AN INDEFENSIBLE DECISION

(By Kaleeswaram Raj, Advocate, Supreme Court & Kerala High Court)

Chief Justice H.L Dattu has refused to participate in the National Judicial Appointment Commission (N.J.A.C.) which practically “stalled any immediate chances of constituting the new judicial appointments body” (Krishnadas Rajagopal,The Hindu, 28.4.2015). Thus, even without a judicial interdiction against N.J.A.C., an impediment has been created by the Chief Justice by his personal decision to stay away from the Commission.

The vacuum due to non-constitution of the N.J.A.C. also is a serious matter. Before the Supreme Court, the centre has promised Constitution of the Commission for the “limited purpose of considering the extension of tenure of existing additional Judges of several High Courts” and for a ‘judge generated reason’ it did not happen. This again poses serious questions.

H.M. Seervai, in his classic treatise on Constitutional Law perceived a dichotomy between two conventional duties performed by the Chief Justice. Seervai wrote: - “When the Chief Justice of India presides over the bench he is primus inter pares- the first among equals”. He also indicated that “in administrative matters the Chief Justice of India has sole and Supreme authority” (Constitutional Law of India.Vol.3, 4th Edition, Page 2849). But the present N.J.A.C. dilemma reveals a Constitutional role which is clearly different and distinct from both the judicial or administrative functions of the Chief Justice. The Chief Justice of India is also a constitutional functionary. The question therefore is whether a constitutional duty could be dispensed with by the Chief Justice on the basis of his personal opinion. Thus there is an unprecedented situation where the parliamentary legislations that led to amendment of the Constitution and promulgation of the N.J.A.C. Act, has come to a standstill due the Chief Justice physically staying away from the Commission. In my view, the decision is clearly without authority and illegal apart from being terribly undemocratic.

I may not be mistaken as supporting the system envisaged by the new N.J.A.C.The new system carries all the drawbacks of the collegium and in no way it is better. I have opposed it for multiple reasons which still hold well (See, Federalism in Judicial Appointments, The Hindu, 17.9.2014). The point however, is whether the Chief Justice can defeat the legislative will by sending a letter that reflects his individual convictions. The Constitution Bench of the Supreme Court, headed by Justice J.S.Khehar is in seizure of the N.J.A.C. case. Chief Justice Dattu is not part of the bench hearing the matter. A recusal from a bench is clearly justified as a gesture of integrity to keep away from areas prone to conflict of interests. For removing the slightest feeling of the ‘personal bias’ or ‘subject matter bias’ also, it is proper if the CJI does not hear the lis against NJAC that includes him with a pivotal role.

But in the letter to Prime Minister Modi, the C.J.I. said- “It is neither appropriate nor desirable to attend the meeting or be part of the N.J.A.C. till the Supreme Court decides its validity” (The Hindu, 28.4.2015). This reason is least convincing. As of now the Supreme Court has not invalidated the N.J.A.C. Nor the proceedings are stayed. Therefore, the N.J.A.C. law prevails as on today and the Chief Justice of the country is bound by it. N.J.A.C. is more than a statutory creation. It is part of the country’s Constitution, as evident from the newly incorporated Article 124A. The Chief Justice of India cannot therefore refuse to obey the law of the land even by his absenteeism. Personal choices cannot undo the law made by the Parliament, in any working democracy – And the Chief Justice is no exception.

 In very many modern democracies, the Chief justices are constitutional functionaries as well. Judiciary is part of the modern State and the judicial head cannot therefore simply abstain from the affairs of the State unless there are valid reasons backed by the Constitution or any other relevant law. The Chief Justice of the U.S is described as “the head of the judicial branch of the federal Government”. Unlike the associate Judges, he has to act as the Chief Administrative Officer for the federal Courts and also as the head of the Judicial Conferences of the U.S. He has to work as the spokesman of the judicial branch. He has to preside over the trials in the senate in the event of impeachment motions. The Chief Justice of Australia has to act as the Governor General’s deputy. In that capacity he is supposed to be present as and when the new Parliament is constituted after the election. In Ireland, the Chief Justice has to act as the Chairman of the Courts Service Board, the Judicial Appointments Advisory Board, Judicial Studies Institute and also the Superior Court Rules Committee.

