What a Judge should not comment in public

What a Judge should not comment in public

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“The judiciary, …, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; …”. These are the wise words of Alexander Hamilton, an American statesman and one of the founding fathers of the United States (in The Federalist Papers : No. 78), though uttered in a slightly different context.
A Judge shall speak only through his judgments. With a view to ensure an independent and respected judiciary, that is essential for the survival of our democracy, on May 7, 1997, the Supreme Court, in its Full Court, adopted the “Restatement of Values of Judicial Life” laying down certain basic values and standards to be observed by Judges of the Supreme Court and the High Courts. One principle restated in this Charter is:
“A Judge is expected to let his judgments speak for themselves. He shall not give interviews to the media.”
Yet another important principle laid down in this Charter reads as under:
“A Judge shall not enter into public debate or express his views in public on political matters or on matters that are pending or are likely to arise for judicial determination.”
Though this Charter is of a voluntary character, it is expected to be obeyed by all Judges in their conduct. The Judicial Standards and Accountability Bill, 2010, which is yet to be enacted by the Parliament, inter alia, proposes to give legal sanctity to the values and standards mentioned in the above Charter. In particular, Clause (f) of Section 3(2) of the above Bill proposes that no Judge shall enter into public debate or express his views in public on political matters, etc.
Well, now consider the speech of the Chief Justice of India, Justice S.H. Kapadia, at an international conference on “Economic Growth and Changes of Corporate Environment in Asia” held in New Delhi on September 22, 2012. Indian Express quotes relevant part of this speech thus:
“Sometime we see certain (TV) programmes and we build our perceptions. How many of us know the basic principle of valuation? Today a number of controversies on valuation are discussed but the basic principle of valuation is that loss is a matter of fact and profit or gain is a matter of opinion. Please apply this test to the controversies going on. I do not want to discuss anything further. Loss is a matter of fact and profit and gain is a matter of opinion. So if you understand these principles, we will be able to judge. Our perceptions will become more sound and we know where the shoe pinches.”
If one had a doubt about what these observations were about, read this Times of India (TOI) article that tells it all in its heading itself: “Coalgate figures may not be accurate, hints Chief Justice of India S H Kapadia”. TOI further goes on to report that Justice Kapadia’s above observations suggested that the recent estimate of the Comptroller and Auditor General of India (CAG) of “windfall gain” of Rs. 186000 crore in the controversial coal block allocations (the so-called “coalgate”) may not be accurate.
It may be pointed out that a whole session of the Parliament was wasted due to coalgate issue since the principal opposition party, the BJP, wanted the Prime Minister to resign on this issue. It is noteworthy that the Prime Minister held the charge of the Coal Ministry for a substantial duration of time when the said coal block allocations were made. The Government has questioned the valuation of the coalgate made by the CAG, and the opposition parties have been taking the Government to task on this issue. Now, if the Chief Justice of India, expresses his views in the presence of the Prime Minister, which tend to suggest that the valuation (made by CAG) may not be accurate, though by not using so many express words, it does raise issues of propriety on the part of the Hon’ble CJI. Can he express his views on such highly controversial political matters, when there are already conflicting and divergent political views on the issue of the said valuation? What happens to the “Restatement of Values of Judicial Life”, referred to above, and also to the general principles requiring restraint on the part of Judges while speaking on such political issues in public?
It is also pertinent to mention that barely a week ago, on September 14, 2012, a bench of Justices R.M. Lodha and A.R. Dave of the Supreme Court had issued a notice to the Central Government to explain if the guidelines were strictly followed in allotting the natural resource to private companies (while allocating the said coal blocks).
Therefore, the aforesaid observations made by Justice Kapadia raise further eyebrows in view of the fact that this matter was already sub-judice with a Bench of the Supreme Court, and therefore, at least the Chief Justice of India, the father figure for the judiciary, should have avoided publicly airing any views on that sub-judice matter (such as valuation).
