New Delhi: It would only be appropriate to quote Lord Denning at the outset: “Judges do not speak, as do actors, to please. They do not speak, as do advocates, to persuade. They do not speak, as do historians, to recount the past. They speak to give judgment..."
The recent demands to remove former Supreme Court judge Adarsh K Goel as the chairperson of the National Green Tribunal (NGT) signifies a disturbing trend. For, a judge is being targeted for a judgment delivered by the Supreme Court, and authored by him.
Judicial orders have a special quality — they are never attached or associated with a judge. They remain in force until set aside or modified by another judicial order by a higher court.
It is always the court that hands down a judgment. A judge, after delivering a judgment, becomes functus officio and the judgment of the court speaks for itself — this is a long established and recognised principle in the Indian judicial system.
Besides, a same case can very well be heard by different judges at different points in time, depending upon procedural requirements.
Thus, the orders of a court draw their sanctity and authority not by virtue of their authors but under the constitutional and statutory scheme, providing for a justice delivery system with the Supreme Court at the top of this hierarchy.
Judgments and orders by the Supreme Court form the judicial precedents and become the law of the land owing to the supremacy accorded to its judgments by the Constitution.
Decisions of the court are cited as precedents in subsequent cases as a binding principle of law and they are interpreted on their own merits and terms.
Justice Goel is being attacked for penning down a judgment, which has allegedly diluted the rigours of the SC/ST Act.
Union Minister and LJP leader Ram Vilas Paswan and his son Chirag have given an ultimatum to the central government to remove Justice Goel or face yet another nationwide protests from the members of the SC/ST community.
The political alarms raised imply a grave danger to the Constitutional democracy where judiciary must remain fearless and fierce as a protector of rights and as the final arbiter.
Consider a condemnation of Justice GS Singhvi for his judgment in the 2G spectrum allocation scam case after acquittal of all the accused by the trial court.
Will it be proper for Congress or DMK to seek an apology from Justice Singhvi or ask for his removal as chairman of the Competition Appellate Tribunal after the acquittal order, especially because the 2G verdict by the top court proved to be politically disastrous for the UPA?
Or should it be acceptable for ousted politicians and BCCI bosses to start denouncing former CJI RM Lodha over his recommendations to reform the cricketing body, which resulted in their exit?
Such demands would certainly put the independence of a judge and strength of the institution — which is the public face of the judicial branch — in jeopardy.
The Supreme Court, being the ultimate resort and the last word on the point of law, is invariably called upon to decide most high-profile and politically sensitive cases. And with the jurisdiction assumed in view of the public interest litigation, the apex court must also safeguard and restore rights of the people.
Politicising its decisions and condemning a judge personally are factors that would impact the fearlessness of a judge, who has taken the oath of the Constitution to perform his duties to the best of his capabilities and without fear or favour.
A judgment is always open to be criticised. Besides, any academic discussion following the judgment may also be relevant, but it must never involve the judge himself.
Leading a political campaign against a judge is an unparalleled episode that must meet strong censure and disapproval from across the political and legal spectrum. And in particular from the civil society that must rebuff such attempts to hamper independence of the judiciary.
In 1948, one of the most eloquent American judges, Justice Felix Frankfurter had said that he suffered from “judicial lockjaw”— a phenomenon of self-censorship that prevents judges from speaking about the judicial process and from pursuing extrajudicial activities.
It has been a long-standing convention that judges should speak only through their judgments and that fair criticism of the judgments is a matter of right reserved by all the citizens in a democracy.
If a judge starts justifying all his orders or engage in public debates over the impact of his orders, he may run the risk of sounding like politicians instead of letting the reasons contained in his judgment do this job.
In 2012, three days after his retirement, Justice Asok Kumar Ganguly had engaged with media and issued a written rejoinder to the criticism by former Lok Sabha Speaker Somnath Chatterjee of the 2G judgment, which he had delivered a few days ago. Justice Ganguly clarified and defended his judgment.
Questions were then raised not on the legality of his engagement with the media but the propriety of his actions in defending a judgment in the capacity of a judge who was party to a particular verdict.
A Supreme Court judge, because of his prominence and his knowledge of nationally important issues, may have the greatest ability to contribute to public debate but ill-advised extra-judicial conduct by a judge has the greatest potential to yield bad effects.
Restraint has been the principle adopted by the Supreme Court judges in India. And this has sound rationales.
Detachment from public life helps judges to be immune from the passions of popular sentiment and political machinations. This in turn galvanises independence of the judiciary.
Paswan's statements against Justice Goel is replete with his political ambitions and is patently wrong in taking advantage of the principles of restraint and institutional detachment by a judge of a Constitutional court.
A politician must respect these institutional principles and abstain from personal attacks on judges in pursuit of their political goals, for it tends to interfere directly with the independence of the judiciary and will have a cascading effect.
Paswan's assertions are also troublesome because the central government's petition to reconsider the SC/ST Act judgment is still pending in the top court. The threat of a nationwide stir can also be seen as a machination to influence the outcome of a pending matter by inappropriately putting the judges under pressure.
For Justice Goel, the decision not to revert, has so far been largely perceived to be suitable because when a retired judge speaks, not as an ordinary citizen but wearing the hat of a judge, he does not only issue contentious extra-judicial clarifications but it may also have an impact on future interpretations of the decision.
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