 Even during the pre- N.J.A.C. phase, the constitution never visualised a situation where the Chief Justice is absent or not available. Due to the multiple extra judicial functions attached to the office of the Chief Justice of India, it cannot remain vacant. Thus, Article 126 of the Constitution mandated that “when the office of the Chief Justice of India is vacant or when the Chief Justice is… unable to perform the duties of his office”, another Judge should be appointed as Acting Chief Justice. The Constitution thereby makes it clear that “office of the Chief Justice” has constitutional duties to perform which are distinct from the adjudicatory and administrative role.

The situation after incorporation of Article 124A to the Constitution with effect from 31.12.2014 by the 99th Constitution Amendment Act is categorically clear. The N.J.A.C. Act,by way of section2(b), only transplants the constitutional machinery for judicial appointments into the statute. Though the quorum in the N.J.A.C. could be regulated by the N.J.A.C. Act, the composition of N.J.A.C. is prescribed by the Constitution of India which is binding on the Chief Justice. Article 124A speaks about the composition. As per Article 124A(1)(d), ‘two eminent persons’ are to be nominated by the committee consisting of the Prime Minister, the Chief Justice of India and the leader of the opposition/leader of the single largest opposition party. One of the two ‘eminent persons’ should be nominated from among the persons belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes, minorities or women. Article 124B tells about the functions of the Commission, in recommending the names of the Judges in the Constitutional Courts.

Therefore, Chief Justice Dattu’s withdrawal would be evaluated by the citizenry in the context of the amended Constitution. The direct and drastic consequence of the amendment is reflected in Article 127. As per the pre-amendment clause, “the Chief Justice of India with previous consent of the President” was to make appointment of ad hoc Judges. After the amendment the power vests with the N.J.A.C. and the Chief Justice can only make a reference to it, with the previous consent of the President. There is a similar transformation of power with respect to Article 128 of the Constitution that deals with appointment of retired Judges also. To put it bluntly, the new amendment takes away the prerogatives vested with the Chief Justice in the matter of judicial appointments. It assimilates the reason given by Dr.B.R.Ambedkar who defended the original text of the Constitution that did not provide any supremacy for the Chief Justice in the matter –

“To allow the Chief Justice practically a veto upon the appointment of Judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day”.

(Constituent Assembly Debates. Vol.VIII, May, 1949).

This situation was however altered by the Supreme Court in 2nd Judges case (1993) and the 3rd Judges case (1998) by inventing “the collegium system” which practically positioned the Chief Justice of India as the ‘ultimate authority’ in the appointment process.

Viewed so, the incumbent Chief Justice’s unwillingness will be more convincingly described as a gesture of non co-operation with a constitutional process that attenuates the power which his office enjoyed prior to the constitutional amendment. It is therefore his absence in the NJAC that reflects a sense of inappropriateness.

Indeed A Glorious Judgment

(K. Ramakumar, Sr. Advocate, High Court of Kerala)

Shreya Singhal  (2015 (2) KLT 1 (SC) is indeed a great judgment coming from the Supreme Court after a span of several years, during which that Court had disappointed numerous freedom lovers in the country. It has restored back the credibility of an institution criticized by some as suspected to be kowtowing the executive line.  In the Fifties the Court had really acted as a ‘sentinel on the qui vive’ by rendering judgments such as A.K. Gopalan, Brij Bushan, V .G. Rao, Sakal Papers, etc., highlighting the right to freedom of expression guaranteed under the Constitution of India.  In the Seventies while the Princes (Madhava Rao Scinda), the Bankers (RC Cooper) and the Land lords (Kesavananda Bharathi) had received sustenance from the Supreme Court, the struggling salariat were thoroughly disillusioned with Thulsi Ram Patel and Satyaveer Singh. The thin line between the judiciary and the executive was getting further thinner and blurred. Then followed the dark dreaded and disgraceful period of emergency with ADM Jabalpur allegedly hammered down the neck of the highest court of the country buckling and caving in, while even the Supreme Court of Pakistan had the courage and grit to declare the Martial Law illegal.

