitute an investigation committee to probe into the complaint. The probe panel will comprise three members. It will frame definite charges against the judge and shall communicate the same to the judge, who shall be given an opportunity to present the case, but if the judge chooses not to be heard, the proceedings may be heard without him present.
The Removal of a judge
If the Oversight Committee feels that the charges proved against the judge merit his/her removal, it shall request the judge to resign voluntarily, and if the judge fails to do so, it shall advise the president to proceed with the removal of the judge. In such a case, the President shall refer the matter to Parliament, where the rest of the procedure is the same as the one in the case of a motion moved by MPs.
The Bill exempts documents and records of proceedings related to a complaint from the purview of the RTI Act, 2005 but the reports of the investigation committee and the order of the Oversight Committee can be made public. The tainted judges gallery
Why The Collegium stays
Under Article 124(2) and Article 217(1) of the Constitution, a judge of Supreme Court/High Court has to be appointed by the President after “consultation” with the Chief Justice of India (CJI). The government was not bound by the CJI’s recommendation. But in 1993, the Supreme Court introduced the collegium system, taking over primacy in appointments to higher judiciary. A nine-judge Constitution Bench in 1998 ruled that “consultation” must be effective and the chief justice’s opinion shall have primacy. Now India is the only nation in the world where judges appoint judges. In 2008, the Law Commission favoured restoration of pre-1993 position. Despite the UPA government criticising the collegium system, the Bill does not propose to change it.
During his speech on Sen’s impeachment, Jaitley said: “The desire of a job after retirement is now becoming a serious threat to judicial independence.” Tulsi also described it as a menace. “I agree with Jaitley that judges should not be given post-retirement jobs. If a statute requires a judicial person, a sitting judge can be appointed.”
The way forward
Prevention is better than cure. What is needed is a system that ensures only an honest person becomes a judge. If that happens, the occasion for removal of a judge may not arise. Also, the collegium system must go, says former law minister Ram Jethmalani. “Setting up a National Judicial Commission is the only solution. The Commission must have the powers to appoint, transfer and remove judges,” he said.
He, however, said: “It should be a broad-based body comprising a government representative, the leader of the opposition and representatives of the judiciary, organised Bar, academic world and the world of social sciences.”
While speaking on the motion for the removal of Justice Soumitra Sen, a Judge of the Calcutta High Court, Leader of Opposition in the Rajya Sabha, Arun Jaitley, highlighted that those who occupy high offices must live through the scrutiny of highest standards of probity. Excerpts from his speech:
This is a sad but historic moment in the Indian democracy. We have assembled to decide the fate of a man who decided the fate of others. This political house is here to perform a judicial function. We have heard a detailed presentation in the defence of the Judge sought to be impeached.
The power of removal/impeachment of a Judge of the Supreme Court or the High Court is a power which is to be used in the rarest of the rare cases. We invoke this jurisdiction to remove a man and save the dignity of the office, which is paramount.
Judges no longer live in ivory towers. Today, they live in glasshouses where the bar, litigants, public and the media watch them from close proximity. But then we have all to exercise utmost restraint. Judges cannot defend themselves against unfounded allegations. They must neither be summarily tried nor be thrown to the wolves. A Judge, under inquiry, must be candid. He cannot plead only technical defences. He cannot be too clever by half. He cannot invoke a right to silence like an ordinary accused, and shy away from speaking the truth.
In this case, when the Judge under inquiry says that his offence must be proved ‘to the hilt’ or ‘proved beyond reasonable doubt’ , he relies on technicalities rather than substance. A Judge is like Caesar’s wife. He must be beyond suspicion. Those who occupy high offices must live through the scrutiny of highest standards of probity. A Judge must be unsuspectable.
Justice Sen is guilty of a continued ‘proven misbehavior’ from his days as a lawyer when he was appointed as a Receiver; and this continued well in to his tenure as a Judge of the Calcutta High Court. He never rendered the accounts as directed by the courts both as a lawyer and as Judge. He created encumbrances, by withdrawing monies, which were in his custody as a Receiver of the court. He transferred these monies unauthorizedly to persons not authorized to receive them. He withdrew the monies himself. He transferred the money to another account, which he maintained as a special officer in Calcutta Fans case. Even after his elevation as Judge in 2003, he continued the misappropriation of monies. His case squarely falling under Section 403 of the IPC of temporary misappropriation of monies is a criminal offence. In any case, he continued to retain these monies till 2006. He only returned the monies under the coercive order of the court and not otherwise.
During his tenure as Judge, he put a false defence before the single Judge, the Division Bench, the in-house inquiry committee and the impeachment inquiry that he had invested these monies in a company which went into liquidation. The liquidated company had nothing to do with these monies. The Division Bench judgment is a judgment with consent of all parties. It does not lay down the law. It is a judgment in personam, which is binding only on the parties, and not a judgment in rem, which binds the rest of the world. It does not, in any way, restrain the jurisdiction of this House under Article 217 from examining a case of ‘proven misconduct’.
Justice Soumitra Sen’s conduct as a litigant was unfortunate. He led no evidence. He hardly cross-examined witnesses. He claimed the right of silence. He then misrepresented and put up a false defence. He has been held guilty, both by the in-house committee appointed by the Chief Justice of India, and also by the committee appointed by the Chairman, Rajya Sabha. He is conclusively guilty of an offence. A case of ‘proven misconduct’ is made out against him. A Judge has to lead by example. A Judge cannot rely on technicalities and try to escape the rigours of law. Litigants cannot be Judged by a Judge, who himself is stigmatized. The defence of Justice Sen has thus to be rejected.
Who must appoint the Judges?
