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Independence of Judiciary — Some Latent Dangers*
by Justice J.S. Verma
Judge, Supreme Court of India
Cite as : (1995) 6 SCC (Jour) 1
It gives me great pleasure to participate in this function held to inaugurate a Lecture Series to perpetuate the memory of an illustrious son of Assam, who later shone on the national judicial firmament. I deem it a great privilege and unique honour to be invited to deliver "The First Justice P.K. Goswami Memorial Lecture".
Justice Goswami's tenure as a Judge in the High Court of Assam and the Supreme Court was only of a decade but that coincided with several events of significance to the 'Independence of Judiciary'. Justice Goswami was appointed a Judge of the High Court of Assam in May 1967 and became its Chief Justice in 1970. He was then elevated to the Supreme Court of India in 1973 from where he retired on 1-1-1978. During this period, the three senior most Judges of the Supreme Court were superseded in the appointment of Chief Justice of India in 1973 and there was the period of emergency. On end of the emergency came the Supreme Court decision in State of Rajasthan v. Union of India1, wherein the scope of judicial review of the executive act of dissolution of State Assemblies arose for decision. During that period, the independence of judiciary was threatened by the executive in ways which are well known. Justice Goswami was a member of the Bench which decided the Rajasthan case1. The concluding remarks made by him in a separate opinion warned of a different kind of threat from within, with the potential of eroding the independence of judiciary. Justice Goswami did not hesitate to frankly record in his opinion, thus:
"I part with the records with a cold shudder. The Chief Justice was good enough to tell us that the acting President saw him during the time we were considering judgment after having already announced the order that there was mention of this pending matter during the conversation. I have given this revelation the most anxious thought and even the strongest judicial restraint which a Judge would prefer to exercise, leaves me no option but to place this on record hoping that the majesty of the High Office of the President, who should be beyond the high watermark of any controversy, suffers not in future."
The above remarks of Justice Goswami were made undoubtedly to caution the future Judges and to warn the executive of the potential threat to the independence of judiciary from seemingly innocuous acts. This reflects his strong commitment to the cause of independence of judiciary and his indefatigable zeal for its preservation in the future. Over the years, the need for vigilance has increased to assume considerable significance in the current ethos. The topic chosen for the First Memorial Lecture is intended as a fitting tribute to Justice P.K. Goswami. This is the reason for the choice of this topic.
Justice Goswami and I were born 20 years apart. He came from the generation which was two generations prior to mine. However, I came to be appointed a High Court Judge when Justice Goswami was still in the High Court and got the privilege to sit with his generation of Judges. I have, therefore, the benefit of a similar view from the Bench of the significant events which impelled him to strike a note of caution in a judicial verdict. This lecture is an attempt to emphasise the message given by Justice Goswami, by indicating some lurking latent dangers whose growth must be arrested and steps taken to eradicate them, to ensure continued independence of judiciary. In the present context this is essential since the threat from the outer dangers appears to have been arrested and the likely danger now may come only from within.
The greatest danger earlier came from the decisive role and primacy of executive in the appointment of superior Judges. This increased with its strong assertion after the judicial recognition in S.P. Gupta v. Union of India2 (The first Judges' case). It is needless to recall its various manifestations. However, in the recent times the shift towards executive supremacy in this sphere appears to have been controlled in Supreme Court Advocates-on-record Association v. Union of India3 (The second Judges' case) whereby the supremacy of executive no longer remains.
Expansion of the sphere of judicial review is another reason for the increase in importance of the role of judiciary. This is in addition to the significant role of the judiciary in the constitutional scheme of separation of powers. Growing awareness of the rights in the people; the concept of public interest litigation; the trend of judicial scrutiny of every significant governmental action; and the readiness even of the executive to seek judicial determination of debatable or controversial issues, at times, may be, to avoid its accountability for the decision, have all resulted in the increasing significance of the role of the judiciary.
