Judges are public servants, not bosses
V.R. Krishna Iyer
Contrary to what the Chief Justice of the Supreme Court recently
said, the Right to Information Act does cover 'constitutional
authorities.'
Absolute power and egregious error will be totally incompatible, even
when the matter involves the judiciary. Justices of the court are no
higher than great Homer who, as Lord Byron put it, sometimes nods off.
The 'robed brethren' on the High Bench do sometimes blink.
Perhaps it is a rare occurrence, but this is what happened when the
Chief Justice of India, the country's highest judicial functionary,
claimed that the Chief Justice is not a 'public servant' but a
'constitutional authority.' It may be true. But every judge is
oath-bound to dispense public justice "without fear or favour, affection
or ill-will." Public justice is public service, and obviously judges are
public servants. The Right to Information Act, therefore, does cover
'constitutional authorities', contrary to what the Chief Justice said.
His absolutist obiter, coming as it does from a legal luminary for whom
I have high regard, is bizarre and it is a faux pas. Unfortunately, he
has, in my legal perception, slipped into an accidental innocence of
jurisprudence.
Grave goof-up
This may, however, be justly overlooked, having regard to the heavy
burden he bears. He has to manage the court, handle a load of judicial
work, frequently make ceremonial journeys, give erudite speeches and
interviews, and bear the tremendous strain involved in selecting higher
judicial personnel. Under public pressure or out of vanity, judges often
undertake a tremendous amount of non-judicial work, sacrificing valuable
time so necessary to study dockets, hear prolix and logomachic
arguments, and write (although some of them do not do that) judgements
laying down the law of the land. Considering this onerous background, we
must forsake criticism of occasional forensic failings.
How else can one explain a grave goof-up, made unwittingly, in his
saying that judges are not public servants but 'constitutional
authorities'? The latter are, in simple semantics, a higher category of
public functionaries. They are a finer, nobler group of public servants,
democratically more accountable and qualitatively more liable than
others to furnish information to the people about themselves and their
functions, if it is relevant to the public interest.
Democratic instrumentality
All important constitutional authorities, such as Judges, Ministers,
the Comptroller and Auditor General, the Accountant General, the
Election Commissioner, and the Speaker of the Legislature, are a
fortiori public servants with superior and more profound obligations.
These are not two antithetical categories but are, in public law, of the
same class. My candid constitutional camera perceives both as owing
public duties and being liable to pay penalties for any failures -
subject to the limitations laid down by law. The great judge Jerome
Frank, in his book Courts on Trial, said he had little patience with, or
respect for, the view that it is dangerous to tell the public
unpalatable truths about the judiciary.
He wrote: "I am unable to conceive... that in a democracy, it can
ever be unwise to acquaint the public with the truth about the workings
of any branch of government. It is wholly undemocratic to treat the
public as children who are unable to accept the inescapable shortcomings
of man-made institutions... The best way to bring about the elimination
of those shortcomings of our judicial system which are capable of being
eliminated is to have all our citizens informed as to how that system
now functions. It is a mistake, therefore, to try to establish and
maintain, through ignorance, public esteem for our courts."
I stand solidly for a judiciary that is a democratic instrumentality,
not an occult class of divinity. David Pannick, QC, observed: "We need
judges who are trained for the job, whose conduct can be freely
criticised and is subject to investigation by a Judicial Performance
Commission; judges who abandon wigs, gowns and unnecessary linguistic
legalisms; judges who welcome rather than shun publicity for their
activities."
Information about judges' wealth, other activities and even private
doings, if they affect judicial duties, cannot be kept secret. To cite
David Pannick again: "The judiciary is not the 'least dangerous branch'
of government... They send people to prison and decide the scope and
application of all manner of rights and duties with important
consequences for individuals and for society. Because the judiciary has
such a central role in the government of society, we should (in the
words of Justice Oliver Wendell Holmes), wash.... with cynical acid this
aspect of public life. Unless and until we treat judges as fallible
human beings whose official conduct is subject to the same critical
analysis as that of other organs of government, judges will remain
members of a priesthood who have great powers over the rest of the
community, but who are otherwise isolated from them and misunderstood by
them, to their mutual disadvantage."
Let us not confuse between the papacy and the judiciary.
Judges, like Ministers, Governors, Presidents, Speakers and a host of
other functionaries, are constitutional authorities. And, most
emphatically, they are public servants, not absolutist bosses with vast
political power but above democratic accountability. They should have
functional transparency and be fundamentally incorruptible.
Indeed, judges must be free from graft, nepotism, abuse of power, and
arrogance. They should be the paradigm of clean personal life, open and
accessible custodians of public justice and paragons of moral excellence
and humanist simplicity, sans consumerist craving and greed to grab.
They are a higher cadre with a more sublime calibre.
Trustees of judicial power
In short, justices wear robes on oath under the Constitution as
trustees par excellence of judicial power, of course within their legal
jurisdiction and constitutional jurisprudence. The Supreme Court, in a
ruling of the Constitution Bench in K. Veeraswami vs. Union of India
(1991 SCC P-655), held that the expression 'public servant', used in the
Prevention of Corruption Act, is undoubtedly wide enough to denote every
judge, including judges of the High Court and the Supreme Court. Judges
are under the law, not above it. Your public life, and even private life
to the extent it influences your judicial role, should be accountable
and transparent to the public. A plea of secrecy is sinister allergy.
Democracy is a disaster if the President, the Speaker, the Prime
Minister and the Chief Justice hide their wealth and dealings from the
scrutiny of 'We, the People of India', the sovereign of the nation.
To err is human and to forgive is divine. Chief Justice K.G.
Balakrishnan is a fine citizen, a sublime soul, a versatile jurist, a
graceful instance of dignity and refinement. If I have erred in
disagreeing with his disclaimer of judges being public servants, he will
forgive me. But judges certainly are not divine.
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Supreme
Court complex |
The Indian judiciary must accept Frankfurter, that frank and
superlative U.S. Judge who wrote: "Judges as persons, or courts as
institutions, are entitled to no greater immunity from criticism than
other persons or institutions. Just because the holders of judicial
office are identified with the interests of justice they may forget
their common human frailties and fallibilities. There have sometimes
been martinets upon the bench as there have also been pompous wielders
of authority who have used the paraphernalia of power in support of what
they called their dignity. Therefore judges must be kept mindful of
their limitations and of their ultimate public responsibility by a
vigorous stream of criticism expressed with candor however blunt."
Our judges shall remain awake and alert and accept the Preamble to
the Constitution that makes clear that this republic is 'socialist,
secular, democratic.'
We meanwhile need a judicial appointments and performance commission
of supreme stature, its members selected from among the highest
judicial, political and public-spirited wonders of popular confidence.
This is essential to ensure that the finest and most independent
members of the fraternity would exercise judicial power, and that they
would be held in the highest esteem by the enlightened wisdom of the
people of India. This desideratum demands a diamond-hard constitutional
code that covers every dimension of judicial performance.
Source: http://www.hindu.com
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