by S.D. Dave
In any Justice Delivery System the State is required to have a legal framework within which, the Judge shall have to work. One without the other would be meaningless and impossible. In almost all countries the judicial proceedings have become adversarial and though in very few branches they might be inquisitorial, simply reading the text of law cannot render justice. There has to be an authority duly appointed by the State, who while presiding over the proceedings, would collect true facts from the rival contentions and then apply the law with a view to come out with a verdict. This authority has been designated as a Judge.
The Institution operating for more than a thousand years, it is said, had acquired a recognised authoritative status among the Sovereign and the subjects during the early Roman times. According to the legal history in ancient Europe the law dates back as far as 3000 B. C. On a gaze at the past, the ancient Muslim historians claim that major legal systems had developed ages back with the well-recognised Islamic Law and Jurisprudence. The Aylesbury County Hall is said to be the oldest Court in England established in the year 1740.
In India, the JDS in its present form, owes its existence right from the Colonial Rule beginning with East India Company and the Crown Courts, a period during which Local Courts, the Courts of Appeal, Sudder Dewany Adawlats, the Supreme Courts at Calcutta, Bombay and Madras and then the Chartered High Courts at these Provinces came to be established, requiring the involvement of the persons well acquainted with law, to administer justice, while sitting in the chair of the Judge.
Every Judge duly appointed exercises ‘Judicial Powers’, the term being explained by Chief Justice Griffith in the matter of Huddart, Parker and Co. v. Moorehead [(1909) 8 CLR 330] which came to be approved by the Privy Council, in Shell Co. of Australia v. Federal Commissioner of Taxation (1936 All ER. Rep 671) requires a reference for appreciating the concept of the Judicial Power.
Chief Justice Griffith has said,
“Judicial Power means the power which every sovereign authority must, of necessarily have to decide controversies between its subjects or between it and its subjects, whether the rights relate to life, liberty or property. The exercise of this power, does not begin until some tribunal which has the power to give a binding and authoritative decision, (whether subject to appeal or not) is called upon to take action.”
“A Judge exercises Judicial Power not only when he is deciding suits between parties, but also when he exercises, ‘Judicial discretionary powers, which are properly appurtenant to the office of the Judge’, as held in Attorney General of Gambia v. N’jie [(1961) 2 All ER 504 PC] and Montfort Senior Secondary School v. Vijay Kumar [(2005) 7 SCC 472].
It is in the exercise of the Judicial Powers that a Judge has to work and write a judgment, which is the statement given by him, of the grounds of a decree or Order. As said in Balraj Taneja v. Sunil Madan [(1999) 8 SCC 396]:
“The process of reasoning by which the Court came to the ultimate conclusion and decreed the suit should be reflected clearly in the judgment. But that has to be done by a Judge.”
Encyclopedia Law Dictionary puts this concept as:-
I A Judge ought always to have equity before his eyes.
II The Judge ought to decide according to the allegations and proofs, and lastly;
III A Judge should have two salts – the salt of wisdom, lest he be insipid and the salt of conscience, lest he be devilish.
These are the expectations, born out of the juristic thinking and the traditional practice of the present day judiciary, of which a Judge is a face. He must be capable to work in a manner that would produce as a result, something if not everything, in the direction of the meeting with these expectations. A legal framework with all possible infrastructural facilities, would not serve any useful purpose in absence of a competent judiciary, having not only magisterial but sympathetic approach. This can best be understood from the words of Austin Blacstone, who writes a dictum, “The effect of the Laws depends upon the persons who address it upon the Addressed”
But this alone is not sufficient. A Judge is both expected and required to have certain other qualities also. Firstly, he shall have to be ‘an ethical persona’, a term that demands a person to be moral, humane, respectable, honest, decent and noble. Ethics prescribes and emphasises upon the Basic Principles of right action as it happens to be a Science of Morals. Sir Thomas Holland in his thesis ‘The Elements of Jurisprudence’ (13th Edition, Page 27), while distinguishing ethics from Nomology, propounds, “Ethics is the science mainly of duties, while nomology looks rather to the definition and preservation of rights.”
