Seven Judicial Sins?
'THE process by which a judge is appointed to a superior court is one of the best kept secrets in this country', said Justice Ruma Pal last week in her Tarkunde Memorial Lecture from the safe haven of retirement.
She explained 'independence of the judiciary' used as a shield to cover seven sins some venial and others not so venial. Any lawyer practicing before a court will have a rather long list of these. She has chosen seven.
++ Brushing under the carpet or turning a Nelsonian eye. Many judges are aware of injudicious conduct of a colleague but have either ignored it or refused to confront the judge concerned and suppressed any public discussion on the issue often through the great silencer-The Law of Contempt.
++ Hypocrisy: A favourite rather pompous phrase in judgments is “Be you 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 at all 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.
++ Secrecy. The normal response of Courts to any enquiry as to its functioning is to temporize, stone-wall and prevaricate. 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.
++ Plagiarism and prolixity: Many judgments are in fact mere compendia or digests of decisions on a particular issue with very little original reasoning in support of the conclusion.
++ 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 the office or the chair. One has to merely occupy that chair during one's tenure with dignity and remember that each time a lawyer bows and says “Deeply obliged” --the bow is addressed to the office and not to the person.
++ Intellectual arrogance or what some may call intellectual dishonesty is manifest when judges decide without being bound by principles of stare decisis or precedent. Independence no doubt connotes freedom to decide but the freedom is not absolute. It is bound to be in accordance with law. Otherwise, we have lawyers and the sub-ordinate judiciary baffled while “mastering the lawless science of our law” faced with "that codeless myriad of precedent, that wilderness of single instances”.
++ Nepotism or what the oath of office calls 'favour' and 'affection'. 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. Injudicious conduct includes known examples such as judges using a guesthouse 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.