It is not for nothing that lovers of freedom of expression in the country are rejoiced over Shreya Singhal.  Two eminent judges maintaining sturdy independence had the courage to speak in favour of the cherished freedom of expression and against the power of the executive to curb and crib freedom of expression under Section 66A of the Information Technology Act.  The provisions were declared vague, uncertain, indefinite etc., making any citizen fall at the mercy of a police-man. The Court has indeed done a signal service to the right of free expression, part of our fundamental rights, which are described as the ‘soul’ of our constitution.  The judgment is acclaimed worldwide not merely by Lawyers but Law teachers, journalists, academicians, etal. 

Please remember this is at a time when the executive is attempting to cower down the judiciary by offering them fabulous post retiral benefits and providing reservation in several enactments to Judges demitting Office including huge arrears ordinarily impermissible for constitutional functionaries. Retirement is now really a paradise with lots of perquisites, privileges and ensuring continuity until death.  Never before had our retired judges such a good time than now with commissions, post retiral positions not to speak of unlimited number of arbitrations fetching fantastic financial benefits. Will you believe me ? Not less than four Judges of the Apex Court while in office submitted applications for the post of Lok Ayukta, which of course none of them got. This reminds one of the wise words of Smt. Ruma Pal (Retd. J.) a man among judges clad in sari against the inherent threats of tribunalisation and the so called alternate redressal forums (an alibi for self confession of inadequacy) to the only institution still commanding some credibility among the common people of the country – the judiciary. It is time to fix a cooling period of at least three years for our Retired Judges to take up any new assignment.

Justices Sarvasree Chelameswar and Nariman therefore, deserve immense gratitude from the people of the country for speaking out loud and clear in favour of ‘freedom of expression’ and protecting individual freedom while forbidding executive excesses.

Archana Vargheese v. District Collector (2015 (1) KLT 937) --
A Brave, Pragmatic & Ingenious Judicial Experiment to
Solve AVexed Problem

(By T.J. Michael, Advocate, High Court of Kerala)

It is an explicit fact that large tracts of paddy lands have been filled up and converted into garden land in the State of Kerala for justifiable and unjustifiable reasons. It is long since paddy cultivation had become unprofitable and  impractical in our State, the reasons for which  need not be set out here.  Even lands which had lost the nature and character of paddy land more than half a century ago still continue to be classified as Paddy land (Nilam) in Revenue Records. Local Self Goverment Institutions and Other Statutory Authorities persistently refuse to deny permission/NOC for use of such lands for other purposes for the very same reason mainly  because of the embargo created by  the Kerala Land Utilisation Order 1967 and the subsequently enactment of the ‘Conservation of Paddy Land and Wet Lands Act 2008’. Attempts  for using erstwhile paddy lands which are presently unfit for paddy cultivation  for other useful purposes very often  for earning a livelihood  or starting new ventures capable of generating employment opportunities and augmenting production were frustrated by the taboo for using filled up and converted paddy lands. We also need land for infra-structural developments. I am not forgetting that large scale filling of paddy land brings down paddy production and creates ecological problems  and pushes us to the  need for desperate dependence on neighbour States for our staple food. But we have to face this vexed problem in a realistic and  pragmatic manner. No government or Ruler can compel its subjects to embark and sustain on a non-profitable and impractical activity however loadable the objective is; wilful observance of the law abiding majority being the guarantee for obedience.

The above scenario had pushed owners of converted paddy lands to invoke the remedy of writ jurisdiction under Article 226 of the Constitution of India. The Hon’ble High Court of Kerala presumably being aware of the factual scenario had adopted a pragmatic approach very cautiously holding that erstwhile paddy lands which had been converted long back and which are presently unsuitable for paddy cultivation can be permitted to be used for other purposes by altering their classification in the revenue records. This view was relied and reiterated in many decisions of single  as well as division benches of the Kerala High Court.

