‘We, the People of India' made the Constitution and the sovereign republic of India, and all power exercised by the three instrumentalities of state function under the Constitution. Its Preamble speaks of justice — social, economic and political — as a fundamental privilege of the people. Social justice and equality before law are of more value to the common masses, while the higher classes are often allergic to the under-privileged and the have-nots.
The judges of British vintage are class-conscious, as Professor Griffith of London University explained in his book, The Politics of the Judiciary . Their perspective is prejudicial to the majority of Indians who are poor and do not enjoy human rights though they are mandated in the Constitution as a fundamental right.
The judiciary as a class must reorient its basic philosophy to suit a socialist secular democratic republic. This transformation is essential if fiat justicia is to be a paramount principle of governance in India as emphasised by Jawaharlal Nehru in his tryst-with-destiny speech as India became independent.
Lord Justice Scruttin said in an address delivered to the University of Cambridge Law Society on November 18, 1920: “Where are your impartial Judges? They all move in the same circle as the employers, and they are all educated and nursed in the same ideas as the employers. How can a labourman or a trade unionist get impartial justice? It is very difficult sometimes to be sure that you have put yourself into a thoroughly impartial position between two disputants, one of your own class and one not of your class.” ( 1 Cambridge Law Journal, Page 8 ).
The Constitution gives you power. And all public power is held as a trust. If you breach this trust you pay for it: by facing responsible criticism. When there is justice, which is your professional-fundamental duty, criticism loses its sting. And the Preamble to the Constitution spells it out. Social, economic and political justice is your basic obligation, which you have to fulfil without fear or favour. If you fail here, you disrobe yourself and deserve correctional criticism.
The judicature is a noble and never a nocent institution. If you goofily debunk and unjustly bring the judiciary into disrepute, you judges commit contempt and get punished. The court is a magnanimous institution, majestic and glorious, and it sustains the confidence of the nation. But if the judiciary behaves as an elite upper sector and denies the rights of the common masses, criticism is what you earn. Remove those judges who conduct themselves with a sense of contempt for social justice and human rights: that is the fascist, authoritarian way.
“Small is beautiful,” said Gandhiji. You sneer at the slum-dweller, the ill-clad and the illiterate. You are not pro-people. Remember the Roman adage: “Whatever touches us all should be decided by all.” Then you as a member of a class-conscious sector must be denounced.
Above the Executive and Legislature is the Judiciary to guard the values of the Constitution with integrity, fearlessness, frankness and fraternity. That is your institutional glory. No one shall darken your bright image. The little poor seek your compassionate protection. You are the wonder of democracy. I salute you as the humanist defender of people's constitutional rights. When you fail to function, sharp criticism is the only corrective. The question then arises: have the people a right to criticise you, and if so, when does it become contempt of court, and what are the limitations to this freedom of expression?
This has become a critical issue. Judges as an instrumentality under the Constitution have vast powers under Article 141 to 144. When the Executive misuses its powers, the court can strike down its actions. When the Legislature commits excesses beyond the Constitution or otherwise defaults, the court can declare it void. When judges themselves are guilty of flaws, shortcomings or violations, public criticism is the only way judges can be corrected.
Frankfurter of the U.S. Supreme Court observed: “‘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.”
After all, judges are human and may commit mistakes and blunders. Either a Performance Commission or vigilant, vibrant public criticism, dignified and responsible, should correct judicial wrongs. With large powers and a considerable level of immunity, judges are apt to turn noxious and culpable at times. Generally the robed brethren maintain a high order of conduct. Even so, aberrations do happen. Therefore, criticism becomes necessary in a democracy. The Constitution insists that judges should be of good behaviour. The Bench is a sacred seat and divinity is incompatible with arrogance, pride and vanity.
Hugo Black, a great judge of the U.S Supreme Court, observed: “Judges are not essentially different from other government officials. Fortunately they remain human even after assuming their judicial duties. Like all the rest of mankind they may be affected from time to time by pride and passion, by pettiness and bruised feelings, by improper understanding or by excessive zeal.”
Indian judges belong to an elite class like their English counterparts, and can be relieved only by impeachment which is a political operation beyond the pragmatic capabilities of the masses. Therefore, a Performance Commission is an essential instrument to receive complaints about judges and investigate them. Their dignity and decorum never allow frivolity or private motives to affect the functions of, or inflict injury on, judges. Transparency and accountability are democratic attributes. In spite of this, vulgar elements in public life misuse free speech and abuse judges irresponsibly and with a sense of revenge. They deserve to be punished by the punitive use of the power of contempt. This power is wide.
Lord Denning in his Family Story has recorded what Lord Shawcross said about one of his judgments: “Denning is an Ass.” The Times (of London) published this. In spite of it, Lord Denning declined to take contempt action since he took the view that he would disprove it not by contempt proceedings but by means of his performance. Of course, he was the best judge of the Commonwealth.
This is an example for judges in India, too. The best answer to abuse of judges is not frequent or ferocious contempt-sentencing but fine performance. Of course, rare cases may deserve contempt impeachment. Bad judges deserve to be censured by a Performance Commission with access to every citizen. How many judges in our High Courts are good by the canon laid down by Douglas? He wrote: “… [T]he law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate.”
The weakness of many judges who escape through contempt power but should not, was portrayed by Lord Goddard: “A judge of first instance need not necessarily be a consummate lawyer. He should be a man of even temper and one who can be trusted to display and continue to display courtesy to the litigants and bar; in short, if I may use a much-abused expression, he should be a gentleman. A sense of humour … is always an asset, but a constant joker is anathema. Another quality devoutedly to be wished for is the ability to keep reasonably silent while trying a case. A garrulous judge is a misfortune; he maddens the bar and slows up proceedings, but, unhappily, it does happen that a somewhat taciturn barrister becomes surprisingly talkative once he is seated on the bench…. The public expression of what some would call strong convictions, and others prejudice, are best avoided by those who desire to become judges.”
And here is a statement by ‘Learned Hand:' “The larger part of my official life I have been in a court where three sit together, and that seems to me of immense advantage; indeed, I know it is an immense advantage. The joint judgment of three is worth much more than three times the judgment of one, unless he is a genius.”
But how many of our learned brethren will qualify to be on the Bench if this test were a condition for elevation?