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Higher judiciary guilty of 7 sins: ex-SC judge pulls no punches by Maneesh Chhibber

From hypocrisy and secrecy to arrogance, nepotism and plagiarism, all bedevil the higher judiciary, said former Supreme Court Justice Ruma Pal today in one of the most scathing indictments of the higher judiciary by one who has been part of it.

With sitting and retired judges of the Supreme Court and Delhi High Court listening, Pal, delivering the fifth V M Tarkunde Memorial Lecture on ‘An Independent Judiciary’, turned the searchlight inwards in a manner few of her contemporaries have done.

Her key idea: independence of the judiciary and the judicial system ultimately depends on the personal integrity of each judge.

With this as her backdrop, Pal went on to list the “sins” she said were undermining the judiciary and threatening its independence. The first sin, she said, was to brush things under the carpet, turning a “Nelsonian eye” to “(the) injudicious conduct of a colleague. Ironically, she said, judges are fierce in using the independence of judiciary as a sword to take action in contempt against critics while also using the same as a shield to cover a multitude of sins, some venal and others not so venal.

Many judges are aware of the injudicious conduct of a colleague, she said, but have either ignored it or refused to confront the judge concerned and have suppressed any public discussion on the issue often “through the great silencer - the Law of Contempt,” she said.

The second sin: hypocrisy. “A favourite rather pompous phrase in judgments is ‘Be it ever so high, the law is above you’ or words to similar effect. And yet judges who enforce the law for others often break that law with impunity. This includes traffic regulations and any other regulation to which the ‘ordinary’ citizens are subject. Some, in fact, get offended if their cars are held up by the police while controlling the flow of traffic - the feeling of offence sometimes being translated into action by issuance of a rule of contempt against the hapless police constable all in the name of judicial independence,” Pal said.

The third sin, according to Pal, is secrecy. The normal response of courts to any enquiry on their functioning, she said, is to “temporise, stone-wall and prevaricate”. She pointed out that the process by which a judge is appointed to the High Court or elevated to the Supreme Court is “one of the best kept secrets in the country.”

She said if independence of judiciary is taken to mean “capable of thinking for oneself,” then the fourth sin of the judiciary is plagiarism and prolixity. “I club the two together because the root cause is often the same, namely the prolific and often unnecessary use of passages from textbooks and decision of other judges - without acknowledgment of in the first case and with acknowledgment in the latter. Many judgments are, in fact, mere compendia or digests of decisions of decisions on a particular issue with very little original reasoning in support of the conclusion,” she said.

Pal listed arrogance as the fifth sin, saying judges often “misconstrue” independence as judicial and administrative indiscipline. “Both of these in fact stem from judicial arrogance as to one’s intellectual ability and status. A judge’s status like other holders of public posts is derived from a office or the chair,” she pointed out.

Pal said that while the SC had laid down standards of judicial behaviour so that members of the subordinate judiciary are “conscientious, studious, thorough, courteous, patient, punctual, just, impartial, fearless of public clamour, regardless of public praise”, “sadly some members of the higher judiciary exempt themselves from the need to comply with these standards”.

She also listed intellectual arrogance or intellectual dishonesty that is manifest when judges decide without being bound by principles of “stare decisis” or “precedent” as another problem area.

The seventh and final sin, she said, is nepotism. “What is required of a judge is a degree of aloofness and reclusiveness not only vis-a-vis litigants but also vis-a-vis lawyers. Litigants include the Executive,” she said. “Injudicious conduct includes known examples such as judges using a guest house of a private company or a public sector undertaking for a holiday or accepting benefits like the allocation of land from the discretionary quota of a Chief Minister. I can only emphasise that again nothing destroys a judge’s credibility more than a perception that he/she decides according to closeness to one of the parties to the litigation or what has come to be described in the corridors of courts as ‘face value’.