The growth of judicial review is the inevitable reaction to ensure proper check on the exercise of public power. This is undoubtedly a recent global phenomenon but, more so, in India. The general perception is, that the Indian Judiciary has been most active in expansion of the field of judicial review into non-traditional areas, which earlier were considered beyond judicial purview for want of judicially manageable standards. In India, the growth of this phenomenon with its ready acceptance is not only by the people but also by the other wings. It is more because of the peculiar needs of the teeming millions in this country and the general acceptance of the need for social justice to every citizen.
The logical corollary of this ready acceptance of the expanded role of the judiciary is that the exercise of power of judicial review must be only for the achievement of public interest. The discharge of the duty and obligation towards the people of India requires that it should have no semblance of assertion of the judicial power over the other wings except when it becomes necessary for upholding the majesty of law and for granting relief to the have-nots against injustice.
Even the British Courts tend to move towards judicial activism in spite of their conservative background and acknowledged sovereignty of British Parliament. In an article by Anthony Lewis - "Judges in Britain create a flutter" (Times of India, Bombay Edn., dated 7-11-1995), it is said that this significant change is on account of outlook of Judges and the function they perform. The reasons given in the analysis made therein, are: (1) the Judges realise that there is a vacuum since Parliament is virtually under the total control of the executive when it was supposed to correct any governmental injustice to individual; (2) the modern legislation is loosely drafted and delegates large powers to the Government which tends often to be arbitrary in its exercise; (3) the new generation of Judges think of law not as fixed rules but as a set of values designed above all to protect democracy and human rights; and (4) the new judicial generation is more outward-looking and is influenced by the courts in Commonwealth countries, for example, India in the rigorous enforcement of individual rights. The article ends as under:
"The politicians, or many of them, will resist judicial review. But my guess is that the British public likes it when Judges stand up for them against the State — and that the public will demand more of the new constitutionalism, not less."
Mark the similarity in India.
It is unnecessary to indicate the extent of expansion of judicial review in the non-traditional areas which, ordinarily, are treated to be the functions of other branches in the scheme of separation of powers. The fact is that the extension even into those areas is because of the people's perception that judicial intervention is the only feasible correctional remedy available. It is primarily this perception of the people which brings the acceptance of judicial activism in India as the pragmatic means of realising the full promise given by the guarantee of Fundamental Rights and the mandate of the Directive Principles in the Constitution of India. This acceptance exists in spite of some inherent dangers from uncontrolled judicial activism voiced at times seeking judicial restraint as an internal check. This warning is timely.
It is self-restraint with constant awareness of the inherent limitations of the judiciary which alone can act as an effective check on a strong judiciary in the role of the final arbiter. The caution needed is even greater when the judicial activism is in a matter of self-interest to the judiciary resulting in grant of a benefit to itself. In all such matters, if the circumstances permit, the option of leaving the matter to any other competent branch must always be kept in view, and examined first.
This realisation for self-restraint led to the note of caution in the second Judges case3 which upheld the primacy of the judiciary in the matters of appointments and transfer of Judges. It was observed:
"O, it is excellent
To have a gaint's strength;
but it is tyrannous
To use it like a giant."
(Shakespeare in Measure for Measure)
With the expanded role of the judiciary as a result of judicial activism the need to keep a balance is one of the major imperatives for the proper performance of the Judges' task. Practice of self-restraint constantly is essential. Edmond Burke said:
"All persons possessing a position of power ought to be strongly and awfully impressed with an idea that they act in trust and are to account for their conduct in that trust to the one great Master, Author and Founder of Society."
A similar note of caution is to be found in Shrilekha Vidyarthi (Km) v. State of U.P.4
"...Every holder of a public office by virtue of which he acts on behalf of the State or public body is ultimately accountable to the people in whom the sovereignty vests. As such, all powers so vested in him are meant to be exercised for public good and promoting the public interest...."
