Can judges protest?

The root of the problem is not management of the Supreme Court’s roster but the credibility of the highest court of the country, which the issues raised by the senior judges have damaged.

Published : Jan 31, 2018 12:30 IST

December 16, 1963: Lord Denning, Master of Rolls, British Government, delivering an address on "The functions of the Judiciary in a Modern Democracy" in New Delhi.

December 16, 1963: Lord Denning, Master of Rolls, British Government, delivering an address on "The functions of the Judiciary in a Modern Democracy" in New Delhi.

AT the press conference on January 12, four of the most senior judges of the Supreme Court, bar the Chief Justice, Dipak Misra, expressed deep disquiet. They were Justices J. Chelameswar, Ranjan Gogoi, Madan B. Lokur and Kurian Joseph. This has raised questions of propriety given its unprecedented character. What is not excusable is the unqualified censure revealing that the critic was speaking without the book.

The issues are simple. First, what is the state of norms of judicial comment in public and what are the circumstances in which there is a right, if not a duty, to speak up.

Let us begin with a letter which a Law Lord wrote to the press in 1942 criticising a brother Judge. It arose from the famous case of Liversidge vs Anderson (1942) A.C. 2006 . The question before the House of Lords was whether the law empowered the Home Secretary to detain without trial a citizen on his subjective satisfaction for good reasons. The law gave this authority: “If the Secretary of State has reasonable cause to believe any person to be of hostile origin or association”. The majority upheld the subjective test. Lord Atkin alone dissented in language that remains unsurpassed in censuring the majority as well as the Attorney-General, Sir Donald Somerwell, and Valentine Holmes. The Leftist Q.C. D.N. Pritt appeared for the detainee. He had appeared for Bhagat Singh in the Privy Council.

Atkin said: “I view with apprehension the attitude of judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executive minded than the executive. Their function is to give words their natural meaning, not, perhaps, in war time leaning towards liberty, but following the dictum of Pollock C.B. in Bowditch v Balchin , cited with approval by my noble and learned friend Lord Wright in Barnard v Gorman : ‘In a case in which the liberty of the subject is concerned, we cannot go beyond the natural construction of the statute.’ In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law. In this case I have listened to arguments which might have been addressed acceptably to the Court of King’s Bench in the time of Charles I.

“I protest, even if I do it alone, against a strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister. To recapitulate: The words have only one meaning. They are used with that meaning in statements of the common law and in statutes. They have never been used in the same sense now imputed to them. They are used in Defence Regulations in the natural meaning, and, when it is intended to express the meaning now imputed to them, different and apt words are used in the regulations generally and in this regulation in particular. Even if it were relevant, which it is not, there is no absurdity or no such degree of public mischief as would lead to a non-natural construction.

“I know of only one authority which might justify the suggested method of construction: ‘When I use a word,’ Humpty Dumpty said in a rather scornful tone, ‘it means just what I chose it to mean, neither more nor less.’ ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’ ‘The question is,’ said Humpty Dumpty, ‘which is to be master—that’s all’( Through the Looking Glass , c. vi). After all this long discussion, the question whether the words ‘If a man has’ can mean ‘If a man thinks he has’. I am of opinion that they cannot, and that the case should be decided accordingly.”

After the speech, on November 3, 1941, Atkin took his daughter to the Dining Room for lunch. Lord Wright, “a very old friend” who was among the majority, “passed us by without a word”. They went home by the underground train.

On November 6, The Times published an astonishing letter by Lord Maugham, brother of Somerset Maugham, who had presided at the hearing. For some reason he could not be present when the opinions were read out. The letter said: “Lord Atkin, in his dissentient speech, stated that he had listened ‘to arguments which might have been addressed acceptably to the Court of King’s Bench in the time of Charles I’. Counsel, according to the traditions of the Bar, cannot reply even to so grave an animadversion as this. I think it only fair to the Attorney-General and Mr. Valentine Holmes, who appeared for the respondents, to say that I presided at the hearing and listened to every word of their arguments, and that I did not hear from them, or anyone else, anything which could justify such a remark.”

