Judicial Impartiality an Enigma or Reality ?

(By V.K.. Babu Prakash, Judicial First Class Magistrate, Kollam)

"Decision making in any circumstance, is a complex function containing logic and emotion, rational application of intelligence and reason, intuitive responses to experience, as well as physiological and psychological forces of which the decision maker may be only partly aware". 

- Justice Michael Kirly of The High Court of Australia

It has been a pleasure and satisfaction to read the excellent article of Honourable Beverley MC Lachlin pc, The Chief Justice of Canada on the topic 'Judicial Impartiality, The impossible quest?' from the material of National Judicial Academy, Bhopal. The author looks at impartiality as an essential component of Judicial decision making. Yet as human beings, can Judge be truly impartial? He argues emphatically that impartiality, the ability to judge a case fairly is not the same thing as neutrality which is the absence of all preconception and personal preferences like the blind fold figure of Justitia, Judges must approach their task with absolute neutrality and objectivity. Cool reason, uncontaminated by personal commitments, biases and preconceptions, is essential to fair adjudication of the cases that come before them. However, as human beings, they do not approach the task of adjudication blind folded. They arrived at the bench already shaped by their experiences and by the perspectives of the communities that they come from, and they possess convictions and prejudices, just like every one else. Author profitably quotes Lord Macmillan as follows. "Impartiality is not easy to attainment. For a Judge does not shed the attributes of common humanity when he assumes the ermine. The ordinary human mind is a mass of prepossessions inherited and acquired, often none the less dangerous because unrecognized by their possessor. Few minds are as neutral as a sheet of plate glass, and indeed a mind of that quality may actually fail in judicial efficiency, for the warmer tints of imagination and sympathy are needed to temper the cold light of reason if human justice is to be done".

Dean Roscoe Pound identified four stages in judicial decision making:-

   1. Ascertaining the facts

   2. Finding the law

   3. Interpreting the legal materials selected

   4. Applying the resulting legal percept to the cause.

These four stages reflect the basic mental operations that enter into a judgment. They are not sharply distinct from each other, but rather over lap. The facts of a case assist the Judge in finding, interpreting and applying the law like wise, the characterisation of a matter as falling within a given field of law and the identification of the application rule help the Judges to identify the facts relevant to the disposition of the case. At each of these stages of judicial decision making, impartiality is essential. Yet, at every stage, the possibility exists that Judge's experience and values may influence the out come. Whom the Judge chooses to believe and how the Judge selects, defines and applies the relevant legal rules are inevitably affected by Judge's own experience and beliefs. The obvious fact that Judges are human beings may have seemed less problematic when judges were viewed as discovering the law rather than making it. For years, the declaratory theory of law held sway among lawyers and Judges in the common law world. Judges, it was said, did not make law, but simply discovered it. Their judgments declared the law as it had always existed. Since Judges only declared preexisting law, their own experiences and values did not enter into the decision making process or the resulting judgment. The personality of the Judge became identified with the office itself; he or she became a personification of the law. However, this vision of the judicial role was challenged in the first half of the 20th century. It was argued that Judges make law both in explicating the law by interpreting legislation. In doing so, it was argued that the judge's experiences, values and ideas were just important to judging as his or her legal education.

Justice Mclachlin formulates four sources of guidances which help navigate the Judges through the sea of difficult questions to be decided They are :-

1. Historical context

2. Current context

3. Recognised methods of logical reasoning

4. An appeal to one's sense of what is just.

In the historical context that is, how the law on a certain issue has historically developed is to be looked at. Judges faced with uncertainty in the law must make a decision. Usually, two or more solutions are possible. The starting point for Judges, in choosing between alternative solutions in hard cases, is an understanding of the historical evolution of the law in the area in question. How has the particular problem developed? Which of the proposed solutions best respects the history of the law on the general subject? In the second source that is the current context, the social or economic reality in which decision is being made, Judge did not simply involve the application of abstract principles. A Judge's decision impacts directly and indirectly on people's lives and on the economic, social and constitutional development of the nation. It follows that a good Judge must consider not only the past law, but also the ways in which choosing this or that alternative will play out in the real world. In analysing the current context a Judge relies on expert evidence, experience and common sense.