More recently in Abani Kanta Ray v. State of Orissa5, the norms of judicial propriety and restraint needed in discharge of judicial functions were indicated as under:
"What we have said above is nothing new and is only a reiteration of the established norms of judicial propriety and restraint expected from everyone discharging judicial functions. Use of intemperate language or making disparaging remarks against anyone unless that be the requirement for deciding the case, is inconsistent with judicial behaviour. Written words in judicial orders form permanent record which make it even more necessary to practise self-restraint in exercise of judicial power while making written orders. It is helpful to recall this facet to remind ourselves and avoid pitfalls arising even from provocation at times."
In another recent decision in State of Assam v. P.C. Mishra6, the requirement of restraint in exercise of power was emphasised thus:
"It is incumbent for each occupant of every high office to be constantly aware that the power invested in the high office he holds is meant to be exercised in public interest and only for public good, and that it is not meant to be used for any personal benefit or merely to elevate the personal status of the current holder of that office. Constant awareness of the nature of this power and the purpose for which it is meant would prevent situations leading to clash of egos and the resultant fall out is detrimental to public interest."
A similar significant reminder in the present context is contained in P.K. Ghosh v. J.G. Rajput7
"A basic postulate of the rule of law is that 'justice should not only be done but it must also be seen to be done' ... Credibility in the functioning of the justice delivery system and the reasonable perception of the affected parties are relevant considerations to ensure the continuance of public confidence in the credibility and impartiality of the judiciary. This is necessary not only for doing justice but also for ensuring that justice is seen to be done."
Justice H.R. Khanna in a recent article on "Judicial Activism" (The Hindu dated 28-9-1995) has indicated the duty of a Judge and the source of strength of the law courts. He said:
"A Judge like Epictetus, it has been aptly put, must recognise the impropriety of being emotionally affected by what is not under one's control. The courts, it is also pointed out, have to be much more circumspect in seeing that they do not overstep the limits of their powers because to them is assigned the function of being the guardian of the Constitution. It is a faith and trust reposed by the framers of the Constitution in the courts and their position in this respect is akin to that of a trustee. When the other agencies or wings of the State overstep their limits, the aggrieved parties can always approach the courts and seek redress against such transgression.
When, however, the courts themselves are guilty of such transgression, to which forum would the aggrieved parties appeal?
The courts have, I submit, to earn reverence through the test of truth...."
Lord Denning, long back in R. v. Metropolitan Police Commr.8, administered this caution to the Judges in a contempt matter even after reaching the conclusion that certain facts on which the statement of the contemner was based were incorrect. He said:
"...It is a jurisdiction which undoubtedly belongs to us, but which we will most sparingly exercise: more particularly as we ourselves have an interest in the matter. Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication. Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what we believe is right; nor, I would add, from saying what the occasion requires provided that it is pertinent to the matter in hand. Silence is not an option when things are ill done."
It is in this manner, the Supreme Court of India has understood and indicated the nature of the power to punish for contempt of court over the years. For obvious reasons this is an area of latent danger. The virtue of humility in the Judges, a constant awareness that the investment of this power is meant for use in public interest and to uphold the majesty of rule of law and not in self-interest, and the realisation that Judges are not infallible even if final, would ensure the requisite self-restraint in discharge of all judicial functions.
The results achieved are better, if the objective is clear and there are guidelines to regulate performance of the task. It is, therefore, helpful to bear in mind the qualities and traits expected in a Judge. That would help to regulate the behaviour pattern and to achieve uniformity. The basic traits needed in the Judges at all levels in the hierarchy are the same, but standard at the higher levels must be stricter. It would help to recall the qualities expected in a Judge.
The Allahabad High Court Post-Centenary Silver Jubilee Commemoration Volume at the beginning indicates these traits in a quotation from the ancient texts, as under:
Let the King appoint, as members of the Courts of Justice, honourable men of proven integrity, who are able to bear the burden of administration of Justice and who are well versed in the sacred laws, rules of prudence, who are noble and impartial towards friends or foes.
