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"Judges don't protect other judges"

Mukund Padmanabhan

Sir Igor Judge, President of the Queen's Bench Division, England and Wales, on judicial accountability, independence, and efficiency.

Photo: R.Ragu

Sir Igor Judge: "I don't think there is a conflict between judicial accountability and judicial independence."

Called to the Bar in 1963, Sir Igor Judge's first judicial appointment was as a Recorder of the Crown Court in 1976. In 2003, he was appointed Deputy Chief Justice of England and in October 2005, became the first President of the Queen's Bench Division (England and Wales).

Sir Igor, who specialises in the area of enhancing the efficiency and accountability of the judiciary, was in Chennai for a short visit, during which he interacted with judges, lawyers and academics. Excerpts from an interview:

Is it fair to say that there is an inherent tension between judicial accountability and judicial independence? That they need to be balanced somehow?

There is no tension. They are two principles, which can be seen to be in conflict. But in fact I don't think there is a conflict between them. Judicial independence requires that a judge must make his decision free of influence of any kind. But that does not mean a judge is entitled to say, `I can do anything I like.' A judge can't take a bribe — if he does, he should be judicially reproved, be prosecuted. And I don't think anybody would say that judicial independence should be invoked to protect him if he behaved in such a way.

The more difficult questions relate to judicial control of cases, judicial inefficiency. We can't have outsiders say, `We think this judge is inefficient.' Because that would enable somebody who wants to get rid of a judge to create the impression that he is inefficient. That would be a clever way of getting somebody who is unpopular or taking decisions that the Government of the day or the press didn't like. So you have to have judicial control over the way in which we are efficient or inefficient.

So what you are saying really is, `Yes there needs to be a balance. But this balance must be determined by the judges themselves'?

Yes ... Judges don't want their brother and sister judges to be inefficient. They don't want them to misconduct themselves. It is a very great blow to the judiciary as a whole if any single judge misconducts himself. Judges don't protect other judges. There is no basis for believing this.

Judicial accountability means a broad range of things, including quality of judgments, delays in judicial proceedings, arrears in cases, and so on. In India, the subject crops up mainly in the context of judicial corruption or misconduct. People ask, `who is there to judge the judges?' And then the discussion invariably revolves around the question of the appointment and transfer of judges...

Well, hang on! Each of those questions covers an hour's conversation. And that's a very profound series of questions. I can't comment about the issue of corruption of the judiciary in India for obvious reasons. I know nothing about it. But I see no reason if there is evidence that a judge has committed a crime, why the police shouldn't investigate it?

In England, the system is that if the police have a reason to suspect [a judge], they would come and see a senior judge and say, `This is what we have and we propose to investigate.' This ensures that the police can't pick on a judge they simply don't like. A senior judge cannot interfere with a police investigation but at least we know that there are grounds for believing [that there is a case]. I believe that is the way it should be done.

What about the question about the appointment and transfer of judges? Should it be referred to an external body — such as a National Judicial Commission? Or should they be left to the judiciary alone? Wasn't there a recent move to set up an external body to decide this in England and Wales?

Appointment and transfer are different questions. I will address both. As for appointments, with effect from April [2006], we have a completely new appointment system for the entire judiciary — from the Lord Chief Justice down to the most junior judge. The Judicial Appointments Commission consists of no politicians. The chairman is a lady of Indian origin actually, Baroness Prashar. Then, there are a number of commissioners, who are not judges, and then a number of judges. For the very senior offices, such as that of the Lord Chief Justice, they will make a recommendation. The Prime Minister is entitled to refuse their first recommendation if he gives reasons. But he has to accept their second recommendation.

This Commission will run the entire appointment system. We the judges will be able to tell them that we need more judges here, more for this sort of work, more specialists there. They will then find who they believe are the best people.

Transfer is slight different. It is a concept which I think encompasses a judge who perhaps does a series of cases in a particular field rather poorly. A time comes when you say, `well, he shouldn't be doing those sort of cases.' Again, this is decided by senior judges. If a judge shows from judgments, from summings up, transcripts of trials or even complaints that he really isn't up to doing that job any more, then as a judicial act we remove him to another job, to do something else. I hope that is an answer to the different levels of your question.

Moving from judicial accountability to judicial efficiency, how have alternative dispute resolution mechanisms, such as arbitration, worked in the United Kingdom?

It is not a field in which I am an expert, but my very strong impression is that people have recognised that in addition to making the judicial system more efficient through judicial case management, there is an increasing role for mediation and arbitration. A lot of these cases are exhausting not merely because of what is involved, but build up a tension of their own.

There is a terrible Chinese curse which goes, `May you be involved in litigation in which you are in the right!' The tension of it gets to you.

If you can sit around a table together with somebody who points out that a little bit of give and take actually resolve the dispute reasonably fairly to both sides, that's a better way of proceeding than going to court and finding one side winning everything and the other losing everything.

We read a lot now about how technology can make the judiciary more efficient. Electronic filing, paperless court files, video-conferencing, petitions on CD-ROMs. None of this has taken off in India yet, but how far are we away from e-justice?

All the preparatory things to do with cases eventually will be done using modern technology. There won't be any need for lawyers to turn up in court for the judge to give a few directions about how the case should be handled. But trials must take place in open court. It is absolutely fundamental that nobody should end up being convicted and sent to prison behind what is in effect closed doors.

There are two ways of closing doors. One is to shut the public out. The other is to do it all electronically or privately. I should be totally against a system which said justice should be done beyond closed doors — whether these are literal closed doors or our future closed doors.

But the modern technology can undoubtedly be used efficiently. We are trying very hard, for example, to link every prison with every court. We have not achieved it, but this avoids the prisoner being fetched for long journeys to a court for a short hearing that he does want to attend anyway. So link him up with a video and link the court up. For the trial itself, of course, he has to be there.

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"Judges don't protect other judges"

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