The Constitution of India empowers the government, in consultation with the Chief Justice of India to appoint Judges. Since the government has the last word, the independence of judiciary was being seriously compromised. The theory of social philosophy of Judges was propounded in the early 1970s in order to provide for a ‘Committed Judiciary‘ in India. The failure of a section of the judiciary during the Emergency and thereafter compelled the revisiting of the debate as to who should have the last word in the appointment of the Judges. The Supreme Court in 1982, by a narrow majority of 4 against 3, maintained the status quo. This enabled further politicization in matters of judicial appointments. In 1993, the balance of power shifted. The advice of the Chief Justice of India became binding upon the government. In 1998, the authority of the Chief Justice of India was diluted to provide for a collegium to appoint Judges.
The quality of judicial appointments, the best available not willing to become Judges, has not improved. Both the earlier systems have not succeeded. Thus the system of Judges alone appointing Judges must now change. India needs a National Judicial Commission to appoint Judges. It must be a combination of members of the judiciary, the executive and citizens’ representatives in public interest who must collectively appoint Judges.
The more important question is what should be the criteria on which Judges should be appointed. Today, Judges perform the Executive function of appointment in an unguided manner. The discretion of the National Judicial Commission, if it is so appointed, or the collegium as at present must now be restricted and regulated by the provisions of the Article 14 of the Constitution of India. There must be objective criteria introduced with regard to the qualification of persons under consideration, their academic credentials, their experience at the bar, their quality of judgments if they belong to the judicial institutions, details of cases argued, details of judgments reported with regard to the cases the lawyer has argued, the number of juniors trained, academic papers authored, amount of income tax paid, and the reputation and integrity etc. Unless these objective criteria enable a candidate to cross the threshold, he cannot enter the zone of consideration.
At present we have an in-house mechanism, which judges the Judges. It is an extra constitutional mechanism which has not succeeded. The process of impeachment is a near impossibility. The National Judicial Commission thus, in matters of judicial discipline, should be the Judicial Lok Pal.
Threats to judicial independence
The appointment of political activists as Judges at times has compromised the judicial independence. The lack of integrity can be on account of several reasons, which influence the administration of justice. These include judgments delivered because of collateral reasons and prejudices on account of religion, caste or personal reasons.
There is an increased trend of the Executive distributing jobs to Judges post retirement. This has seriously compromised the independence of judiciary. In recent times , the cases of Judges delivering judgments in politically sensitive cases on the eve of retirement and getting jobs the very next day from the Government is on the rise. I believe that no Judge should be entitled to a job after retirement. If the age of retirement is sought to be increased in the case of High Courts, as per the existing Bill pending, the same must be accompanied by a constitutional amendment, which prohibits jobs after retirement. The Judge strength of High Courts can be increased and all judicial tribunals must be manned by serving Judges.
Separation of powers
The separation of powers is one the most valuable principles of the Indian democracy. Separation of powers is infringed upon when the Legislature or the Executive encroach upon the Judiciary’s space or Vice Versa. It is only judicial statesmanship which prevents a confrontation between the institutions. Of late, with the weakening of the political Executive and serious division in the polity, the tendency of the judicial institution to encroach upon the Legislative or Executive space has increased. It has been argued that if the Executive does not perform its job, the Judges have to step in. This is a dangerous argument. By the same logic, if the judiciary does not perform its job, can somebody else step in? The answer is NO in both the situations. Recent comments and pronouncements with regard to whether India should have liberalized economy or regulated economy do not fall within the judicial space. How terror is to be fought is in the Executive domain. What should be the land acquisition policy, is a concern which belongs to the Parliament and the Executive. Whether a Pakistani prisoner in India should be released or exchanged for Indian prisoners in Pakistan, is to be determined by the Government and not the Supreme Court. Whether FDI is needed in the economy or not is an area that belongs to be Executive or Parliament. Unfortunately, recent aberrations in the separation of powers, have all been on account of judicial activism. Activism and restraint are two sides of the same coin. Each institution must respect the Lakshman Rekha.
A breach of trust
Finally Sir, we have before us a case of ‘proven misbehaviour’ by Justice Soumitra Sen. It is not that his misbehaviour is restricted to his tenure as a lawyer. There is a thread of continuity in his ‘proven misbehaviour’. He became a Receiver of a court property. He opened a bank account in his own name. He was a Trustee of somebody else’s fund. He misappropriated the funds. He put them for an alternative use. This he did as a lawyer.
In 2003, when he became a Judge, he continued the misappropriation. He did not ask the court to discharge him. When the court issued him notice, he did not respond. When the court passed strong strictures against him, he under coercive direction of the court returned the money in 2006 along with interest. He mis-representated to the court that he had invested the money in a private company and that the money got lost when the company became insolvent. No part of this money was ever invested in a private company. When the Chief Justice of India called him for an explanation, he moved the Division Bench through his mother and got an order of the single Judge set aside on the basis of concessions made by the advocates. The order shows the members of the bar not in good light. Before the in-house committee, appointed by the CJI, he persisted with his false defence. The committee found him guilty. Before the Parliamentary Committee, he did not volunteer the entire evidence. He resorted to technicalities and silence. He resorted to false defence.
His acts, both as a lawyer and a Judge, had all the ingredients of culpability of breach of trust. He misappropriated the money and he put up a false defence. He was not truthful or candid. This is a case of ‘proven misbehaviour’.
I, therefore, support the address to be made to the President, that Justice Soumitra Sen be removed from office as a Judge of the Calcutta High Court. He is undeserving to occupy that office. We recommend the removal of an undeserving man to save the dignity of the office.
But impractical demands under Act will be counter-productive
The right to information is a cherished right. Information and the right to information are intended to be formidable tools in the hands of responsible citizens to fight corruption and to bring about transparency and accountability, the Supreme Court has held. A Bench of Justices R.V. Raveendran and A.K. Patnaik gave this ruling (briefly reported on August 10) while allowing disclosure of answer sheets of students in public examinations.The Bench said the RTI Act provisions should be enforced strictly and all efforts made to bring to light the necessary information under Section 4 (4) (b) which “relates to securing transparency and accountability in the working of public authorities and in discouraging corruption.”
