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Updated: February 27, 2012 00:31 IST

A case for judicial lockjaw

Arghya Sengupta
Comment (23)   ·   print   ·   T  T  

Judgments should speak for themselves; when judges justify them in public, they run the risk of sounding like politicians.

Justice Felix Frankfurter, one of America's most eloquent Supreme Court judges, speaking at an American Law Institute function in 1948, aptly described the infirmity of being unable to speak about one's judgments publicly, an attendant facet of being a Supreme Court judge, as “judicial lockjaw.” For watchers of the Indian higher judiciary, which has adhered to this principle since its inception, the last fortnight has brought forth a surprising development in this regard. Justice Asok Kumar Ganguly, an erudite judge of the Supreme Court of India, who retired recently, has, since leaving office, actively engaged with the media, first in print and then electronically. While a retired judge writing and speaking extra-judicially per se on matters of public importance is a fairly common and welcome phenomenon, his participation in a feisty debate in a leading newspaper on the merits of one of his own judgments, and then agreeing to take part in a television interview whose questions focused solely on two of his controversial judgments, is uncommon. As well as raising questions of individual propriety, it contains possible portents of the slowly changing nature of the Indian higher judiciary.

Justice Ganguly's rejoinder

Three days after his retirement, Justice Ganguly issued a startling written rejoinder to the criticism by former Lok Sabha Speaker Somnath Chatterjee of the 2G judgment, which he had handed down a few days previously. Not only did he defend his judgment, first by assuring Mr. Chatterjee that “the judgment was not delivered either out of temptation or out of any desire to appropriate executive powers” but also positively asserted that “[t]he judgment was rendered in clear discharge of duty by the Court” (The Telegraph, 6 February, 2012). His statements, especially to the extent they clarify and defend his judgment, raise deep questions regarding the proper role of judges in post-retirement public life. This is especially so in Justice Ganguly's case, as it was followed up with an interview to a private television channel where, despite steadfastly refusing to comment on the merits of the 2G judgment or the judgment relating to sanctions for prosecution per se, his statements on the subject had the effect of giving the interviewer and the viewing public sufficient sound bytes on how the judgments ought to be interpreted. To cite a single instance — in response to a question as to whether the timeline set by the Court for the government to consider sanction requests against public servants should apply to the Chief Justice of India when permission is sought for a FIR to be filed against a judge, though he refused to give a direct answer, he suggested that the recommendations made in the judgment “should apply across the board.” To any reasonable viewer, this statement would certainly come across as a clarification on what the recommendations made in the judgment ought to mean.

It is not the legality of Justice Ganguly's engagement with the media that is in issue here. Like any other citizen, he has a right to speak, and is free to exercise that right in whichever manner he desires, provided it is within the bounds of constitutional permissibility. But when a retired judge speaks, not in his capacity as an ordinary citizen but wearing the hat of a judge who was party to a particular judgment, as Justice Ganguly obviously did, the primary question is one of propriety. That the judge, after rendering judgment, becomes functus officio and the judgment of the Court speaks through itself, is a long established principle in the Indian judicial system. The rationale for the principle is salutary: that the decision of the Court when it is cited as a precedent in subsequent cases as a binding principle of law, ought to be interpreted on its own terms and not on the basis of any extra-judicial clarifications that may be issued subsequently. Of course, any academic discussion and criticism following the judgment may be relevant, but never involving the judge concerned himself, as that may have an unwarranted overriding influence on future interpretations of the decision. At the same time, the principle does not prohibit judges from writing their memoirs, which are often filled with delightful accounts of the unseen dynamics of a judicial decision, or commenting on the consequences of a case after a period of time or on a matter of significant national importance. However, coming so close on the heels of the judgments being delivered, Justice Ganguly's statements in the media can neither count as an academic commentary nor be justified by a passage of time having elapsed. Propriety thus demanded that he thought better than articulating his views publicly in this manner.

