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This article was prompted because of the observations against the High Court judges in the RP-Mishra case and was written at that time, though some modifications have been since then. It was a protest against higher courts making observations against the lower courts.
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 Facts
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 (the Plaintiff here) has sued a judge of this court (the Defendant here), the highest court in Timbuktroon for damages for remarks about him in his judgement. We are honoured to have this privilege to be in the history books for this.
The Defendant set aside an order passed by the Plaintiff. While setting aside the order, he made the remarks that the Plaintiff,
"did not apply his mind … superficially read the evidence … dealt the matter in a casual manner ... has no knowledge of elementary principles of … law."
At the outset, we must say that the remarks by the Defendant are conspicuous for their moderation.
History
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).
- In recent time Dr. Justice BS Chauhan's Court was ransacked by lawyers of his court; he was lucky to escape, as he chose not to sit in the Court. Later, after retirement, when he wanted to visit the Bar Association to meet lawyers in connection of an inquiry, Bar Association passed resolution to oppose it.
Thank god, now we have the contempt power. We can handle many things.
We have a difficult job. Unlike others, we 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, please see ‘Supreme Court's Shame') rendered during internal emergency (1975-77), otherwise known as the darkest period in India's democracy and brightest in the High Courts' history. This judgement is also known as the Black judgement; India’s Liversidge Vs Anderson.
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 this aspect—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 mind of the public but our minds as well: after all we are also human beings and not Gods. May be this was the reason for changing the law by the defendant. 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,
"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 the House of Lords could then why can't I?'
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 in resolving conflict of laws; we are 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.
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 the dilemma, we will try to answer it.
Jury
Traditionally, juries and judges have been hand in glove in performing judicial functions. Jury decides the fact and the judges decide, the law. In some countries, there was provision for assessors. Halsbury Laws of England 4th Edition Vol. 26 paragraph 96 explains,
"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. But ultimately they were protected. 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’ {1670 (6) State Tr. 999}."
One of the jurors in the Bushell's case was illegally imprisoned and later on set free in a writ of Habeas Corpus. He brought an action against the judge for wrongful imprisonment. The court in Hammod Vs Hawe- 1667 (2) Mod Rep 218 held that
"Though the judges in that case were mistaken, yet they acted judicially and for that reasons no action will lie against the defendants."
Inferior-Superior Courts
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.
Like inferior courts, the superior courts were not liable for their acts within their jurisdiction. However, it was also available for their acts without jurisdiction and even for their acts '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 in England. In Sirros Vs Moore 1974 (3) All ER 776, it was held that:
"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."
"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."
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."
We also have a statute with similar provision in our country. It grants immunity for action done in bona fide belief.
Nonetheless, the question is whether this belief or acting bona fide 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 done without due care and attention―be bona fide or honest.
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 Judges 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." (See Halsbury laws of England 4th ed. Volume no. 28 para 96).
David Pannick in his book 'Judges' questions this wisdom. He says that:
"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,"
Pannick is not the only one. Margaret Brazier in 'Judicial Immunity and the Independence of the judiciary' 1976 Public Law 397 observes,
"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."
Remarks
With the passage of time, facts of the case and the change in attitudes played their own chemistry with the law. The defendant changed the law. 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?
World over, the judges 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. Have you seen picture of Themis; she is the Greek goddess of justice. She is blindfolded but her scales are not balanced: they are tilted.
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. While overruling a judgement in Government of the USA Vs Mclaffery 1984 (2) All ER 570, When Lord Diplok thought the judgement to be "astonishing ... inexplicable ... [contains] reasons that I have not found easy to follow'.
It raised many eyebrows. And of course who does not know comments of Lord Atkin in his famous dissent in Liversidge Vs Anderson 1941 (3) All ER 338 (Please see Liversidge Vs Anderson for details)’ and the uproar that it created.
Indian courts have held,
"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 AIR 1996 SC 3240 = 1996 (4) JT 605)
Like them, we have also repeatedly held that no comments be made either of our subordinates or of our peers. The remarks could have been, and in view of the law of the land, ought to have been avoided. So we hold.
Judgeitis
But we have to take notice of one important and relevant factor as well―judgeitis. It is a virus that afflicts members of bar as well as of the bench but produces different symptoms.
Lord Hailsham in the book ‘The Door Wherein I went’ (page 255) says:
‘There are judges, popular and effective at bar, who, on the Bench become subject to Judges’ disease [judgeitis] that to say a condition a condition of which the symptoms may be 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’
At another place, His Lordship 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’.
Conclusion
We have our own reservations about the remarks made by the Defendant. They may exemplify 'an over speaking judge is no well tuned cymbal’(Essay on Judicature; Francis Bacon). Ye,t they do not furnish a remedy by civil action.
"wished that people could be persuaded to realise that judges are human beings; it would be a real help to jurisprudence." (see Holmes-Laski letters; edited by Mark DeWolfe Howe 1953 page 845.
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.
।। The Uniform Marriage And Divorce Bill।। The Population Control Bill।।#Law #Stricture
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