24. The Higher Judiciary in India: Part One

This begins a series on the Judiciary. It is important in Pub.Ad, Pol.Sc and GS. The blog is based on an article by oe of the eminent Jurists of India: Mr. Soli Sorabjee and  Published in the Indian Express on 12 Nov. 2011. We ought to be grateful to the Great Jurist who has reproduced Justice Ruma Pai’s lecture and commented on it. Also a big Thank you to the esteemed newspaper. I am using the material to train the future Civil Servants. It is a fantastic and realist analysis on the working of the Judiciary. Please answer the questions below, so that I can know whether you have understood the point and make your comments. INNOVATE, BE ORIGINAL OR PERISH! And no cut and paste job please !

26 thoughts on “24. The Higher Judiciary in India: Part One

  1. “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” “. My Question : What is this Law of Contempt? What was the intention in giving the Judiciary the power to punish for contempt and how is it used by the Judiciary to terrorise its critics?

    1. The Indian contempt of court act 1971 was instituted so as to protect the independence of the judiciary and also to ensure that the rule of law is upheld and not contested. there is fine line that one must understand here. There is a possibility to criticize the effect of the judgment but one cannot blame the judiciary for the entire mess. however, there have been several instances where that fine line has not been recoganised and many tend to make seditious and anti-judiciary statements. Arundhati Roy in the case of her critique of the judgment on the Narmada Dam resulted in her coming under the contempt of court act.

      However, the larger question is whether this law has worked as a weapon to silence critics, yes, the corruption or to be careful …the apparent aberrations in the function of high judicial offices…has been a touchy issue for the judiciary. the question is who is going to judge the judge????

      1. Fine.But the judges should not regard criticism of the judgement on legal grounds. hey should regard it as contempt only when here is an imputation f dishonesty. Any one can criticize the judgement as retrograde, or going against past precedents by ge higher judiciary etc., Otherwise, if honest criticism is not allowed we must accept that Judges can never go wrong. thus s ridiculous.

    2. The Contempt of Law is the judge’s strongest power to punish the person under trail who disrupts the courts normal process.

      This can be imposed when A person
      1. disrespects the judge
      2. Failure to obey lawful order of court
      3. Disruption of the court proceedings through condemned behaviour and such similar cases

      Judge can impose a fine or jail term for the contempt of the court.

      To use this power the following four rules must comply

      1. Existence of a lawful order
      2. The contemnor’s knowledge of the order
      3. The contemnor’s ability to comply
      4. The contemnor’s failure to comply

      Here I see the main intension of this act is to let the judge do his duties with out any disruptions due to the above said reasons, and to safeguard the respect of the court and judiciary system as a whole.

      In India,

       The Contempt of Courts Act was passed in 1926. Later there was the Contempt of Courts Act, 1971, along with Contempt of Courts (Amendment) Act, 1976.

      Use of Contempt of Court Law In India,

      Positive Case:
      The Supreme Court performed an unprecedented action when it directed a sitting Minister of the state of Maharashtra, Swaroop Singh Naik, to be jailed for 1 month on a charge of contempt of court on 12 May 2006.

      Swaroop singh ignored the direct order of banning the saw mills in certain forest area which the minister violated and granted licenses for the saw mills previously banned.

      The Negative Side:

      Judicial accountability is one big issue, in fact the judicial system is accountable to no one except the impeachment of the judges which is rarely used.

      Most of the judges use contempt of law to terrorize people not to question the authority of the judge. This includes the constable example given by ruma pal which is a every day scenario

      Due to the Contempt of court Act
      section 2 (c) which deals with Criminal contempt related with the publication of any matter to lower the authority of any court or interferes with due course of any judicial proceeding .

      The journalists and the media persons are afraid to cover Judicial hearings with a constructive criticism, as they afraid that they might be served with the contempt of court order.

      These things should change and I believe a firm amendment is needed to point the issue along with judicial accountability

      1. One more interesting contempt of court case in news recently in Pakistan:

        The Anti-Terrorism Court (ATC) trying the seven suspects in the 2008 Mumbai terror attacks case issued a contempt of court notice to Pakistan Interior Minister Rehman Malik for having announced the visit of a judicial commission to India before the court had constituted such a commission which seems the later dictating terms to the court .

        but later the judicial commission is set and coming to India.

  2. “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.” My question: are not Judges also governed by the law?

    1. The constitutional provision for impeachment of judges of High courts and of the Supreme Court is impracticable

      There must be a method by which the judges of doubtful integrity can be removed . But constituting a judicial system that is not compromised of its independence and of corruption free is a behemoth task .