Judge's role in public

Equally importantly, Justice Ganguly's actions point to a larger question as to what the role of a judge should be in public life. Unlike politicians or film stars who are public figures by virtue of their closeness to the people, judges are public figures precisely because they manage to keep their distance from the people. It is this detachment which allows judges to be immune from the passions of popular sentiment and political machinations, thereby facilitating the independence of the judiciary as an institution. Any engagement with the media by a judge in a judicial capacity, whether while holding office or post-retirement, fundamentally erodes the extent of this institutional detachment. Especially if the engagement primarily focuses on decisions given by judges, it runs the risk of turning judges into quasi-politicians, clarifying and justifying their judgments by direct appeals to the public, rather than simply allowing the reasons contained in the judgment to perform this justificatory function.

Comparative analysis

Indeed a comparative analysis across countries shows the links which can be drawn between extra-judicial utterances and the political savvy of judges. In England, where courts are largely apolitical, extra-judicial utterances are rare. Judges, except the Law Lords, were for a long period, conventionally governed by the Kilmuir Principles, key amongst which is the view that “[s]o long as a Judge keeps silent his reputation for wisdom and impartiality remains unassailable.” Though the Principles themselves are no longer strictly applicable, the tradition of extra-judicial silence continues. On the contrary, across the Atlantic, in the United States of America, whose Supreme Court is an overtly political institution, notwithstanding Justice Frankfurter's wise advocacy of restraint, judges have a long history of writing and speaking extra-judicially on their own judgments and on the Court itself — Justice Stewart wrote a letter to the Editor of the Wall Street Journal defending his majority opinion in a racial discrimination case; Justice Goldberg publicly defended the Court and its stance on judicial review and states' rights in the New York Times; in fact even Chief Justice Marshall, back in the 19th Century, defended his landmark judgment, authoritatively laying down the nature of American federalism in McCulloch v. Maryland, albeit writing under a cleverly disguised pseudonym in the Philadelphia Union.

Sign of transformation

As this comparative experience demonstrates, the judicial propensity to engage directly with the public is clearly a symptom of a Court whose judges are keenly conscious of the immense political significance their decisions have. In this backdrop, Justice Ganguly's comments, unwarranted as they may have been, perhaps provide an early sign of the subtle transformation of the Supreme Court of India into an overtly political institution, owning up and reacting to the immense political ramifications of its actions. Equally, they raise deep questions regarding the interaction between judges and the media, arguably two of the most powerful pillars in Indian democracy today. This is a complex, multi-dimensional issue that cannot be dealt with here. However it would suffice to say that the obtuse language used by judicial decisions, their unclear consequences and the difficulties faced by sections of the media in understanding the subtleties of legalese, all suggest that like several courts worldwide such as the Supreme Court of the United Kingdom and the European Court of Human Rights, the Indian Supreme Court too should issue official media summaries of important decisions. Not only will this facilitate wide comprehensibility of key judgments, but it will also ensure that judicial decisions are not wantonly misinterpreted. Most importantly, it will mean that judges, whether in office or speaking in their judicial capacity immediately post-retirement, will have an additional reason to remain lockjawed, allowing their judgment together with its officially authorised summary to do the talking.

(Arghya Sengupta is a Stipendiary Lecturer in Administrative Law at the University of Oxford and founder of the think tank The Pre-Legislative Briefing Service.)

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Technology has penetrated far into the domain of democracy. Transparency is key to unlock the rigid systems of procedures and confidentiality of the decisions taken at every level, giving the right to information at the citizen's level. The judgements of the SC, shed light on the laws and the Constitution. Judges have all along been following the British practice of being silent and aloof after they quit office. Particularly on their own judgements. Self-control not to vocalize too much in the glare of the Media is necessary.

from:  G.Naryanaswamy
Posted on: Feb 29, 2012 at 01:55 IST

A High quality article. Made an interesting reading. Thanks to the
author and The Hindu

from:  Dr.Himanshu
Posted on: Feb 28, 2012 at 18:30 IST

As someone who reads and writes about judgments of the Supreme Court on a daily basis, I like Arghya's suggestion of the court providing a summary of its pronouncements. But along with this, there are innumerable things the court needs to do to properly engage with journalists and the media. Unfortunately, the court has remained averse to technology. For example: Journalists are not allowed to carry mobiles, iPads or laptops into courtrooms to make notes; judgments are not loaded online in a timely and dependable manner; the press rooms are not adequate; all those working in the electronic media have no where to sit all day, except in the lawns. The court's press manager knows little about how the the institution or the media works. The registrars and administrators are barely accessible. When they rarely do engage, they do not wish to address the needs of the press because they don't hold a high opinion of it.