There followed a debate in the House of Lords. Maugham offered “an olive branch”. Atkin did not accept it. In November 1941 the British Army was facing reverses in Europe, Africa and Asia. Atkin became unpopular, despite a flood of letters in support including ones from Hartley Shawcross and Cyril Radcliffe, who buried the majority view in 1951, as did Lord Diplock in 1979. Atkin died on June 25, 1944. They do not make men and judges like him any more (Geoffrey Lewis, Lord Atkin , Butterworth).

Rules on publicity

Nearly half a century later, on October 30, 1990, The Times published a long letter by the Master of the Rolls, Lord Donaldson, in reply to a letter of criticism of the Court of Appeal. The clime had changed and with it, the rules on publicity. David Pannick’s classic Judges is a good guide on which this resume is based: “The rules are the ‘Kilmuir rules’, formulated by Lord Chancellor Kilmuir in December 1955. They prohibit judicial participation on radio and television. The rules are contained in a letter dated 12 December 1955 from Lord Kilmuir to Lieutenant-General Sir Ian Jacob, the Director-General of the BBC. The letter was a response to a request by the BBC for a number of judges to be granted permission to participate in a series of radio lectures about great judges of the past, to be broadcast on the Third Programme.

“Lord Kilmuir stated that he had given a great deal of thought to this matter. ‘The Lord Chief Justice, the Master of the Rolls and the President of the Probate, Divorce and Admiralty Division have been good enough to give me the benefit of their considered views, and what I write hereafter has united approval.’”

He acknowledged that there were advantages to the public in having a broadcast discussion of an important topic by qualified authorities. But, the overriding consideration was the importance of keeping the judiciary insulated from the controversies of the day. Recognising, perhaps, the distance between the proposed subject of the talks and popular controversy, and displaying an extreme lack of confidence in the ability of the judge to earn respect, Lord Kilmuir indicated that his real concern was anything that might be said by the Judge out of court. He suggested that so long as a judge keeps silent his reputation for wisdom and impartiality remains unassailable: but every utterance which he makes in public, except in the course of the actual performance of his judicial duties, must necessarily bring him within the focus of criticism.

“A judge should be fully entitled to speak out on matters of public concern so long as he does not give people cause for suspecting bias or partiality in the cases to be heard in his court and so long as he refrains from comment on matters of political controversy. The ban on judges appearing on radio or television (or writing newspaper articles) has no justification whatsoever.”

Pannick proceeds to add that so concerned was Lord Hailsham about the dangers of judges opening their mouths out of court that he “discourage[d] people on the Bench from seeking to defend themselves when criticised. Judges usually take this advice. But there have been exceptions, showing that it was incorrect for Lord Denning to say that ‘from nature of our office, we cannot reply to their criticisms’.”

Occasionally, one judge replies to criticism of another. “Law Lords have published letters in The Times in response to criticism of their judgments: Lord Davey in 1994, Lord Maugham in 1941, and Viscount Dilhorne in 1975 took this step. In 1975 Mr Justice Bridge adopted what he called ‘the wholly exceptional course’ of writing to The Times to respond to criticism of one of his decisions” (Oxford University Press, 1987, pages 173-178.)

Lord Woolf served as Master of the Rolls as well as Lord Chief Justice. He suggests that Lord Chancellor Lord Kilmuir’s letter to the DG of the BBC dated December 12, 1955, was valid “at one time”. But when Lord Mackay became Lord Chancellor in 1987, he altered the Rules considerably.

Frances Gibb, Legal Affairs Correspondent of The Times , reported the new Mackay Rules (November 4, 1987) under the headline “Judges should be permitted to speak out”, an obvious quote. “Judges should be free to speak to the press, or television, subject to being able to do so without in any way prejudicing their performing of their judicial work.” In response to fears from senior Judges that the executive was encroaching on judges, he said that his job was to “serve the judges” and protect their independence. “It is not the business of the government to tell the judges what to do.”