Fortunately or unfortunately the matter was taken up in appeal by the State of Kerala. In the appeal the Hon’ble Supreme Court of India had delivered Judgment in Revenue Divisional Officer v.Jalaja Dileep (2015(1) KLT 984 (SC)) wherein it was held that by the enactment of the Conservation of Paddy Land and Wetlands Act 2008,  paddy lands as on date of coming into force of that Act cannot be allowed to be converted for any other purposes except otherwise than as laid down in the said Act. It was further laid down that in case of erstwhile paddy lands which were converted prior to   such commencement, the Kerala Land Utilisation Order 1967 holds the field and conversions can be allowed only according to the provisions of the said  Order. It was also held that the District Collector or Tahsildar has no jurisdiction or Authority under Kerala Land Tax Act  to change the nature of the land in the revenue records for the reason that the paddy land is left uncultivated with paddy for a long period. This pronouncement had thrown a dismal picture in the prevailing scenario throwing the wave down the nerve in legal circles with the belief that legislative intervention is the only escape from the stalemate. It was at that juncture that  Archana Vargheese ( 2015( 1) KLT 937) was delivered by a single bench of the Kerala High Court.  By this judgment delivered with ingenuity and pragmatism, a single bench of the Hon’ble High Court has held that The Kerala Land Utilisation Order 1967 which is only a subordinate legislation has its root and legislative competence in the Essential Commodities Act and it was rather a temporary measure to dispel dwindling food production to get over which was an urgent need of the day when it was promulgated. The said Order would not invest the District Collector  with any substantive power or jurisdiction to impose restrictions on cultivation or for that matter the usage of land by its owners where the former  had failed to take timely action when the real need arose. The jurisdiction and power to grant exemptions or issue direction to restore paddy or food cultivation is not an ever available power or jurisdiction of the Collector which if allowed would deprive the owner of land his right for lawful use of the same which is beyond the scope of the Kerala Land Utilisation Order or the Rule making Power of the Government under the relevant statute. The said decision boldly lays down that lands converted prior to the coming into force of the Conservation of Paddy Land and Wetlands Act 2008 and which are not included in the Data Bank or Draft Data Bank under the said Act does not  require any permission from the District Collector or Revenue Divisional Officer for their use for purposes other than paddy cultivation which would also eliminate chances for corruption.

The Court has also recommended to the Government the need for suitable legislation with pragmatism and sagacity devising means to make paddy cultivation profitable and feasible by introducing technology and avoiding fragmentation of land if necessary even by amending the Kerala Land Reforms Act. Hasty and ill- conceived legislations will not help.

The Province and Primacy of Law -- VI

(By Dr. K.B. Mohamedkutty, Senior Advocate and Former Law Dean)

Few people think of what law is, though it follows them as their shadow. Fewer people think what it was. As the way of law is hard and steep, it is not easy to follow its pursuit. Therefore the defiance of law is as old as Adam’s wife! People began to defy the law as a barrier to freedom and an instrument of coercion in the hands of those who had power. The resistance against the oppression of law as mass movement developed later. The laissez faire which stood for non-interference with industrial freedom and its acceptance in some countries came into being in this way. Such freedom appeared to be the need for the expanding industrial economy of the nineteenth century. Those who believed in it thought that every law is an evil or infraction of liberty. The Anarchists who opposed all kinds of laws went a step further and thought that people were imprisoned in the cage of law. Today nobody would support Anarchism as it represented the ethos of a by-gone age. Or, perhaps, as Jawaharlal Nehru says in his Glimpses of World History, we have not grown to think upto such eminence for living in harmony and co-operation without the coercion of law! The Anarchist philosophers stood for such an ideal society, but they were grossly misunderstood as peace-breakers, while in fact they were not. Most of them were peaceful and philosophical and did everything for eschewing violence. Of course, there were exceptions.

