ARE JUDGES A RARE CLASS ABOVE PUBLIC SERVANTS

Justice V.R. Krishna Iyer

Absolute Power and Egregious Error even if the repository be the Judiciary, go ill-together. Justices are no higher than great Homer who, says Lord Byron, sometimes sleeps and small wonder the ‘robed brethren' on the High Bench sometimes blink. This happened, perhaps once, when a Chief Justice of India, the highest judicial functionary, faltered by oversight, when he claimed, taking casual leave of constitutional law, that the Chief Justice is not a ‘public servant' but is a ‘constitutional authority'. True. But every judge is oath-bound to dispense public justice ‘without fear or favour, affection or ill-will'. Public Justice is public service and obviously, judges are public servants. The Right to Information Act therefore does cover ‘constitutional authorities', although this is contrary to what the Chief of the Apex Court observed. This absolutist obiter coming from an eminent legal luminary, for whom I have high regard is bizarre and is a faux pas . Unfortunately, he has, in my legal perception, slipped into an accidental innocence of jurisprudence. This solecism may, however, be justly overlooked, having regard to the heavy burden he bears such as management of the court, handling a load of judicial work, frequent ceremonial journeys, several erudite speeches and oral interviews and the tremendous strain in selecting higher judicial personnel. Judges and ministers in high offices, undertake, under public pressure or out of vanity, do a terrible amount of non-judicial operations, sacrificing valuable time so necessary to study dockets, hear prolix, logomachic arguments and write (some delinquents don't) profound judgments laying down the law of the land. In this onerous background, we must forsake criticism of occasional forensic failings. How else can one explain a grave goof made unwittingly, for the sake that judges are not public servants but ‘constitutional authorities'? The latter are, in simple semantics, a higher category of public functionaries, a finer, nobler group of public servants, more democratically accountable and qualitatively more liable to furnish information to the people about them and their functions, if it is relevant to public interest. All important constitutional authorities, like judges, ministers, Auditor General, Accountant General, Election Commissioner, Speaker of the House plus plus are a fortiori public servants of a superior and more profound obligations. These are not two anti-thetical categories but are, in public law, of the same class. My candid constitutional camera perceives both as owing public duties and liable to perform as penalties for failure to public servants—subject to limitations laid down by law. The great judge Jerome Frank, in his widely read book Courts on Trial, has wisely said that he had little patience with or respect for the view that it is dangerous to tell the public unpalatable truths about the judiciary. ”I am unable to conceive… that in a democracy, it can ever be unwise to acquaint the public with the truth about the workings of any branch of government. It is wholly undemocratic to treat the public as children who are unable to accept the inescapable shortcomings of man-made institutions… The best way to bring about the elimination of those shortcomings of our judicial system which are capable of being eliminated is to have all our citizens informed as to how that system now functions. It is a mistake, therefore, to try to establish and maintain, through ignorance, public esteem for our courts.” Personally speaking, I stand solidly for a judiciary which is a democratic instrumentality, not an occult class of divinity. David Pannick QC has likewise observed:

‘We need judges who are trained for the job, whose conduct can be freely criticized and is subject to investigation by a Judicial Performance Commission; judges who abandon wigs, gowns and unnecessary linguistic legalisms; judges who welcome rather than shun publicity for their activities.' Information about judges' wealth, other activities and even private doings if they affect judicial duties cannot be kept secret. Let me cite brilliant Pannick again:

‘The judiciary is not the ‘least dangerous branch' of government……… They send people to prison and decide the scope and application of all manner of rights and duties with important consequences for individuals and for society. Because the judiciary has such a central role in the government of society, we should (in the words of Justice Oliver Wendell Holmes) wash…. with cynical acid this aspect of public life. Unlessly and until we treat judges as fallible human beings whose official conduct is subject to the same critical analysis as that of other organs of government, judges will remain members of a priesthood who have great powers over the rest of the community, but who are otherwise isolated from them and misunderstood by them, to their mutual disadvantage.' Let us not confuse between Papacy and Judiciary!

