Thursday, June 20, 2024

Introspection time for judiciary


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By D. C. Pande

Do Judges introspect? Whether privately or in public? In 2011 Justice Bhagwati expressed regret for his judgment of 1976 upholding preventive detention during the Emergency with a 35- years hindsight. Justice Chandrachud did so in 1978 in case his chances of being Chief Justice of India were blighted.

Were these declarations contrition? Or even introspective? Or, simply a flourish to catch the public eye? Do judges even concede they are wrong? There is a remarkable example of Justice Hidayatullah in 1969 frankly stating in a judgment he got confused between two judgments and agreed to the wrong one. He also did so in another case from Jammu and Kashmir! This mistake did not make him a bad judge, but a good one who made mistakes and had the courage to admit it while on the bench in a judgment.

Both Justices Bhagwati and Chandrachud had ample opportunity on the Bench for almost 10- years to admit and recall their mistake in writing the Emergency detention case.

In fact, judges rarely admit to their mistakes. If they abandon their dissents in a case, it is because a larger bench forces them to do so.

Recently, Justice Ruma Pal, while delivering the Tarkunde Memorial lecture spoke of the seven sins of judges including, brushing under the carpet, hypocrisy, secrecy, plagiarism and prolixity, arrogance, dishonesty, lack of discipline and nepotism. This is an incredible list from a great judge who treated lawyers fairly, disagreed fearlessly and decided with clarity.

Even as a High Court judge, she was able to show that on a deeper examination (not undertaken by the Supreme Court) the tandava dance of the Ananda Margis was part of their religion.

She did this in a way that was permissible in law and without judicial indiscipline. What is less known is that while in the Supreme Court she refused an invitation to travel to America for an academic conference because she could not accept an air ticket from an American university while she was still a judge?

Contrasting this are some of the great Chief Justices of India quibbling with the Indian government whether they could travel with their wives on official judicial trips at the Indian government’s expense. Even less credible were first class trips funded by the Maharishi Mahesh Yogi. There are travelling judges; and, not so travelling judges. Some used to travel in India almost every weekend funded through legal aid money, or lawyers’ organisational, NGO or conference funds. Mercifully and correctly they don’t fiddle the fare such as one of Anna’s group who- is- not- to- be- named. But as soon as a judge’s staff tells the airline that his “lordship” is travelling in the economy class, they get upgraded. I once saw Justice Venkatachaliah – happily sitting in economy class – refusing an ad hoc upgradation. He was in many ways an example to us all.

But let us return to Justice Ruma Pal’s seven sins of the judiciary. Arrogance stands high.

Recall, an Allahabad using the power of contempt at a railway station. Or another judge’s ire when disembarking from an aeroplane because airline staff failed to bring down his hand luggage. But, arrogance drifts into court. The behaviour of some judges in courts at all levels is, at times, insufferable. Examples to the contrary exist. I can remember Justice Variava ringing me after court to tell me he had restored my case because he had prevented me from completing my arguments.

Similarly Justice V. R. Krishna Iyer rang up G. L. Sanghi to apologise because the judge felt he cut short Sanghi’s submissions. The case was listed the next day for further arguments. Can you imagine a judge saying “when a judge says chup , you shut up”? Or more recently, when a lawyer told a Supreme Court judge he was not being fair in not allowing the lawyer to proceed in his own way, the judge retorted: “I don’t have to be fair”. Rudeness and arrogance is not the norm in the Indian judiciary. But it exists and judges do carry an exalted air.

What moulds the judiciary in this way? Justice Ruma Pal is right in pointing to the lack of accountability. Justice Sabyasachi Mukherjee did not deal with the “V. Ramaswami” crisis properly. He asked a committee to look at it. They did so evasively.

In fact, contrary to Justice K. Ramaswami’s belief in a reported judgment that the judiciary should exclusively handle judicial misdemeanours in- house, the judiciary has failed miserably in this task. Apart from forcing some people to resign, such as Justice Bhattacharjee in Bombay or Justice Madan of Delhi, the judiciary has mainly tried to discipline judges by transferring them from one high court to another. This is seen as both a punishment and a corrective. One of the favourite places for the transfer of the errant judge is Sikkim, which made the Sikkim Bar protest: “Why should you use our high court for appointing judges you don’t want in other high courts?” That Mount Kanchenjunga can be seen in full view from the Chief Justice’s court compensates nothing.

It is true that judges may be wary of being exposed by certain lawyers. But this is no form of accountability. The only way of removing a judge is by impeachment.

This has not worked. Justice V. Ramaswami was acquitted by Parliament because the MP’s from the south abstained to deny the two third’s majority to convict him. Justice Dinakaran resigned before the committee could finish its job. Justice Soumitra Sen was found guilty by the committee and the Rajya Sabha but resigned before the Lok Sabha confirmed the indictment. But corruption continues with what Upendra Baxi called “son- stroke” or the “uncle ji” syndrome.

But how do you prove these favours even though relatives of judges show incomes reflecting “unjust enrichment.” Justice Pal is right in saying arrogance increases when the power of criminal contempt is used to intimidate people who criticise the court, including the media. At least two chief ministers were found guilty of contempt! Journalists are warned everyday from the judicial pulpit including an unfortunate warning from the present Chief Justice for allegedly wrong reporting. If the media makes a bonafide mistake and gets it wrong, but remedies this by publishing a correction and, perforce, apology for the mistake, what is wrong? A promotion based civil service fears even the civil law of contempt to prevent judicial strictures entering their career record.

We are not talking of judicial corruption which the Team Anna wants entrusted to the Lokpal, but judicial behaviour both in court and public life. Canadian and American judges can be pulled up for excessive drinking and driving offences. Bad decisions will happen and judges cannot be immune from the human frailty to err. But, bad judicial behaviour cannot evade accountability. That is why strong judicial accountability is so important. As standards falls, the need for accountability increases.

Justice Ruma Pal’s lecture has many practical implications including her suggestion for a National Judicial Oversight Committee. A judiciary that lacks accountability, integrity and humility lacks balance. INAV


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