Justice – Not My Job

 Summary: This post is about nature of judging or dispensing justice.

The Judgement of Solomon - a story from  the Hebrew Bible, where he was asked to decide the true mother of a child among the two women.  Solomon revealed their true feelings and relationship by suggesting the baby be cut in two and each woman to receive half. With this strategy, he was able to find out  true mother. Great example of administering justice with wisdom. Picture - Courtesy Wikipedia

Judging or dispensing justice is a complex issue – difficult to define. Judge Learned Hand narrates a conversation with Justice Oliver Wendell Holmes, on a Saturday, when the judges of the US Supreme Court confer about cases argued before them. When parting company with Justice Holmes, Judge Hand said, 

‘“Well, sir goodbye. Do justice.” He [Justice Holmes] replied, “That is not my job. My job is to play game according to the rule.”’ 

Learned Hand, A personal Confession in The Spirits of Liberty 301 

Justice Holmes believed that the judges should follow the statute as they see it, whatever the personal consequences may be. It was clearly visible in his dissent in Lochner Vs NY 198 US 45 (1905). 

The aforesaid philosophy resonates with a story that reverberates in the corridors of the Allahabad High Court. It was narrated in detail by Chief Justice MC Desai in his farewell speech (reported in 1966 Allahabad Law Journal 5). In short: 

In an island there was only one judge. One day, when he was standing at a window, he saw a man knifing another and then the murderer ran away. Afterwards, another person came and tried to take out the knife. In the meantime, a constable came and questioned him. The other man got frightened and gave incoherent answers. He was arrested and tried before the same judge. Circumstantial evidence was strong; the accused was convicted and executed. When truth came out, there was outcry against the judge. However, his conduct was defended on the ground that on the evidence presented, this was the only verdict possible. 

In the modern times, its classic example is the majority decision in ADM Jabalpur Vs Shiv Kant Shukla AIR 1976 SC 1207: (1976) 2 SCC 521 (the Habeas Corpus case). In this case, the majority held that Habeas Corpus was not maintainable as right to enforce Article 21 was suspended. After emergency was lifted and democracy was restored, one of the Judges of the majority offered public apology and said that his 

 ‘”predisposition was not in the direction he ruled … should have gone against law.” ... Till the end, [the same judge] ... maintained that there was neither natural law nor pre-constitutional rights and if freedoms were suspended then nothing could be done.’ 

Working a Democratic Constitution: The Indian Experience by Granville Austin Pg 342 

In the Habeas Corpus case, the majority consisted of learned judges. One of them was the sitting Chief Justice of India and the other three adorned the same office later. If the judges - so learned, holding such a high office - can so hold, then what to say about ordinary mortals.

 

However, the redeeming feature is that this scenario is changing. Catharine Pierce Wells in ‘Oliver Wendell Holmes: A Willing Servant to an Unknown God’ writes (Pg 202), 

‘Sometimes between our entry into World War II and departure from Vietnam, Americans became impatient with the idea that the courts should “play the games according to rules”, rather than do justice.’ 

When I heard the incident narrated by Justice Desai, its end was different. The judge after convicting the accused wrote a personal letter to the Queen narrating the incident as he saw it. He requested Her Majesty to pardon him and she promptly did so. So ultimately, justice was done.

Some time ago, I wrote two posts ‘Know Your Judge’ and ‘Soar Rather Than Sulk’, where I had explained the difference between the two and the judges need not be prisoner of law. Today many are trying to administer justice rather play the games according to the rules – judicial activism is a part of the same. 

In my own career spanning over fifteen years, I tried to listen to my heart rather than mind. 

• In Hazi Ataullah Ansari Vs State (FB) (2011) 3 All LJ 412: (2011) 86 ALR 291 interpretation of section 48 of the UP Municipalities Act was involved. Under this section, the moment a show cause notice is issued to an elected president for removal - he ceases to exercise financial and administrative powers. The question was, whether he is entitled to any opportunity before it is issued. 