Disposing of appeals, the Bench affirmed the Calcutta High Court order directing examining bodies to permit examinees to inspect their answer books, subject to certain clarifications on the scope of the RTI Act.Writing the judgment, Justice Raveendran, however, said: “Indiscriminate and impractical demands or directions under the RTI Act for disclosure of all and sundry information [unrelated to transparency and accountability in the functioning of the public authorities and eradication or corruption] would be counter-productive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down in the non-productive work of collecting and furnishing information.”
The Bench said: “The RTI Act should not be allowed to be misused or abused to become a tool to obstruct national development and integration or to destroy peace, tranquillity and harmony among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where75 per cent of the staff of public authorities spends 75 per cent of its time in collecting and furnishing information to applicants instead of discharging regular duties.”
On disclosure of answer books, the Bench said the provisions of the RTI Act would prevail over the provisions of the bylaws/rules of the examining bodies. As a result, “unless the examining body demonstrates that the answer books fall under the exempted category of information under Section 8 (1) (a) of the RTI Act, it will be bound to provide access to an examinee to inspect and take copies of his evaluated answer books, even if such inspection or taking copies is barred under the rules.”
On the contention that the examining bodies held the answer books in their fiduciary capacity, the Bench said: “Once the examiner has evaluated the answer books, he ceases to have any interest in the evaluation done by him. He does not have any copyright or proprietary right or confidentiality right in regard to the evaluation. Therefore, it cannot be said that the examining body holds the evaluated answer books in a fiduciary relationship, qua the examiner. As no other exemption under Section 8 of the RTI Act is available in respect of evaluated answer books, the examining bodies will have to permit inspection.”
However, to protect the safety and identity of the examiners, those portions which contain information on examiners/coordinators/scrutinisers/head examiners or which “may disclose their identity with reference to signature or initials shall have to be removed, covered, or otherwise severed from the non-exempted part of the answer books.”
The Bench said: “The right to access information does not extend beyond the period during which the examining body is expected to retain the answer books. In the case of the CBSE, the answer books are required to be maintained for three months and thereafter they are liable to be disposed of/destroyed. Some other examining bodies are required to keep the answer books for six months.”
The Bench said :
The effect of the provisions and scheme of the RTI Act is to divide ‘information’ into the three categories. They are :
Information which promotes transparency and accountability in the working of every public authority, disclosure of which may also help in containing or discouraging corruption (enumerated in clauses (b) and (c) of section 4(1) of RTI Act).
Other information held by public authority (that is all information other than those falling under clauses (b) and (c) of section 4(1) of RTI Act).
Information which is not held by or under the control of anypublic authority and which cannot be accessed by a public authority under any law for the time being in force.Information under the third category does not fall within the scope of RTI Act. Section 3 of RTI Act gives every citizen, the right to ‘information’ held by or under the control of a public authority, which falls either under the first or second category. In regard to the information falling under the first category, there is also a special responsibility upon public authorities to suo moto publish and disseminate such information so that they will be easily and readily accessible to the public without any need to access them by having recourse to section 6 of RTI Act. There is no such obligation to publish and disseminate the other information which falls under the second category.
The information falling under the first category, enumerated in sections 4(1)(b) & (c) of RTI Act are extracted below :
“4. Obligations of public authorities.-(1) Every public authority shall–
(b) publish within one hundred and twenty days from the enactment of this Act,–
(i) the particulars of its organisation, functions and duties;
(ii) the powers and duties of its officers and employees;
(iii) the procedure followed in the decision making process, including channels of supervision and accountability;
(iv) the norms set by it for the discharge of its functions;
(v) the rules, regulations, instructions, manuals and records, held by it or under its control or used by its employees for discharging its functions;
(vi) a statement of the categories of documents that are held by it or under its control;
(vii) the particulars of any arrangement that exists for consultation with, or representation by, the members of the public in relation to the formulation of its policy or implementation thereof;
(viii) a statement of the boards, councils, committees and other bodies consisting of two or more persons constituted as its part or for the purpose of its advice, and as to whether meetings of those boards, councils, committees and other bodies are open to the public, or the minutes of such meetings are accessible for public;
(ix) a directory of its officers and employees;
(x) the monthly remuneration received by each of its officers and employees, including the system of compensation as provided in its regulations;
(xi) the budget allocated to each of its agency, indicating the particulars of all plans, proposed expenditures and reports on disbursements made;
(xii) the manner of execution of subsidy programmes, including the amounts allocated and the details of beneficiaries of such programmes;
(xiii) particulars of recipients of concessions, permits or authorisations granted by it;
(xiv) details in respect of the information, available to or held by it, reduced in an electronic form;
(xv) the particulars of facilities available to citizens for obtaining information, including the working hours of a library or reading room, if maintained for public use;
(xvi) the names, designations and other particulars of the Public Information Officers;
(xvii) such other information as may be prescribed; and thereafter update these publications every year;
(c) publish all relevant facts while formulating important policies or announcing the decisions which affect public;
Sub-sections (2), (3) and (4) of section 4 relating to dissemination of information enumerated in sections 4(1)(b) & (c) are extracted below:
“(2) It shall be a constant endeavour of every public authority to take steps in accordance with the requirements of clause (b) of sub-section (1) to provide as much information suo motu to the public at regular intervals through various means of communications, including internet, so that the public have minimum resort to the use of this Act to obtain information.
(3) For the purposes of sub-section (1), every information shall be disseminated widely and in such form and manner which is easily accessible to the public.
(4) All materials shall be disseminated taking into consideration the cost effectiveness, local language and the most effective method of communication in that local area and the information should be easily accessible, to the extent possible in electronic format with the Central Public Information Officer or State Public Information Officer, as the case may be, available free or at such cost of the medium or the print cost price as may be prescribed.Explanation.–For the purposes of sub-sections (3) and (4), “disseminated” means making known or communicated the information to the public through notice boards, newspapers, public announcements, media broadcasts, the internet or any other means, including inspection of offices of any public authority.”
