Justice Ruma Pal, former judge of the Supreme Court in a recent hard-hitting lecture in Delhi, listed seven sins which plague the higher judiciary. The first is brushing things under the carpet and turning a blind eye to the injudicious conduct of a colleague, instead of confronting him or her. Worse is suppressing any public discussion on the issue, often through “the great silencer, the Law of Contempt”. The second sin according to Justice Ruma Pal is hypocrisy. Judges who pompously proclaim: “Be you ever so high, the law is above you”, often break with impunity laws, which include inter alia traffic regulations. Some, in fact, get offended if their cars are held up by the police while controlling the flow of traffic and the offence is translated into action by issuance of a rule of contempt against the hapless police constable, all in the name of judicial independence. Another sin is secrecy. The process by which a judge is appointed to the High Court or elevated to the Supreme Court is “one of the best kept secrets in the country”. A further sin is equating judicial independence with judicial indiscipline, which stems from judicial arrogance as to one’s intellectual ability and status. A judge’s status, like other holders of public posts, is derived from an office or chair, she pointed out. The cardinal sin is not maintaining a degree of aloofness, not only vis-a-vis litigants, but also vis-a-vis lawyers. Litigants include the Executive. Justice Pal’s examples of injudicious conduct include judges using the guest house of a private company or a public sector undertaking for a holiday, or accepting benefits like the allocation of land from the discretionary quota of a Chief Minister. She emphasised that nothing destroys a judge’s credibility more than a perception that he/she decides, according to closeness to one of the parties in the litigation, or what has come to be described in the corridors of courts as ‘face value’.
Remember, public perceptions can’t be brushed aside, because public confidence is the bedrock of judicial independence. Goodness gracious! If Justice Pal’s list of sins is accurate, judges require a good dip in the Ganges.
Facets of Judicial Independence: Judicial independence has many dimensions. An important one is that the judge should be independent of himself or herself. Justice Hugo Black of the US Supreme Court frankly confessed that judges “remain human even after assuming their judicial duties. Like all the rest of mankind they may be affected from time to time by pride and passion.” The real test of judicial independence lies in the judge overcoming his personal beliefs, preferences, preconceptions and predilections, by neutralising them when deciding a particular case.
It is a notorious fact that a former judge of the Supreme Court, who had undoubted integrity and was fearless about the consequences of his judgment, regrettably had a particular mindset which he was not independent enough to overcome. Therefore a landlord, however strong his case might have been was always in the wrong, while the tenant with a hopeless case was always right. This betrayed deplorable lack of judicial independence.
According to the late Lord Bingham, “It is inherent in the independence of judges that they should be independent of each other”. We were recently told by an eminent former judge of the Supreme Court, that he concurred with the majority in its shameful decision in ADM Jabalpur, which held that during emergency, even a proven malafide order of detention cannot be challenged in court. The reason given is that he was new to the court, and was persuaded by more senior judges. What an abject confession of lack of judicial independence. Our freedoms will not be safe if judges with such mindsets are appointed to the Supreme Court, which is expected to be a vigilant sentinel for the protection of the fundamental rights of our people.
The opinions expressed in this column are the author’s own