Talking judges - A.G. NOORANI - Frontline.in

Talking judges - A.G. NOORANI - Frontline.in 

On the comments that judges make and the language they use.

“ Patience and gravity of hearing is an essential part of justice; and an overspeaking judge is no well-tuned cymbal.”

– Francis Bacon's Essays (Of Judicature).

THERE is no precedent in the entire annals of India's judiciary for the anguished statement issued, on January 23, by members of civil society across the country. They took strong exception to the Supreme Court's observation that “though Graham Staines and his two minor sons were burnt to death while they were sleeping inside a station wagon at Manoharpur, the intention was to teach a lesson to Graham Staines about his religious activities, namely, converting poor tribals to Christianity”.

The Bench, which comprised Justices P. Sathasivam and B.S. Chauhan, went on profusely to denounce conversions. As H.M. Seervai's work on Constitutional Law of India (Volume II, pages 1,286-1,290) records, the Supreme Court has been uneasy about Article 25, which embodies the fundamental right “freely to profess, practice and propagate religion”. One wonders if the murder of Graham's sons, Philip and Timothy, aged 9 and 6 respectively, was also a part of the educational effect by their killers.

The crime was perpetrated on the night of January 22-23, 1999, in the Keonjhar district of Orissa. President K.R. Narayanan said on January 24, 1999, that it “belonged to the world's inventory of black deeds”. The very next day Home Minister L.K. Advani gave a clean chit to the Bajrang Dal, which was widely blamed for the outrage. “I have known those organisations for a long time and they do not have criminal tendencies,” he said. The Bajrang Dal was his praetorian guard as he spread communal poison during his rath yatra in 1990. The Orissa government's probe conducted by an IAS Officer, Ranglal Jamuda, found that “Dara Singh [the main suspect] is a strong activist of the BJP”. Three Ministers of the BJP-led government – George Fernandes, Naveen Patnaik and Murli Manohar Joshi – went to Keonjhar on January 27, 1999, and came away pleased. “There does not seem to be any motive. I have known them for a long time,” Advani gratuitously and confidently added. On this point, the court has proved him wrong.

That was not all. Justice D.P. Wadhwa of the Supreme Court was appointed on a Commission of Inquiry into the crime. His report was a whitewash. He even brushed aside the labours of counsel for the Commission, Gopal Subramaniam (vide Wadhwa Commission Report: A Critique edited by Dr. M.P. Raju, Media House, Delhi). The Supreme Court could not have been unaware of the horror the crime had aroused and the disquiet over the behaviour of the BJP-led Government of India and one of its own judges. If its judgment of January 21, 2011, aroused unprecedented criticism, its response to it was little better. On January 25 the offensive paragraph was dropped to be replaced by another; in each case to justify the award of a life sentence rather than a death sentence. It read: “However more than 12 years have elapsed since the act was committed, we are of the opinion that the life sentence awarded by the High Court need not be enhanced in view of the factual position discussed in the earlier paragraphs.”

The paragraph about “interfering in someone's belief by the use of force… conversion… upon the flawed premise that one religion is better than the other” was replaced with these lines: “There is no justification for interfering in someone's religious belief by any means.” By this logic the entire media are constantly “interfering” with the beliefs of readers or viewers – on matters political, economic, social. One is reminded of the remark of a semi-literate politician in Mumbai who told Warren Unna of The Washington Post that he did not read books because he did not wish to “mix” his thoughts with those of others.

Compare this leniency with excess in another case. Common to both is intemperate but very revealing language. In the case of Afzal Guru, the Supreme Court, while confirming the death sentence on August 4, 2005, made remarks which were repugnant to good sense and unworthy of judicial temper.

Justices P. Venkatarama Reddy and P.P. Naolekar said:

“The incident, which resulted in heavy casualties, had shaken the entire nation, and the collective conscience of the society will only be satisfied if capital punishment is awarded to the offender. The challenge to the unity, integrity and sovereignty of India by these acts of terrorists and conspirators can only be compensated by giving maximum punishment to the person who is proved to be the conspirator in this treacherous act. The appellant, who is a surrendered militant and who was bent upon repeating the acts of treason against the nation, is a menace to the society and his life should become extinct” ( State (NCT) of Delhi vs Navjot Sandhu (2005) 11 Supreme Court Cases 600 at page 760). The Nuremberg Tribunal used more dignified words in its pronouncement on the Nazis. There are three particularly disturbing aspects in the Supreme Court's pronouncements. First, its consistently illiberal position in certain recognised categories of cases illustrated by these two and on the Terrorist and Disruptive Activities (Prevention) Act (TADA), the Prevention of Terrorism Act (POTA) and the Armed Forces Special Powers Act, 1958. Secondly, it deploys florid rhetoric, reflective of patriotic zeal, while giving short shrift to the citizen's rights. Justice E.S. Venkataramaiah waxed eloquent, quoting Abraham Lincoln, while refusing even to entertain H.S. Longowal's habeas corpus petition.

Lastly, besides usurping powers which do not belong to the judicial office – on which a thorough expose is overdue – judges of the Supreme Court feel themselves free and utterly unrestrained in their off-the-cuff remarks on everyone else – lawyers, legislators, authorities, almost anyone. The press is slow to respond. It meekly submitted to an oral order, made without jurisdiction, that the remarks should be attributed to “the Bench” not to the individual judge. “The Bench”, however, speaks only through its judgment. It is the individual judge who shoots his mouth off.

The court cites English law, but in England the law and practice would have nipped this tendency in the bud. In an article entitled “In Contempt, and with reason” in The Times of February 7, 1991 – before it degenerated into a squalid tabloid – Bernard Levin wrote on “the arrogance of the judges” and asserted that “public confidence in the judicial system collapsed completely because of the judges”. (Italics here as in the original.)

When a highly respected judge like Lord Justice Salmon made some comments on the celebrated journalist David Frost, he hit back with a letter in The Times of July 18, 1968, which ended with this censure: “Tirade without trial by Judge is becoming a somewhat more prominent part of our national life”.

Is there any, but any, apex court, anywhere in the world, whose judges display bad temper with repeated acts of “outburst”, “pulling up” and the like? The media has not only a right but a duty to report them. When they are reported, judges squirm with embarrassment and complain of the report, not unlike the manner politicians do.

On December 13, 2010, said a report in The Times of India the next day, “A bench comprising Justices G.S. Singhvi and A.K. Ganguly said it had mentioned about a senior official in the Union government saying the Radia tape disclosures were the ‘tip of the iceberg' during the hearing relating to a petition on 2G spectrum scam.

“When I got back home, my wife asked what order had we passed? I found that TV was reporting “SC raps home secretary”. What is this rap? We had just inquired whether the transcription of all the tapes had happened or not,” said Justice Singhvi.

The Bench said, “We are finding distorted reporting of court proceedings. We will make it clear – do not take the risk of being hauled up. We make it very very clear – nobody will be allowed to play with court proceedings. There are exchange of views, they do not constitute court proceedings.” That “exchange of views” in open court is not a private affair like deliberations in the judge's chambers. They are a public proceeding that the press has a right to report. Cases of serious or wilful distortion are another matter. The threat “do not take the risk of being hauled up” was unjustified.

On August 7, 1995, Justice J.S. Verma indicated that, not content with the constitutional limits to the fundamental right to freedom of speech [Article 19(1)(a)], listed in clause (2), the court might itself lay down additional limits in Article 19(1)(a). “The time has come for this court to lay down some inherent limitation in clause (1) itself so that something obnoxious which is not contemplated under the guaranteed freedom and content of clause (1) itself excludes such situations” ( The Hindu, August 1995 – PTI). Fortunately, this was not attributed to the Bench. Of course, the court has no such power to amend the Constitution. But what Justice Verma “contemplated” speaks a lot for his judicial outlook. The court is touchy in the extreme as its judgment in the Arundhati Roy case showed. On another occasion, on May 2, 2008, Chief Justice K.G. Balakrishnan said: “We are always at the receiving end.” The metaphor has sadly come true for him, personally, in recent days.

Lacking in restraint

What is lacking, even when censure or criticism is due, is a lack of restraint and, at times, even of good sense or good taste. Justice Markandey Katju was once a judge of the Allahabad High Court. On November 26, 2010, he said in the course of a judgment: “Something is rotten in the Allahabad High Court.” Justice Gyan Sudha Misra was another member of the Bench. A Full Court of the Allahabad High Court applied for expunction of the remark.