In the third source which is recognised methods of reasoning the hub and spindle are deduction and induction. Deductive reasoning helps Judges to decide how to. apply a general rule in a particular case. Inductive reasoning may assist Judges in identifying the appropriate general rule. Often deductive and inductive reasoning are used together. Past cases and hypothetical situations are analysed inductively to test how far a certain norm extends, or ought to extend, the Judge then reasons deductively to apply that norm to the case at hand . Reasoning by analogy is an indispensable part of both inductive and deductive reasoning. The comparison of like and unlike permits Judges to determine the extent of similarity and dissimilarity between cases for the purpose of induction, and helps the Judge to determine whether a case is a particular instance of a general rule. Finally in the fourth guidance the Judge is guided by his or her sense of fairness or justice. This concept is conceived from Aristotle's principle of general justice and special justice. According to Aristotle special justice has two components. It involves, firstly a concern with the fairness of distributions of benefits and burdens or what we now call distributive justice. And it involves, secondly, a concern with the rectification of right violations or what we now call corrective justice. Both of these components of special justice are of assistance to Judges facing difficult cases. Through their experience both legal and non legal, Judges come to have a sense of what requires in a particular case, and they look to this to guide their interpretation and application of particular legal rules.

On an assimilation of the guidelines, it would be appropriate that Judges should look at the current context of the problem and how a particular solution will impact on the lives of men, women and children and the collective well being of the community, the nation and the global community. They should ensure that their reasoning processes are valid, and they must end by asking themselves whether the decision they propose to make it is just and fair. It must be fairly recognised that Judges, like all human beings, possess personal preferences and predispositions which have the potential to skew the judging process and create injustice. Our review of the tools of legal reasoning and their use in the process of judging has shown us that certain subjective influences, including general beliefs about the world and about human nature, a wide range of emotions and a sense of justice are an in escapable part of judicial decision making. Along with the need for Judges to rely on these subjective elements, comes the risk that certain unacceptable subjective elements, such as prejudices and biases will enter into decision making process. Judges are not social or political eunuchs. They are individuals with their own identities, cultural back grounds, gender, race, religion, sexual orientation and political beliefs. All these inform the Judge's experiences and the way the Judge sees the world and all of these open the possibility that the Judge's reasoning or decision will be based on an illicit consideration. As Justice Frank observed; "we are born with predispositions, and the process of education, formal and informal, creates attitudes which precede reasoning in particular instances and which, therefore by definition are prejudices, every Judge unavoidably has many idio syncretic learning of the mind, uniquely personal prejudices which may interfere with his fairness at trial".

Does this lead to the proposition that Judicial impartiality is a misnomer rather than a reality? Does the fact that all legal minds are subject to innate susceptibilities and prejudices, or leave room for subjective elements, imply that judicial impartiality is impossible? No it is not. It may be true that neutrality, or the absence of any subjective elements, is impossible. Yet a well founded distinction is needed between neutrality and impartiality. Impartiality does not, like neutrality, require Judges to rise above all values and perspectives. Rather, it requires Judges to try, as far they can, to open themselves to all perspectives. Neutrality in a sense, requires the absence of all preconceptions and personal preferences. It can best be understood in terms of the metaphor of the blank slate - the tabula rasa. Impartiality, by contrast, describes the ability to raise above the flurry of conflicting views, and to judge a matter fairly, taking into account all the perspectives engaged. Neutrality requires an empty mind, which is different. Impartiality lies not in the absence of preconceptions and opinions but in the capacity to entertain and act on a number of different points of view. And this capacity, far from requiring a mind that is a tabula rasa, infact demands a mind that is vigorously engaged with particular perspectives and capable of imaging itself into a variety of other perspectives.

It is worthwhile for Judges to practice conscious objectivity or certain attitudes to keep the scale of balance of impartiality steady. They are:

1. Introspectiveness

The Judge must be willing to take moral stock of himself or herself. As Justice Frank puts it, "The conscientious judge will, as far as possible, make himself aware of his biases of his character, and by that very self knowledge, nullify their effect. The concealment of' the human element in the judicial process allows the element to operate in an exaggerated manner, the sunlight of awareness has an antiseptic effect on prejudices. Freely allowing] that he is a human being, the Judge can and should, through self- scrutiny prevent the operation of his class biases". Thus, introspection involves an assessment of the Judge's own values, beliefs and ideas in relation to those expressed in the legal system, where there is convergence between the Judge's values, beliefs and ideas and the law's values there is no risk of partiality. On the other hand where there is divergence, the Judge must make a, conscious effort to see that personal values do not lead unjustly to the favouring of particular party or position. The Judge must accept that the price of judicial office is that the law must supersede personal loyalties.