Some High Courts have held that section 8 of RTI Act is in the nature of an exception to section 3 which empowers the citizens with the right to information, which is a derivative from the freedom of speech; and that therefore section 8 should be construed strictly, literally and narrowly. This may not be the correct approach. The Act seeks to bring about a balance between two conflicting interests, as harmony between them is essential for preserving democracy. One is to bring about transparency and accountability by providing access to information under the control of public authorities. The other is to ensure that the revelation of information, in actual practice, does not conflict with other public interests which include efficient operation of the governments, optimum use of limited fiscal resources and preservation of confidentiality of sensitive information. The preamble to the Act specifically states that the object of the Act is to harmonise these two conflicting interests. While sections 3 and 4 seek to achieve the first objective, sections 8, 9, 10 and 11 seek to achieve the second objective.
Therefore when section 8 exempts certain information from being disclosed, it should not be considered to be a fetter on the right to information, but as an equally important provision protecting other public interests essential for the fulfilment and preservation of democratic ideals.
When trying to ensure that the right to information does not conflict with several other public interests (which includes efficient operations of the governments, preservation of confidentiality of sensitive information, optimum use of limited fiscal resources, etc.), it is difficult to visualise and enumerate all types of information which require to be exempted from disclosure in public interest. The legislature has however made an attempt to do so. The enumeration of exemptions is more exhaustive than the enumeration of exemptions attempted in the earlier Act that is section 8 of Freedom to Information Act, 2002. The Courts and Information Commissions enforcing the provisions of RTI Act have to adopt a purposive construction, involving a reasonable and balanced approach which harmonises the two objects of the Act, while interpreting section 8 and the other provisions of the Act.
At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing. This is clear from a combined reading of section 3 and the definitions of ‘information’ and ‘right to information’ under clauses (f) and (j) of section 2 of the Act. If a public authority has any information in the form of data or analysed data, or abstracts, or statistics, an applicant may access such information, subject to the exemptions in section 8 of the Act.But where the information sought is not a part of the record of a public authority, and where such information is not required to be maintained under any law or the rules or regulations of the public authority, the Act does not cast an obligation upon the public authority, to collect or collate such nonavailable information and then furnish it to an applicant. A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. It is also not required to provide ‘advice’ or ‘opinion’ to an applicant, nor required to obtain and furnish any ‘opinion’ or ‘advice’ to an applicant. The reference to ‘opinion’ or ‘advice’ in the definition of ‘information’ in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act.
Section 19(8) of RTI Act has entrusted the Central/State Information Commissions, with the power to require any public authority to take any such steps as may be necessary to secure the compliance with the provisions of the Act. Apart from the generality of the said power, clause (a) of section 19(8) refers to six specific powers, to implement the provision of the Act. Sub-clause (i) empowers a Commission to require the public authority to provide access to information if so requested in a particular ‘form’ (that is either as a document, micro film, compact disc, pendrive, etc.). This is to secure compliance with section 7(9) of the Act. Sub-clause (ii) empowers a Commission to require the public authority to appoint a Central Public Information Officer or State Public Information Officer. This is to secure compliance with section 5 of the Act. Sub-clause (iii) empowers the Commission to require a public authority to publish certain information or categories of information. This is to secure compliance with section 4(1) and (2) of RTI Act. Sub-clause (iv) empowers a Commission to require a public authority to make necessary changes to its practices relating to the maintenance, management and destruction of the records. This is to secure compliance with clause (a) of section 4(1) of the Act. Sub-clause (v)empowers a Commission to require the public authority to increase the training for its officials on the right to information. This is to secure compliance with sections 5, 6 and 7 of the Act. Sub-clause (vi) empowers a Commission to require the public authority to provide annual reports in regard to the compliance with clause (b) of section 4(1). This is to ensure compliance with the provisions of clause (b) of section 4(1) of the Act. The power under section 19(8) of the Act however does not extend to requiring a public authority to take any steps which are not required or contemplated to secure compliance with the provisions of the Act or to issue directions beyond the provisions of the Act. The power under section 19(8) of the Act is intended to be used by the Commissions to ensure compliance with the Act, in particular ensure that every public authority maintains its records duly catalogued and indexed in the manner and in the form which facilitates the right to information and ensure that the records are computerized, as required under clause (a) of section 4(1) of the Act; and to ensure that the information enumerated in clauses (b) and (c) of sections 4(1) of the Act are published and disseminated, and are periodically updated as provided in sub-sections (3) and (4) of section 4 of the Act. If the ‘information’ enumerated in clause (b) of section 4(1) of the Act are effectively disseminated (by publications in print and on websites and other effective means), apart from providing transparency and accountability, citizens will be able to access relevant information and avoid unnecessary applications for The right to information is a cherished right. Information and right to information are intended to be formidable tools in the hands of responsible citizens to fight corruption and to bring in transparency and accountability. The provisions of RTI Act should be enforced strictly and all efforts should be made to bring to light the necessary information under clause (b) of section 4(1) of the Act which relates to securing transparency and
accountability in the working of public authorities and in discouraging corruption. But in regard to other information,(that is information other than those enumerated in section 4(1)(b) and (c) of the Act), equal importance and emphasis are given to other public interests (like confidentiality of sensitive information, fidelity and fiduciary relationships, efficient operation of governments, etc.). Indiscriminate and impractical demands or directions under RTI Act for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption) would be counter-productive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non-productive work of collecting and furnishing information. The Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquility and harmony among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties. The threat of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not lead to employees of a public authorities prioritising ‘information furnishing’, at the cost of their normal and regular duties.
NEW DELHI: The Supreme Court on Tuesday slammed the authorities for taking advantage of the “colonial law” on land acquisition to divest farmers of their prime agricultural land benefitting the rich and paying “pittiance” to common men. The apex court said a “sinister campaign” has been launched by various state governments to take adavantage of the law against the poor people for taking away the land and giving it to builders where multiplexes, malls, posh residential complexes are developed which are beyond the reach of common men.
“Do you think judges live in fools’ paradise”? snapped a bench of Justices GS Singhvi and AK Ganguly when senior advocate PP Rao responded to a question that the residential complexes were being developed for the “needy”. “You are building hotels, malls, commercial complexes, townships where common men have no access. Does it come under the perception of public purpose for which the land have been acquired?”
