SEQUEL TO A GUIDE TO THE JUDICIARY
SEQUEL TO A GUIDE TO THE JUDICIARY- THE BENCH AND THE BAR
An astrophysicist having no faith in his telescopic tunnel vision and a microbiologist in his microscopic tunnel vision, a judge or a lawyer in his legal tunnel vision, are professionally useless to the society. Just as the heart, by employing muscular force, pumps blood at the right degree of pressure to ensure constant flow of blood throughout the body, the judiciary, by quick and just enforcement of the contracts by employing legal force, is expected to maintain the right velocity and pressure of economic blood flow, of money and other economic resources, from the undeserving to the deserving, the inefficient to the efficient, the dishonest to the honest, the incapable to the capable, the haphazard to the meticulous entrepreneurs, businessmen and other wealth creators and distributors. Just as an inefficient heart results in the ailment called hypotension or low blood pressure, an inefficient judiciary contributes to low level of economic vibrancy and growth. How can a lawyer be a boxer, a diamond cutter and a social engineer at the same time? We can get the answer if we recollect the tale of the elephant and seven blind men. The first blind man touched the trunk of the elephant and felt that elephant was like a snake, the second man felt the leg and opined that it was like a pillar, the third man felt the belly and concluded that it was like a tank and the fourth man caressed the tail and decided that it was like a broom stick and so on. The lawyer’s role in society is so complex that any one illustration is not sufficient to give a complete picture of it. That is why it is difficult to be a successful lawyer. HOW TO REMEDY THE SITUATION In order that the judiciary may function properly without tussles and turmoil within the system, both the bench and the bar must emulate type `A` behaviour described above. Both must realise that the society has entrusted the judiciary with vast powers though it consists of neither conquerors in battles, nor great achievers academically, nor those who have won popular vote, because the men around the judiciary are respected and trusted for honesty, impartiality and professionalism and not brokerism. Corruption in other departments cannot justify corruption in the judiciary just as the police cannot be heard to say that they can commit theft as thieves are doing the same. If all other departments are as unbiased and incorruptible as the judiciary, there would be no necessity for the judiciary just as doctors become unnecessary in a society free from disease. In the U.S the code of conduct for judges was drafter by the American Bar Association.The following steps may be taken to improve the image: 1] Judicial officers must be made to maintain a healthy seclusion and must not be allowed to freely move with advocates or the public, except in the functions of bar associations, academic conferences, or important functions like marriages where every one attends. Rules may be framed in this respect and violation must result in prompt disciplinary action. Just as an electrical power transformer in the street corner is secluded by a fence in the interests of the public and the transformer, judges, as ultimate social power houses should be made to stay aloof in social interest and prevent pilferage of social power. Though judges are not cloistered creatures, leaving them unguarded and unfenced will surely result in pilferage of social power. . As observed by Winston Churchill, the greatest sacrifice a person makes in accepting a judicial appointment is self-imposed restriction to isolate himself from the society. As advised by former Chief Justice of India, P.B.Gajendragadkar, judges ordinarily must observe certain rules of decorum in their social behaviour. A little isolation and aloofness is the price which one has to pay for being a judge, because a judge can never know which case will come before him and who may be concerned in it. Compelling judicial officers to organise and participate in legal literacy camps will expose them to various elements , particularly, type `C` and `D` advocates and undermine their independence and image. Such tasks will further eat into the time available for the already over-worked judges and cause further delay in disposal of cases.[Such tasks may be entrusted to the Bar, under the supervision of the judges from their chambers.] The only reason why judges are not posted in their native districts and are transferred from place to place periodically is that they may have personal bonds of attachment for their friends or prejudices against their ill-wishers, and they cannot be neutral unless they are posted to far off places. If judges cultivate friends or make enemies in their place of posting, the purpose of the transfer policy is defeated. 2] Officers must not use the cars of advocates and avoid taking any help from individual advocates. If they need any help, they may contact the advocates associations and not individual advocates. 3] Presiding officers must not entertain advocates in their chambers or residences, except on very rare occasions. 