from:  Nikhil Kanekal
Posted on: Feb 28, 2012 at 12:27 IST

Look, the public in India have had enough of all these scam stories. .They know corruption is rampant...What the people want is legal action to prosecute these wrong doers and enure that they get tough jail sentences, without delay..yes, without delays.- Without quick and no nonsense law enforcement, it is meaningless and reflects badly on the government, its law enforcement agencies and the courts. - No one buy the argument it takes 15 to 20 years to find someone guilty. Utter rubbish !

from:  Kumar
Posted on: Feb 28, 2012 at 06:00 IST

Bravo. The Supreme Court, to me, is THE premier institution in the country, almost unassailable. Justice Ganguly's decision to court the media is unfortunate and is in danger of sullying the future reputation of the apex court. The interviewer on the programme in question ought to have known better than to play a part in the undermining of judicial propriety for his own gratification.

from:  Samir Mody
Posted on: Feb 27, 2012 at 20:18 IST

This is just to note that Hema's comment is written in texting/SMS language. I refer you to guideline 3 on your comment moderation practices .

from:  Subash Kher
Posted on: Feb 27, 2012 at 18:51 IST

I am absolutely convinced by the arguments put up by our author here.The judicial body of our country has garnered enough eulogies and appreciations for some landmark judgements in the recent past and also for maintaining sanctity in its own right.However these kind of incidents of eminent chief justices coming out post retirement and defending their judgements publicly deteroriates the credibility of the sacred instition and its verdicts.Its also gives a politicised twist to their judgements. As pointed out,the CJI and other eminent personnel from the highest judicial body in the country should be conscious about their role in the public sphere post retirement and not be vocal about judgements-made by them ,concerning national interest

from:  raju
Posted on: Feb 27, 2012 at 17:48 IST

There seem to be a pretty big assumption in the proposed solution- the author is
suggesting ("will ensure") such a media summary will make a judgment crystal clear
with no two ways of interpreting it. If a "media" "summary" can be so clear, then why
not the judgement be pellucid irrespective of the formal language. I am suggesting
that if there are means to make the judgement unambiguous, then that should be
part of the judgement itself and not in some non-binding summary.
This would probably go back to the basic philosophies of creating "Law" and why
something as far-reaching as "Law" made patently complex, ambiguous and in-
accesible. I am not a surgeon and so may not understand "brachiocephalic artery"
and hopefully do not have to! But "Law" is relevant to all of us and impacts all of us in
our day to day lives and it could have better been simple, clear and unambiguous -
"accessible". Then, judges, don't have to explain themselves - and can come on TV
just for being a hero!

from:  Ragul Kumar
Posted on: Feb 27, 2012 at 17:46 IST

Eloquent and incisive!
As the author has pointed out, the judiciary and particularly the
Supreme Court, cannot avoid delivering judgments that have political
implications. Judicial activism can not be avoided; in fact it may be
necessary and welcome in our society where the other limbs of the
State fail to discharge its duties adequately. However, we need to
protect the institution of SC from becoming a political institution.
Judges, and their interpretations of laws should resist the temptation
of playing to populist sentiments.

from:  Shib
Posted on: Feb 27, 2012 at 17:01 IST

Superb! solution, the concluding para is just too good to avoid , the whole passage is nicely written!

from:  Nandi
Posted on: Feb 27, 2012 at 17:00 IST

Very well written article. Totally in favour of the suggestion made
towards the end of the article.

from:  Ashish Singh
Posted on: Feb 27, 2012 at 16:46 IST

Nice suggestion but would that not undermine the very spirit of letting the
judgement speak for itself as you would necessarily need to provide a "light"
version of the verdict which may again be subject to interpretation.

It is merely a fact that the legal jargon employed in court procedures has become
overly cumbersome. A reform of this might be helpful so that even the official
verdicts lend themselves to better understanding.