“The High Court at Calcutta, formerly known as the High Court of Judicature at Fort William was brought into existence by the Letters Patent dated 14th May, 1862 issued under the High Court’s Act, 1861 and was formally opened on 1st July, 1862. The jurisdiction and powers of the High Court were to be defined by the Letters Patent. The existence of the Calcutta High Court is important to us as it was the first High Court and one of the three Chartered High Courts to be set up in India, along with the High Courts of Bombay and Madras
Sir Barnes Peacock was the first Chief Justice of the Calcutta High Court in 1862. Subsequently, Justice Shri Sumboo Nath Pandit was appointed as the first Indian to assume office of the High Court on 2nd February, 1863. He was followed by other legal luminaries such as Justice Shri Dwarka Nath Mitter, Justice Shri Ramesh Chandra Mitter, Justice Sir Chunder Madhab Ghosh, Justice Sir Gooroodas Banerji, Justice Sir Ashutosh Mookerjee. Justice Shri P.B. Chakravartti was the first Indian to become a permanent Chief Justice of the Calcutta High Court.
The High Court started with strength of 13 Judges and by the year 1955, its strength raised to 20 Judges. In the year 1958, the strength was fixed at 24 which was increased to 32 in 1966, 39 in 1969 and 41 in 1974. Till 1994, the strength of the High Court remained 46 when in 1993, the Supreme Court directed that the Judge strength of every High Court should be reviewed periodically with reference to the felt-need for disposal of cases, taking into account the backlog and expected future filing. Accordingly, the Judge strength of the High Courts, including the Calcutta High Court is being reviewed every three years. In 1995 the Judge strength of the Calcutta High Court was fixed at 48 and after review in 1999 it increased to 50 Judges. As per the latest review undertaken in 2007, the Judge strength of the Calcutta High Court has been revised to 58 Judges.
The Union Government is keen on the reduction in the pendency in the High Courts and has, therefore, launched a campaign from today to reduce pendency in the High Courts. One of the measures in reduction of the pendency is to have as many Judges in position as possible. Calcutta High Court has, against the sanctioned strength of 58, only 46 Judges in position. Though the Chief Justice has recommended names of 7 persons they are pending with the Central Government for want of comments of the State Government. I would urge upon the State Government to consider the recommendation made by the Chief Justice and send their comments at the earliest so that the vacancies could be filled up during the campaign period itself, thereby helping in disposal of more number of pending cases.
I am told that the High Court building is an exact replica of the Stand Haus in Ypres, Belgium. It is also recorded that when the original Stand Haus burnt down, a blue print of Granville’s Calcutta High Court had to be consulted before rebuilding it. The neo-Gothic High Court building was constructed in 1872, ten years after the establishment of the court itself. Government of India feels that unless the infrastructure is perfect, it is not possible for the High Courts to function smoothly. The 13th Finance Commission has awarded Rs. 5000 Crores to improve the justice delivery system in the country during the period of 5 years starting 2010-11. A sum of Rs. 19.70 Crores has been set aside out of this allocation for renovation of the Calcutta High Court Building, this being a heritage building. Further to this, the Union Government has, under the Centrally Sponsored Scheme, released a sum of Rs. 425.26 lakhs to West Bengal Government for developing infrastructural facilities for the judiciary.
The Government in the Centre is also keen on bringing the justice to the doorsteps of the masses for which the Gram Nayayalaya Act, 2008 has been enacted which has come in force w.e.f 2nd October, 2009. Under the Act, assistance is provided to the States towards (i) establishing the Gram Nyayalayas @ Rs. 18 lakh per Gram Nyayalaya and (ii) meeting recurring costs involved in operating these Gram Nyayalayas @ Rs. 3.20 lakhs per annum per Gram Nyayalaya for the first three years. I would request the Government of West Bengal to take steps for establishment of Gram Nyayalayas. I would like to mention here that we have received representations from some of the States that the grant being provided for the Gram Nyayalayas is not adequate. We are working on these representations also for increasing the grants from establishment of the Gram Nyayalayas and will make an announcement shortly in this regard.
In our pursuit to bring justice to the people of West Bengal within their reach, the Central Cabinet had taken a decision in June, 2006 for setting up of a Bench of the Calcutta High Court at Jalpaiguri. The infractural facilities for setting up of the Bench need to be provided by the State Government. We have been reminding the West Bengal Government in this regard. I would request them to pay attention to this project and provide infrastructural facilities at Jalpaiguri to the satisfaction of the Chief Justice which will go a long way in mitigating the miseries of the litigants.
A Mission Mode Programme was launched on 26th January, 2010 titled “National Mission for Delivery of Justice and Legal Reforms for the Under Trials” with the aim to reduce the number of under-trial cases and to ease congestion in jails. This programme was undertaken for considering the cases of 2/3rd of the undertrials estimated to be about 3 lakhs in January, 2010, who were languishing in jails. I am happy to announce that the results of this drive was extremely successful with cases of over 7 lakh prisoners having being decided by the end of May, 2011 of which over 1.72 lakhs were from West Bengal. I hope this must have brought relief to as many families also.
I am happy that the Calcutta High Court Bar Association is taking active part in the activities of the Calcutta High Court. I hope they would continue to work for the betterment of the society by getting them early justice through Courts which would also help in reduction of the pendency in the Courts for which a campaign has been launched today. On the occasion of the 150th year of the Calcutta High Court, I would like to convey my sincere thanks to the Calcutta Bar Association for organising this function.”
Judicial strictures figure in considered judgments, while outbursts are sheer lapses in manners and are soon forgotten.