Experience however shows that Law is not strong enough to put an end to tears falling the wrinkling face of the common man and remove his worries and anxieties. Vaikom Mohamed Basheer, the renowned novelist, observed that life is a strange mixture of physical and mental forces; we find in it many things such as downright foolishness, extreme cruelty, horrible enmity and bitterness, sublime spirituality, great kindness and immeasurable love and affection. Law deals with them all. When we look back we realize that law is memory of countless things in the life of the nation and the people; it records a long running conversation between the people and their rulers. The U.S. President Obama, who was a Law Professor, observes that a nation argues its conscience through her laws. Law is not a monologue. 

 Law extends rights and imposes duties on the people. However, law fails to cover all needs. It is just like a train of people cannot travel on a bicycle or an auto-rickshaw or a car. However, by the second half of the twentieth century Constitutions and the laws sprang up in various countries. But today we find that more and more laws breed more and more corruption. If people are honest there is no need for too many laws. Moreover the unpleasant fact is that laws count for nothing when Government, Ministers and Officials are the worst offenders. Though we sow enough seeds of law, only a few out of them reap. Some laws are like sowing the wind and reaping the whirl-wind. There are secrets of the day and secrets of the night in the administration of law. For its misuse law is not at fault. About laws of yesterday and laws of today we are free to express our views in a democracy, but about laws of tomorrow none can say as it is a dream. 

In teaching the law and applying the law our leanings are towards western jurisprudence. We follow western concepts blindly. But in many parts of Asia and Africa there were legal systems much earlier to western legal system and they flourished and met the exigencies they faced. The western jurisprudence, according to some authors, cannot have a better claim than the jurisprudence of Eastern Civilizations. The West has in fact absorbed immensely from the Eastern Legal Systems.

Ancient vs. Modern

We had stone carving of laws during the days of Budha (600 BC). Ancient western law carved on a slab is kept in Paris Museum. The ancient laws were not amenable to change. They were static. For example, the writings of Jewish law were originally kept in a wooden chest named “arch”. Things changed later, but not the law kept in the chest. In all legal systems, sometimes laws shape events and sometimes events shape law. This goes on as an unending process. In India after independence, there have been hectic law-making by the Union and the States. During the British, Mughal and ancient periods of history the law was distanced from the people. Law then served the rulers and their interests. Later, we find the great march of law in India which resembles an orchestra, whose players are the people. But we find too much regimentation of law in some areas or complete lawlessness in certain other areas. Those who oppose the rigour of the law say that they are at the beating end of the law without enjoying any benefit. When the law-makers break the law themselves with impunity, as we witness today, the question is “who is to watch the watch –man himself?

 Changing  Momentum

Today the need for law chiefly arises out of economic slow-down and scarce resources.  Laws enacted however are not sufficient enough to meet all contingencies.  The proclamation of law alone does not bring about peace and prosperity.  Daniel Defoe who has tasted both sides of life and who had been “thirteen times rich and thirteen times poor” said that law and liberty do not consist in open doors and free egress and ingress of locomotion.  It must meet changing needs of man and the society.  Change in life is fantastic today; refrigerators mail us when they run out of milk.  Computer does miraculous things and they occupy pockets of men and handbags of women.  The change in life style leads to making new laws or changing existing laws. The growth of law is not confined to frontiers of nations. 

 Law’s growth resembles germination of a seed in a congenial atmosphere and its development through different stages, namely, budding, flowering, fruit-bearing and keeping in its stump hardwood for future generation.   The fragrance of its flowers reaches far and wide. The law grows like that.  It is not only for the present but for the future as well.   Its vastness is obvious.  Numerous ideas are shaped into law from time to time. To express the vastness of the law, we say law is oceanic.   The expression ‘oceanic’ indicates that law is wide-spread and the same thing with the same identity, whereever it is.  About seventy-five present of the earth’s surface is surrounded by ocean.  The ocean lies between continents. The demarcation and naming of ocean as Pacific Ocean, Atlantic Ocean, Indian Ocean and the like is just to indicate particular area on earth surrounded by water. Likewise, no legal system stands in isolation as no country is an island.  Inter-action and inter-mingling of laws take place in abundant measure.  Science does not claim that there is pure stock of blood.   In the same manner, there is no pure stock of law, except perhaps personal law, like the Hindu Law, the Muslim Law of inheritance etc.