Mackay was, in turn, modified by Lord Irvine; In a short “Guide for Judges” issued by the former Lord Chancellor Lord Irvine in July 2000, he stated: “It has long been accepted that the Lord Chief Justice and the senior judges may speak out in the House of Lords and elsewhere on behalf of the judiciary on matters affecting the administration of justice, such as mandatory life sentences for murder.” The Manual also accurately reports the fact that public scrutiny of the justice system has increased in recent years and that the number of column inches and broadcast time devoted to it has grown accordingly. The causes are probably a combination of the growth of judicial review, the Human Rights Act 1998, and the fact that, for long periods of time, we have until recently had a parliamentary situation where the government has had a substantial majority and first one, and then the other, main opposition party has been in disarray. ( The Media: A Guide for Judges ; Lord Chancellor’s Department).

Misreporting in the media

Lord Woolf said: “With the increased reporting of our activities has come more misreporting, especially in relation to sentencing, which by now you will have realised is my hobby horse. The misreporting is often innocent, but a problem is created for the judiciary. Once there is an inaccurate report, the misreporting tends to be repeated again and again and can be extremely damaging to the public’s confidence in the legal system. This is what has happened in relation to sentencing guidelines for burglary. It has been reported that I do not consider burglars should be sent to prison. Repeated sufficiently, the misquotation has become an accepted fact. We therefore try by letter to obtain retraction and, above all, a correction of the archives. We also are better in assisting the press not to make mistakes. Summaries of complicated judgments are handed down; sentencing remarks are reduced to writing and we have at many courts a judge or other official who can provide an accurate account of what actually happened in the court.”

What he added is very important: “ We were greatly helped in the past by the old Lord Chancellor’s Press Office, and the judiciary now has a press office of its own, the Judicial Communications Office . Not, I emphasise, to spin, but to provide the media with the basic facts they need. It is to be hoped we can, in this way, proceed without again having to rely on the law of contempt to protect the dignity of our judges; though this is becoming more difficult. I remember well Lord Denning expressing the view that judges are not personally affected by what they have to read about themselves in the media. I am not sure. His remarks were in the days before the door-stepping of judges and what can be intense and unpleasant media pressure. As the Strasbourg Court has recognised, proceedings for contempt can be justified.

“The relationship between the judiciary and the press is an evolving saga. It is not even possible to speculate how matters will develop. I can only express the hope that the media and the judiciary will continue to be on speaking terms” (Christopher Campbell-Holt, The Pursuit of Justice, OUP, pages 157-159; Lord Woolf’s lecture on October 23, 2003).

On recusal, Lord Denning agreed not to preside in the Court of Appeals on February 20, 1978, when it heard an appeal involving the Church of Scientology of California because the Church felt there was an unconscious bias in his earlier judgments against it.

So concerned are judges about being seen to be impartial, besides being impartial in fact, that a week before the case of Heaton’s Transport Co vs T.G.W.U(1973) A.C. 15 was heard by the House of Lords, it was declared that Law Lords with known political backgrounds would be excluded from hearing the appeal.

The Listener of July 13, 1972, reported the Lord Chancellor, Lord Hailsham’s wise counsel: “I think it would be very undesirable for a Lord Chancellor of any political party, just as for a judge with strong conviction, to take cases in which he is liable to be thought to be prejudiced, even if he is not in fact prejudiced.” This is wise counsel for the CJI Justice Dipak Misra as is also David Frost’s retort to a great judge, Lord Justice Salmon, who had criticised The Frost Programme without hearing any one concerned in its defence.

David Frost’s letter to The Times (July 18, 1968) concluded: “Trial by television seems to be becoming more a slogan than an argument, but even those who employ the phrase most sternly would agree that it is a rare, if not virtually non-existent, phenomenon. Would it now be unfair to suggest that tirade without trial by judge is becoming a somewhat more prominent feature of our national life?” It was not chivalrous of CJI Dipak Misra to attack counsel’s argument as “atrocious” behind their back.

