Sunday, April 23, 2006


Themis - courtesy Wikipedia
This article is a protest against the higher courts making observations against the lower courts. It is written as an opinion of a court and deals with a case where a judge of a lower court has sued the judge of the higher court for making an observation (lower court judge is a fool) against him. This observation was made after placing a different interpretation than the one, which was prevalent at the time when the lower court judge (Plaintiff here) gave his judgement. He (the lower court judge) was judged by the law changed by the higher court judge (defendant here). There is no such case where one judge has sued another, however this can not be said about passing strictures or making observations. This has happened many times and often unnecessarily.

The article in this process traces the history of law relating to liability of the judges in deciding disputes. It took some time to understand that independence of the judiciary is not possible unless judges are protected. There is no point losing this protection.

(This case is reported in 1984 TR 420. One does not know what TR stands for. If it is not trash, it could be tripe. Though others insist it is Tommy Rot. The year 1984 or the page number 420 has nothing to do with either George Orwell or the Penal code of the God-forsaken country called India.)

This is an atypical case that is so typical here. We only get such cases. In the last case we upheld the constitutionality of a law providing that a prostitute could be virgin with retrospective effects. We accepted the state contention that it did not change the basic structure. Here is another one.

The World over, there have been cases where a party to a case sued the judge for damages for rendering the judgements that they did not like. But history does not record any instance, as in the present case where a lower court judge (plaintiff here) has sued a higher court judge (defendant here) for damages for remarks about him in his judgement. We are honoured to have this privilege to be in the history books for this. At the outset we must say that the remark, '[Plaintiff] is a fool who does not know the law’ by the defendant while rendering judgement in an appeal against his (Plaintiff) order is conspicuous for its moderation.

Judges have not always been treated kindly. We had King Alfred causing forty-four judges to be hanged for their false judgement (see The Mirror of Justices, Book 5 page 166; Ed. William Wittaker). Lord Chancellor Simon de Sudbury was chased by a mob and done away with (see Lives of Lord chancellors Vol. 1 page 244; John Lord Campbell). Lord Chief Justice Cavandish was sentenced to death in a mock trial by a mob (see The lives of Chief Justice of England; 3rd ed. Vol. 2 page 329; John Lord Campbell). Thank god, now we have the contempt power. We can handle many things.

We have a difficult job. Unlike others, we have to take sides. Some times even against our conscience. Justice Chandrachud, Chief Justice of India admitted it. He was offering apologies for his judgement in ADM Jabalpur Vs Shiva Kant Shukla AIR 1976 SC 1207 (For details kindly see Habeas Corpus Case) rendered during emergency (1975-77), otherwise known as the darkest period in India's democracy. This judgement is also known as Black judgement; India’s Liversidge Vs Anderson.

We decide but we do
'not spin a coin or consult an astrologer (Lord Diplock in R Vs Deputy Industrial Injuries Commission exparte Moore 1965 (1) AllER 81).'
Yet we do,
'not achieve the uniformity that is desirable and what uniformity is achieved may be the uniformity of error (Justice Rich in Waghon Vs Waghon).'
The case, in which defendant made those remarks, amply proves this. It could have been decided either way.

The plaintiff had decided the case according to the law as was applicable when he had tried the case. By the time the appeal came to be decided by the defendant and we hold the world record in that, time changed, so did the attitude and so did the law, by the defendant himself in that case. And then the remarks that are subject matter of this case were made. 

The media plays an important role. Sensationalism catches not only their eyes but our minds too. May be this was the reason for changing the law by the defendant. 

One must not forget the facts. Contrary to the common belief, between the facts and the law, it is the facts that are the more important of the two. Law is normally moulded. Hard cases make bad law is as old as any legal system. One does not know who said it for the first time but in the recent history it was Justice Holmes who said, 
‘Great cases like hard cases make bad law'. 
We of late are trying to change it. Hard cases make great judges (Ronald Dworkin). The facts of the case, where the remarks were made, were such. They played an important role in changing the law by the defendant.

We neither are nor wish to be prisoners of an ivory tower. For centuries, the world over, we fooled ourselves into thinking that our job was only

'to interpret law, and not to make law, or give law (Essays of Judicature; Francis Bacon).'
We now have accepted that we make law as well.
'We do not believe in fairy tales any more (The Judge as Lawmaker; Lord Reid; {1972} 12 Journal of the Society of Public Teachers of Law 22).'
Cardozo was right,

‘if there is anything of reality in my analysis of this judicial process, they (Judges) do not stand aloof on this chill and distant heights and we shall not help the cause of truth by acting and speaking as if they do. The great tides and currents which engulf the rest of men, do not turn aside in their course, and pass the judges by’ (The Nature of Judicial Process, page 168).