Well, it is not all. The Hon’ble CJI also praises the recent decision of economic reforms made by the Prime Minister. It is noteworthy that these economic reforms relating to FDI in multi-brand retail, increase in price of diesel, a ceiling of six LPG cylinders, etc., have also been severally criticized not only by all major opposition parties but also by some of the allies of the ruling UPA. Mamata Banerjee’s TMC has, in fact, withdrawn its support from the UPA Government on this issue itself. A “Bharat Bandh” was observed by many political parties on September 20, 2012, and some of the allies of the UPA Government (such as DMK and Samajwadi Party) had also supported this “Bharat Bandh”. Thus, it goes without saying that these economic reforms have also become politically controversial to a great extent, notwithstanding the merits or desirability of these economic reforms (in fact, personally, I may be in favour of these reforms). Given the political controversy on these economic reforms, was it proper for the Hon’ble Chief Justice of India to air his personal views in public?
The Hon’ble CJI also speaks on the issue of “… to attract foreign direct investment to lift the damp sentiment in the market and the manufacturing sector”. Well, with great respect, should the Hon’ble CJI be publicly concerned about the “damp sentiment in the market”? It is pertinent to point out that as Finance Minister in the 1990’s, Dr. Manmohan Singh had himself famously said that he did not lose sleep over market volatility. The observations of Hon’ble CJI, therefore, on lifting the “damp sentiment in the market” are disappointing, to say the least.
It may not be out of place if I refer to another recent speech of Justice Kapadia delivered on August 22, 2012, at the India International Centre in New Delhi on the subject of “The Jurisprudence of Constitutional Structure” (his speech can be heard online here). While referring to the recent Supreme Court judgment in In Re: Ramlila Maidan Incident in which a Bench of Justice B.S. Chauhan and Justice Swatanter Kumar had spoken about the “right to sleep” (in the context of police attack on many innocent participants, who were sleeping at midnight in Ramlila Maidan in New Delhi during a protest organized by Yoga Guru Baba Ramdev), Justice Kapadia said thus:
“Right to life, we have said, includes environmental protection, right to live with dignity. Now we have included right to sleep, where are we going? It is not a criticism. Is it capable of being enforced? When you expand the right, the judge must explore the enforceability.”
Well, without going into the merits or demerits of laying down the right to sleep as a precious right under the Constitution, the only question that I am raising is whether the sitting Chief Justice of India should question (in an extra-judicial forum) the observations made by a sitting Supreme Court Bench in its official judgment? It is a different matter if the Hon’ble CJI refers the matter to a larger Bench on a proper application being made, and then speaks judicially against such judgment while sitting as a member of the larger Bench. It may also perhaps be alright if he criticizes such a judgment after his retirement. But, does it not raise a question of propriety when the sitting CJI speaks on an extra-judicial forum as a critique of a Supreme Court judgment delivered recently by a Bench of the Supreme Court constituted by the CJI himself? What signal does it send to the litigants?
Do we need an answer to these questions? Well, let me quote CJI Kapadia’s own observations on this issue, though these observations were made about two years back when he had taken over newly as the Chief Justice of India. Delivering Justice P.D. Desai memorial lecture on the subject “Constitutional Morality”, Justice Kapadia had then said:
“High Courts and the Supreme Court are courts of principles. The judges should not speak anything beyond the principles of a particular case. Let us not give lectures to the society.”
My Lord had further said at that time: “…We have to work for constitutional principles. I have no right to say what others should do but I have to perform the duty on constitutional principles.”
In the light of his own words of wisdom mentioned above, it is unfortunate that at the fag end of his illustrious career as a Judge and as the CJI, Justice Kapadia has chosen to speak publicly on certain controversial political issues and economic policies.