2. Openness

The Judge must essentially possess openness. The Judge's mind must be open and receptive to ideas and arguments that may compete with the Judge's personal preconceptions. This willingness to receive and act upon new and different ideas, arguments and views lies at the heart of true impartiality. Impartiality implies an appreciation and understanding of the different attitudes and view points of the parties in controversy.

3. Empathy

The third good attitude is empathy. Empathy emphasises the common humanity of us all, judges, litigants, witnesses, and all other participants in the justice system. It is the ability to see the world from the perspective of others and become engaged in their experience. It is the conscious attempt of the Judge to enter into the skin of the litigant and make his or her experience part of Judge's experience.

4. A Healthy and Serene Mind

A tired judge, sick judge or distressed judge may be unable to summon the energy required for the introspective and open processes of mind. Keeping a healthy mind and positive attitude is not always easy for the modern Judge. Today's Judges face extraordinary pressures. Physiological and psychological stress are part of the job. The work is demanding, both intellectually and emotionally. Judges deal with the most difficult human situations and the most intractable social problems and the consequences of an incorrect or unjust decision can be enormous. The isolation and loneliness of judicial office is yet another problem. The modern Judge is more involved in the community than was before. Yet, judicial life inevitably increases isolation. The Judge emerges from congratulatory appointment and celebrations, later painfully realises that the phone no longer rings. Valued relationships become less intimates, some may end. Even long term friend seems differential and distant. Conversations are mutually self centered and communication more difficult. High profile cases, where a Judge is subject to intense public scrutiny, intensify these problems. The difficult task of judging becomes ever more so when one's every twitch or blink is under the eye of the press and the public. Criticism of judicial decisions and judicial conduct is appropriate in a healthy democracy. But the fact is that commentary can be inaccurate, unfair, personal and hurtful. The Judge cannot reply or set the record straight, but must suffer in silence.

However, Judges are fortunate. They enjoy the enormous privilege of helping people and serving justice. Each day on the bench brings before them humanity in all its diversity and richness. Justice Beverley Mclachlin, the learned author concludes his remarkable article with a touching true story. It concerns of a Judge who found himself completely bereft of emotional responses as a result of brain damage inflicted by shell fragments. The author says as follows:-

"It might be thought that the absence of emotion and of the biases that go with it, would have rendered him more impartial, indeed uniquely qualified as a judge. But he himself with great insight resigned from the bench saying that he could no longer enter sympathetically into the motives of anyone concerned, and that since justice involved feeling and not merely thinking, he felt that his injury totally disqualified him."

Parable

Wherever in the world, the judges are doing the same sort of Job, deciding matters coming before them impartially by living in isolation, ill health, anguish, stress, strain and what not, burning like candles, still to brighten up the world around them with that tiny light of justice.

(By Justice K.P. Radhakrishna Menon)

A landmark decision

The observations, the comments and the annotations, particularly those to quote The New Indian Express of 12th March, 2008, "Where man slaughter is a competing sport, party leaders very cunningly escape unhurt in this cruel and blood - thirsty game, all political parties there seem to indulge in inhuman activities, all party peace missions are nothing but a hoax to hoodwink the fickle-minded public" and like remarks in the judgment reflect the nightmarish feelings of the panic - stricken apolitical citizens who love and live for Mother India. The Judge has also found that even the investigation into the crimes by the Police, who, the Judge observes are 'par excellence', has become farcical due to the unethical interventions of the politicians and their sycophants and hangers on. That the judicial conscience is hurt is clear from the comment, "Blessed are those who are able to die a natural death in Thalassery". About the criminal administration in the State, it shall be said, it partakes of the characteristics of an organisation of byazantaine complexity; and the result is the denial of the fundamental right of a person namely, 'protection of life and personal liberty' guaranteed under Art.21 of the Constitution.