Ethics always travels with the virtue of knowledge. Without the adequate knowledge of the branch of the law in which he acts, a Judge would hardly be able to perform his duties demanded by his position. Rendering justice without adequate knowledge is always equated with a sailor on the high seas without a compass. Adequate knowledge on the part of a Judge, in the present day has become a sine qua non.
The Supreme Court of India has endorsed this essential in various pronouncements:
Justice K. Ramaswami in the State of Karnataka v. Appa Balu Ingle [(1995) Supp. (4) SCC 469] speaking for the Bench has said;
“Judiciary acts as the bastion of the freedom and of the rights of the people.”
Justice Pandian in The Supreme Court Advocates-on-Record v. Union of India [(1993) 4 SCC 441] expresses the views of the Bench thus; “The judiciary under our Constitutional scheme has to take up a positive and creative function in securing Socio-economic Justice to the people.” Justice Radhakrishnan in Micro Hotel (P) Ltd. v. Hotel Torrento Ltd. [(2012) 10 SCC 290] while describing the nature of the function of a Judge, has said; “A Judge has to reason out truth from falsehood, good from evil, which enables him to deduce references from facts or propositions.” The heavy responsibility lying on the shoulders of a Judge, anxiously noticed by the Supreme Court cannot be discharged, unless a Judge knows the law. Equally important is the independence of the Judiciary collectively, and of a Judge individually. A number of forces are nowadays busy to encroach upon the virtuous space being held by a Judge. Politics, socio-economic persuasions expressed widely and loudly, the divergence resting on the basis of caste, creed, class and religion, do try to intervene in the judicial process. A Judge’s own thinking, his attraction towards his personal belief, likes and dislikes, bias and obsessions, his own desire to be known as either a populist or a strict judicial persona, a keen urge to make progress in his career and the resulting consequences do try to occupy the space in his thinking and verdicts. A Judge who is not independent and allows himself to be haunted by these forces would not be able to understand the feelings of others and to adopt a sympathetic approach towards them. A Judge must be mindful of the fact that the litigants come to the Courts as a last resort as they know that the Courts, especially in India, are flooded with cases . Procrastination and costs are the two powerful deterrents obstructing their path to justice. They, therefore, must be treated with compassion and sympathy. Every care shall have to be taken to avoid unnecessary adjournments, which practice costs very dearly to them. The daily boards should be ‘adjusted’ as early as possible, to save the time of the litigants and to give more time to the Judge to hear the matters listed before him. A sympathetic Judge must be a firm believer and practitioner of the principles of the Natural Justice. The Rules of Natural Justice are always present in the judicial conscience, but what is really required is their use and employment in the discharge of the day-to-day functions of a Judge. He should not forget that the area to be occupied by these principles are not something like a leased premises, which always remains static but is both liable and free to expand its occupancy as per the demand of the changing society. Wade & Forsyth in ‘Administrative Law’ (5th Ed. Page 470) have noticed that, “It has now achieved something like the status of a fundamental right” under the Constitutions and Precedents, which are well-known in various countries, including India where the Supreme Court has ordained and reiterated in the cases of Maneka Gandhi v. Union of India [AIR 1978 SC 594], Hussain Ara Khatoon v. State of Bihar [AIR 179 SC 1369] and in Sheela Barse v. Union of India [AIR 1986 SC 1773] that the right to speedy trial is a Fundamental Right implicit in Article 21 of the Constitution. Looking to this importance of Natural Justice, a Judge would definitely be in search of a cautionary phrase, under which he should work. The Supreme Court of India in D. K. Yadav v. J.M.A. Industries Ltd. [(1993) 3 SCC 259] provides this by saying that, “In arriving at a decision the procedure adopted must be just, fair and reasonable.” In a rather terse language the Supreme Court of India in A. K. Kraipak v. Union of India [(1969) 2 SCC 262] has ruled that, “Any order passed in violation of the principles of natural justice is a nullity.” A Judge who forgets this basic understanding would not be able to be a learned Judge and later on a sympathetic Judge. Natural Justice demands a fair trial which cannot be initiated without the notice to the other side, who must know that a judicial