Law Finder Live

(Panel Counsel UT Chandigarh & Presently Legal Aid Counsel HCLSC)

It is the obligation and duty of the higher courts to modify or set aside orders which are contrary to law or the facts of the case. This is one of the most important functions of the superior courts. Our legal system acknowledges the fallibility of the judges and provides for appeals and revisions. Judges of the superior courts while discharging their duty ought to be extremely careful before passing imputations, strictures and remarks against subordinate judicial officers.

"The exercise of statutory jurisdiction, appellate or revisional and the exercise of constitutional power to control and supervise the functioning of the district courts and courts subordinate thereto empowers the High Court to formulate an opinion and place it on record not only on the judicial working but also on the conduct of the judicial officers. The existence of power in higher echelons of judiciary to make observations even extending to criticism incorporated in judicial orders cannot be denied, however, the High Courts have to remember that criticisms and observations, touching a subordinate judicial officer incorporated in judicial pronouncements have their own mischievous infirmities. Firstly, the judicial officer is condemned unheard which is violative of principles of natural justice. A member of subordinate judiciary himself dispensing justice should not be denied this minimal natural justice so as to shield against being condemned unheard. Secondly, the harm caused by such criticism or observation may be incapable of being undone. Such criticism of the judicial officer contained in a judgment, reportable or not, is a pronouncement in open and therefore becomes public. The same Judge who found himself persuaded, sitting on judicial side, to make observations guided by the facts of a single case against a Subordinate Judge may, sitting on administrative side and apprised of overall meritorious performance of the Subordinate Judge, may irretrievably regret his having made those observations on judicial side, the harming effect whereof even he himself cannot remove on administrative side. Thirdly, human nature being what it is, such criticism of a judicial officer contained in the judgment of a higher court gives the litigating party a sense of victory not only over his opponent but also over the Judge who had decided the case against him. This is subversive of judicial authority of the deciding Judge. Fourthly, seeking expunging of the observations by a judicial officer by filing an appeal or petition of his own reduces him to the status of a litigant arrayed as a party before the High Court or Supreme Court - a situation not very happy from the point of view of the functioning of the judicial system. May be for the purpose of pleading his cause he has to take the assistance of a legal practitioner and such legal practitioner may be one practicing before him. Look at the embarrassment involved. And last but not the least, the possibility of a single or casual aberration of an otherwise honest, upright and righteous Judge being caught unawares in the net of adverse observations cannot be ruled out. Such an incident would have a seriously demoralising effect not only on him but also on his colleagues. If all this is avoidable why should it not be avoided ?"

Principles stated by Hon'ble Apex court

(I) Erosion of credibility of judiciary in the public mind, for whatever reason, is the greatest threat to the independence of judiciary.

(II) Judicial discipline and restraint are imperative for the orderly administration of justice.

(III) Judicial decorum makes it imperative that the court's judgments and orders must be confined to the facts and the legal position involved in the cases and the courts should not deviate from propriety, moderation and sobriety.

(IV) Majesty of Court is not displayed solely in cracking the whip on mistakes, inadvertent errors or lapses, but by persuasive reasoning so that the similar errors and mistakes are not repeated by the judicial officers.

(V) Majesty of Court would be enhanced by practicing discipline and self- restraint in discharging of all judicial functions. All actions of a judge must be judicious in character.

(VI) The role of superior courts is like a friend, philosopher and guide of the judiciary subordinate to it. The judicial officers have to be treated with parental care and affection.

(VII) The approach of the superior courts ought to be correctional and not to be intended to harm or ruining the judicial career of the officers.

(VIII) The superior courts should always bear in mind that the judicial officer is not before it and should ordinarily refrain from passing strictures, derogatory remarks and scathing criticism. The passing of such order without affording a hearing to the judicial officer is clearly violative of the principles of natural justice.

(IX) The superior courts should always keep in mind that disparaging and derogatory remarks against the judicial officer would cause incalculable harm of a permanent character having the potentiality of spoiling the judicial career of the concerned officer. Even if those remarks are expunged, it would not completely restitute and restore the harmed judge from the loss of dignity and honour suffered by him.

(X) The superior courts should convey its messages to the concerned judicial officers through a process of reasoning highlighting the correct provisions of law, precedents and proper analysis of evidence and material on record, but rarely by passing harsh and derogatory remarks.

(XI) The superior courts must always keep in mind that it is a herculean task for the judicial officer to get the derogatory remarks expunged by the superior court. He is compelled to take assistance from lawyers and such a practitioner may be appearing before him. It is embarrassing, humiliating, time consuming and an expensive exercise.

(XII) The superior courts must always keep in mind that the much cherished judicial independence must not be presented only from outside but from within, by those who form the integral part of the judicial system. Damage from within has much larger and greater potential for harm than danger from outside. We alone in judicial family can take care of it.

(XIII) The superior courts should not use strong, derogatory, disparaging and carping language while criticising the judicial officers. They must always keep in mind. that, like all other human beings, the judicial officers are also not infallible. Any remarks passed against them may result in incalculable harm resulting in grave injustice.

(XIV) The superior courts judges should not be, like a loose cannon, ready to inflict indiscriminate damages whenever they function in judicial capacity.

(XV) The superior courts should keep in mind that infliction of uncalled for, unmerited and undeserved remarks clearly amount to abuse of the process of co.

(XVI) The superior courts should not allow themselves even momentarily the latitude of ignoring judicial precaution and propriety.

(XVII) It must be remembered that the subordinate judicial officers at times work under charged atmosphere and are constantly under psychological pressure with all the contestants and their lawyers almost breathing down their necks and more correctly upto their nostrils.

(XVIII) Err is human and no one is infallible. A judge who has not committed an error is yet to be born. Judicial decorum has to be maintained at all times and even where criticism is justified. It must be in a language of utmost restraint always keeping in view that the person making the comment is also fallible.

(XIX) Judges of the superior courts have a duty and obligation to ensure judicial discipline and respect for judiciary from all concerned. The respect for the judiciary is not enhanced when judges at the lower level are criticized intemperately and castigated publicly. Our legal system acknowledges the fallibility of the judges and provides for appeals and revisions.

(XX) It is the duty and obligation of the judges of the superior courts to ensure that independence of judiciary is not compromised and every judicial officer should feel that he can freely and fearlessly give expression to his own opinion. This is absolutely imperative in maintaining the independence of judiciary.

(XXI) The superior courts' judges must always bear in mind that no greater damage can be caused to the administration of justice and to the confidence of people when judges & superior courts express lack of faith either in ability or integrity of subordinate judges.

Reference:- V.K. Jain v. High Court of Delhi, 2009(4)R.C.R.(Criminal) 388 (SC).

---