4]If any of the litigating parties tries to influence the judicial officer, the latter must immediately inform the same in open court to both the counsels appearing in the matter, so that the counsel can take their clients to task. Even if one of the advocates knowingly permits his client to approach the judge for favours, the advocate for the opponent would come to know about it. This will create confidence in the mind of lawyers about the honesty of the judge. This will also prevent stenographers, clerks, type ‘D’ advocates and busy bodies from trading in the name of the judge, though the latter might be innocent. If an advocate tries to influence the judge in any pending matter, the judge must send a report to the advocates association in writing, so that the fellow advocates may suitably advise the delinquent advocate. If the latter persists in his behaviour, the judge must report against him to the state bar council, which is the statutory body empowered to discipline the advocates. 5] Orders and judgements must be pronounced as quickly as possible. 6] Police officers must not have ready access to judge’s chambers or residences so as to prevent some unscrupulous police officers from trading in the name of judicial officers. 7]In order to generate brotherly affection amongst members of the bar, the more fortunate members may contribute donations to their associations so that the members in dire need of money may utilise the funds as interest free loans or gratis. The government should be made to introduce safety net in the form of unemployment allowance as is prevalent in the West, so that nobody will have the fear of starvation. A starving advocate knows no scruples. 8]Both the Bench and the Bar must try to dispose off matters in such a way that no matter remains pending for more than a year from the date of its institution. Lawyers must realise that in order to attract more briefs and more income, litigation must be slow enough to encourage defendants to contest and at the same time swift enough to attract the plaintiffs to approach the court. The golden mean lies in disposing of matters in one year. 9] Advocates must fight corruption, wherever it enters the judiciary in unison. If advocates sleep over corruption or actively encourage it, days are not far off when the litigant public would by-pass advocates and directly purchase `justice` eliminating the need for advocates altogether. In their own self-interest advocates must fight corruption, if not out of any idealistic or altruistic motive. In the long run, judgements of a corrupt judiciary will cease to be respected and chaos will prevail. General Musharraf cited corruption in the civil authorities as a ground to justify military take-over. Naked power wielders take over when legal power wielders get corrupt and lose respect. 10]Both the judges and advocates must be taught the theory of separation of powers of Montesquie and some philosophical concepts of truth, fact, matter, reality, relativity of Albert Einstein, etc. According to one school of thought, corruption cannot .be fought because the candidates trying for judicial officers’ posts would have spent considerable money in securing the appointments and it is only natural to expect them to try to recover from the Bench the `investment’ they would have made. Assuming (with out admitting) that this theory is true, still lawyers must create a situation where under the aspirant for judicial post would realise that what ever he spends for securing the post, he spends at his own risk and cannot hope to recover from the Bench. Then only the price tag for the post (assuming it exists) would be held low. If recovery is permitted, the price tag also will shoot up as it has happened in the other departments. PROCEDURE TO BE FOLLOWED IN FIGHTING PREJUDICED OR CORRUPT JUDGEMENTS: Against a judicial order, which is of type `A`, the aggrieved must only file an appeal or revision and the Bar must not interfere. If it is a `prejudicial order of types `B`, `c`, `D` or `E` the bar also must interfere and nip such tendency in the bud by following the rule 1 of the code of conduct referred to supra. The following procedures may be adopted: Whenever an advocate loses a matter and feels aggrieved that it is a non-type’‘A’ judgement, he should not immediately blame the judge but must take following steps. First discuss with the opposite counsel about the demerits of the judgement. He might realise that his suspicion was unfounded. If not satisfied, then raise the issue before the bar association, and also individually make a ‘fair comment’ about the judgement and give it to the judge. Making fair comment does not amount to contempt of court as per the judgement of the Supreme court in perspective publications Vs. Govt. of Maharastra ( A.I.R.1971 S.C. 221). This will also ensure that the advocate will make the comment not casually or impulsively, but only after careful thought, if the situation warrants it. In the chapter ‘Taming of Power’ contained in the book POWER- A NEW SOCIAL ANALYSIS Bertrand Russell also recommended, ‘ There is need of associations…. to bring swift criticism to bear upon officials, police, magistrates and judges who exceed their powers” After reading the fair comment, the judge may react in any of the following ways: 1. If he feels that the comment is wrong and his judgement or order was right, he can at his option defend his judgement by an informal and friendly discussion with the concerned advocates in the Bar Association. The Mighty Prime Minister has to face the questions of the opposition in parliament but even a magistrate is not answerable to any body now. Since he would have already pronounced judgement, he would have become ‘functus officio’ and there is no prohibition in law from talking about the matter freely with advocates out of academic interest. after the limitation prescribed for review petition expires. This further strengthens the confidence of the Bar in the impartiality and transparent intellectual honesty of the judge . Saturdays can be used for this purpose. 