Despite their power and glory, judges are portrayed as cool and collected people, unmoved by the pathos of the cases before them or the wily arguments at the bar. However, it is not rare to find a judge who opens the Third Eye. In 1981, one Supreme Court judge stormed out of the court muttering things against his brother judge. Off-the-cuff remarks are plenty. “What the hell is going on in this country?” a judge asked last year after reading a report on the black money cached abroad. Another wanted to “hang all corrupt people in public”, while even Anna Hazare would simmer down after one (or two) verbal slaps.
When judges castigate each other, it is more serious. Last year, the Supreme Court remarked that there is “something rotten” in the Allahabad High Court. When a review petition was moved to expunge the remark, the court wrote another judgment insisting that it is still rotten.
In 1999, a judge of the Patna High Court was peeved by the Supreme Court judgment in which he was named, and stated that “with due respect, if we may say so, his view is most atrocious”. He moved the court and this time the Bench that heard his plea was more sympathetic and deleted the remark (State of Bihar vs Nilmani Sahu).
The plight of subordinate judges is much worse. Last month, the Supreme Court lamented that “despite numerous pronouncements of this court pointing out the imperative necessity of use of temperate and sober language warranting total restraint” the higher echelons of the court hierarchy are making unwarranted observations against subordinate judges. The judicial officer receiving the rebuke from above is undefended and is denied natural justice. Moreover, instead of enhancing respect for judiciary, such language “brings the judiciary downhill”, the court stated in the judgment, Amar Pal vs State of UP.
This was a case in which a person was shot at with a country-made pistol during a marriage procession. When a friend of the victim complained to the police, they did not record the first information report (FIR). So, he approached the chief judicial magistrate, who dismissed his petition. When he moved the Allahabad High Court, it stated that the magistrate should have directed the registration of the FIR and investigation. The order contained some harsh remarks against the magistrate, such as stating that his conduct was “deplorable, wholly mala fide, vexatious, illegal, unpardonable”. He moved the Supreme Court for expunging the remarks. It did so.
It pointed out that “for more than four decades this court has been laying emphasis on the sacrosanct duty of a judge of a superior court how to employ language in judgments so that a message to the officer concerned is conveyed... A distinction has been lucidly stated between a message and a rebuke. A judge is required to maintain decorum and sanctity which are inherent in judicial discipline and restraint”.
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Derogatory remarks against a judicial officer affect not only his reputation irrevocably, but “corrodes the sacrosanctity of the institution’s zealously cherished philosophy”, the Supreme Court said and warned that “no better device can be found to destroy judiciary from within”.
A Constitution Bench, in the case, Alok Kumar vs S N Sarma, said even where criticism is justified, it must be in a language of utmost restraint, “keeping in view that the person making the comment is also fallible”. In another judgment, K P Tiwari vs State of MP, the court observed that a judge is likely to make mistake while discharging his duties. “It is well said that a judge who has not committed an error is yet to be born.” The consequences of stern remarks against subordinate judges are serious. After a comprehensive discussion of this problem, the Supreme Court enumerated the mischief it could cause all round, in the judgment, State of UP vs Mohammad Naim. First, the judicial officer is condemned without hearing him. Second, the harm done may be incapable of being undone. Third, such criticism gives the litigating party a “sense of victory” not only over his opponent but also the judge who decided the case against him. This is subversive of judicial authority of the deciding judge. Finally, moving a petition for expunging the remark reduces the judicial officer to the status of a litigant before the high court or the Supreme Court.
There could be two or more opinions on an issue before any court. Subjectivity in decision-making cannot be avoided. Referring to the same problem, judges in the UK and the US have made prudent remarks. “If you expect total absence of preconceptions in the mind of judges, then no one has ever had a fair trial,” said one. Another wrote: “Alas! We are all common growth of Mother Earth — even those of us who wear the long robe.”