If we bear in mind the fact that dispensation of justice is a divine function and it is not given to any human being to sit in judgment over his fellow men, it is easy to appreciate that a Judge must constantly strive to acquire and possess these virtues to qualify to discharge judicial functions. These traits in the personality of a Judge must be reflected in his entire behaviour. Tudor Kings believed in the divine right of kingship, but without the corresponding accountability. British History bears testimony to the grief which came to the Tudor Kings.
A Judge is always a Judge and he cannot have a split personality with different traits at different times. All actions of a Judge must be judicious in character. A dichotomy in the nature of functions performed by a Judge is impermissible for this purpose.
David Pannik in Judges, in his conclusion states:
"The qualities desired of a Judge can be simply stated: 'that he be a good one and that he be thought to be so'. Such credentials are not easily acquired. The Judge needs to have 'the strength to put an end to injustice' and 'the faculties that are demanded of the historian and the philosopher and the prophet'.
... Because the judiciary has such a central role in the Government of society, we should (in the words of Justice Oliver Wendell Holmes) 'wash ... with cynical acid' this aspect of public life. Unless and until we treat Judges as fallible human beings whose official conduct is subject to the same critical analysis as that of other organs of Government, Judges will remain members of a priesthood who have great powers over the rest of the community, but who are otherwise isolated from them and misunderstood by them, to their mutual disadvantage."
It is interesting to note that a younger nation like Tanzania has a "Code of Conduct for Judiciary Officers"; and the violation of any of the rules in the Code constitutes judicial misconduct or misbehaviour. Omitting the details, some significant extracts from the rules are:
RULE l
A Judicial Officer should avoid impropriety and the appearance of impropriety in all his activities.
RULE 2
B. ADMINISTRATIVE DUTIES
4. In the exercise of his administrative duties, a Judicial Officer should avoid nepotism and favouritism.
C. DISQUALIFICATION
1. A Judicial Officer should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to the instances where:
(a) he has a personal bias or prejudice concerning a party or personal knowledge of facts in dispute;
(b) he served as a lawyer in the matter in controversy, or a lawyer with whom he previously practised law served during such association as a lawyer concerning the matter or the Judicial Officer or such lawyer has been a material witness in the matter.
RULE 4
A Judicial Officer should regulate his extrajudicial activities to minimise the risk of conflict with his Judicial Duties
(Commonwealth Law Bulletin, Vol. 19, No. 1, January 1993, pages 330-33)
This awareness for the independence of judiciary in a younger nation is worth mention. The modern trend is to provide for judicial accountability in some form. It is best done as an internal measure to conform to independence of judiciary.
The existence of power must be accompanied by accountability. The accountability of the Judges is to the people in whom the ultimate sovereignty vests. It is, therefore, imperative to retain public confidence which is the real source of strength of the judiciary. Erosion of credibility in the public mind resulting from any internal danger is the greatest latent threat to the independence of judiciary. Eternal vigilance to guard against any latent internal danger is necessary, lest we suffer from self-inflicted mortal wounds.
It is legitimate for the people of India to expect from us a behaviourial pattern satisfying at least that standard which we set down for anyone else to follow. This is because we have been placed by them on the highest pedestal. We must justify that position in the society.
Some recent trends have been disturbing. Many matters involving allegations of judicial misbehaviour have come to the Supreme Court for judicial determination. The merit of the allegations made, and the points raised are not of importance, in this context. The significance lies in the fact that such controversies have arisen. One question relates to the applicability of the Prevention of Corruption Act to the superior Judges. The view that there is need for codified rules and norms to regulate the behaviour of Judges with the provision of sanction for its enforcement, is itself sufficient to caution us, and to commend self introspection. The felt need for some mechanism of internal check against possible aberrations is voiced so often that it cannot be ignored. The expansion of judicial power emphasises greater need for the internal check. In a recent decision in C. Ravichandran Iyer v. Justice A.M. Bhattacharjee9, the Supreme Court has reiterated the high standard of moral and ethical behaviour expected from a Judge, and the desirability of a suitable 'in-house procedure' to maintain discipline among Judges by self-regulation.