A large chunk of Indian laws are taken from England, the U.S.A, Canada, and Australia.  But blind adoption of law from other counties without taking into account the socio-legal climate of the country may not be workable.  For example, the U.S.A.  developed concepts like ‘Compelling Reasons’ ‘Strict Scrutiny’, ‘Affirmative Action’, ‘Narrow-Tailoring’ and other concepts. They were developed in that country as a helping hand to Afro-Americans, Ameri-Indians etc.  In India such concepts have no relevance.   The English law, however, imbibed many legal norms from Rome.  The principle that king must temper his power by the law and the principles of equity were in existence in ancient societies.  Such a measure was necessary to bridle power and to insist that kings and emperors too may have to live according to law.  It is the people who conferred upon them the sovereign power.  But history tells us that law could do very little to regulate such potential power centers.

Vast  horizon

The law has past, present and future. Journeying through sometimes turbulent and sometimes peaceful path of law, man has become not only a tool-making animal but also a law-making organism.  We find many a legal system.  Each one of them has its own background, culture and tradition.   To learn them all is not just possible. You cannot learn the law as you learn other disciplines.  There is a saying that “you can make even a parrot into a learned political economist” – all that you must learn are the two words, ‘supply’ and ‘demand’.  Law is different.    A life time study of law takes you only to the fringe of its vast horizon which is ever expanding. Law, like life, is vibrant and full of change and not the same in the next moment.  It has a tendency to expand itself as it interacts with people and their issues.  Every case coming up for decision before law courts is a page torn out from the book of life.   We find in it the blood-stain of life.   We find in it victories of man, his ambition, evil design, treachery, rise and fall.  The stream of law flows searching for a dawn.  The future of law like future of life is not predictable.   But future cannot disown yesterdays with all their failures and success.

The  Primacy  of  Law

One can experience the beauty, liveliness and dynamism of law only when it is enforced or put into action.  Law enacted and kept in statutes without enforcement is like dead wood.  Voluntary compliance of law regulating human conduct and interest is few and far between.  As Bertrand Russell observed, “a stupid child will only pay attention to what has to be learned while the teacher is there to insist upon the subject matter of the lesson.  Today violence, terror, terrible and scandalous corruption and fraud exhibit distressing trend.  In such a society the primacy of law is to establish order in the society first by force, if necessary.  You cannot enjoy the beauty of a flower if the same is kept in a hidden place.  Law in statute-form is like that.   Attempt to implement law may have to face resistance.  Like infant leaves of a plant must be protected from attack of insect, law too needs protection when there is sharp fall in human conduct.   It is a pre-requisite for economic growth and development.  The political parties must resolve problems facing the country without adopting too much negative attitude in order to safeguard national interest, with unity and gentle spirit of accommodation.  Khalil  Gibran’s  little story spells out the horror of disunity. 

“Said the Eye one day, “I see beyond these valleys a mountain veiled with blue mist.  Is it not beautiful?”

 The Ear listened, and after listening intensity awhile, said, “But where is any mountain? I do not hear it.”

Then the Hand spoke and said, “I am trying in vain to feel it or touch it, and I can find no mountain.”

And the Nose said, “There is no mountain, I cannot smell it.”

Then the Eye turned the other way, and they all began to talk together about the Eye’s strange delusion.” 

We must remember that great civilizations perished in the absence of gentle spirit of accommodation.   In modern times, want of unity led to the downfall of Iraq, the wonderland of civilization, where the magic city of Arabian Nights flourished.  What happened to the stupendous Indus Valley Civilization?  Where is the glory and wonder of ancient Greece today?  Certainly the decline of legal system and intolerance of conflicting factions might have weakened world civilizations one way or the other.   For dawn of the rising sun, the lamp of law must be kept  unextinguished  along with other sublime social forces.