As pointed out by former CJI Justice R.C. Lahoti, as per the oath required to be administered to a Judge at the time of his appointment under provisions of the Constitution, a judge must bear not only faith but “true faith” and ‘allegiance’ to the Constitution of India. The oath demands of a judge not only belief in constitutional principles but a loyalty and a devotion akin to complete surrender to the constitutional beliefs. [“Canons of Judicial Ethics”, by Justice R.C. Lahoti, (2005) 2 LW (JS) 25]. Thus, it is quite essential that a Judge must not endeavour to go beyond what is required of him by the Constitution while he continues to be a sitting Judge of the Supreme Court.
In an article “Independence of the Judiciary” published with the citation of (1981) 3 SCC (Jour) 15, former Supreme Court Judge, Justice H.R. Khanna stated thus:
“If our Constitution visualises that judiciary should be kept out of politics, we have also to ensure that politics is kept out of the judiciary. Indeed if there is one branch of the State which must steer clear of political controversies and not get involved in or aligned with any of the political personages and parties in their disputes and struggles, it is the judiciary. That all constitutional interpretations, to repeat what I said in Kesavananda Bharati case, have political consequences should not obliterate the fact that the decision has to be arrived at in the calm and dispassionate atmosphere of the court room, that Judges in order to give legitimacy to their decision have to keep aloof from the din and controversy of politics and that the fluctuating fortunes of rival political parties can have for them only academic interest. Their primary duty is to uphold the Constitution and the laws without fear or favour and in doing so they cannot allow any political ideology or economic theory which may have caught their fancy to colour the decision. The sobering reflection has always to be there that the Constitution is meant not merely for people of their way of thinking but for people of fundamentally differing views.” (emphasis is mine)
Justice Khanna further highlighted the necessity of an impeccable conduct of the Judges by observing as under:
“While resisting any inroads into the independence of judiciary, we have also at the same time to ensure that there is no deviation on the part of those donning judicial robes from the high standards of rectitude and allegiance to values which are the proud legacy of the judiciary. The best guarantee for the independence of the judiciary, I submit, is the impeccable conduct of the Judges themselves.”
This is what was stated by Justice P.B. Gajendragadkar on this issue [“To The Best of My Memory”, by Justice P.B. Gajendragadkar, p. 138]:
“Judges ordinarily must observe certain rules of decorum in their social behaviour. A little isolation and aloofness are the price which one has to pay for being a judge, because a judge can never know which case will come before him and who may be concerned in it. No hard and fast rule can be laid down, in this matter, but some discretion must be exercised.”
An Australian scholar Thomas J.A., has observed that judicial appointment brings with it substantial retirement from the world and a degree of public and social isolation so that the judge could not be said to be compromised or the judge’s impartiality brought into question. [“Judicial Ethics in Australia”, by Thomas J.A., 2nd Ed., 1997, at pp. 93-94].
In an article, “Extra-judicial Comment by Judges”, published in Judicial Studies Institute Journal, Ronan Kennedy observes as under:
“While judges have much of value to contribute to public discourse and debate on the law and the legal system, they should be careful that when they are speaking or writing off the bench, they are both sensible and sensitive. Careless comment leaves the judge open to allegations of bias and, if particularly thoughtless, can lead to very damaging controversy.”
It is no doubt true that judges have a treasure of valuable experience that needs to be shared with others. In fact, the judges have a solemn duty to improve the administration of justice. However, a Judge should speak through his judgments. No doubt, a Judge can also share his rich legal knowledge and experience though speeches and articles in extra-judicial academic forums, however, the topics and contents should be carefully chosen, the manner and means should be carefully chosen. In no case should a sitting Judge express his opinion, howsoever genuine and innocent, on issues that are subject matters of politics and economic policies. These issues should better be left to the politicians, economists and the Government of the day.
Justice Kapadia is considered to be one of the best Judges with an impeccable integrity. This article makes a humble attempt merely to point out that as a sitting Judge, the observations made by him in extra-judicial forums, as referred to above, should perhaps have been better avoided. Nothing more, nothing less.

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  • Media created and perpetuated Myths : No. 1 – Manmohan is Honest. No. 2 – Development in Gujarat under Narendra Modi No. 3 – SH Kapadia has impeccable Integrity.