The ultimate guarantee for upholding constitutional values and enforcing constitutional limitations and the rights of the people is the personality and intellectual integrity of judges. Constitutional guarantees are futile unless they are enforced by judges of ability and integrity who can withstand pressures from all quarters, within and without. When the executive errs or misbehaves or the legislature exceeds the bounds of its authority as set by the Constitution, the court steps in and by the exercise of power of judicial review, strikes down the aberration or excess. But when judges discard good conduct or are accused of corruption and delinquency what is the remedy? If the salt has lost its savour, wherewith can it be salted?
Once appointed, judges enjoy a measure of immunity that their misconduct, deviance and other vices both on and off the Bench remain irremediable except by the constitutional procedure for removal which is extremely long-winded and more often than not, a political process and fails to produce the desired result. It is necessary to ensure that once the process for removal of a judge is set in motion, he is not allotted any judicial work and he is not permitted to resign and mock the constitutional process. Arts. 124 & 217 would have to be suitably amended for this purpose.
Judicial functioning and accountability is an area which needs to be addressed seriously. What is needed is a comprehensive National Judicial Commission, the details of which are to be worked out. In the final analysis, the Commission will be as good as those who work it. The right to comment and criticise judgments as also the conduct and behaviour of judges is an indispensable part of the accountability process. Criticism, fair criticism of the judiciary and the judges is neither dangerous nor undesirable. It will not damage the Rule of Law; it may by identifying the defects in the legal system, promote the cause of justice. As the Salmon Committee put it, ‘the right to criticise judges… may be one of the safeguards which helps to ensure their high standards of performance.’
The power to punish for contempt is a safeguard not for judges as persons, but for the functions which they exercise, said Justice Frankfurter. The distinction between libel and slander of a judge and contempt of court as such must be kept clear. Professor Goodhart’s remark approved by the Supreme Court bears repetition: “Scandalising the courts means any hostile criticism of the judge as a judge; any personal attack upon him, unconnected with the office he holds, is dealt with under the ordinary law of slander and libel.” As Justice Albe Sachs of the South African Constitutional Court said, “If respect for the judiciary is to be regarded as integral to the maintenance of the rule of law … such respect will be spontaneous, enduring and real to the degree that it is earned, rather to the extent that it is commanded.”
It is better that judges adhere to the wise counsel of Lord Denning that the court was willing to ‘rely on our own conduct itself to be its own vindication’ and allow the public to assess whether the criticism has any justification.
For, public confidence in the judiciary is not strengthened by the deterrence of criticism. As David Pannick rightly observes, “Even if criticism of the court could have an effect on a judge’s action, the offence of scandalising the judiciary should be abolished. Like other public servants, judges should accept criticism as an occupational hazard… because the judiciary enjoys a security of tenure rightly denied to politicians and unique among public servants, it is especially important that the judges should be subject to free and open criticism of the performance of their duties.” There can be nothing wrong or objectionable in discussing, commenting on and assessing a judge’s ability, performance and reputation. Unless and until this is done all talk about a great and independent judiciary is meaningless.
If the conduct, behaviour and performance of Presidents, Prime Ministers and a host of persons at different levels in various fields can be commented on and criticised, there is no reason why the performance of judges and their conduct on and off the Bench cannot be. It ill-befits judges functioning under the Constitution and law to claim such immunity.
The ‘dubious and controversial’ scandalizing the Court of illegitimate ancestry and the Judges (Protection) Act, 1985 should be done away with. The entire law of criminal contempt is shrouded in uncertainty, its definition itself being vague. While one can accept the constraints imposed by the rule of law, it is difficult to appreciate and accept ad hoc rules imposed as per the whims, vagaries and idiosyncrasies of individual judges. That is the very antithesis of the rule of law. All this is anachronistic and out of tune with the constitutional democratic ethos.
One can do no better than refer to David Pannick and Judge Jerome Frank. The judiciary is not the ‘least dangerous branch’ of government. Judges are not mere ‘lions under the throne.’ They send people to the prison and decide the scope and application of all manner of rights and duties with important consequences for individuals and for society. 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.
Some politicians, and a few jurists, urge that it is unwise or even dangerous to tell the truth about the judiciary. Judge Jerome Frank of the US Court of Appeals sensibly explained that he had “little patience with, or respect for, that suggestion. I am unable to conceive… that, in a democracy, it can ever be unwise to acquaint the public with the truth about the workings of any branch of government. It is wholly undemocratic to treat the public as children who are unable to accept the inescapable shortcomings of man-made institutions. The best way to bring about the elimination of those shortcomings of our judicial system which are capable of being eliminated is to have all our citizens informed as to how that system now functions. It is a mistake, therefore, to try to establish and maintain, through ignorance, public esteem for our courts.”
Chief Justice Warren Burger sagely warned, “A court which is final and unreviewable needs more careful scrutiny than any other. Unreviewable power is the most likely to self indulge itself and the least likely to engage in dispassionate self analysis…. In a country like ours, no public institution, or the people who operate it, can be above public debate.” The wise admonition that a judge must be seen and heard only in court and not elsewhere seems to have been forgotten. Lord Chief Justice Widgery advised, “Judges should not court publicity and certainly should not do their work in such a way as to ‘catch the eye of the newsman’ and the best judge is the man who is least known to the readers of The Daily Mail.”
(To be continued on the India page on Sunday)
The author is a lawyer specialising in Constitutional law. E-mail: vsudhishpai@gmail.com