Judging the Judges: Debating Judicial Conduct

(By Kaleeswaram Raj, Advocate, Supreme Court of India and Kerala High Court)

The Supreme Court Bar Association had proposed a resolution demanding “fair treatment of lawyers” by judges.  The notice issued recently by the Association, which consists of members from almost all the States in the country, says that the lawyers must receive respect “irrespective of their standing and seniority”.  It also protests against the “hurried and selected manner” in which some Supreme Court Benches hear the cases (The Hindu, 3.3.2015).  The subsequent circular issued by the Association on 10th March, however says that “the emergent general body meeting (scheduled to 10th March) is deferred” on the basis of the assurance given by the Chief Justice to consider the grievances of the bar.

The unusual motion by the body of lawyers at the Apex Court level poses significant questions which transcend the legal profession.  The internal democracy within the court is a condition precedent for democracy outside.  Without justice within, no institution of justice could meaningfully exist.  The status quo doctrine is bound to be reactionary when reformation is an imperative.  True, that Kafka in The Trial was pessimistic when he said -  “(I)t never occurred to the advocates that they should suggest or insist on any improvements in the system, while …almost every accused man, even quite ordinary people among them, discovered from the earliest stages a passion for suggesting reforms."

Exposure is the first step towards any radical reformation, for sunlight is the best disinfectant. Max Boot, the former Associate Editor of Wall Street Journal   authored a classic work on “the injudicious judiciary” in the U.S. with a striking title – “Out of order – arrogance, corruption and incompetence on the bench” (Basic Books, 1998).   Boot was supported by a confessional foreword written by Robert Bork, a former federal appeals court judge who said – “Our courts are behaving badly and the public, to the degree it can be brought to understand that, will exert force for reform, a reform that must be structural as well as intellectual and moral”.

The judicial misbehavior and misconduct are not generally discussed in the Indian media, though there is nothing improper or illegal in dealing with them.  Again, in the words of Max Boot, “any one who wants decent democratic Government ought to be concerned about judges who misbehave or exceed their authority or issue unjust decision”.  Therefore, there is a need for “unlimited discussions” on the topic.

The conduct of the judges in India is not guided by any statute or even the Constitution.  However, move for the best practice within the judiciary at a global level has been on full swing over the years and India continues to be a party to it. After the Bangalore declarations on judicial conduct (1998-99) and the international round table meeting of the Chief Justices from various jurisdictions at The Hague (2002), judicial morality is no more uncertain or abstract.    The resolution “Restatement of values of judicial life” (1998-1999) was adopted and ratified by the Indian judiciary as well.

Article III Section 1 of the U.S. Constitution, says that the judges shall hold their offices “during good behavior”.   The U.S. has a highly politicized judiciary.   Justice Frankfurter was active in President Roosevelt’s election campaign (1940).  Justice Brandeis was the designer of President Woodrow Wilson’s ‘New Freedom Platform’ which thrived for economic and political development.   Justice Joseph Story sought active support from Congressman Daniel Webster for a few Bills connected with judiciary.   (See: Drew E. Edwards: California Law Review Vol. 75 Issue 3. Article 18).

In India, even during the pre-collegium phase, the judicial appointments were not as political as   in the U.S.  After the invention of the collegium system in 1993, the process was relatively more ‘apolitical’, though it always remained opaque and even undemocratic.   Paradoxically, the country was fortunate enough to have a system which was not akin to that in the U.S. 

 But that does not erase the need for evolving a more egalitarian judicial culture within and outside the courts in India.  In Tarak Singh ( 2004) the Supreme Court held that the “integrity  (of the Judges) is the hallmark of judicial discipline” and cautioned that “wood peckers inside pose a larger  threat (to the system)  than  the storm outside” .  In Remesh Chand Paliwal (1998) the Court wanted the judges to be “hermits”, who have “no desire or aspiration, having shed it through penance”.   In Daya Shankar (1987), the apex court clarified that judicial officers cannot have two standards, one in the court and another outside the court. Anil Rai
(2001) was an introspective verdict on delay in pronouncing judgments. 