CJI’s prose

CJI Dipak Misra’s prose has attracted considerable attention, by none more ably and devastatingly than the noted journalist Tunku Varadarajan in The Wire . It is entitled “Judgment by Thesaurus : Or a ‘Proponement in Oppugnation’ to the Supreme Court’s use of language”.

Here are some priceless gems of CJI Misra with Varadarajan’s comments:

“‘Exposits cavil’: are you sure you mean ‘cavil’?

‘Its quintessential conceptuality’: I assume the possessive ‘its’ refers to the ‘batch of writ petitions’. If so, ‘at its core’ would have been a much clearer phrase. So you’d be saying ‘this batch of petitions has, at its core, the complaint that...’

‘Percipient discord’: How can ‘discord’ possibly be ‘percipient’?

‘Venerated and exalted right’: Why the florid repetition?

‘Exploring manifold and multilayered, limitless, unbounded and unfettered spectrums’: Again, this is verbose, repetitive and highly florid. By now, the reader is stuck in a quicksand of adjectives.

‘The controls, restrictions and constrictions’: more verbosity.

‘Reviver’: Unpardonable typo in the first sentence of a major judgment.

‘Paradigms and parameters’: Was this double-whammy really necessary?

‘That are structured and pedestaled’: And this second double-whammy? And was it really necessary to turn ‘pedestal’ into a hideous verb?

‘Need and feel of the time’: A surprisingly laid-back phrase in the context. But do you really want to say that the ‘paradigms and parameters of the Constitution [are] structured and pedestaled on the ... need and feel of the time...’? Because that’s what you’re saying...

‘Conceptual grace of eventual social order’: How is ‘social order’ both ‘conceptual’ and ‘eventual’? What do you mean by ‘conceptual grace’? Do you mean the ‘desirability’ of social order? Your meaning is entirely unclear.

‘Asseveration’: Was this polysyllabic tub-thumper really necessary? What’s wrong with ‘claim’, or ‘assertion’?

‘And made paraplegic on the mercurial stance of individual reputation and of societal harmony’: This is bad writing masquerading as fancy prose. How can something be ‘made paraplegic’ on a ‘mercurial stance’? This is a massacre of metaphors. And what exactly do you mean by the mercurial stance of individual reputation and societal harmony? Do you mean that they are ever-changing? But ‘mercurial’ applies to sudden and temperamental change that results from within a person, not to changes (in, say, a reputation) that happen as a result of external circumstances and forces beyond the individual’s control.

‘For the said aspects are to be treated as things of the past’: What aspects, exactly, are the ‘said aspects’ here? And what do you mean by ‘things’?

‘Viewed from a prismatic perspective’: this phrase is meaningless.

‘As it creates a concavity’: this phrase is a meaningless analogy from geometry.

“There are 197 paragraphs after this one. It would be unfair to say that all of them hit the linguistic depths to which Justice Misra plummets in the text above (though I can’t resist noting that the section where the views of those opposed to the petitioners are laid out is bombastically titled ‘Proponements in Oppugnation’). What is remarkable is that the apex court of India should be unembarrassed about putting into the public domain the sort of prose found here in the first paragraph. After all, it is the one part of the judgment that everyone is sure to read.” Tunku Varadarajan, a former lecturer in law at Oxford University, is the Virginia Hobbs Carpenter Fellow in Journalism at Stanford University’s Hoover Institution.

Chief Justice Misra’s stylistic deformities are gross. Over the decades others perpetrated similar excesses. To them and to CJI Misra one must commend Atkin’s biographer Geoffrey Lewis’ advice on judicial prose: “The English legal judgment is a species of essay for which an unusual freedom of expression is permitted, at least by comparison with other legal traditions. It lends itself naturally to metaphor, epigram or literary allusion. Yet the judge is constrained by circumstances peculiar to his task. He must ensure that what he writes will later be accorded the exact meaning he intended, and that after detailed, and possibly hostile, scrutiny by minds trained in the same way as his own. He must be not only accurate but impregnable. Some of the words he uses have a specialised secondary meaning. These considerations lead to caution and conventionality, two qualities which are not easily compatible with literary elegance. It must be accepted that much of the content of the law reports bears the mark of these constrictions, with prose made heavy by subjunctives, conditionals and the passive voice. In most recent times only Lord Denning has consistently triumphed over these difficulties. The first thing to be said about Lord Atkin’s style is that, like his style as an advocate and his manner as a judge, it always avoided the flamboyant or showy.”

