INDEPENDENCE OF JUDICIARY THE FINAL FRONTIER

INDEPENDENCE OF JUDICIARY THE FINAL FRONTIER

 divorced from the Judge's own personality. I understand that in some parts of the civilized world despite a great fanfare about independence of judiciary Judges are selected and appointed to the hierarchy of courts including the apex court with particular reference to their known conservative or liberal approach towards the national or moral issues. With great respect I consider such a practice to be nugatory to impartiality of judiciary and I can only sympathise with the litigant taking his case to such a Judge when he knows in advance that the Judge openly holds and is expected to express a view other than that which the litigant is about to canvass before him. A Judge, howsoever independent he may otherwise be, is not independent enough if his impartiality is clouded by his personal views and perceptions. This is what I mean when I include independence from yourself as a part of the final frontier.

 

The second aspect of the final frontier that I want to talk about is independence of an individual Judge from the undue pressures of his peers and from some unnecessary or unwarranted controls of his institution. There is no doubt that in his capacity as a Judge a person performing judicial functions is necessarily a part of his institution, i.e. the judiciary and ordinarily his functioning is to be in line with the over all policy and scheme of the institution. However, the problem comes when the institution's independence is itself under cloud because of extraneous factors and an individual Judge starts abdicating his decision making before the dictates of the institution or conversely when the institution starts excluding an individual Judge from decision making in sensitive matters because that Judge is not likely to tow the line of the institution. Both such factors, which may be unthinkable in the civilized world but may unfortunately be real possibilities in some other parts of the world, completely undermine the notions of independence of judiciary. Apart from that concentration of powers in the hands of the head of a judicial institution regarding constitution of Benches, allocation and distribution of cases amongst Benches, attaching of priority to different kinds of cases and geographic transfer of Judges is an issue which has raised eyebrows in the past and can also resurface in the future. A possible misuse of such powers by the head of a judicial institution can effectively render the independence of an individual Judge to be of no practical utility or benefit to the citizens at large. /Such a threat to independence of judiciary has its origins within the judiciary itself and any degree of independence of judiciary painstakingly achieved through all the other stages mentioned above can effectively be neutralized through some machinations from within the judiciary itself. In this context I feel that independence from judiciary in the above mentioned areas may be a sine qua non for reaching the final frontier of independence of judiciary.

Sir Francis Bacon, the British Lord Chancellor of his time, started his essay Of Truth with the following words: "What is truth said the jesting Pilate and did not wait for an answer." The same can be said about justice as well. Justice is an abstract notion and true justice can be done only if totality of the facts are known. According to the Holy Qur'an when Khizar (PBUH) killed a minor boy for no ostensible reason Moses (PBUH) found that to be unjust and he protested against such an unjust murder but subsequently Moses (PBUH) was satisfied when Khizar (PBUH) explained the will and wisdom of Almighty Allah in that regard on the basis of facts which were not known to human beings till then. Thus, even a Prophet of Almighty Allah apparently faltered in the matter of justice on account of lack of knowledge of the totality' of facts. Unfortunately all that we fallible and mortal Judges in this world have before us is a few papers containing half-truths and some self-serving statements of the parties and their partisan witnesses. Almighty Allah, the Maker of us all, knows our limitations and that is why at many places in the Holy Qur'an we have been ordained to decide according to the onus, quantum and standard of proof prescribed for various offences. In some cases where an allegation is levelled in the absence of the prescribed quantum and standard of proof the person levelling the allegation is required to be punished even if his allegation may in fact be true. The essence of this is that the emphasis is not upon making sure that the culprit does not go unpunished but the focus is on punishing him only if he is proved guilty in accordance with the legal requirements. It is, thus, evident that we have been ordained to administer justice only in accordance with the law and not in accordance with our own subjective appreciation or understanding of what might have happened and on the basis of our own subjective sense of justice. Even the Star Chambers and the Court of Equity in England had to be wound up because it was soon felt that equity had started varying with the size of the Chancellor's foot and justice being administered was becoming more and more whimsical and subjective. It is in the background of such accumulated wisdom that the oath of office of a Judge in our country requires him to dispense justice only in accordance with the law. Let me explain this issue through an example. We all know what a fake police encounter is. A fake police encounter is where a notorious criminal, a menace to the society, is apprehended by the police and knowing that no sufficient evidence is available against him to prove his misdeeds before a court of law the police officer decides to rid the society of that menace and kills that person by fabricating and faking a police encounter. The motives of such a police officer appear to be just to him and he feels convinced that by ridding the society of that menace he is doing a service to the society but the law considers such a killing to be nothing but a cold-blooded murder. Please allow me to say that if a Judge passes a sentence of death against a notorious person or upholds such a sentence only on the basis of his own subjective sense of justice in the name of good of the society with scant regard for the law or the standard of proof then I see no difference between the above mentioned police officer and the Judge. A fake judicial encounter is as bad and condemnable as a fake police encounter. I strongly believe that jurisdiction conferred by law can in no circumstances be exceeded by a Judge in the name of justice because such an approach completely negates the concept of rule of law. How can a Judge violating the law in the name of justice be treated more charitably than any other criminal who violates the law deliberately? Let me broach this subject from another angle. A Judge is like an umpire in a game of cricket. hi a tense and emotionally charged cricket match being played between India and Pakistan at Lahore Sachin Tendulkar hits the ball for a six and the ball is caught by a Pakistani fielder outside the boundary rope and the entire Pakistani team rises to its feet with an appeal to the Pakistani umpire with a question `How is that?'. According to the rules of the game Sachin is not out and the Pakistani umpire cannot say that although according to the rules of the game the batsman is not out but I would give him out because it is in the interest of my country. Such a decision of the umpire based upon a perverted and subjective sense of justice would surely be the last decision in that gentleman's umpiring career. Like an umpire in a game of cricket a Judge's function in the justice system is to decide only and only in accordance with the law and not according to his own subjective sense of justice or fairness. It is the law which is to take care of justice and a Judge should never try to be wiser than the law. People come to a court of law after exhausting the other avenues of justice. They want to get the legal position declared by the court and the court should not shy away from it. In a misdirected and abstract pursuit of justice the law is not to be relegated to the status of or condemned as mere technicalities. Such an attitude amounts to destroying the very basis and the very fabric of the entire legal and judicial system. The very purpose of having such so-called technicalities, i.e. the law is to establish an order in the society through known and codified standards. A Judge ignoring the said code or the standards may be trying to do justice to one party according to his own subjective standards which may not necessarily be correct and sure but by doing that he is throwing the entire society into chaos by violating the agreed and settled code and standards. It must never be lost sight of by a Judge that he has no mandate from the society to be an apostle, a cavalier, a reformer or a missionary and the only mandate given to him by the society is to administer justice according to the law of the land. A judge must understand that the warrant of his appointment is not a proclamation of his coronation as a king who is above the law. Even for a king it now stands settled that "howsoever high you may be the law is above you". It is but obvious that a Judge, on account of the nature of his job, is more bound to obey and follow the law than any other citizen. A Judge trying to do justice by ignoring or disregarding the law does so at the peril of shaking the very foundation of the judicial system itself as such an approach destroys certainty and predictability of judicial response. This in turn gradually cuts across and erodes public confidence in the judiciary which is so important for maintaining and safeguarding its independence. The final frontier for independence of judiciary, therefore, is that the Judges should shake off every other consideration from their minds and should decide the matters placed before them in accordance with the law and nothing but the law. This I believe is what would be the ultimate cutting edge in our quest for independence of judiciary.