CREDIBILITY OF JUDICIAL INSTITUTIONS

ARVIND JAIN
Why faith and confidence of ‘we the people of India’ in the judicial system is eroding? Who is responsible for damaging the image of judiciary and how to preserve and enhance people's faith in the institution and the rule of law? Impeachment on Dinakaran, sex scandal of Karnatka judges, arrest of Delhi High Court Judge Shamit Mukharjee, sexual demand by Rajasthan High Court Judge, Arun Madan who was later forced to resign, Provident fund scam in Uttar Pradesh, cash at the door step of a sitting judge of Punjab and Haryana High court, disproportionate assets of relatives of ex-Chief Justice of India K.G. Balakrishanan etc has raised various questions in the minds of the people about image of judiciary and credibility of judges. Inordinate delay and People’s faith in judiciary
Hon’ble Justice A.K. Mathur & Markandey Katju of Apex Court expressing their anguish said “people in India are simply disgusted with this state of affairs, and are fast losing faith in the judiciary because of the inordinate delay in disposal of cases. We request the concerned authorities to do the needful in the matter urgently to ensure speedy disposal of cases if the people's faith in the judiciary is to remain.” (Rajindera Singh (Dead) through Lrs. & others Vs Prem Mai and others, (2007) 11 SCC 37)
Justice Mathur observed about delay in disposal of cases in law courts and said “the present case is a typical illustration. A suit filed in 1957 has rolled on for half a century. It reminds one of the cases Jarndyce v. Jarndyce in Charles Dickens' novel 'Bleak House' which had rolled on for decades, consuming litigants and lawyers alike.” (Supra)
Honestly speaking, people are not ‘simply disgusted’ and ‘losing faith’ just because of the ‘inordinate delay’ in disposal of cases. Common men apprehends that now a days, no ‘concerned authorities’ can do the ‘needful urgently’ and ensure speedy justice. The courts are overcrowded with pending cases and when matters in higher courts come on board for final hearing after decades, (poor) accused find that he has already completed maximum term in jail.
Benchmark of honesty, accountability and good conduct
Hon’ble Justice Dr. M.K.Sharma and Anil R. Dave of Supreme Court has emphasized that “Upright and honest judicial officers are needed not only to bolster the image of the judiciary in the eyes of litigants, but also to sustain the culture of integrity, virtue and ethics among judges. The public's perception of the judiciary matters just as much as its role in dispute resolution. The credibility of the entire judiciary is often undermined by isolated acts of transgression by a few members of the Bench, and therefore it is imperative to maintain a high benchmark of honesty, accountability and good conduct.” (Rajesh Kohli Vs High Court of J. & K. & Anr., 2010 (12) SCC 783)
No doubt, ‘upright and honest’ judges may ‘bolster the image’ and ‘sustain the culture of integrity, virtue and ethics’ in judiciary. It’s debatable whether the ‘credibility’ of the entire judiciary is ‘undermined’ by isolated acts by few judges only. The lift of ‘justice delivery system’ is substantially ‘out of order’ and needs complete overhauling.
Violation of judicial discipline
Hon’ble Justice B.N. Agrawal, Harjit Singh Bedi and G.S. Singhvi of Supreme Court pointed out that “there have been several instances of different Benches of the High Courts not following the judgments/orders of coordinate and even larger Benches. In some cases, the High Courts have gone to the extent of ignoring the law laid down by this Court without any tangible reason. Likewise, there have been instances in which smaller Benches of this Court have either ignored or bypassed the ratio of the judgments of the larger Benches including the Constitution Benches. These cases are illustrative of non-adherence to the rule of judicial discipline which is sine qua non for sustaining the system.” (Official Liquidator Vs Dayanand and Others (2008) 10 SCC 1)
Hon’ble Justice G.S. Singhvi further explained “We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass root will not be able to decide as to which of the judgment lay down the correct law and which one should be followed. We may add that in our constitutional set up every citizen is under a duty to abide by the Constitution and respect its ideals and institutions. Those who have been entrusted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the Constitutional ideals. This principle is required to be observed with greater rigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient functioning of the judicial system. If the Courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law.” (2008 (10) SCC 1)
Two-Judges questioned the seven-Judges Bench judgment
It is worth mentioning that in Coir Board, Ernakulam vs. Indira Devi P.S. (1998 (3) SCC 259), a two-Judges Bench doubted the correctness of the seven-Judges Bench judgment in Bangalore Water Supply & Sewerage Board vs. A. Rajappa (1978 (2) SCC 213) and directed the matter to be placed before Hon'ble the Chief Justice of India for constituting a larger Bench. However, a three-Judges Bench headed by Dr. A.S. Anand, C.J., refused to entertain the reference and observed that the two-Judges Bench is bound by the judgment of the larger Bench - Coir Board, Ernakulam, Kerala State vs. Indira Devai P.S. (2000 (1) SCC 224).
Authoritarian anxiety to do (in)justice
Hon’ble Justice R. Raveendran and P. Sathasivam of Supreme Court has advised that “courts should avoid the temptation to become authoritarian. We have been coming across several instances, where in their anxiety to do justice; courts have gone overboard, which results in injustice, rather than justice. It is said that all power is trust and with greater power comes greater responsibility.”(S.Palani Velayutham & Ors. Vs Dist.Collector,Tirunvelveli,T.Nadu, 2009 (9) SCC 664)
When ‘temptations’ takes over courts/ judges are bound to be authoritarian and even in anxiety to do justice, they often breed injustice in the process of satisfying their super and inflated ego or illusion of supremacy.
Quality and certainty is soul-mate of law
Judicial discipline is self-discipline. Judicial propriety and decorum demands that if a Single Judge or Division Bench is inclined to take a different view, than earlier decisions of the same court (High Court or Supreme Court), he/ they should place the relevant papers before the Chief Justice to constitute a larger bench to examine the question of law. This is the minimum discipline and decorum to be maintained by judicial fraternity. That is the only proper way to deal, which is founded on basic principles of judicial decorum and propriety. Without certainty and consistency in enunciation of legal principle in judicial decisions, organic development of law is impossible.
Quality and certainty is soul-mate of law. Certainty of law can’t be sacrificed and judicial decorum or legal propriety must be respected at all costs. The quality would totally disappear, if Judges start overruling one another's decisions. It will create utter confusion for lawyers and litigants and embarrassing position for other judges which would certainly be detrimental to justice delivery system. The lawyers would be in a predicament, Sub-ordinate courts in an embarrassing position and the general public in a dilemma.