The world of Physics is still searching for its 'Theory of Everything' (TOE) (see End Note-1) but the jurisprudence has already found its - in fairness (see End Note-2): ultimate aim of every jurisprudence. The power under section 48 of the Municipality Act is drastic. Considering it, on the touchstone of fairness, it was held that minimum opportunity was required before issuing show cause notice.

• Same was the reason in deciding MD Overseas Vs Director General of Income-tax (2011) 333 ITR 407. It was held that if the petitioners make out a prima facie case against the validity of the search under Income Tax Act then (subject to privilege under section 123 or 124 of the Evidence Act), they are entitled to know the information in possession of the Department or the reasons to believe for authorising the search except the source of the information. This was done after distinguishing Supreme Court decisions and ignoring almost all other High Courts. 
• In Hemant Kumar Vs Laxmi Devi (2004 ALJ 972), the Supreme Court decision reported in Balkrishna R Kadam vs. Sangeeta B Kadam {AIR 1997 SC 3652=1997 (7) SCC 500} was distinguished and section 27 of the Hindu Marriage Act was broadly interpreted to hold that not only joint property but exclusive property can also be dealt with to avoid delay and multiplicity of proceedings. 
• In Committee of Management District Co-operative Bank Limited Vs State of UP 2005(4) AWC 3482, section 29 of the UP Co-operative Societies was strictly interpreted and the appointments of the tainted office bearers of the ruling political party, who were nominated as administrators in the cooperative banks, were set aside. 
• In Sheikh Mohammad Vs State of Madhya Pradesh (2014) 3 CGLJ 1, a Muslim boy accused of murdering his Hindu friend - who was in love with him - was acquitted. 
• In Gopal Mishra Vs Pt Ravishankar Shukla University AIR 2013 CHHATTISGARH 80, the word ‘division’ was broadly interpreted to include marks as well. It was done, to give benefit to a visually and physically challenged candidate. 

There were many such cases, where heart ruled over mind but I have quoted only a few. Some of them were overruled by the Supreme Court. This does not mean that they were wrongly decided or justice was not administered. It only means that their sense of justice was different. Had their been a higher court, then their decisions would have been overruled. 

Today, jurisprudence is moving towards fairness. If, the procedure is fair, the end result is fair; then it is end of the matter. Otherwise, some via media has to be evolved. And this is - as I already said in the beginning - a complex issue.

End Note-1: There are four fundamental forces governing our Universe.  They are known as

• Strong Nuclear force.
• Electromagnetic force.
• Gravitational force.
• Weak interaction force.

The ultimate aim of physics is to unite these forces together – Theory of Everything (TOE).

End Note-2: Chief Justice Earl Warren, born on March 19, 1891, was the 14th Chief Justice of the United States of America (1953-69). ‘But, is it fair’ was a question that most of the lawyers appearing before him had to answer.  It was on this touchstone that he tested all state actions.  And this may well be the question to ask so far as administrative law is concerned.

 

This post is part of the series 'LegalTrek'. They are under the following sub-heading: Book review/ Biography, Drama/ Judgements, History, Managing Court & Judiciary, Office Management, Personal, Reminiscence/ Advice, Suggestions/ Opinion. If necessary, the division will further diversified. This one is under the sub-heading Managing Court & Judiciary. 

One can access these posts in this series by clicking  on the label 'LegalTrek' on the right hand side and this sub-heading posts by clicking 'Advice' or 'Reminiscences'.

LegalTrek - Reminiscences/ Advice

।। Avoid Legalese - Adopt Plain English।।  Know Your Judge।। Soar Rather than Sulk।। One, Who arrests, Bears The Burden।। Then All Lawyers Are Lunatic।। Writing, Expressing - Improves Communication।। Keep The Judge In Good Humour।। What Irritates A Judge Most।। Justice – Not My Job।।

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