THERE is a world of difference between a judicial stricture and a judicial outburst. The stricture figures in a considered judgment; the outburst is made during hearings of a case by a judge who is unable to control his tongue, restrain his anger and curb his ego. Outbursts are sheer lapses in manners and taste and are soon forgotten. A stricture is remembered for long. Read this stricture by a judge on his fellow judges as well as the Attorney-General. It bears quotation in extenso:
“I view with apprehension the attitude of judges who on a mere question of construction, when face to face with claims involving the liberty of the subject, show themselves more executive-minded than the executive. Their function is to give words their natural meaning, not, perhaps, in war time leaning towards liberty, but following the dictum of Pollock C.B. in Bowditch vs Balchin, cited with approval by my noble and learned friend Lord Wright in Barnard vs Gorman: ‘In a case in which the liberty of the subject is concerned, we cannot go beyond the natural construction of the statute.’
“In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law. In this case I have listened to arguments which might have been addressed acceptably to the Court of King’s Bench in the time of Charles I.
“I protest, even if I do it alone, against a strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the Minister. To recapitulate: The words have only one meaning. They are used with that meaning in statements of the common law and in statutes. They have never been used in the same sense now imputed to them. They are used in Defence Regulations in the natural meaning, and, when it is intended to express the meaning now imputed to them, different and apt words are used in the regulations generally and in this regulation in particular. Even if it were relevant, which it is not, there is no absurdity or no such degree of public mischief as would lead to a non-natural construction.
“I know of only one authority which might justify the suggested method of construction: ‘When I use a word,’ Humpty Dumpty said in a rather scornful tone, ‘it means just what I choose it to mean, neither more nor less.’ ‘The question is,’ said Alice, ‘whether you can make words mean so many different things’. ‘The question is,’ said Humpty Dumpty, ‘which is to be master – that’s all’ ( Through the Looking Glass, c.vi). After all this long discussion the question is whether the words ‘if a man has’ can mean ‘if a man thinks he has’. I am of opinion that they cannot, and that the case should be decided accordingly” ( Liversidge vs Sir John Anderson (1942) A.C. 206, page 244).
The issue was whether the Minister’s subjective satisfaction on the detenue’s conduct was final or whether there existed an objective test of the detenue’s conduct that was open to judicial review. The majority opted for the subjective test. Its ruling was discarded by the House of Lords. Atkin’s dissent is remembered still. He made history.
The Lord Chancellor Lord Simon wrote to Atkin requesting him to moderate his dissent. “I do hope you will not resent it if I write this private and friendly note.
“I asked Proby this morning to let me see, in confidence, the speeches prepared for the 18B judgments on Monday. They of course call for the closest study and I have not had time for more than a glance. “But my eye catches your very amusing citation from Lewis Carroll. Do you really, on final reflection, think this is necessary? I fear that it may be regarded as wounding to your colleagues who take the view you satirise, and I feel sure you would not willingly seek to hold them up to ridicule. I am all in favour of enlivening judgments with literary allusion but I would venture (greatly daring I know) to ask you whether the paragraph should be retained. Of course it is entirely for you. But I have gained so much from occasional suggestions of yours (mostly, it is true, in cases when we have been sitting together) and I trust you will forgive this query. I at any rate feel that neither the dignity of the House, nor the collaboration of colleagues nor the force of your reasoning would suffer from the omission.” Atkin refused.
The judgment was pronounced on November 3, 1941. The judges in the majority avoided him thereafter. Posterity respects Atkin to this day ( Lord Atkin by Geoffrey Lewis; pages 137-139).
During that war, the Federal Court of India headed by Sir Maurice Gwyer stood by the citizen. The Privy Council overruled it to hold in favour of the Raj. One English judge in the Federal Court, Justice G. Rowland, had the cheek to pour scorn on the judgment of Justice A.N. Sen of the Calcutta High Court in the famous case of Benori Lal Sharma. Justices S. Varadachariar and Zafrullah Khan affirmed the High Court judgment in favour of the detenue. Rowland dissented in these terms:
“Do I dream? Am I in Wonderland? Have we met, in the person of the learned judge, what Lord Atkin might call a new Humpty Dumpty? How much over time are the words to earn by meaning what the learned judge says? For it seems to me that the boot is on the other foot. It is the preamble and not the section which contains a clear statement. As Khundkar J. (of the High Court) has said ‘the preamble contains clear words showing that the Governor-General had decided that an emergency existed’. As in Liversidge’s case, the issue was whether the executive’s ‘satisfaction’ was open to judicial review.”
Justice Sen hit back robustly in another case where the same issue arose. In his judgment, Justice Sen at the outset discussed the history of Ordinance II of 1942 and the decision of the High Court that the Special Courts had no jurisdiction to try the accused persons and said that an appeal from that decision was taken to the Federal Court by the Crown. The majority of the Federal Court, Justice Rowland dissenting, held they had no jurisdiction to try the accused persons. Justice Rowland rejected the unanimous opinion of this court and also the view that Justice Sen alone held (in his decision on Ordinance II), namely, that the whole Ordinance II was ultra vires as the Ordinance, on the face of it, showed that the Governor-General was of the opinion that an emergency, requiring the Ordinance, had not arisen at the time the Ordinance was promulgated.
Rowland had expressed disagreement with Justice Sen’s view in language which “I [Justice Sen] cannot hope to emulate. He describes his Excellency the Viceroy sitting in his special train and hearing the wheels humming ‘Emergency, Emergency’ and then ‘No Emergency yet, no Emergency yet’.” Then Justice Rowland went on to say: “I am not speaking in a spirit of levity, I am very much in earnest, but so strong is my dissent from the line of argument I am examining that without some safety valve I could hardly restrain myself from commenting on it with undue warmth.” A little later Justice Rowland observed: ‘Do I dream? Am I in Wonderland? Have we met, in the person of the learned Judge, what Lord Atkin might call a new Humpty Dumpty? How much over time are the words to earn by meaning what the learned Judge says?. For it seems to me that the boot is on the other foot.’”