The issue is not the existence of the rot but the appropriateness of the judge's remarks. The Bench said: “We are sorry to say but a lot of complaints are coming against certain judges of the High Court relating to their integrity. Some judges have their kith and kin practising in the same court, and within a few years of [their] starting practice, the sons or relations become multimillionaires, have huge bank balances, luxurious cars, huge houses and are enjoying a luxurious life. This is a far cry from the days when the sons and other relatives of judges could derive no benefit from their relationship and had to struggle at the Bar like any other lawyer.”

The Bench added: “There are also other serious complaints against some judges. The High Court really needs some house cleaning [both the Allahabad and Lucknow Benches], and we request the Chief Justice of the High Court to do the needful, even if he has to take some strong measures, including recommending transfer of the incorrigibles” ( The Hindu, December 9).

There are mechanisms to deal with these matters and if they are inadequate it is because successive Chief Justices of India and the court have impeded reform. When the High Court's application came up for hearing, Justice Markandey Katju told its counsel: “I know about the Allahabad High Court 100 times more than what you know.”

This personal comment in sheer bad taste was followed by an order on December 10, 2010, which read thus: “One of us [Justice Katju] has close attachment to the AHC as his family has been associated with the High Court for over a century. It is, therefore, inconceivable that he would like to damage the High Court in any way. However, what has caused great pain and anguish to us are certain unfortunate happenings for some time in the AHC. It is not necessary to mention all of them here, but reference can certainly be made to certain distressing orders passed during the summer vacation by certain judges this year, one of which pertains to this very case.”

Referring to the submission that the observations “we have made in our [November 26] order seriously damage the reputation of the institution” and sully its image, the Bench said: “The reputation of an institution is damaged and its image sullied when some of its members pass shocking orders and behave in a totally unacceptable manner. We can quite appreciate the anguish of some of the learned judges of the Allahabad High Court, but we cannot overlook the fact that there are times when introspection is required, and not mere reaction. We earnestly request the judges of the High Court to consider our order in that spirit. We again reiterate that there are many excellent judges in the AHC who are working hard and doing their duty honestly, and we have not tarred everyone with the same brush” ( The Hindu, December 11).

The judge's “attachment” and “pain” cannot warrant his use of intemperate and sweeping censure of an apex court of a State. What confidence can it command hereafter from the lower courts and the public at large in Uttar Pradesh and nationally? Introspection is not counselled thus. It is the Supreme Court judges who should do some introspection on the language they use and, certainly, on their encroachments into the legislative and executive spheres. No judge has any right to import his personal knowledge into a case. Neither Justice Katju's pain and attachment nor his family's 100-year-old association with the court can justify the sweeping remarks he made.To Justice Arijit Pasayat a terrorist “is not fit to be called a human. He's an animal, so what is required is animal rights” ( Indian Express, January 28, 2009). No judge has any right to use such language at all.

On August 5, 2008, Justice B.N. Agarwal of the Supreme Court said: “The whole government machinery is corrupt, whether at the Centre or in the States. They [senior officials] don't apply their mind, rather they don't have a mind. They don't have guts to differ with the opinion of the clerks.” When Justice Singhvi intervened to say, “God alone will have to help this country”, Justice Agarwal said: “Even God will not be able to help this country. God is a mute spectator as he also feels helpless. Our country's character has gone. We are helpless” ( The Hindu, August 6, 2008).

On August 7, 2008, the same judge, Justice B.N. Agarwal, told a senior counsel like Shanti Bhushan: “You are not behaving like a lawyer. You are arguing like a street urchin” ( Indian Express, August 8, 2008). What are we coming to? Can you imagine such language and behaviour by judges in any other country? And that in an apex court.

On August 8, 2008, a “Bench” of the Supreme Court, comprising Justices B.N. Agarwal and C.S. Singhvi, said: “In this country you need huntering (sic) to make you work.” We do not know who said that for the PTI report in The Tribune, said “the Bench”. By “huntering” the judge presumably meant flogging. The provocation? The failure by the police and other officials to respond to notices on policemen who do not register first information reports (FIRs). “Is this Ram rajya in this country…. So this is swaraj. This is the concept of swaraj.”