When this peculiar situation is brought to the notice of the High Court, should the High Court intervene and protect the most precious fundamental right of the citizens guaranteed under Art.21 or should the High Court remain a mute spectator to the near to anarchy situation in an area within its jurisdiction, is the first question that warrants an answer, in the light of the unethical and unpardonable criticisms, the political bigwigs have leveled against the Judge who delivered the judgment.

The answer is a big 'Yes'. I shall refer to Art.215 of the Constitution which says that, "Every High Court shall be a court of record and shall have all the powers of such a Court including, the power to punish for contempt. Construing the Article, the Apex Court has declared that the High Court has inherent and plenary powers unless expressly or impliedly limited and subject to the appellate jurisdiction of the Supreme Court. The Apex Court therefore declared that the High Court has unlimited jurisdiction including jurisdiction to determine its own powers. Prima facie therefore no matter can be said to be beyond the jurisdiction of the High Court. It is all the more so in the case of enforcement of the fundamental right guaranteed by Art.21. The Higher Judiciary in our judicial system envisaged under the Constitution is the sentinel of the fundamental rights of the citizens.

It shall not therefore be said that the Judge has crossed the limits. One more question warrants an answer. Is the Judge justified in holding that the only solution to abate the political killings is, a timely intervention by the Union Government by deploying sufficient force in the affected area? The answer lies hidden in Art.355 read with Art. 34 and Entries 1, 2 and 2A of List 1 of The Seventh Schedule. These constitutional provisions empower The Union Government to declare 'Martial Law' in any area within the territory of any State, to protect the State against external aggression and internal disturbance. The words employed in Art.355, 'it shall be the duty of The Union to protect every State against external aggression and internal disturbance' make it clear that it is the bounden duty of the union, if found necessary, to declare martial law and deploy 'force' to abate the anarchical situation and thereby restore peace and tranquility in the area. I shall in the connection quote the constitutional expert H.M. Seervai. He comments, "the power to declare martial law to put down such internal disturbances could thus be part of the legislative powers of the Union under Entries one and two of List 1 (I would add Entry 2 A, virtually confirming the view of Seervai, inserted later) also. This Entry 2A says deployment of any armed force of the union or any other force, subject to the control of the union or any contingent, or unit thereof, in any State in aid of the civil power, powers, jurisdiction, privileges and liabilities of the members of such forces while on such deployment. This entry in fact is explanatory of Art.34 empowering the Union Government to declare martial law in any State. Seervai further says that Art.355 can be invoked without a proclamation by the President as in the case of Art.352. To quote Seervai: "If a rebellion or a revolt in a place can be put down by use of the force without issuing a proclamation under Art.352; it is submitted that there is nothing in The Constitution which requires such a proclamation to be issued. One of the reasons is that before the machinery of issuing such a proclamation can be set in motion, grave and irreparable damage may be done if in a sudden emergency prompt action is not immediately taken to meet force with force. It is submitted that under Art.355 read with Entries 1 and 2 (I would add 2A subsequently incorporated), there is ample executive power to put down rebellion or a state of war by martial law". Dicey, a renowned constitutional expert says that the proclamation of martial law is an act of the Executive Government which in its own will suspend the law of the land.

The inference irresistible from the discussion above is that the Judge was right and well within his jurisdiction to tell the Union Government to deploy "force" in Kannur to abate the killing spree let loose for want of Governmental action at the right and appropriate time, for obvious reason. Had the Judge not made a declaration regarding the deployment of the Central force, I definitely would have assigned him a place in the list of authorities, constitutional or otherwise, who are enveloped by the proverbial statement that "cowards die many a time". Now the Judge has shown the courage to safeguard the fundamental right of the citizens who love and live for Mother India, guaranteed under Art.21. And therefore kudos to the Judge.

Before I conclude - A request to the big - wigs in politics and the representatives of the people in the Parliament and the Assemblies. Please study and understand the Constitution and the political history of The Democratic Governments in the World and discharge your functions so that you will be able to build a new and prosperous India where every one will be happy and all will live in harmony. When this comes true, every Indian will go to dust a proud citizen of India, to rise again and rejoin in its glory as stated by the former President A.P.J. Abdul Kalam.

/ conclude quoting Goethe: "Whatever you can do or dream you can, begin it. Boldness has genius, power and magic in it. Begin it now".