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Judges need to exercise restraint

Markandey Katju

Why a judiciary at all? How should justice be administered? How should judges respond when people take them to task? How should they respond to public criticism? What about the law's delays? The Chief Justice of the Madras High Court provides some refreshing and interesting answers.

ON THE role of the judiciary, the first question that arises is: what is the need for a judiciary at all? There has to be a forum for the peaceful resolution of disputes and the peaceful ventilation of such grievances. It is this forum that is called the judiciary. If such a forum did not exist, then disputes would be resolved and grievances ventilated violently — by bombs, guns, and knives. Thus the judiciary is a great safety valve that helps to maintain peace and law and order in society. Even if the verdict goes against a man, he is pacified by the fact that he was given a hearing.

Thus, we find that in every society, in every country, and in every stage of history, there has been a judiciary and no society can do without it. Looking at historical examples in his book India, Megasthenes, who was the ambassador of Seleucus Nicator, writes that Emperor Chandra Gupta Maurya used to sit for a few hours every day to decide cases. This shows the importance given to the judiciary even in ancient times. A great and powerful Emperor who had many other duties, administrative, military and so on, still gave so much time for deciding judicial cases.

In the Mughal period, we find that the Mughal Emperors were great lovers of justice. In Abul Fazal's Akbarnama, it is mentioned that Akbar himself used to decide cases at certain fixed hours on certain fixed days. In fact, all Mughal Emperors had fixed hours and fixed week days when they personally sat in Court and decided cases. If Akbar gave a judgment, but subsequently realised he had given a wrong judgment, his conscience would fight against him, asking him why he gave that wrong judgment.

In fact, this is an essential quality of a great judge: he or she must have a highly developed conscience (which the Emperor Akbar had). Without a highly developed conscience, a judge may go astray. Akbar's son Jehangir, too, had a highly developed sense of justice. He has mentioned in his autobiography (called Jehangirnama) that even when he had fever, he would go to court at the fixed time and decide cases regardless of his health. We have all heard of Jehangir's `Chain of Justice', which anyone, rich or poor, could pull at any time, and the Emperor would come and hear the complaint. This Chain of Justice was not merely symbolic. The Mughal Emperors in fact were great lovers of justice, and that is why the Mughal Empire survived so long. No regime can survive long without justice.

It is not necessary for me to give more historical examples, but we can find that in every country, at all times, there has been a judiciary without which society cannot function. It is a fundamental principle in democracy that the people are supreme, and all authorities, namely, Judges, legislators, Ministers, bureaucrats, etc., are servants of the people, and should be proud to be servants of the people.

Since the people are our masters and we their servants, surely the masters have a right to criticise us and take us to task if we do not function properly. So, we should not take offence when the people criticise us. Our authority rests on public confidence, and not on the power of contempt, as the celebrated American Judge, Justice Frankfurter, pointed out. People in India have great respect for the judiciary, but this creates an obligation on us to come up to the expectations of the people.

In R v. Commissioner of Police, (1968) 2 OB 150, Lord Denning observed: "Let me say at once that we will never use this [contempt] jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. It is the right of every man, in Parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest ... All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication.''

One major criticism of the Indian judiciary is that judges are taking too long a time to decide cases. This criticism is partly correct. We need to correct ourselves in this connection. However, it must also be realised that there has been a litigation explosion in our country in recent times. The dockets of all courts are overflowing. An alternative dispute redressal mechanism is urgently required (like the mediation system in America), since the load is simply too heavy for the judiciary to carry alone.

Moreover, so far as the Madras High Court is concerned while we have an approved strength of 49 judges, there are only 24 incumbents today [July 24, 2005]. We may compare this with the Bombay High Court which has a sanctioned strength of 60 judges and there are no vacancies. I am not saying this to justify delay in disposal of cases, but only to point out that we are not entirely to blame. However, I still request the judges to decide cases quickly and I appeal to advocates not to seek unnecessary adjournments.

One Honourable Member of Parliament present here said just now that it was for the judiciary to keep legislators on the proper path. With respect, I do not agree with him. There is broad separation of powers under our Constitution, and it is not for the judiciary to correct the legislators or the Ministers, just as it is not for them to correct us. They should themselves follow the proper path.

I have always believed that judges must not enter into the executive or legislative domain except in very exceptional cases. Judges must exercise restraint and not try to take over the functions of the legislature or the executive; otherwise there will be a reaction. However, sometimes we are compelled to interfere in such matters, as in our recent orders regarding encroachments on water bodies like tanks, ponds, lakes, and so on. The High Court had to intervene because the water bodies have been illegally encroached upon at a time when the State is facing acute water shortage crisis.

(This is excerpted from the recent speech of Justice Katju, Chief Justice of the Madras High Court, at the first anniversary celebration of the inauguration of the Madurai Bench of the Madras High Court.)

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