process has been initiated against him, and that the non-appearance by him personally or through his agent, would be to his own peril. A Judge should, as a first lesson, understand that there exists a principle called Audi Alteram Partem, meaning that, ‘hear the other side and hear both sides’, as no person could be condemned unheard. Banker v. Evans [(1850) 16 QB 102], affirmed in a plethora of decisions, lays down the Rule falling within the procedural law that, “No proposition is more clearly established than that, ‘a man cannot incur the loss of liberty or property for an offence by a judicial proceeding until he has had a fair opportunity of answering the charge against him unless indeed the legislature has expressly or impliedly given an authority to act without that necessary preliminary’.” Thus a pre-decisional notice is a must in any judicial proceedings. Lord Hewart of Bury, the Lord Chief Justice of England writes in his renowned work ‘The New Despotism’, “Essential to the proper administration of justice, every party should have an opportunity of being heard so that he may put forward his own views and support them by argument and answer the views put forward by his opponent.” But the rule of audi alteram partem, along with other rules, falling within the scope of Natural Justice have been subjected to two prominent exceptions namely, (1) Statutory or Constitutional; and (2) Urgency or Public Interest. A Statute can create an exception by providing a specific exclusion which shall have to be done by the use of clear, unambiguous and express language, leaving no doubt that it is meant for creating and in fact, creates the exception. The exclusion can be read in the Statute by necessary implication also. The Constitution can provide it by a specific exclusion clause. Article 311 of the Constitution of India, happens to be a classic example of the adoption of this methodology. This Article pertains to the dismissal, removal or reduction in rank etc. of the persons employed in civil capacities under the Union or the State. Article 311(2) mandates that such actions cannot be taken without an inquiry which should follow the notice of the charges and a reasonable opportunity of being heard. But the second Proviso to Article 311(2) enlists three situations wherein the non-application of the above said formalities has been provided for. The presence of urgency of the matter or Public Interest permits the non-observance of the Principles of Natural Justice especially at the pre-decisional legal formalities, empowering the Courts to issue ad-interim ex parte Orders which could be ratified, rectified or recalled upon a bi-party hearing. Fair hearing, which follows the due service of the notice to each of the parties, demands several observances. The parties should be given, as a matter of course, a reasonable opportunity of filing the pleadings, and in case of any party praying for the adjournment the same should be decided on merits. Keeping in mind the consistent trend of the Supreme Court of India, of allowing the amendment in the pleadings at any stage, subject to certain qualifications, a Judge should not be averse to the granting of the prayer for amendment, while remaining within the prescribed qualifications. The production of documentary evidence is a right of the litigants, not only at the initial but at other stages also, as the proceedings hardly rest with the pleadings and always call for the documents, which would substantiate the case of the litigant. Sometimes it becomes essential to call for the documents, especially from the Government records for the very same purpose. Here also the summoning of the witnesses becomes inevitable. This would fall within the procedural law and the Judge who is sympathetic is required to act in a positive manner, conducive to real justice. Next step for a Judge is to hear the case. This would include recording of the oral and documentary evidence and hearing the arguments of the lawyers, representing the parties. A sympathetic Judge would record the oral evidence in a manner befitting to his office. This should be done without unnecessary haste and utilising the words spoken by the witness, without any violence to the letter and spirit of the testimony. He has to appreciate the facts like caste and class of the witnesses, and their socio-economic and educational and cultural standards, with a view to avoid any misunderstanding or mis-recording of the evidence. The same qualities and the precautions are required to be taken, while hearing the arguments. A sympathetic Judge shall have to allow the lawyers to put forward their case. Asking questions for the better or complete understanding is always welcome, but that should not result in unnecessary interceptions