On January 5, 2007, “the Bench” objected to Additional Solicitor General Vikas Singh's perfectly legitimate plea that its orders in the “forest matter” violated statutes. Whether it was justified or not is not relevant. He had every right to make such a submission. The Bench comprised CJI Y.K. Sabharwal and Justices Arijit Pasayat and S.H. Kapadia. We do not know but can only guess which of them said that counsel spoke “with utmost irresponsibility. Don't repeat what you are saying. It is blasphemous (sic) on your part to say this. Don't utter words that we are not respecting other institutions. You are trying to create an impression that the court was doing beyond what was permissible under the Constitution. We take strong exception to what you are saying which is nothing but contempt.” That is an astounding proposition. It is not contempt of court. The threat was an idle one.

Unperturbed, the ASG said: “You cannot gag me like this by saying it is contempt. The Central government has its own responsibility. What we have done is not less than what the Supreme Court has done. Hear me on this. I will satisfy you how the court had passed several orders contrary to the statutes” ( The Hindu, January 6, 2007).

This tendency to make intemperate remarks is of a piece with the trend of usurpation of power. On October 16, 2006, a Bench comprising Justices Arijit Pasayat and Lokeshwar Singh Panta went so far as to “request Parliament not to take any final decision on the Bill (introduced on August 24 on reservations in educational institutions) without our examining the matter” ( The Hindu, October 17, 2006). Even a lay person knows that courts can rule on a law only after it is enacted. The order had to be modified on October 17 after strong public criticism. A Bench comprising Y.K. Sabharwal, A.R. Lakshmanan and L.K. Thakkar once asked the Centre to file a status report on the Lok Pal Bill – a clear intrusion into the legislative realm. The trend had begun much earlier but was ignored. On June 7, 1985, Mrs Justice Padma Khastagir of the Calcutta High Court made remarks against the highly respected leader of the Bar, the Advocate-General of West Bengal, S.N. Acharya: “The reprehensible part played by the Advocate-General… has not only lowered the position of the Advocate-General but also been derogatory to the reputation of the High Court.” He was alleged to have appeared in a case without authority. Only four days later, a Division Bench of the same court ordered expunction of the remarks. Whose prestige suffered as a result?

Of strictures and dignity

But what is one to make of remarks by men sitting on the Bench, which are intemperate, sweeping and utterly uncalled for? Whether made in the course of the hearing or at the end of it in the judgment, they serve only to affect the dignity of the judicial office. On the other hand, a stricture that is measured and necessary enhances the dignity and authority of the court and of the judge, personally.

In 1985 a defamation case was filed by Rahul Bedi and one of the country's most distinguished academics, Ashis Nandy, against a judge of the Delhi High Court, Justice Yogeshwar Dayal. In February 1985 the judge had presided over a Division Bench with Justice B.N. Kirpal to hear a writ petition seeking an inquiry into the disturbances in New Delhi in 1984 after Indira Gandhi's assassination. In the course of proceedings, the famous PUCL-PUDR report entitled “Who are the guilty?” was cited. It had been prepared ably by journalists and academics.

On February 6, 1985, Justice Yogeshwar Dayal characterised journalists as “wretched”, adding that “professors are worse”. For good measure he said, “civil liberties organisations serve no purpose”. On February 18, the Press Association of Delhi censured the judge for his remarks as being “grossly unfair and unjust to the journalistic community”. The censure was perfectly justified.

On April 2, 1940, one of the most prestigious journals carried a strong criticism of sweeping judicial pronouncements by one of the most distinguished men we have ever known. The journal was Harijan. The writer was Gandhi. Two English judges of the Allahabad High Court had, while criticising the testimony of some witnesses, spoken of “the slight value placed upon truth in this country”.

Gandhi's strictures were justified. “This is an extraordinary pronouncement from a bench of judges. What legal basis had these two judges for the sweeping statement made by them as to the character of a whole nation? The inference is that in other countries a higher value is placed upon truth…. They can never be proved. But when they are made by judges they vitiate their judgments and may lead to miscarriage of justice. Be it noted that the Allahabad judges have made use of their bias in coming to their decision and have thus proved their incapacity to hold 

responsible posts.”

Postscript: Sample this, the latest in the series. On January 25, 2011, a Bench of Justices G.S. Singhvi and Asok Kumar Ganguly said: “Governments give crores to cricketers. They are garlanded and given plots. But look at the plight of A.K. Hangal. He doesn't have enough money to pay his medical bills.” ( The Telegraph, January 26.) Is the court a court of law or a monitor of executive behaviour in the realm of executive discretion ?