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A.G. NOORANI IN THE FRONTLINE
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.
In defence of the individual
Lord Atkin ruled in favour of a person detained during the Second World War when bombs were rained on London. Judges of the Supreme Court in India wax eloquent on national security when much less is at stake, whether on the Terrorist and Disruptive Activities (Prevention) Act (TADA), the Prevention of Terrorism Act (POTA) or the Armed Forces Special Powers Act, taking good care, of course, to throw exhortations to protect citizens’ rights.
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).
Role of Federal Court of India
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).