Justice Sen added: “I believe there is a sound rule that metaphors like strong drinks should never be mixed. Such mixtures lead only to confused thinking. I must confess that the mixture of Viceregal trains, dreams and boots is too potent for my assimilation. Is it my judgment that is solely responsible for making his Lordship feel once like an overheated locomotive with an inadequate safety valve drawing the Viceregal special train, and then like innocent Alice, wondering at things she cannot understand? I may have thought it was, were it not for the fact that the other two learned judges, who were trained in the profession of law reacted differently from Mr Justice Rowland who, in the words used by Lord Justice Turner of the Judicial Committee in the Sivagunga case, is ‘an unprofessional judge’” (9 M.I.A. 539, 601). Rowland belonged to the civil services.
“Their lordships the Chief Justice of India and Justice Sir Zafrullah Khan, after setting out in great details the arguments on the points, concluded: ‘The contentions put forward on behalf of the respondents in this part of the case found favour with Mr Justice Sen in the Court below and they undoubtedly raise substantial questions. In view, however, of the conclusions at which we have arrived on the main ground of attack against the validity of the ordinance we do not consider it necessary to pronounce an opinion on these questions.’ Having introduced the technique of likening judges whose opinions differ from his to characters in fiction, Mr Justice Rowland will, I am sure, not take it amiss if I say that his manner of criticism of points of law which he does not appreciate makes me wonder whether in him we have not a reincarnation of that well-known character in fiction – Bumble the beadle – who disliking an interpretation of the law exclaimed: ‘The law is – an ass – an idiot’ ( Oliver Twist, Chapter 41).
“Mr Justice Rowland’s judgment cannot of course have any authoritative value, it may have a persuasive value. I am however not persuaded. I shall therefore deal with the new Ordinance from the same standpoint as that which I took when examining the repealed Ordinance II of 1942 and even at the risk of again disturbing his Lordship’s composure. I shall try and avoid that attitude which Lord Atkin deprecates in the very case from which Mr Justice Rowland sought to draw inspiration. I refer to the observations of Lord Atkin, which probably escaped the notice of Mr Justice Rowland. They are as follows: ‘I view with apprehension the attitude of Judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executive minded than the executive’” ( Liversidge vs Sir John Anderson (1942) A.C., 206, page 244). It is hard to imagine use of language so sharp yet so elegant today, above all in impeccable taste which is not very conspicuous in some of our judges’ pronouncements on and off the Bench.
Judges must not talk too much
A judge who talked too much during a trial was pulled up by Lord Denning in the Court of Appeal. His elegant strictures apply as much to judges in the superior courts as they do to judges who try a case in which witnesses depose. In the good English manner Denning praised the judge for his earnestness (“best motives”). Anaesthesia applied, he proceeded with an effective surgery.
Judges must listen patiently and not talk too much, he admonished and added: “Nevertheless, we are quite clear that the interventions, taken together, were far more than they should have been. In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large, as happens, we believe, in some foreign countries. Even in England, however, a judge is not a mere umpire to answer the question ‘How’s that?’ His object, above all, is to find out the truth, and to do justice according to law; and in the daily pursuit of it the advocate plays an honourable and necessary role. Was it not Lord Eldon L.C. who said in a notable passage that ‘truth is best discovered by powerful/statements on both sides of the question’?: see Ex parte Lloyd. And Lord Greene M.R. who explained that justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputations? If a judge, said Lord Greene, should himself conduct the examination of witnesses, ‘he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of conflict’: see Yuill vs Yuill.” ( Jones vs National Coal Board (1957) 2 WLR 760 at 766.)
Separation of powers
Two decades later, it was Denning’s turn to be reprimanded by the House of Lords ( Duport Steels Ltd. & Ors. vs Sirs & Ors. (1980) 1 WLR 142). Lord Diplock led the charge in terms very relevant to the scope of judicial activism: “My Lords, at a time when more and more cases involve the application of legislation which gives effect to policies that are the subject of bitter public and parliamentary controversy, it cannot be too strongly emphasised that the British Constitution, though largely unwritten, is firmly based upon the separation of powers; Parliament makes the laws, the judiciary interpret them. When Parliament legislates to remedy what the majority of its members at the time perceive to be a defect or a lacuna in the existing law (whether it be the written law enacted by existing statutes or the unwritten common law as it has been expounded by judges in decided cases), the role of the judiciary is confined to ascertaining from the words that Parliament has approved as expressing its intention what that intention was, and to giving effect to it. Where the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient, or even unjust or immoral. In controversial matters such as are involved in industrial relations there is room for differences of opinion as to what is expedient, what is just and what is morally justifiable. Under our Constitution it is Parliament’s opinion on these matters that is paramount.
“A statute passed to remedy what is perceived by Parliament to be a defect in the existing law may in actual operation turn out to have injurious consequences that Parliament did not anticipate at the time the statute was passed; if it had, it would have made some provision in the Act in order to prevent them. It is at least possible that Parliament when the Acts of 1974 and 1976 were passed did not anticipate that so widespread and crippling use as has in fact occurred would be made of sympathetic withdrawals of labour and of secondary blacking and picketing in support of sectional interests able to exercise ‘industrial muscle’. But if this be the case it is for Parliament, not for the judiciary, to decide whether any changes should be made to the law as stated in the Acts and, if so, what are the precise limits that ought to be imposed upon the immunity from liability for torts committed in the course of taking industrial action. These are matters on which there is a wide legislative choice the exercise of which is likely to be influenced by the political complexion of the government and the state of public opinion at the time amending legislation is under consideration.
“ It endangers continued public confidence in the political impartiality of the judiciary, which is essential to the continuance of the rule of the law, if judges, under the guise of interpretation, provide their own preferred amendments to statutes which experience of their operation has shown to have had consequences that members of the court before whom the matter comes consider to be injurious to the public interest” (page 157).
Lord Scarman was more gentle and more profound, and also more relevant to the controversy in India today. “In our society the judges have in some aspects of their work a discretionary power to do justice so wide that they may be regarded as law-makers. The common law and equity, both of them in essence systems of private law, are fields where, subject to the increasing intrusion of statute law, society has been content to allow the judges to formulate and develop the law. The judges, even in this, their very own field of creative endeavour, have accepted, in the interests of certainty, the self-denying ordinance of ‘stare decisis’, the doctrine of binding precedent: and no doubt this judicially imposed limitation on judicial law-making has helped to maintain confidence in the certainty and evenhandedness of the law.