      The Judges Inquiry (Amendment) Bill 2008 for setting up of a panel called the National Judicial Council, headed by the Chief Justice of India, that will probe into allegations of corruption and misconduct by High Court and Supreme Court judges is one small step to start a big journey.

      1. Coalition politics makes the removal of a judge impossible. Thus dalit members are against removal of Dinakaran and Balakrishnan. Parliament and our Political class need to gthink deeply about this.

  3. “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”. My question: How are judges appointed? What is wrong in the system? How should the Lok Ayukta be appointed? What is being done in Karnataka and Gujarat?

    1. After the Judges Cases, effectively it is the collegium of Supreme Court Judges that appoints the Judges(because in the 3rd judges case, consultation by President with the judges was interpreted as ‘consent’). Justice JS Verma says this system of judges appointing judges is wrong because it defeats the essence of Art 124(2)-where in the Executive must appoint the judges.

      So, it is proposed that there be a National Judicial Commission-an independent, transparent process of appointing judges.

        1. That’s the real question, Sir. Do we need another Anna Hazare type mobilisation by the public to pressure the govt to set up the Judicial Commission soon? The civil society is not enthusiastic to take judges by the horn, due to the fear of contempt power.

          1. It will come, Anna or no Anna. The UPA II will be wise if it sees the writing on the wall and acts quickly. If the leadership is scattered, the movement will not fade away,as the UPA II hopes. There will be a Million Mutinies and things will definitely go out of hand. The Corrupt will become bolder and as they say things will become worse before they become better. They can fool some for all time; all for some time but not all for all time. See how bold the BJP Government has become after Yeddyurapa got his bail and Madhukar Shetty claimed that the Lok Ayukta is steeped in corruption. The BJP is blowing hot and cold, testing waters really. we will abolish the Lok Ayukta some of its leaders say with the JDS clapping Tandana Tana. And ten when things start becoming hot, the BJP says that it will not abolisg it. Let them abolish it and then see what happens.

  4. “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’. “

    My question: Can you cite examples fro the recent occurrences in Karnataka?

    1. Ex.1 Justice Dinakaran->allegations of land grabbing
      Ex. 2 Justice Shivaraj Patil->wife had a site, although allegedly she was not eligible for it.

      Sir, the civil society is aware of corruption in Judiciary; yet, far lesser than that in the executive. Also, we the common people have placed our hopes in the judiciary as there is nothing but paralysis in the executive.

  5. Soli Sorabjee: “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.”

    My Question: How much respect do judges command in India?

    1. I agree with Soli Sorabjee’s view regarding Judges and public perception. People lose faith in judges if and when they show political affinities. Their political philosophy must have nothing to do with ruling/opposition party, but ‘subscribe to the political philosophy of the constitution-secular, democratic, socialist'(Cf:Justice Krishna Iyer).

  6. 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.”

    My question: Any Indian examples?

  7. The Indian example being talked about is that of Justice Bhagwati who was on the bench in ADM Jabalpur case. In the same case, Justice Khanna displayed his integrity and independence by dissenting with the majority.

    Consequence: Justice Khanna was ignored by the political executive, Justice Bhagwati became CJI.

      1. I agree, Sir. Justice Bhagwati said he regrets the judgment now. Justice JS Verma, called that this is a laughable statement!!

        The harm done in ADM Jabalpur case cannot be reversed now.

  8. Indian Judiciary is especially the Higher Judiciary’s respect is deteriorating day by day and these days we are seeing more scandles of Judges of High court and Supreme Court.
    I feel there are 2 root causes for this
    1. Selection process for Higer Judiciary: As Aneesh stated it is the collegium of top 3 Juges of supreme court which nominates or picks the Practicing Lawyers in Supreme cout and High Courts and elevate the Judges of High Court to Supreme Court, where the parameters set are not enough to get a judge as there. This has to be changed, may be a NJC or seperate body which conducts a Fair interview in selecting the Judges to higher Judiciary and even to the subordinate judiicary too.
    2. The attitude with which the young Lawyers enter their profession: Today’s our Fellow Lawyers entering the Legal Profession with lots of expectations and concentrate less on the Values and Ethics of the Instiutuion in the race of winning a case and getting the name and fame and what not….which is really a cause of concern and how can we expect a good Judge who was never a good Lawyer in terms of his Ethics and Values which is most important pillar of the Judiciay as a Institution
    It is high time to and immediate action need to be taken to keep up the Respect of Indian Judiciary

    1. The tradition of great lawyers leading the freedom struggle is gone. Lawyers must remember their great tradition or else people will take the law into their hands. I was just reading (Friday 18th Nov.) how officials who had come to auctton sites in Hubli were manhandled by the crowd gathered there when they say rules for auction being flouted. Lawyers and judges will meet the same fate. But then it will be too late.

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