Supreme Court’s populism

Judgments of the Supreme Court deteriorated when P.B. Gajendragovalkar began writing essays; M. Hidayatullah, Latin tags; V.R. Krishna Iyer paraded his eccentricities and O.P. Chinappa Reddy his bogus leftism while the rest began to put their imprint on history. They did not write to communicate but to impress. Florid prose, bad English, bad law, and bad temper marked their excursions. It is unlikely that their effort will be recalled by posterity. Populism has harmed the Supreme Court. A county court judge cautioned counsel that it is quite possible to defend a pickpocket without making a severe onslaught on the British Constitution.

But it is not Britain but Ireland which seems to have made a deeper impact; especially the gems known as Irish Bulls. Sample this—all along the untrodden paths of the future lie the imprints of an unseen hand.

I leave it to the reader to guess what future generations of lawyers will make of the rich judgments of the Supreme Court of India and the judges who imposed them on posterity. They are “showy”—the trumpeting of egos in bad prose.

This brings us to the next question. Was the press conference of January 12 justified? In the light of modern dicta and precedent, it was unquestionable. The Supreme Court is facing a dire, if not existential, threat. For, the “Master of the Roster” systematically to exclude four of the most senior—not seniormost, for heaven’s sake—judges from a group of important cases is to invite questions. For him allegedly to antedate an order of November 6, 2017, is to do worse. But what power had he to refuse the Central Bureau of Investigation (CBI) permission to prosecute an Allahabad High Court judge despite a credible case against him? He is entitled to defend himself in court. The CJI has no right to abort the judicial process at its very origin.

Self-serving practice

The time is come to strike at the source of that abuse and strike hard. The source is mere obiter in K. Veeraswami vs Union of India & Ors (1991) 3 SCC 655 concerning the Chief Judge of the Madras High Court, Justice K. Veeraswami, who was accused of corruption. Justice Jagannathan Shetty, with whom M.N. Venkatachaliah and B.C. Roy concurred, made a dangerous claim to judicial power followed by a unique order.

He said: “This court being the ultimate guardian of rights of people and independence of the judiciary, will not deny itself the opportunity to lay down such guidelines. We must never forget that this court is not a court of limited jurisdiction of only dispute settling. Almost from the beginning, this court has been a law maker , albeit, in Holmes’s expression, ‘interstitial’ law maker. Indeed the court’s role today is much more. It is expanding beyond dispute settling and interstitial law making. It is a problem solver in the nebulous areas. In this case, we consider it no mere opportunity: it is a duty. It is our responsibility and duty to apply the existing law in form more conducive to the independence of the judiciary.

“The Chief Justice of India is a participatory functionary in the matter of appointment of judges of the Supreme Court and the High Courts. [Articles 124(2) and 217(1)] Even for transfer of a judge from one High Court to another the Chief Justice should be consulted by the President of India. [Article 222] If any question arises as to the age of a judge of a High court, the question shall be decided by the President after consultation with the Chief Justice of India. [Article 217(3)] Secondly, the Chief Justice being the head of the judiciary is primarily concerned with the integrity and impartiality of the judiciary.” How many CJIs have lived up to this since 1991?

“Hence it is necessary that the Chief Justice of India is not kept out of the picture of any criminal case contemplated against a judge. He would be in a better position to give his opinion in the case and consultation with the Chief Justice of India would be of immense assistance to the government in coming to the right conclusion.

