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‘A much talking judge is like an ill-tuned cymbal’

Chief Justice of India SA Bobde
Chief Justice of India SA Bobde
(CAUTION: THE OPINIONS EXPRESSED IN THIS ARTICLE ARE THOSE OF THE AUTHOR’S OWN AND DO NOT REFLECT THE OPINIONS OR VIEWS OF THE RATIONAL DAILY IN ANY MANNER.)

During the hearing of the case before the Supreme Court relating to the 3 farmers laws and the ongoing farmers agitation, Chief Justice of India Bobde made several oral observations e.g. blood will be on our hands, women, old people, and children are suffering in the cold weather and should go home, corona will spread, etc, and the Attorney General, not to be outdone, said that there is an intelligence report that Khalistanis have infiltrated into the agitation.

Now all these were uncalled for remarks totally irrelevant to the matters to be decided. I was reminded of a famous quotation of Francis Bacon, former Lord Chancellor of England ” A much talking judge is like an ill tuned cymbal “. After all, the pen is in the judge’s hand, and he has no need to sermonise or give lectures.

Francis Bacon, English philosopher and statesman who served as Attorney General and as Lord Chancellor of England
Francis Bacon, English philosopher and statesman who served as Attorney General and as Lord Chancellor of England

What the Court had to decide was whether the laws in question were constitutional or not. In addition, it could have issued a mandamus that the farmers must not block roads, as that causes immense suffering to the public, particularly the residents of Delhi and those who have to go there for their work. But instead of confining itself to these issues, the Court went off on a tangent, and made observations e.g, that there was apprehension of violence, which was really a matter for the police to deal with. They formed a committee, for which there was no demand from anyone. The farmers have refused to appear before this committee, saying that the members are biased, and there is a lot of criticism of the court regarding the manner proceedings were conducted before it.

I spoke on telephone with a senior sitting judge of the Supreme Court, and complained about the manner in which the court had conducted the 2 day hearing. I was particularly critical of the oral observations made by the CJI, by which he had almost converted the court into a panchayat, instead of confining itself to adjudication of the legal principles involved in the case.

He replied that he told the same thing I mentioned to one of the members of the 3 judge bench ( junior to him ), and that judge said that the CJI does not permit others on the bench to speak. I said that while sitting on the judicial side all members on the bench are equal, and must speak out their minds, otherwise what is the purpose of having a bench ? Surely junior judges on a bench are not dummies. This tendency of some senior judges to dominate over their juniors on the bench is not proper.

Also, this tendency among some judges to sermonise and make uncalled for remarks during a hearing is improper, and should be eschewed. As observed by Justice Cardozo, the celebrated judge of the US Supreme Court in his book The Nature of the Judicial Process ” A judge is not a Knight Errant roaming at will in pursuit of his own ideal of beauty and goodness “.

Benjamin Nathan Cardozo was an American lawyer and jurist who served as an Associate Justice of the Supreme Court of the United States.
Benjamin Nathan Cardozo was an American lawyer and jurist who served as an Associate Justice of the Supreme Court of the United States.

There is broad separation of powers in the Constitution, and Judges must maintain judicial self restraint, and must not encroach into the legislative and executive domain. They must realise that the judiciary cannot solve all the problems in the country.

In the Supreme Court decision in Divisional Manager, Aravali Golf Course vs Chander Haas ( see online ) it was observed :
” Before parting with this case we would like to make some observations about the limits of the powers of the judiciary. We are compelled to make these observations because we are repeatedly coming across cases where Judges are unjustifiably trying to perform executive or legislative functions. In our opinion this is clearly unconstitutional. In the name of judicial activism Judges cannot cross their limits and try to take over functions which belong to another organ of the State.

Judges must exercise judicial restraint and must not encroach into the executive or legislative domain vide Indian Drugs & Pharmaceuticals Ltd. vs. The Workman of Indian Drugs & Pharmaceuticals Ltd. (2007) 1 SCC 408 and S.C. Chandra and Ors. vs. State of Jharkhand and Ors. JT 2007 (10) 4 SC 272 (See concurring judgment of M. Katju, J.).

Under our Constitution, the Legislature, Executive and Judiciary all have their own broad spheres of operation. Ordinarily it is not proper for any of these three organs of the State to encroach upon the domain of another, otherwise the delicate balance in the Constitution will be upset, and there will be a reaction.

Judges must know their limits and must not try to run the Government. They must have modesty and humility, and not behave like Emperors. There is broad separation of powers under the Constitution and each organ of the State the legislature, the executive and the judiciary must have respect for the others and must not encroach into each others domains “.

It is submitted that adjudication must be done within the system of historically validated restraints and conscious minimization of the Judges preferences. The Court must not embarrass the administrative authorities and must realize that administrative authorities have expertise in the field of administration while the Court does not. In the words of Chief Justice Neely, former Chief Justice of the West Virginia State Supreme Court :

” I have very few illusions about my own limitations as a judge. I am not an accountant, electrical engineer, financier, banker, stockbroker or system management analyst. It is the height of folly to expect Judges intelligently to review a 5000 page record addressing the intricacies of a public utility operation. It is not the function of a Judge to act as a super board, or with the zeal of a pedantic school master substituting his own judgment for that of the administrator “.

Adarsh Sein Anand was the 29th Chief Justice of India, serving from 10 October 1998 to 31 October 2001. Picture Credit: Catch News
Adarsh Sein Anand was the 29th Chief Justice of India, serving from 10 October 1998 to 31 October 2001. Picture Credit: Catch News

As observed by Justice A.S.Anand, former Chief Justice of India :

” Courts have to function within the established parameters and constitutional bounds. Decisions should have a jurisprudential base with clearly discernible principles. Courts have to be careful to see that they do not overstep their limits because to them are assigned the sacred duty of guarding the Constitution. Policy matters, fiscal, educational, or otherwise, are thus best left to the judgment of the executive.

With a view to see that judicial activism does not become judicial adventurism, the courts must act with caution and proper restraint. They must remember that judicial activism is not an unguided missile failure to bear this in mind would lead to chaos. Public adulation must not sway the judges and personal aggrandizement must be eschewed. It is imperative to preserve the sanctity and credibility of judicial process. It needs to be remembered that courts cannot run the government “.

As regards the interim order passed by the court I have already expressed my opinion that it is unconstitutional, in my articles ‘ Can Indian Supreme Court stay implementation of a law ‘ and ‘ The Supreme Court order is unconstitutional ‘ published in indicanews.com

One wishes that the Judges hearing the farmers case had kept the things mentioned above in mind.

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Markandey Katju

Written by Markandey Katju

Justice Markandey Katju is the former Chairman, Press Council of India. Prior to his appointment as Chairman, Press Council of India, he served as a Permanent judge at the Supreme Court of India.

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