By Justice Kamaljit Singh Garewal

No one should deny the author of the article “Objection, Your Lordship” (IE, September 22, 2022) his right to object because he has the right to freedom of speech and expression. Once this right has been granted, and the author has given full expression to his anguish, there must be space for a reply. Since judges do not reply to criticism of their judgments because all the reasons for taking a particular view (which horrifies the objector) have been stated in the judgment itself, is it fair to allow a one-sided view to colour the public mind?

In no jurisprudence is a judge expected to justify his judgment once it has been pronounced. It is for appellate judges to examine the judgment and for lawyers to criticise it in the grounds of appeal and in oral submissions before the appellate court. But in our country, TV anchors and newspaper editors are the ones most critical of judgments of the Supreme Court without real knowledge of the judicial processes and the law. As there is no court above the Supreme Court, the judgments are final, but judges are not infallible. Some judgments of the Supreme Court are overruled by a later judgment given by a larger bench and thus, jurisprudence progresses, advances, changes, evolves and benefits flow down to the citizens.

Every day, every week, every month thousands of civil suits are either decreed or dismissed. Likewise, thousands of criminal trials end in conviction or acquittal. Typically these cases, which form the bulk of our judicial load, involve two parties. The plaintiff versus the defendant, and in criminal cases it is the State (or the complainant) versus the accused. If the Sriram Panchu doctrine (in the IE article) of castigating judges for their judgments becomes the accepted norm, our newspaper columns shall be full of nothing else.

However, this much can be said about the Sriram Panchu doctrine. Every important case involving protection of constitutional rights and liberties should be discussed by all judges, frankly but discreetly, before they are set down for hearing in open court. There may be judges who have specialised in the concerned branch of law or handled or decided similar matters or written about the subject matter, and may have important inputs in the matter or a point of view which is being argued before his bench in some other matter. This would help the bench entrusted with the case. Perhaps some informal consultation does take place between the chief justice and his companion judges. But the judgment which emerges is the judgment of the court and not that of  a particular judge. Therefore, the citizen needs to be convinced that the judgment is of the Supreme Court of India and not of the judges who sat on the bench and heard the matter.

Most courts have an internal system of consultation regarding the causes coming up for hearing. At the United Nations Appeals Tribunal, Friday afternoon sessions were reserved for stock-taking, literally taking stock of the cases before the Tribunal. Members were free to discuss their cases and would often find that another member had a different way of looking at things. Through discussion, an agreed, common approach would evolve. This was also necessary because the Tribunal was geographically diverse, with members from all over the world coming from different continents. Two each from North and South America and one each from Europe, Africa and Asia. Of the seven of us, three were from France, Argentina and Uruguay (civil law countries) and four from the US, Canada, Ghana and India (common law countries). There was also a gender balance, four men and three women. On both aspects, geographic diversity and gender balance, our Supreme Court is lagging behind. There are no judges from North of Delhi (except two from Haryana). North East of the country is unrepresented, and so are Bihar, Orissa, Jharkhand and Chhattisgarh. And only three women judges.

A month ago, Sriram Panchu wrote a satirical piece entitled “In the Supreme Court of Erehwon: The Prevention of Money Laundering Act.” The article was in the shape of a judgment in which, relying upon a 1952 Supreme Court judgment (State of West Bengal vs Anwar Ali Sarkar 1952 AIR 75), the judgment in the article set aside PMLA on the grounds that the Supreme Court had declared the West Bengal Special Powers Act unconstitutional. What is of interest is the question asked by Justice Vivian Bose in his opinion, quoted in the mock judgment.

Justice Bose asked himself “….can fair-minded, reasonable, unbiased, and resolute men, who are not swayed by emotion or prejudice, regard this with equanimity and call it reasonable, just and fair, regard it as that equal treatment and protection in the defence of liberties which is expected of a sovereign democratic republic in the conditions which obtain in India today.”

And the mock judgment concludes, “so he said and so do we. Justice Bose, and five other Judges with him, held the West Bengal Special Courts Act bad on these grounds, and we use these grounds to invalidate this Act”.

One hopes that before cases seeking constitutional protection of personal liberties are examined by courts, the Vivian Bose Question should be asked by the chief justice of India to his companion judges and hand over cases involving personal liberties of citizens to judges who think this question is a relevant one. In our country, the executive and the legislature still possesses a colonial, pre-Independence mindset. Should not the judiciary stand at a great distance from the other two pillars of the Republic and examine destruction of liberties dispassionately and impartially?

The best way forward is for investigation to complete quickly and if possible, the accused released on bail. And then, the trial concluded fast. The accused should either be convicted and awarded condign sentence or acquitted. After the legal process is completed, all challenges will open up as the evidence shall be on record. Media may go on giving out meaningless “breaking news” stories. But the accused person can only be convicted on the basis of legal evidence against him proving the charges, be it under PMLA, UAPA or IPC. Does not the criminal bar realise that taking matters straight to the High Court or Supreme Court does grave damage to the accused, especially when it is known that the court will invariably uphold draconian laws.

India has many jurists who comment on the way judges decide cases, but we need a jurist like Justice Richard A. Posner (1939 –   ). He is an American judge and scholar who wrote incisively on how judges think. In his book, “How Judges Think” (Universal Law Publishing 2010),  he begins with a very sarcastic quotation: “In my youthful, scornful way, I recognised four types of judgments, first the cogitative, of and by reflection and logomancy; second, the aleatory, of and by the dice; third, intuitive, of and by feeling or “hunching”; and fourth, asinine of and by an ass; and in the same youthful, scornful way, I regarded the last three as only variants of each other, the results of processes all alien to good judge.” Posner further expounded his various theories of judicial behaviour like attitudinal, strategic, sociological, psychological, economic, etc.

But not to rest with his in-depth analysis of the American judicial mind, he goes on to write that “cocooned in their marble palace, attended by sycophantic staff, and treated with extreme deference wherever they go, Supreme Court Justices are at risk of acquiring an exaggerated opinion of their ability and character.” And adds that “in a democratic society of great size and complexity, it is difficult to justify giving a committee of lawyer aristocrats the power not just to find or apply the law and make up enough law to fill in the many gaps in the law that is given to them, but also to create out of whole cloth, or out of their guts, large swatches of law that as a practical matter they alone can alter.” How much of the above applies to Indian judiciary is hard to say.

The four judgments of the Supreme Court, referred to by Sriram Panchu are Vijay Madanlal vs Union of India (PMLA matter), Zakia Ahsan Jafri (Gujarat riots matter), Himanshu Kumar vs State of Chhattisgarh (2009 tribal massacre), National Investigation Agency vs Zahoor Ahmed Shah Watali (UAPA matter). All four cases were decided in favour of the State denying its protection of constitutional rights either as victims or accused.

This is, no doubt, a worrying development, but we must realise that our Supreme Court in 2022 is a lot different from the Supreme Court of 1952. Each of the above matters took so much judicial time and resources that they ended in a graveyard of constitutional values. This should worry the higher echelons of the judiciary. Unless correction is applied to the system now, things may go beyond repair.  

The writer is former judge, Punjab & Haryana High Court, Chandigarh and former judge, United Nations Appeals Tribunal, New York