The Constitution belongs to the people of India. The courts also belong to the people. Courts are human institutions as any other institution. The other institutions may survive by the power of purse and sword. Not the courts. Courts survive on the strength of public trust and confidence. Public trust is generated by the role that the judges play. The judicial culture is; justice must be done even if the heavens may fall. Upon taking the judicial office, judges take oath. Oath to do justice. Without fear or favour. Affection or ill will.
How to be a good judge? Whether there are bad judges also! To describe any judge, to be a bad judge, will it not amount to contempt of court? How do we avoid this description? My prescription is, be a good judge. Automatically, you would avoid being a bad judge. Therefore, the challenge is, how to be a good judge. Outside the Chief Justice Court (Court No. 52) of Bombay High Court, there is white marble statue of Justice M.C. Chagla. Justice Chagla was Chief Justice of Bombay High Court from 1947 to 1958. Justice Chagla knew the law. Intellectually strong. Equally strong common-sense. Yet, he was humility wrapped in humanity. In court and outside court. This is the real strength of a Judge.
It is said that the best judge is one whose name is not known to the people. Lord Atkinson (Law Lord from 1905-1928) was an extreme example. He wrote nothing outside his judicial pronouncements. He had no children. No friends. He left no information about himself. The office of Lord Chancellor found it difficult to trace his wife to pay the pension. This was the position a century back. Moreover, it was an exception. It would not be correct to say that a judge must limit himself/herself to the writing of only orders and judgments. I wish to cite two examples of Justice V.R. Krishna Iyer and Lord Denning. Both belong to the 20th century. Justice Iyer lived for almost a century. Lord Denning even a little beyond the century. Both were globally known. For their judgments. For their extra-judicial writings. Both wrote books. Delivered memorial and public lectures. Both are known for rich and huge contribution to legal literature and jurisprudence. Therefore, it would be a myth to say that a judge should not be known to the public. Good judges continue to contribute throughout their life journey. This builds up public trust in the judicial institution.
Judicial independence and judicial culture are inter-woven. Whatever may be the system of Government. The Government changes. The Constitution continues to be the same. The judges are committed to the Constitution. Not to the Government of the day. Justice H.R. Khanna was the lone dissenter in the Habeas Corpus case of ADM Jabalpur (1976). Four other judges of the Constitution Bench took the view that the petitioners had no locus to seek the writ of Habeas Corpus. Justice Khanna held that the law cannot be silenced or rendered mute. He took this view because he believed that this was the correct view. Before the pronouncement of the judgment, he shared with his sister that this judgment would cost him the chief justice-ship of India. He delivered the dissent. He did not waiver. He was bold. He was superseded. In fact, he was prepared for it. His portrait continues to adorn court no. 2 in the summit court of the country. He never moved to court no. 1. In the year 2017, nine judges bench of the Supreme Court, in the case of Justice K.S. Puttaswamy, reversed the judgment in ADM Jabalpur and upheld the dissent of Justice Khanna. Justice D.Y. Chandrachud recorded :
The view taken by Justice Khanna must be accepted and accepted in reverence for the strength of its thoughts and the courage of its conviction.
Of course, it took more than 40 years to reverse ADM Jabalpur. Still, it demonstrates that the dissent of Justice Khanna was an epitome of judicial independence. He dissented without fear or favour. This is the real strength of the judicial institution. This one dissent made Justice Khanna immortal. More famous than even if he would have become the Chief Justice of India. This is the foundation of trust and confidence of the public in the judicial institution and the judges.
The first Chief Justice of India, Justice H.J. Kania died in office in November 1951. There was a proposal from the government to appoint Justice B.K. Mukherjea as the next Chief Justice of India. The two senior judges Patanjali Sastri and M.C Mahajan would have been superseded. Both the senior judges had no objection. They believed that Justice Mukherjea deserved it better. In turn, Justice Mukherjea was not agreeable. In fact, he threatened to resign, if superseded. This is Judicial Discipline. Judicial Culture at its best. What more could be there to strengthen the trust and confidence of the public.
The principle of Recusal is based on the trust and confidence of the public in judges at all levels. Independence and Impartiality are the two pillars. They underpin the purpose of recusal. The impartiality and the objectivity of the judge is the foundation of recusal. A reference to the decision of the High Court of Australia (the highest court) in Katinyeri v. Commonwealth (1998) is relevant. The issue was whether certain provisions of an Act are violative of Australian Constitution. Justice Callinan was a member of the High Court bench. An objection was made that he should recuse himself from the bench. The reason was that he had as a member of the Bar given earlier a joint opinion that the Act (at the stage of a Bill) was valid. Justice Callinan in a reasoned order recorded as to why he was not biased. A review petition was filed. Requesting that Justice Callinan should not be on the bench. The Chief Justice of Australia directed the review petition would he heard by a bench without Justice Callinan. Justice Callinan withdrew from the main case. Therefore, there was no need for a detailed order in the review petition. This was a wise move on the part of Justice Callinan. It is important that in order to build up the trust and confidence of the public, due care and caution should be taken in constituting the Benches to ensure that no such situation for recusal should arise. In case, the situation arises, the judge should ordinarily recuse from the case. The reluctance on the part of the judge can raise a doubt. Therefore, such a situation should be avoided under all circumstances. The only exception would be, no one should be allowed bench hunting. This malady is worse than the remedy of recusal.
Judicial Culture and Judicial Discipline cannot be separated. They are wedded. They are a couple. In fact, twins. Judgments are often reserved in matters heard by division benches or larger benches. There is judicial discipline. After the conclusion of the hearing, it is open to the bench judges to discuss, deliberate, modify and even persuade each other to take a particular view. It is an exchange of views. Draft judgments are circulated and shared. It is healthy for the meeting of minds. It is part of the judicial culture. The reference to the most recent case of Bombay High Court Division Bench is relevant (Indian Express October 24, 2019). It involved alleged fraud and mischief in the renewal and repairing works. FIR's had been filed. The police investigation was at its initial stage. The two judges heard the case. Reserved the judgment. The senior Judge pronounced the judgment before the other judge got any opportunity to agree or disagree. Therefore, this is a glaring example of lack of co-ordination, consultation, deliberation or discussion. In such a situation, motives are attributed to taking a particular view. There could be genuine difference of opinion. The matter could be referred to a third judge. This haste in pronouncing the judgment by one judge shakes the confidence of the public. Why this!
Judicial discipline must be followed if trust is to be built in the institution of judiciary.
Prof. (Dr.) Balram K. Gupta is a Sr. Advocate and Director (Academics) at Chandigarh Judicial Academy.