No Disparaging Remarks by Judges against lower authorities - Supreme Court advises
USUALLY judges, when disagreeing with the orders passed by their subordinate judicial authorities, refrain from expressing any comment on the conduct of the subordinate judiciary. Usually court rooms are citadels of courtesy and good manners. All judges are lords or honourable; all lawyers are learned and so are all subordinate judicial authorities. Everything is respectfully submitted and the opposition lawyer is always a ‘learned friend'. But once in a way, judges do comment and sometimes these are castigating comments.
Recently the Andhra Pradesh High Court in a judgement observed about a District Judge,
This attitude of the learned District Judge is out of sheer arrogance and disrespect to the lawful orders passed by subordinate Courts.
It must be remembered that it is the duty of every member of the legal fraternity to ensure that the image of the judiciary is not tarnished and its respectability eroded.
The manner in which proceedings were taken by the learned Judge exposes a total lack of respect for judicial discipline.
Judicial authoritarianism is what the proceedings in the instant case smack of. It cannot be permitted under any guise.
Judges must be circumspect and self disciplined in the discharge of their judicial functions.
The ‘learned District Judge' appealed to the Supreme Court.
The question whether in exercise of the appellate jurisdiction qua the orders of courts subordinate to it, the High Court should make disparaging remarks/comments casting aspersions on the credibility of the Judicial Officer, whose order is under challenge, has been considered in several cases.
Almost 47 years ago, Justice Gajendragadkar , speaking for a Bench of three-Judges in Ishwari Prasad Misra v. Mohd . Isa , stressed the need to adopt utmost judicial restraint against using strong language and imputation of corrupt motives against lower judiciary by observing that in such matters, the concerned Judge has no remedy in law to vindicate his position.
In K.P. Tiwari v. State of M.P., the Supreme Court reminded all concerned that using intemperate language and castigating strictures on the judges of the lower judiciary diminishes the image of judiciary in the eyes of public.
Some of the observations made in that judgment:
Our legal system acknowledges the fallibility of the judges and hence provides for appeals and revisions. A judge tries to discharge his duties to the best of his capacity. While doing so, sometimes, he is likely to err. It is well said that a judge who has not committed an error is yet to be born. And that applies to judges at all levels from the lowest to the highest. Sometimes, the difference in views of the higher and the lower courts is purely a result of a difference in approach and perception. On such occasions, the lower courts are not necessarily wrong and the higher courts always right.
It has also to be remembered that the lower judicial officers mostly work under a charged atmosphere and are constantly under a psychological pressure with all the contestants and their lawyers almost breathing down their necks -- more correctly up to their nostrils. They do not have the benefit of a detached atmosphere of the higher courts to think coolly and decide patiently.
Every error, however gross it may look, should not, therefore, be attributed to improper motive. It is possible that a particular judicial officer may be consistently passing orders creating a suspicion of judicial conduct which is not wholly or even partly attributable to innocent functioning. Even in such cases, the proper course for the higher court to adopt is to make note of his conduct in the confidential record of his work and to use it on proper occasions.
The judges in the higher courts have also a duty to ensure judicial discipline and respect for the judiciary from all concerned. The respect for the judiciary is not enhanced when judges at the lower level are criticised intemperately and castigated publicly. No greater damage can be done to the administration of justice and to the confidence of the people in the judiciary than when the judges of the higher courts publicly express lack of faith in the subordinate judges for one reason or the other.
It must be remembered that the officers against whom such strictures are publicly passed, stand condemned for ever in the eyes of their subordinates and of the members of the public. No better device can be found to destroy the judiciary from within. The judges must, therefore, exercise self-restraint. There are ways and ways of expressing disapproval of the orders of the subordinate courts but attributing motives to them is certainly not one of them. That is the surest way to take the judiciary downhill.
In Braj Kishore Thakur v. Union of India the Supreme Court observed:
No greater damage can be caused to the administration of justice and to the confidence of people in judicial institutions when Judges of higher courts publicly express lack of faith in the subordinate Judges. It has been said, time and again, that respect for judiciary is not enhances by using intemperate language and by casting aspersions against lower judiciary. It is well to remember that a judicial officer against whom aspersions are made in the judgment could not appear before the higher court to defend his order. Judges of higher courts must, therefore, exercise greater judicial restraint and adopt greater care when they are tempted to employ strong terms against the lower judiciary.
In A.M. Mathur v. Pramod Kumar Gupta, the Supreme Court sounded a note of caution against making derogatory remarks against persons or authorities whose conduct comes under scrutiny and observed: "Judicial restraint and discipline are as necessary to the orderly administration of justice as they are to the effectiveness of the army. The duty of restraint, this humility of function should be constant theme of our Judges. This quality in decision-making is as much necessary for Judges to command respect as to protect the independence of the judiciary. Judicial restraint in this regard might better be called judicial respect, that is, respect by the judiciary. Respect to those who come before the court as well to other coordinate branches of the State, the executive and the legislature. There must be mutual respect. When these qualities fail or when litigants and public believe that the Judge has failed in these qualities, it will be neither good for the Judge nor for the judicial process."
In another case, the Court had observed:
"The primary purpose of pronouncing a verdict is to dispose of the matter in controversy between the parties before it. A Judge is not expected to drift away from pronouncing upon the controversy, to sitting in judgment over the conduct of the judicial and quasi-judicial authorities whose decisions or orders are put in issue before him, and indulge in criticising and commenting thereon unless the conduct of an authority or subordinate functionary or anyone else than the parties comes of necessity under review and expression of opinion thereon going to the extent of commenting or criticising becomes necessary as a part of reasoning requisite for arriving at a conclusion necessary for deciding the main controversy or it becomes necessary to have animadverted thereon for the purpose of arriving at a decision on an issue involved in the litigation. This applies with added force when the superior court is hearing an appeal or revision against an order of a subordinate judicial officer and feels inclined to animadvert on him.
Under the constitutional scheme control over the district courts and courts subordinate thereto has been vested in the High Courts. The control so vested is administrative, judicial and disciplinary. The role of High Court is also of a friend, philosopher and guide of judiciary subordinate to it. The strength of power is not displayed solely in cracking a whip on errors, mistakes or failures; the power should be so wielded as to have propensity to prevent and to ensure exclusion of repetition if committed once innocently or unwittingly. "Pardon the error but not its repetition".
A member of subordinate judiciary himself dispensing justice should not be denied this minimal natural justice so as to shield against being condemned unheard. Secondly, the harm caused by such criticism or observation may be incapable of being undone."
After noting several judgements, reverting to the present case, the Supreme Court observed,
“ there was absolutely no justification for the Division Bench to make highly disparaging remarks against the appellant as a judicial officer casting doubts on his ability to decide the cases objectively. The use of the words `out of sheer arrogance and disrespect to the lawful order' and the expression `judicial authoritarianism' in paragraph 10 shows that the Division Bench ignored the words of caution administered by this Court in several judgments including those referred to hereinabove and castigated the appellant without any justification. The observations and remarks made by the Division Bench of the High Court are bound to adversely affect the image of the appellant in the eyes of the public, his credibility as a judicial officer and also affects his career. We are sure that if the Division Bench of the High Court had kept in view the judgments of this Court, it would not have made disparaging remarks against the appellant, which, in the facts and circumstances of the case, were not at all called for.”
We bring you this important Supreme Court judgement today.