Judicial restraint

A Hoary Tradition

The judiciary has always been recognised as one of the co-equal institutions of a State along with the executive and legislature. But in the recent past, the public has magnified its stature manifold – some may feel disproportionately, which, no doubt is a great tribute. But then it means that the judges must be prepared to suffer a closer scrutiny of their actions.

It is a hoary tradition that even when an active politician accepts appointment as a high court or Supreme Court judge he is automatically expected not to comment on a political issues which are being publically debated – no doubt he is fully entitled to and many judges do express their views, strongly both during the hearing in the court and then more thoughtfully but soberly in their judgments. But this established restraint was regretfully ignored recently when Justice Ganguly, a sitting judge of the Supreme Court at a book release function commented on current debate amongst political parties, civil society, and opined that the prime minister should be covered under the ambit of Lokpal legislation.

This debate at present is in political field but it is possible that it may land in courts. The learned judge will obviously recuse himself for the simple reason that he has expressed his views on this matter already in public forum but it can not be denied that this may cause some embarrassment to his colleagues who may be hearing the matter (though no doubt the decision will be given uninfluenced by what Justice Ganguly has said). The Supreme Court itself is not vain and has accepted that it is open to anyone to express fair, reasonable and legitimate criticism of any act or conduct of a judge in his judicial capacity or even to make a proper and fair comment on any decision given by it because “justice is not a cloistered virtue and she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.” But it does not follow that judges have a similar right to question any government policy in a public forum.

There are certain self imposed limitations on the public activities of the judges which can not be crossed without endangering the impartiality content of the judges. The judges cannot purport to declare finality of an issue outside the courts – it can only be within the precincts of the courts and only then it is final and binding. The faith of the public in the fairness and incorruptibility of judges is a matter of great importance. This receives a blow if sitting judges comment on political matters outside the courtrooms and that too without hearing the opposite view. That is why the judges have on their own accepted the need to be governed by the code of ethics.

Bacon in his inimitable style emphasised, “Patience and gravity of hearing is an essential part of justice; and an over speaking judge is no well tuned cymbal.” Sustained public confidence Similarly US Supreme Court in Baker Vs Carr, said — that the court’s authority — ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the court’s complete detachment, in fact and in appearance, from political entanglements and by abstention from injecting itself into the clash of political forces in political settlements...” Our founding fathers when framing the Constitution were aware of the warning given by Baron Montesquieu and deliberately refused to enthrone the judiciary both inside the courts and outside where political questions are to be decided by “civically militant electorate.” It must also be accepted there is nothing judicially more unseemly nor more self-defeating than for the courts to make interrorem pronouncements, to indulge in merely empty rhetoric. No, I am not saying that judges are to behave like coy brides when speaking in public. My comment refers to avoidance on political questions.

Of course the judges must and are expected to speak in public on matters connected with judiciary. I for one will fully endorse a sitting judge of the Supreme Court to speak, even harshly about the delay in filling up vacancies in High Courts and Supreme Court, (284 vacancies out of 895 sanctioned) leading to cumulative pendency of 4217903 cases in High Courts and also telling the public whether the delay is because of apathy of government or judiciary itself. Sitting judges should also publicallly debate the failed exercise of appointing an outside chief justice of High Court, the not so logical transfers of judges. Certainly this will also partly involve self criticism of judiciary itself along with that of political government. But this open criticism will be for the betterment of judiciary which the judges alone can advance.

The only caveat is that judges, even with good intention and even actuated by a public purpose may not venture on the political field prohibited to sitting judges. Judges must always be conscious of the warning given by a former Chief Justice of India who reminded the judges that though “our function is divine; the problem begins when we start thinking that we have become divine.” If I sound a bit harsh, I can only invoke the caveat of Justice Holmes of US Supreme Court, who said, “I trust that no one will understand me to be speaking with disrespect of the law, because I criticise it so freely...But one may criticise even what one reveres...And I should show less than devotion, if I did not do what in me lies to improve it.”

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