2. If he feels that the fair comment is justified he can realise his mistake and at least take care not to repeat the same mistake in future, though he cannot reverse the judgement now. Fair comments should be limited to type ’B’ judgements. If a judge is of type ‘C’ ‘D’ or; E’ fair comment is inadequate, and the only remedy is to set up traps through the vigilance cell of the High Court with the assistance of Anti Corruption Bureau or send a complaint in writing or file a contempt case against the erring officer. If the High Court fails to order enquiry due to the role of guardian angels of the delinquent judicial officer, a writ of mandamus may be filed seeking direction to order enquiry, followed by a writ appeal to a division bench and the Supreme Court, if necessary.[Rule 1 of the Bar Council Rules must have received the approval of the Chief Justice of India as per the proviso to S.49[1] c of the Advocates Act, 1961 and is therefore enforceable and not merely recommendatory] If the advocate exceeds his limits in making fair comment, he incurs the risk of facing a contempt case, in the High Court. In the enquiry against a judicial officer, direct evidence of bribery may not always be available.[1997 SCW 1941 ALSO deliberate misinterpretation of law invites disciplinary action1999 SCW 2779] It is better to rely upon circumstantial evidence, the status and character of the advocates who complained, etc. A type ‘A’ advocate’s complaint should get better attention from the High Court. Whether the complainant is of type‘A’ or not should be a question of fact to be determined at the time of enquiry. The High Courts must also take notice that corrupt judicial officers usually secure the support of ‘B’ ‘C’ and ‘D’ type of advocates while facing enquiries. Whether a judge ill-treats an advocate or advocate misbehaves with the judge, contempt proceedings must be launched against the wrong doer. As per the ratio in A.I.R. 1949 Lahore-470. If a High Court Judge himself tries to influence a judge of the subordinate judiciary, the latter must bring it to the notice of the Chief Justice of the High Court,[ who is nowadays posted from a different state and is free from local influences] so that in case he is harassed for his un-yielding temperament, the information given to the C.J. will protect him. a) As far as the question of corruption in the higher judiciary is concerned, at present, in India except impeachment there is no alternative. Assuming that an alternative mechanism is to be designed, extreme caution must be taken so as not to affect the independence of the judiciary. The proposed Judicial Commission is a welcome measure to discipline the higher judiciary. Since prevention is better than cure, profound type’A’ advocates must be appointed instead of prominent type ’D’ advocates. How that is to be realised is beyond the scope of this article. Once the judiciary is toned up, it will not only serve its useful purpose of maintaining the rule of law, , but also act as a powerful and effective social power house to energise and empower the citizens to contribute to progress of the society. . The legal profession will regain its lost image, with compound interest. LET US MAKE A BEGINNING TODAY APPENDIX-I Maxims of equity:- EQUITY FOLLOWS THE LAW WHERE THERE IS EQUAL EQUITY, THE LAW SHALL PREVAIL. WHERE THE EQUITIES ARE EQUAL, THE FIRST IN TIME SHALL PREVAIL. HE WHO SEEKS EQUITY MUST DO EQUITY. HE WHO COMES INTO EQUITY MUST COME WITH CLEAN HANDS DELAY DEFEATS EQUITY. EQUALITY IS EQUITY. EQUITY WILL NOT SUFFER A WRONG WITHOUT A REMEDY. EQUITY IMPUTES AN INTENTION TO FULFIL AN OBLIGATION. EQUITY LOOKS TO THE INTENT RATHER THAN THE FORM EQUITY LOOKS ON THAT AS DONE WHICH OUGHT TO HAVE BEEN DONE EQUITY ACTS IN PERSON AM Why should the law prevail over equity or `dharma `or `nyaya`? “Conscience per se is an anarchic force, upon which no system of government can be built…clearly conscience does not always declare the will of God, for if it did such diversities would be impossible”---Bertrand Russell. “A complex legal system, based on objectively valid principles, is required to make a society free and keep it free- a system that does not depend on the motives, the moral character or intentions of any given official.”Ayn Rand Lawyers, judges, litigants and witnesses all have their own inherent sense of justice, called `equity`. However, this sense of justice is not uniform as it varies from person to person. Supposing the distance between a point A and point B is to be measured and there is no standard measuring unit like a meter in the metric system and the individuals are asked to measure in terms of paces or foot steps. A tall man will walk the distance in say, twenty paces while a short man may need forty paces. Such wide variation in measurement will make practical decisions difficult or impossible. So a standard unit of measurement called a meter or kilometre in the metric system is adopted. Once it is adopted, it should be preferred to measurement by paces. In the same manner, `Equity changes with the foot of the Chancellor`. The good conscience of Prophet Mohammed dictated to him that moneylenders should not charge any interest whatsoever. A Shylock may say that even cent per cent interest would be reasonable. To avoid these variations the Interest Act is adopted as a standard to decide reasonableness of interest and it provides that where contract is silent, courts should award interest at which nationalised banks lend. It should naturally prevail over the individual equitable rate of interest of the judge. If you ask a saint like Purandara Dasa or Thyagaraja to pronounce judgement on the ownership of a piece of land he would say that as per his conscience or `dharma` all land belongs to God. The good conscience of a communist would suggest that private property is the root of all the evils and must not be recognized and all land belongs to the society. If you ask Alexander the great, he would say, as a conqueror believing in the principle that might is right,( or a street rowdy) that all land ought to belong to him. It would be impossible to decide any land dispute with such variations in equity or `dharma `or `nyaya`. Unless there is a clear decision ensuring certainty of ownership, and assured possession, no one will venture to cultivate the land and if all land goes uncultivated, everyone will starve. [ The communistic principle of collective farming failed in the erstwhile Soviet Union. Even China amended the Constitution recently to recognise private ownership. ] Therefore, under the Land Encroachment Act we start with a legal presumption that all land belongs to government. Individuals who encroach upon land for thirty years prescribe their right by adverse possession. A private person has to either obtain a registered document or encroach upon such land for twelve years to perfect title by adverse possession. One can get an easement right by enjoyment for twenty years. Though there is no mystical sanctity to the number of years prescribed by law and it is stipulated artificially and usually arbitrarily, the lawyers and judges should not ignore the law and invoke their own equities to judge the affairs of fellow mortals. It is this discipline that distinguishes a type `A` judge from a type `B` judge .Law acts like a reliable and indispensable measuring tape both for descriptive and prescriptive purposes. That explains why only law graduates are appointed as judges. If a particular law is `just` from an idealistic point of view, as for instance, total Prohibition , but the popular sentiment does not share such a view, such a law is usually flouted. Or, if the arbitrariness or unjustness of a law reaches an intolerable level, the people may demand a change in the law, or tend to flout it so long as it remains undetected. or revolt against it, as was done by Gandhiji against the salt law during the freedom struggle, or when income tax rates were cut from 97 percent to around thirty percent, and stamp duty on registration of transactions was reduced recently in Andhra Pradesh, to encourage more registrations and thereby vindicating the stand of the public that the earlier rates were unjust and arbitrary. However, the judge has no option except to enforce the law as it stands or to resign. Lay people do not owe their existence only to the law, but judges exist only because there is the Law. That explains the difference in the standards while judging the judges on the one hand and the lay people on the other APPENDIX II Adversary system – judicial activism and public interest litigation Judicial activism merely refers to the recent phenomenon of the judiciary venturing into fields, which were hitherto shunned by it. It does not mean that judges are entitled to become inquisitorial. If not, we can as well scrap the Commissions of Enquiry Act and permit the regular courts to become inquisitorial [as commissions of enquiry are] by giving up the adversarial safeguards – should we do it? Similarly, `public interest jurisprudence` is not a novel idea as it was recognised by O.1 R.8 civil procedure code long ago. It only widens the locus standi of the litigant public. APPENDIX III SHOULDN’T WRONG JUDGEMENTS BE THE BASIS FOR DISCIPLINARY ACTION AGAINST JUDICIAL OFFICERS? Mr.Nani Palkhivala aptly described the present trend in judgements of the courts in India when he remarked, “Our courts of law are casinos and not cathedrals”. One of the main causes for erratic judgements is the wide spread belief, both in the members of the Bar and the Bench, that against a wrong judicial order the only remedy open is to file an appeal or revision on the judicial side. It is true that to secure a reversal of an erroneous judicial order the law may provide only for appeals or revisions, but at the same time it should be possible to bring an errant judicial officer to book when he knowingly writes a wrong judgement, with the ulterior motive of spiting the concerned advocate or his client or for some such extraneous considerations, other than the law and equity applicable to the situation .As already seen earlier, Rule 1 of the Bar council rules gives a wide scope to an advocate to complain to disciplinary authorities against an errant judge, as the rule provides “…..whenever there are grounds for serious complaint against a judicial officer, it shall be the right and duty of the advocate to submit his grievance to proper authorities”. The above rule does not restrict the scope of a complaint only to allegations of corruption. In the United States the Judicial Council and the State Commission on Judicial Conduct are the disciplinary agencies designed to review complaints of judicial misconduct. The types of complaint include improper demeanour, conflicts of interest, intoxication, bias, prejudice, favouritism, gross neglect, corruption, certain prohibited political activity and other mis-conduct on or off the Bench. Earlier there is one precedent of a judge of the Allahabad High Court by name Mr. Justice Sinha [not Mr.J.M.L Sinha of Indira Gandhi Election Case] who was removed from service by the then Governor General Sri C.Rajagopalachari on the sole ground that he wrote a judgement which no reasonable judge would write, though other allegations like financial irregularities were not established.