We must clarify that the defendant was not the only one to do so. The House of Lords in Shaw Vs DPP 1961 (2) All ER 446 convicted the publisher of the Ladies Directory, a ‘Who’s Who’ of London prostitutes, for corrupting public morals. In doing so the
House of Lords did not shrink from the fact that this was in effect to confer on judge and juries a discretion to create new offences in accordance with the exigencies of public morals as these might vary from time to time ( The Idea of law page 63; Dennis Lloyd).
The defendant argues, ‘If they could then why can't I?’

The plaintiff in this case neither doubts the Defendant's right as a judge to change the law nor the right to overrule him. He does not challenge the decision on merit. We would not have permitted it even if he had wanted to. The judgement was right. He simply asks if those adjectives could be attributed to him after what Lord Simonds has described as,
'a naked usurpation of the legislative function under the thin guise of interpretation ( Magor and St. Mellons RDC Vs Newport Corporation 1952 {2} All ER 839).'

The question raised does not admit of an easy answer. It is not because it involves complicated or difficult questions of law. We are masters of laws capable of solving any problem at the drop of a hat. That's what we do. After all law is what we say the law is. But this question is difficult because an answer to it will apply to us also. Self-reference is the problem. 

Who has not heard of Epimenides Paradox or the liar's paradox? Epimenides was a Cretan he made one immortal statement, 
‘All Cretans are liars’. 
Try deciphering this- if you think it is true, it boomerangs at you with the notion, it is false. If you take it to be false it backfires at you with the idea, it is true. 

Many have tried to solve it. Bertrand Russell & Alfred North Whitehead claimed to have solved it in ‘Principia Mathmatica’ a giant opus published in 1913. Thinking it to be a balloon that would lift them to the top of the Mathematician's world and would immortalise them. But then Godel with one paper in 1931 punctured that. It was a bolt from the blue. A system capable of having self-reference digs a hole for its own downfall. In short the problem cannot be solved. 

If Godel was its pinnacle then Bach was its manifestation in Music, Esher in painting. The entire story so well told in Hofstadter's, 'Godel, Escher, Bach: An Eternal Golden Braid' and Roger Penrose’s 'The Emperor’s New Mind: Concerning Computers Minds and The Laws of Physics’ that we need not repeat it here (see Endnote-1).

Judges have tried to solve the problem of self referencing by evolving a maxim Nemo debet esse judex in propria causa’translated into English it means No man shall be judge of his own cause. In ultimate analysis it is our own cause that we are examining. Are we or are we not liable for our acts done in a judicial capacity. Despite this, we will try to answer it.

Traditionally, juries and judges have been hand in glove in performing judicial functions. Jury decides the fact and the judge, the law. In some countries, there was provision for assessors.
'Till 17th century juries were frequently punished for verdicts proved wrong in appeal or contrary to the direction of the judge. The court of Star Chamber, before its abolition, frequently summoned juries and inflicted fines and imprisonment upon them. The immunity of jurors in actions brought by persons injured by a wrongful verdict was established by Floyd Vs Barker 1607 (12) Co Rep 23. The immunity of Jurors from punishment for wrongful verdict was established by the Bushell's case (Halsbury Laws of England 4th ed. Vol. 26 Para 96).'
Subsequently one of the jurors in the Bushell's case (who was illegally imprisoned and later on set free in a writ of Habeas Corpus) brought an action against the judge for wrongful imprisonment. The court in {Hammod Vs Hawe 1667 (2) Mod Rep 218} held,
'Though [the defendants]were mistaken yet they acted judicially and for that reasons no action will lie against the defendants.'

The Law had different standards for inferior and superior courts. The immunity to the inferior courts was available only for acts within their jurisdiction. It was not available to them for acts without jurisdiction or for acts done within their jurisdiction if done maliciously and without any reasonable and probable cause. This was not so for the superior courts. They were not liable whether they acted with or without jurisdiction or even if the act complained was,
'alleged to have been done maliciously and corruptly {1667 (2) Mod Rep 218}.'

There appears to be no reason for making any distinction between the inferior court and the superior court except for the fact that the law is laid down by the superior courts. It was ultimately done away with in England.
'It is impossible to maintain double standards. The old rule should be modified by giving judges of inferior Courts enhanced protection- each should be able to do his work with complete independence and free from fear. He may be mistaken in fact. He may be ignorant in law. What he does may be outside his jurisdiction in fact or in law but so long as he honestly believes it to be in his jurisdiction he should not be liable {Sirros Vs Moore 1974 (3) All ER 776}.'

The law in the US is substantially the same,
'A Judicial Officer is absolutely immune from civil liability for any defamatory matter published by him in the due course of official acts even though he acts erroneously, illegally, irregularly or in excess of jurisdiction or maliciously or/and corruptly. A Juror is entitled to the protection governing the communications published by judicial officers (53 Corpus Juries Secundum LIBEL AND SLANDER para 104 note 3 & 4).'