Judges, like ministers, Governors, President, Speakers and a host of other functionaries are constitutional authorities and, most emphatically, public servants, not absolutist bosses, with vast political power but above democratic accountability, functional transparency and fundamentally incorruptible. Indeed, judges must be free from graft, nepotism, abuse of power and arrogance. They are the paradigm of clean personal life, open and accessible custodians of public justice and paragons of moral excellence and humanist simplicity, sans consumerist craving and greed to grab. They are a higher cadre with sublimer calibre. In short, justices wear robes on oath under the Constitution as trustees par excellence of Judicial Power, of course within their legal jurisdiction and constitutional jurisprudence. The Supreme Court, in a ruling of the Constitution Bench in K. Veeraswami v. Union of India, 1991 SCC 655 held that the expression ‘Public Servant' used in the Prevention of Corruption Act, is undoubtedly wide enough to denote every judge, including judges of the High Court and the Supreme Court'. Judges beware? You are under the law, not above it. Your public life, and even private life to the extent it influences your judicial role, is accountable and informationally transparent to the public, and a plea of secrecy is sinister allergy. Democracy is a disaster if the President, Speaker, Prime Minister and Chief Justice hide their wealth and other delinquent dealings from the scrutiny of ‘We, the People of India', the sovereign of the nation.

To err is human and to forgive is divine. Chief Justice Balakrishnan is a fine citizen, sublime soul, versatile jurist, graceful instance of dignity and refinement. If I have erred in disagreeing with his disclaimer of judges being public servants he will forgive me. But, certainly, judges are not divine. The Indian judiciary must accept Frank furter, that frank and superlative U.S Judge who wrote: “Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions.” Just because the holders of judicial office are identified with the interests of justice they may forget their common human frailties and fallibilities. There have sometimes been martinets upon the bench as there have also been pompous wielders of authority who have used the paraphernalia of power in support of what they called their dignity. Therefore judges must be kept mindful of their limitations and of their ultimate public responsibility by a vigorous stream of criticism expressed with candor however blunt. Our judges shall remain awake alert and accept the Preamble to the Constitution: ‘socialist, secular, democratic'. We need a Judicial Appointment and Performance Commission of supreme stature, selected with the highest judicial, political and public-spirited wonders of popular confidence, to ensure the finest independent fraternity to exercise judicial power and held in the highest esteem by the enlightened wisdom of the People of India. This desideratum demands a diamond-hard Constitutional Code covering every dimension of Judicial Performance.

Being a member of legal fraternity and with full respect and regard to the Hon'ble Chief Justice of India (CJI), I tend to disagree with his recent contention that being a Constitutional functionary, his office does not fall in the category of “Public Servant” and as such not covered under the Right to Information Act (RTI). Without going into the merits of his stand as it would not be wise or appropriate in any sense to comment on the statement of the holder of highest office of judiciary, it is most humbly submitted that the repute and image of Indian judiciary would elevate further in the eyes of our citizens if RTI is implemented by it in letter and spirit albeit with suitable exceptions so as to protect the independence of judiciary. Our judiciary which is one of the strongest in the world and enjoys a exalted status above all other pillars of democracy ought to set a hallmark in implementation of RTI so that other organs of our system may follow suit. Let the judiciary deliver a message that it is not hesitant or obstructed in adopting transparency mechanisms so as to shed its hitherto opaque image. It would silent its critics which often decry lack of accountability and openness in its functioning. Already the Central Information Commission (CIC) has held in past months that neither the judicial proceedings (which includes notes, minutes and jottings of court proceedings) would be covered under RTI nor the process of selection methodology regarding appointment of judges of higher judiciary. If the judiciary still feels short for implementation of RTI , a RTI code for Judiciary can be framed by it so that there can be effective and uniform adoption of RTI across the judiciary in the country.

Hemant Kumar, Advocate