or a war of words or wits. Traditionally the Judge, hearing the arguments in a civil case, takes detailed notes and keeps the same along with the Record and Proceedings, but in criminal trials the notes are required to be exhibited. A High Court or a Supreme Court Judge writes the minutes, affording the party feeling that a particular contention has not been dealt with in the Judgment, to move for speaking to the minutes. Writing of a Judgment covering all the contentions and recording the findings on all the issues in clear and unambiguous words, often said to be ‘an art of writing judgment’ is a quality, which requires to be imbibed by a Judge to the extent that it becomes his habit. A Judge is a human being and is entitled to have his own personal thinking, belief and opinions, but this very liberty, casts upon him a parallel obligation to be away from them, while discharging his judicial functions. This requirement sometimes is found lacking and speaks eloquently in the Judgment. Related to this obligation is his duty to be away from bias, hatred, or ill will towards any of the parties, as they are the hidden enemies which annihilate justice itself. The same principles would apply while a Judge is called upon to utilise his discretion in granting orders at various stages. The discretion is required to be utilised in many cases, when only one party who has initiated the proceedings is before the Court. In case of urgency, the Judge is required to issue Ad-interim or Interim Orders, with a view to maintain the status quo. This is a juncture where the Judge is required to utilise his discretion in such a way as not to cause any harm, legal or pecuniary to either of the two sides but especially the persons who are not before the Court and would come only after the due service of the notice. During the entire proceedings, occasions would arise when the Judge would require to act on the basis of his discretion, though there could be two sets of advancement or propagation of arguments. A Judge, who claims to be a part of a sympathetic JDS, while using his discretion at a pre-notice stage, has to weigh the pros and cons of the matter and has to be careful to notice where the balance of convenience lies, and who would suffer if no order were to be passed. He has to question himself whether it would be just to order the maintenance of the status quo or would it be just to shake that equilibrium and pass orders which would be helpful to the parties at that stage, and could be reviewed, ratified or lifted after the first hearing or further hearings in the matter. Discretion in law always means that it is a judicial discretion. This discretion should not be allowed to go a little bit away from the cardinal principles of its exercise, which require it to be Judicial and in no circumstances arbitrary, capricious, whimsical or fanciful. Justice Wadhwa while speaking for the Bench in MI Builders (P) Ltd. v. Radheshyam Sahu [(1999) 6 SCC 464] has said that the judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles. Justice K. Jagannatha Shetty in Lichhamadevi v. State of Rajasthan [(1988) 4 SCC 456] has observed that the judicial discretion should not be allowed to be swayed away by emotions and imaginations. Justice Dua in Akalu Ahir v. Ramdeo Ram [(1973) 2 SCC 583] speaks of the nature of the judicial discretion. He has said that, “Judicial discretion as has often been said means a discretion which is informed by tradition, methodised by analogy and disciplined by system.” The newly added provision, Section 88 of the (Indian) Code of Civil Procedure, empowers the Court upon appearing to it, that in a given case there exist the elements of a settlement, to formulate the terms of a settlement, and after obtaining the views of the parties, to refer the matter for arbitration, conciliation, judicial settlement or mediation. A Judge would find a significant scope to persuade the parties to adopt one of these courses by taking sympathetic and compassionate approach. A Judge, much more a sympathetic Judge would make all endeavours to see that the cases before him are heard expeditiously, overriding all delays which could arrest the vice of procrastination. While performing his judicial functions, a Judge should remember that as said by Cicero in ‘Roman Law’, “Law is the highest reason implanted in nature which commands those things which ought to be done and prohibits the reverse.” This part could be concluded by quoting Coke and Socrates. Coke has said that a Judgment given by an improper Judge is of no moment (10 Coke 76b). Socrates has counselled Judges to “hear courteously, answer wisely, consider soberly and decide impartially.” It appears that none of them was far away from defining the concept of a Sympathetic JDS.