“But in the field of statute law the judge must be obedient to the will of Parliament as expressed in its enactments. In this field Parliament makes, and un-makes, the law; the judge’s duty is to interpret and to apply the law, not to change it to meet the judge’s idea of what justice requires. Interpretation does, of course, imply in the interpreter a power of choice where differing constructions are possible. But our law requires the judge to choose the construction which in his judgment best meets the legislative purpose of the enactment. If the result be unjust but inevitable, the judge may say so and invite Parliament to reconsider its provision. But he must not deny the statute. Unpalatable statute law may not be disregarded or rejected, merely because it is unpalatable. Only if a just result can be achieved without violating the legislative purpose of the statute may the judge select the construction which best suits his idea of what justice requires.
“Within these limits, which cannot be said in a free society possessing elective legislative institutions to be narrow or constrained, judges, as the remarkable judicial career of Lord Denning himself shows, have a genuine creative role. Great judges are in their different ways judicial activists. But the Constitution’s separation of powers, or more accurately functions, must be observed if judicial independence is not to be put at risk. For, if people and Parliament come to think that the judicial power is to be confined by nothing other than the judge’s sense of what is right (or, as Selden put it, by the length of the Chancellor’s foot), confidence in the judicial system will be replaced by fear of it becoming uncertain and arbitrary in its application. Society will then be ready for Parliament to cut the power of the judges. Their power to do justice will become more restricted by law than it need be, or is today” (pages 168-169)
Denning had been criticised sharply earlier by Lord Simmonds for “a naked usurpation of the legislative function under the thin guise of interpretation” ( Magore and St. Mellons, Rural District Council vs New Port Corporation (1951) All E.R.839).
The Bar is not powerless if a judge is unfair to counsel and passes strictures unduly. In March 1975 Justice Melford Stevenson at the close of an Irish Republican Army (IRA) trial, accused three eminent QCs (Queen’s Counsel) of mud-slinging, wild generalisation, irresponsibility and slavish subservience to the “instructions” of their clients. He regarded it as a sad day for the Bar of England that these observations had to be made. They were provoked, this time, by defence allegations that ( inter alia) a prisoner’s fingerprints had been ‘planted’ by the police (or someone) on an incriminating object. The Bar Council in its unprecedented retort to Justice Melford Stevenson said:
“The Bar Council wish to make it clear beyond any doubt that members of the Bar will continue to carry out their duty as counsel for any persons, whosoever they may be and whatsoever the nature of the crime alleged against them…. It will be as a sad day of the Bar when any barrister is deterred from doing his duty by any fear of official displeasure or hope of personal advantage.”
The Bar Council has always ruled that “a barrister is bound to accept any brief in the courts in which he professes to practice, at a proper professional fee” (C.H. Rolph; “Barristers and Judges”; New Statesman, March 25, 1975).
In the U.S. Supreme Court criticisms and strictures on fellow judges are fairly common. One of the best was delivered in the dissent by Justice Paul Stevens in the case concerning the election of George W. Bush ( Bush vs Gore) in which the majority ruled in favour of Bush for palpably political reasons: “The per curium opinion by the majority of this court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is pellucidly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”
Differences among judges are far more common than is realised. The Indian Supreme Court is no exception; acute differences dogged the court right from its years when Chief Justice Harilal Kania and Justice Meher Chand Mahajan clashed in open court in the very first major case of A.K. Gopalan vs Union of India, a case of preventive detention. Justice Y.V. Chandrachud and P.N. Bhagwati, both from the Bombay High Court, were poles apart.
The phlegmatic English are no different. David Pannick’s superb book Judges (Oxford University Press, 1987) contained this strange, if almost hilarious conflict from which this account is drawn. He describes a sensational public row between Justice McCardie and Lord Justice Scrutton in 1932 in a case ( Place vs Searle) concerning a claim by a husband against a man for enticing away his wife.
“In the Court of Appeal Lord Justice Scrutton described it as ‘a squalid and not a very interesting case’ which had somehow been elevated by the newspapers into a case which afforded good copy, apparently because some ingenious counsel had considered that there was some likeness between this case and the Trojan War. Anything less like the godlike Hector and Achilles and ‘the face that launched a thousand ships’, he found it difficult to conceive, but the case had apparently attained great notoriety.” The Court of Appeal allowed the appeal from the decision of Justice McCardie.
Lord Justice Scrutton observed that “Mr Justice McCardie had referred to judges with sociological knowledge. He [Lord Justice Scrutton] thought that the less sociological knowledge was brought into the discussion of these legal questions the better.
“But what caused a break in diplomatic relations between the two men were the following sentences of the judgment of Lord Justice Scrutton (which were omitted from the published law report): ‘If there is to be a discussion of the relationship of husbands and wives, I think it would come better from judges who have more than theoretical knowledge of husbands and wives. I am a little surprised that a gentleman who has never been married should, as he has done in another case, proceed to explain the proper underclothing that ladies should wear.’ McCardie, a bachelor, was infuriated. He wrote to Lord Hanworth, the Master of the Rolls; requesting that no appeal from a decision of his should in future be heard by a Court of Appeal of which Scrutton was a member.
“McCardie then delivered in court what he described as a ‘public rebuke’ to Lord Justice Scrutton: ‘Before I start this case I wish to say a few words. I shall take my usual note of the evidence which will be given, and it may be that an appeal will take place. If there be an appeal, I shall not supply any copy of my notes until I am satisfied that Lord Justice Scrutton will not be a member of the Court which tries the appeal.’ After peace-making efforts by Lord Hanworth, McCardie eventually calmed down and announced that in ‘the interest of litigants’ he would supply a copy of his notes in accordance with the usual practice” (pages 22-23).