Judges throughout the world now have similar kind of protection either through judge made law or by statute law. In India there is the ‘Judicial Official Protection Act’. Section 1 of the Act states,
'No judge shall be liable to be sued in any court for any act in discharge of his official duties whether or not within his limits of jurisdiction provided that he at the time bona fide believes himself to have jurisdiction to do the same.'
Should this belief be subjective or objective? Can it be adjudicated upon like any other matter in a court of law? If the law has to have any meaning, any relevance, it can not but be objective. And can something be bona fide or honest that is not in good faith, not done with due care and attention?

A person should have no cause of action against a judge even if he has acted corruptly or maliciously does not stand to reason. But courts often say,
'It is, in the public interest, desirable that persons in certain positions, such as judges, advocates and witnesses in the course of legal proceedings, should be permitted to express themselves with complete freedom, and, to secure their independence, absolute privilege is given to their acts and words (Halsbury laws of England 4th ed. Volume no. 28 para 96).'

David Pannick in his book Judges questions this wisdom,
'judicial independence was not designed as, and should not be allowed to become, a shield for judicial misbehaviour or incompetence or barrier to examination of complaints about injudicious conduct on apolitical criteria.'

He is not the only one.
'Numerous other professional men may fairly say that fear of a law suit could impede their work and delay their making of crucial decisions. So far this suggestion has not impeded the judges from demanding reasonable standards of competence from solicitors, architects, surveyors and a host of others (Judicial Immunity and the Independence of the judiciary; Margaret Brazier; 1976 Public Law 397).'

Oh! We must come back to this case. The result of the case in which those remarks were made might have been the same had the defendant decided the case at the time when the plaintiff decided the case. The facts of that case were exceptional; harder than the hardest. (One must excuse our English. It is not our mother tongue). With the passage of time, facts of the case and the change in attitudes played their own chemistry with the law. The defendant changed it. Then could he or rather should he have used the adjectives that he did? Can it be said that it was done with due care and attention? May be not. But should we go into that question?

Judges, world over, make remarks or comments not only about parties to a case but often about their subordinates, and peers in their judgements. As, we said, it is our job. We do take sides, despite Themis being blindfolded (Endnote-2).

It is said that judges in USA are often harsh in their description of judgements with which they disagree. The English follow, the tradition where,
'personal attacks are politely concealed. (Final Appeal: A Study of the House of Lords in its judicial capacity, 1972 Pg. 146; Louis Blom-Cooper & Gavin Drewry).'
When Lord Diplok while overruling a judgement thought it to be
'astonishing ... inexplicable'
and containing
'reasons that I have not found easy to follow'. {Government of the USA Vs Mclaffery 1984 (2) All ER 570}
It did raise many eyebrows. And of course who does not know comments of Lord Atkin in his famous dissent in Liversidge Vs Anderson and the uproar that it created. Then its final vindication - so well recorded by Geoffrey Lewis in his book Lord Atkin.

We for ourselves have repeatedly held that no comments be made either of our subordinates or of our peers. So have the Indian courts,
'Sharp reaction is not in keeping with institutional functioning. Error beyond the limits of tolerance is no ground to inflict condemnation.' (Kashi Nath Roy Vs State of Bihar 1996 (4) JT 605)
The remarks that have led to filing of this case could have been, and ought to have been avoided. So we hold.

But we have to take notice of other factors too - judgeitis. It is a virus that afflicts members of bar and the bench but produces different symptoms. The classic case among the Lawyers was of Thomas Shaw (see Lives of the Lord Chancellor 1885-1940 page. 149; RFV Houston). When a vacancy occurred in Appellate committee of House of Lords, he left his client in the midst of arguing a case, critically poised, in a Scottish court and rushed to London in order to urge personally upon the Prime Minister of his claims to the vacant office. His efforts were not in vain.

Lord Hailsham describes the symptom of judgeitis among judges as,
'pomposity, irritability, talkativeness, proneness to obiter dicta (that is a statement not necessary for the decision of the case) a tendency to take short cuts.' (The Door Wherein I went; 1978 page 225)
Lord Chancellor at another place in an interview with John Mortimer in the book Character Parts reiterates,
'A judge may start losing his temper or find it impossible to make up his mind or suffer from bad case of judgeitis (which is) put briefly, pomposity, and self regard.'

We have our own reservation about the remarks made by the defendant. They may exemplify,
'an over speaking judge is no well tuned cymbal.' (Essay on Judicature; Francis Bacon.
Yet they do not furnish a remedy by civil action.

Harold Laski once wrote to Justice Holmes that he,
'wished that people could be persuaded to realise that judges are human beings; it would be a real help to jurisprudence.' (Holmes-Laski letters; ed. by Mark DeWolfe Howe 1953 page 845)
With due apologies, we would like to add, 
‘If judges could be persuaded to realise that they are human beings; it would be a real help to jurisprudence.’

With this we consign the records of the case to the dustbin where all records are sent for posterity. This also explains why we have cited books and decisions of countries other than our own.

Endnote-1: For details see In The Matter of Epimenides.
Endnote-2: Themis is the Greek goddess of justice. She is blindfolded. She has scales in one hand and sword in other.

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