We therefore, direct that no criminal case shall be registered under Section 154, Cr.P.C. against ajudgeof the High Court, Chief Justice of High court orjudgeof the Supreme Court unless the Chief Justice of India is consulted in the matter . Due regard must be given by the government to the opinion expressed by the Chief Justice. If the Chief Justice is of opinion that it is not a fit case for proceeding under the Act, the case shall not be registered . If the Chief Justice of India himself is the person against whom the allegations of criminal misconduct are received the government shall consult any other judge or judges of the Supreme Court.” This is a brazen violation of the law. No other country has adopted this self-serving practice. It is an affront to the rule of law.

Justice L. M. Sharma agreed with the principle but pointed out, rightly, that it was for Parliament to legislate. Justice J.S. Verma agreed with him. “It is for the Parliament to step in and enact suitable legislation in consonance with the constitutional scheme which provides for preservation of the independence of judiciary and it is not for this court to expand the field of operation of the existing law to cover the superior judges by usurping the legislative function of enacting guidelines to be read in the existing law by implication, since without the proposed guidelines the existing legislation cannot apply to them. Such an exercise by the court does not amount to construing an ambiguous provision to advance the object of its enactment, but would be an act of trenching upon a virgin [ sic. field of legislation and bringing within the ambit of the existing legislation a category of persons outside it, to whom it was not intended to apply either as initially enacted or when amended later.”

He went on to jump the gun. “The working of the appointment process is a matter connected with this question and not divorced from it. Most often, it is only a bad appointment which could have been averted that gives rise to a situation raising the question of the need of such a law. Due emphasis must, therefore, be laid on prevention even while taking curative measures.” He then proceeded to a gallop on his hobby horse. “It is a sad commentary on the working of the appointment process and the behaviour of some of the appointees which has led to this situation. The confidence reposed in them by the framers of the Constitution has been betrayed to this extent.”

A quarter century later, bad appointments and judicial usurpation of legislative power continued. The bogus “collegium”, which Justice Verma created, is not established by the Constitution but by judicial ipse dixit . As Robert Stevens Q.C. said: “Judges choosing judges is the antithesis of democracy.” He is a Bencher of Grag’s Inn, in active practice and a respected academic. ( The English Judges , Hart Publishing, page 144.) He is absolutely right. Judicial incest lowers judicial morality. Our judges are less liberal than English judges who took no exception when the Lord Chief Justice called the Lord Chancellor “a cheerful chaffier”. On March 10, 2004, The Times of London “commented that Lord Woolf cannot quite make up his mind whether he is a liberal reformer or the shop steward for the only trade union in the country whose members wear wigs and not hard hats or cloth caps”.

The Supreme Court is the highest court of a country and it attracts close attention. There are diplomats and foreign correspondents whose job it is to watch carefully and report. The report of The Economist ’s Delhi correspondent in the issue of January 20, 2018, should prompt some reflection. “The trouble is that there is not just one recent case whose handling has raised eyebrows, but several. Two of these touch upon Mr. Misra (CJI) himself. One involves the suicide note written by an ousted Chief Minister of the State of Arunachal Pradesh, detailing allegations that Supreme Court judges including Mr. Misra (before he became Chief Justice) had demanded a bribe [of] some $13m to rule in his favour in the case that ended up depriving him of office—and driving him to hang himself. The other is a case against a medical school that lost its licence, and allegedly tried to get it back by bribing the Supreme Court. Although Mr. Misra himself sat on the bench that investigators say was offered the bribe, and which passed a string of rulings favourable to the school, rather than recuse himself from the subsequent bribery case, the Chief Justice assigned it to a bench that he himself chairs. The government, meanwhile, is counting on favourable rulings in a slew of brewing cases. It is an awkward time for Mr. Misra’s own colleagues to accuse him of partiality.”

The root of the problem is not management of the roster. It is repair of the Supreme Court’s credibility which the charges have further damaged. No one in his senses says that the CJI is guilty; only that there is strong case for an independent inquiry. Only CJI Misra can ensure that—or his successor next October. Unless that is done no number of tea sessions will be of any help.

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