On the whole, I think that Mr. Ganguly's behavior though not necessarily the most
prudent is to be accepted as he is no longer active as a judge. Modern media have
ushered in a new means of political discourse and a veritable revolution on which
the incumbent powers (politicians) are capitalizing at the expense of controlling
instances such as the judiciary. These either need to fight back or be condemned
to irrelevance like the other independent institution (civil services) which faded in
the light of the political turbulence of the Indira years.

from:  Vivek
Posted on: Feb 27, 2012 at 15:39 IST

A well summarized article .Thank you. It seems it is absolutely quite unnecessary to explain or get engaged in a debate on the judgment made while in service. As long as we maintain the faith in our judicial system it is quite unnecessary to have a postmortem on relinquishing the judicial post. What is the need that one should explain the base through which a particular judgment was pronounced either through print media or electronic media? The judges in power should maintain the distance while in service and thereafter in terms of their service and judgments made. No doubt all judges will be fully equipped to answer any query. But the question is why they should be subjected to a cross examination by the reporters of the electronic /print media. Not only that in the worst event of a judge failing to convince his stand and feels that he was wrong in his judgment, it can subject the retired judge to undergo sleepless nights out of guilty consciousness. So in all fairness it is safe to keep arm's distance from the media

from:  Bose A Panicker
Posted on: Feb 27, 2012 at 14:39 IST

Very well analysed especially in context of the present climate in our country with the not-so
pleasant rejoinders between the politicians and members of the judiciary. The phrase judicial
lockjaw is aptly coined.

from:  Sudeshna
Posted on: Feb 27, 2012 at 14:18 IST

Nicely thought-out piece by the author. One may, however, ask about the reasons. Why is it that the Judiciary be kept aloof from Politics as long as the definitions of the later be not pejorative in the sense of being 'interested'? The author has supported the propositions on the basis of propositions. Let everything be well-grounded in reason. Anything not existing till this time doesn't lead us to say it won't exist in future. It is myopic conservatism.

from:  Shah Zahid
Posted on: Feb 27, 2012 at 14:11 IST

The opening up of the judiciary to media, especially TV, is a
dangerous direction to proceed in. The judiciary rests on faith. The
media can/should not be trusted. The fact that he was hounded by
reporters after the judgement has not been observed in the article.
Comparisons although are appealing do not draw parallels. The
systems and consequences are completely different. It has been
observed, especially in the english media, that our systems are
projectied to be derivatives of western systems. It is time they
start seeing situations from our own perspective.

from:  Vijay
Posted on: Feb 27, 2012 at 14:04 IST

A nice and a fresh approach on judging the judges. Judgements can be debated and interpreted but preferably should not be in a public domain by the judge who was hearing the case. Any comments made by the judge post judgement can undermine his credibility and dilute the judgement.

from:  Shiva Mudgil
Posted on: Feb 27, 2012 at 13:47 IST

Very well-worded and futuristic def gives insight on the issue concerning the judiciary...tnx to the writer...

from:  Hema
Posted on: Feb 27, 2012 at 12:52 IST

Excellent article and long overdue. The 'media summaries' suggestion should be implemented forthwith.

from:  n. satya murti
Posted on: Feb 27, 2012 at 11:38 IST

Very nice article. The solution provided in the end is very much
acceptable and can really make sure such engagements by judges will
become obsolete and unnecessary unless the judge himself is overtly
political and would want to interact with the media.

from:  Anoop
Posted on: Feb 27, 2012 at 10:54 IST

Indian Supreme Court should issue official media summaries of
important decisions, this would educate and inform many people and
help lower courts while dispensing justice by applying law properly.

from:  Atma Gandhi
Posted on: Feb 27, 2012 at 08:55 IST

The apolitical nature and extrajudicial silence exemplified by the British judiciary would be more suited for India especially given the rather loose morals and discipline of the Indian political system. For Judges in India who want to be socially active, a good example to follow would be that of the very active and long public life of Justice V R Krishna Iyer.

from:  B. Baburajan
Posted on: Feb 27, 2012 at 02:21 IST

A brilliant and well argued article. It was a pleasure reading it. I am delighted that HINDU got to publish it. A near scoop. Hope Mr.Sengupta will continue write for the enlightenment of many of us.

from:  R K Raghavan
Posted on: Feb 27, 2012 at 00:46 IST
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