In- house  Procedure

Regulating judicial conduct by legislative measures is a difficult task.  It also runs the risk of impairing judicial independence, which again is a basic feature of the constitution.   However, the Supreme Court has evolved an ‘in-house procedure’ to deal with the complaints related to misbehavior of the judges of the Supreme Court and the High Courts.  A five judge committee appointed by the Supreme Court formulated a mechanism for suitable remedial actions when there are “proved instances of misconduct or misbehavior” against the judges in the higher judiciary.  The report on this ‘in-house procedure’ was submitted by the committee on 31.9.1997 and was adopted with minor changes by the full court meeting of the Supreme Court on 15.12.1999.

As per the in-house procedure the complaints which are “not frivolous” and are “unconnected with the decision in a matter of adjudication”, could be enquired into by a fact finding commission consisting of judges only.  On finding that there is serious misconduct, the Chief Justice of India (CJI) can even ask the judge concerned to resign or seek voluntary retirement.  Also there could be “advice” to the concerned judge which would form part of records.

But the in-house arrangement has become dysfunctional by lapse of time.  Even while it functioned, the activities were in the oblivion and as such no instances of institutional corrections were known outside.  I would plead for a regular mechanism that organically tries to avert even the possibilities for genuine complaints or allegations from the members of the bar or from the public.  A permanent committee consisting of the representatives of the bench and the bar at the Supreme Court and High Courts level would go long way in tackling the issues.

Bar Associations cannot pass resolutions against the conduct of the Judges for the same would amount to contempt, as indicated by the Supreme Court in  Ravichandra  Iyer (1995).  Therefore, the corrective mechanism should be one that is able to meaningfully avert a situation in which the Associations   go for such resolution.  A preventive strategy is more useful and contempt action is no solution.   A fault-free system for judicial appointment marked by openness, fairness, objectivity and transparency may lead to fundamental changes.    There is a further need for continuing education in legal, social and moral facets. 

Publicity, the soul of justice

There are better scientific devices to ensure egalitarian behavior on the bench.  An open court system needs to be truly open in the digital age. Even in the sixties, the Supreme Court has extracted the decision in Scott v. Scott that quoted Bentham on administration of justice -  

“In the darkness of secrecy sinister interest and evil in every shape have full swing. Only in proportion as publicity has place, can any of the checks applicable to judicial injustice operate.  Where there is no publicity, there is no justice.  Publicity is the very soul of justice.  It is the keenest spur to exertion and the surest of all guards against improbity.  It keeps the judge himself while trying, under trial”. ( Naresh Sridhar,1966)

A live recording of the court proceedings may go a long way in ensuring proper judicial conduct in an open adversarial judiciary.  By ensuring visibility, accountability is ensured.  While John Leo complains that “(the court) remains invisible to most Americans”, in the U.K., live telecast of proceedings in important constitutional cases is quite common. There is a need to emulate and expand the U.K model in our country.

Senior  syndrome

The demand in the Bar Association’s notice for accommodation in court “irrespective of standing and seniority” and the protest against “selective hearing” call for  more serious debates.  Marc Galanter and Nick Robinson in a Harvard Law School paper demonstrate that a few senior lawyers in India constitute “a legal elite flourishing in the era of globalization”.    The Galanter-Robinson study inter alia says that “Grand Advocates in India are known for securing hearing for their clients”.  According to them in India “seniority works differently for Judges than lawyers” and “the Grant Advocates enjoy esteem of the Judges who give them more face time”.  The study adds that a few advocates in India “enjoy incomes that rival the most highly remunerated lawyers anywhere in the world”.  They are also “notoriously inaccessible”, according to the paper. The authors also quote a lawyer saying that “the face value matters” in admission matters before the Supreme Court.

The judicial system is too serious a matter to be left to lawyers or judges alone.     It is high time to have an institutional introspection on the question of seniority and right to   pre-audience or any other privileges for any category for that matter.   The conventionally perceived equality among the bar members has to be revived for maintaining institutional fairness.  Not the face, but the submissions should matter. Not the person, but the content should determine the outcome of litigation.  The admixture of feudalist and the capitalist traits which imposed upon the system should wither away.  The equality clauses in the constitution should begin with the constitutional courts and the legal profession.  The notice issued by the Supreme Court Bar Association is therefore an eye opener to those who run the show, since we need at least the shows for the sake of democracy and also for its future.