(See Our Courts on Trial by Justice V.R.Krishna Iyer] For instance, suppose that a judge with a communistic bent of mind writes in a suit for declaration of title to land filed by a private individual “ I believe that the plaintiff has established his title to the suit land. by applying the laws made by the bourgeoisie. However, I wish that all land shall vest with the community and no individual shall monopolise his right in land. I therefore dismiss the suit in the interests of the society and facilitate the spread of communism”. Should the plaintiff in that suit rest content by filing an appeal and should no action be taken against the judge on the administrative side? Alternatively, taking another instance when the judge in a money suit writes, “The plaintiff has proved the suit claim but his advocate’s court room manners are not satisfactory Hence I dismiss the suit so that the litigants would hereafter engage proper advocates” In all such cases can it be maintained that the aggrieved must only file appeals and the judge should remain untouched? If we are serious about reforming the judiciary, we have no option but to encourage advocates to adopt type `A` ATTITUDE. No advocate with that attitude can survive in the profession unless judges are brought to book on the administrative side when complaints are made by advocates. The remedies on the judicial side are meant to take care of bonafide errors of judgement and not deliberate wrongs committed by judges. If a parallel appeal on the judicial side is pending and in the meantime, the judge is found guilty in the enquiry on the administrative side, it may be urged as a ground to remand the matter for fresh disposal. If no appeal is pending and if the judge is found guilty, his judgement would be void and inexecutable on the ground of fraud and non est in law as laid down in a decision reported in 2001-5 ANDHRA LEGAL DECISIONS 568.[though in a different context], as fraud vitiates everything. It will not operate as resjudicata. Until suitable legislation is made to provide for such mechanism, it is for the Hon`ble Supreme Court to evolve some guide lines t o enquire into such complaints against judges from well meaning advocates, so that Rule 1 of the Bar Council rules becomes fully operational. At the same time adequate safeguards may be incorporated to ensure that judicial officers are not harassed by frivolous petitions. APPENDIX- 4 THEORY OF SEPARATION OF POWERS Division of the legislative, executive, and judicial functions of government among separate and independent bodies. Such a separation, it has been argued, limits the possibility of arbitrary excesses by government, since the sanction of all three branches is required for the making, executing, and administering of laws. The doctrine may be traced to ancient and medieval theories of mixed government, which argued that the processes of government should involve the different elements in society such as monarchic, aristocratic, and democratic interests. The first modern formulation of the doctrine was that of the French writer Montesquieu in De l'esprit des lois (1748), although the English philosopher John Locke had earlier argued that legislative power should be divided between king and Parliament Montesquieu's argument that liberty is most effectively safeguarded by the separation of powers was inspired by the English constitution, although his interpretation of English political realities has since been disputed. His work was widely influential, most notably in America, where it profoundly influenced the framing of the Constitution. The U.S. Constitution further precluded the concentration of political power by providing staggered terms of office in the key governmental bodies. Modern constitutional systems show a great variety of arrangements of the legislative, executive, and judicial processes, and the doctrine has consequently lost much of its rigidity and dogmatic purity. In the 20th century, and especially since World War II, governmental involvement in numerous aspects of social and economic life has resulted in an enlargement of the scope of executive power. Some who fear the consequences of this for individual liberty have favoured establishing means of appeal against executive and administrative decisions (for example, through an ombudsman), rather than attempting to reassert the doctrine of the separation of powers. [Courtesy-Encyclopaedia Britannica]__ EPILOGUE The author of the above article is a strong votary of the adversarial system of justice. He is horrified to notice that in the name of judicial reforms, we are made to jettison the fundamental safeguards against arbitrariness incorporated in the system of justice, by introducing consumer courts, tribunals, nyaya parishads and the like. If lawyers and judges are properly taught and motivated, nothing can equal the adversarial system in terms of fair play, uniformity, predictability and overall efficiency in the administration of justice. During the last few years the author has been circulating the above article followed by making fair comments on some judgements and discussing with the judges who delivered them , and he finds considerable improvement in the judicial atmosphere in this place. If readers offer their comments the author would be much obliged to them.
About the Author
G.V.Desai, the author, is a practising advocate at Adoni in Kurnool district of A.P, India. He has been struggling to prevent the entry of corruption in the local judiciary. His efforts to spread the movement have not been successful. He desperately needs a wider audience. G.V.DESAI,ADVOCATE,ADONI-518 301 [AP] PHONE;253082---CELL 9701476422
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