Another latent danger to guard against is the consequence of mounting arrears in the Law Courts. Unless corrective measures are taken expeditiously by each one of us, the malady would progressively degenerate the Justice Delivery System and erode our credibility. The malady has already given rise to resort to extra-legal remedies by many, and frustration in others with a feeling that the promise of justice to all is a mirage on account of law's delays. We must act fast lest we tend to become irrelevant. If that happens, there would be no Rule of Law and without Rule of Law, Democracy cannot survive.
Some of the remedial measures which can be taken with the available infrastructure and require only the zeal to perform our duty with true devotion, are:
— Full utilisation of the court working hours.
— Avoid absenteeism except for an unavoidable good cause. Provision of vacations is for this reason.
— Curb frivolous litigation by proper check at entry and quick disposal. Remember, delay breeds frivolous litigation.
— Identify and eliminate artificial arrears.
— Encourage ADR.
Failure to do so may be construed as lack of devotion to duty. A standard higher than that applied to control the subordinate judiciary under Article 235 is expected to be followed by the superior Judges.
The facts must be faced and a proper solution found. Exhibition of the ostrich syndrome towards reality is not a solution but escapism. The absence of any codified rules or norms to regulate judicial behaviour at the higher levels has been on account of the view that those entrusted with the task of regulating the conduct and behaviour of others do not need to be told of the requirement from them. However, if we fail in living up to that expectation, it should not be surprising if in the near future there is move by an outside agency to step in and provide a solution to the felt need. If the people reach that conclusion, some other solution will have to be found under the constitutional framework. In that event, the blame would lie squarely on us. The need for the hour, therefore, is to realise this clear and present danger as an imminent threat to the independence of judiciary from within. A danger from within is destructive like a termite which eats into the vitals. In my view, there is no time to lose and we must act promptly.
Observance by us of the norms and guidelines indicated for the members of the Judiciary by the ancient texts and in the judicial verdicts is a sure way to prevent any threat from the lurking latent dangers from within. It would also satisfy the legitimate expectation of the people of our accountability which must accompany the investment of any public power. In addition, this would also provide the justification for the superior role assigned to the judiciary and acquired by judicial activism, which is the sanction for the standards laid down by us for the others to follow.
Responsibility for proper Administration of Justice is to be shared by the Bench and the Bar. Both belong to the legal fraternity and Bar is the source of supply for the Bench. Requirements from members of the legal fraternity are the same. However, the requirements are higher for a Judge. Expectation of the standard of behaviour from members of the Bar is voiced quite often. To complete the process it is necessary that the higher standard of values required in the Judges is also voiced to indicate that we are not oblivious to it. This need is greater at a time when the public perception is growing that the judiciary is acquiring greater power with no accountability at the higher level. This impression must be dispelled.
It is in the fitness of things that a Judge, while in office and himself accountable by the same yardstick gives this reminder. It is in this spirit, in all humility, as the longest serving sitting Judge, I consider it my duty and obligation to remind ourselves of what is the expectation from us of the people, to whom we are accountable. An appropriate occasion to remind ourselves of this obligation is the Inaugural Lecture in the memory of Justice Goswami, who first recorded judicially a warning to be vigilant against the lurking latent internal dangers. I am sure, this is a fitting tribute to the memory of Justice P.K. Goswami.
- (1977) 3 SCC 592: (1978) 1 SCR 1
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- 1981 Supp SCC 87: (1982) 2 SCR 365
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- (1993) 4 SCC 441
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- (1991)1 SCC 212
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- 1995 Supp (4) SCC 169
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- 1995 Supp (4) SCC 139
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- (1995) 6 SCC 744
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- (1968) 2 All ER 319
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- (1995) 5 SCC 457
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