Something rotten in Allahabad High Court?

Heard learned counsel for the petitioner. “Something is rotten in the State of Denmark”, said Shakespeare in Hamlet, and it can similarly be said that something is rotten in the Allahabad High Court, as this case illustrates.

A division Bench of the Supreme Court comprising of Justice Markandey Katju (who himself hails from Allahabad High Court) and Justice Gyan Sudha Misra recently in Raja Khan v. U.P. Sunni Central Wakf Board made inter alia these observations, which a Full Court of the High Court has found objectionable and thus decide to action against. The High Court, as the news reports indicate, has resolved to approach the Supreme Court itself against these observations. The High Court, we anticipate,would file a review petition before the Supreme Court seeking expunging of these remarks from the judgment, which in our opinion may well be done in view of the settled law on expunging of remarks, as we trace in this post later.

In our view the predicament of the High Court is justified. Under the constitutional ethos of this country, there is a settled principle of law that no one shall be condemned unheard. Thus when an ordinary citizen has a right to put his case fully before any decision can be made against him, much less aspersions cast on him, how can a constitutional institution be deprived of such right before its dignity, repute and standing is brought to question. However, before we dwell upon these and related issues further, a brief background in the reason for this controversy. 

The Supreme Court in Raja Khan was dealing with the challenge to the validity of the orders passed by a Single Judge of the Allahabad High Court where according to the Supreme Court the Court should not have exercised jurisdiction as the matter pertained to areas which fell under the jurisdiction of the Lucknow Bench of the High Court. The Supreme Court not only pointed out a number of other legal reasons to declare the challenged order as incorrect but also went on to observe that "the faith of the common man in the country is shaken to the core by such shocking and outrageous orders such as the kind which have been passed by the Single Judge." Further the pen of the Supreme Court bench did not stop here. It took suo motu cognizance of the, according to it, sorry state of affairs prevailing in the High Court. The Bench listed the following as being the core concerns which it was aware;

We are sorry to say but a lot of complaints are coming against certain Judges of the Allahabad High Court relating to their integrity. Some Judges have their kith and kin practising in the same Court, and within a few years of starting practice the sons or relations of the Judge become multi-millionaires, have huge bank balances, luxurious cars, huge houses and are enjoying a luxurious life. This is a far cry from the days when the sons and other relatives of Judges could derive no benefit from their relationship and had to struggle at the bar like any other lawyer.

We do not mean to say that all lawyers who have close relations as Judges of the High Court are misusing that relationship. Some are scrupulously taking care that no one should lift a finger on this account. However, others are shamelessly taking advantage of this relationship. There are other serious complaints also against some Judges of the High Court.

Being of this view, the Supreme Court was of the view that the "Allahabad High Court really needs some house cleaning (both Allahabad and Lucknow Bench)" and on this note requested the "Chief Justice of the High Court to do the needful, even if he has to take some strong measures, including recommending transfers of the incorrigibles." It in fact even directed that "copy of this order be sent to the Registrar Generals/Registrars of all High Courts for being placed before Hon’ble the Chief Justice of the respective High Courts", perhaps so as to ensure that similar exercise is undertaken elsewhere too. Though this is not the first time that a judge of the Supreme Court has taken stock of the prevailing corruption in the higher judiciary (as this news-piece in Times of India matter-of-factly notes), yet in as much as direct attack been made on a particular High Court by name, the issue is unprecedented on some lines. 

So, coming back to the main issue. Realistic considerations apart, is such an order justified from a purely legal perspective? We have already touched the chord of audi alteram partem which required a chance to be given to the High Court (through the Registrar General of the High Court) to put forth the facts in perspective rather than what are within the personal knowledge of a Supreme Court judge. The comments are not less than aspersions in as much as it undermines and frowns upon the state-of-affairs in the High Court. Thus atleast issuance of a notice to the High Court before such observations were made was called for.

Also to be considered is a fact that although one of the judges comprising the division bench himself hails from the same High Court and thus can be attributed as being aware of the ground-realities in the said High Court, it must be noted that when dealing with matters which shake the very foundation on which the institution operates i.e. trust in the judicial system, much longs to be seen if the issues are considered in correct perspective.  In our view such an opinion may have been appropriate in a matter where the Supreme Court was dealing with a particular complaint before it. However the impromptu comments, without any concrete incident before it, passing of such order seems a bit harsh. While we are none to suggest the manner in which the Court should conduct its proceedings, we nonetheless feel the expression to be harsh on the other god-fearing and honest judges of the High Court. 

The Supreme Court itself, speaking through Lahoti J. in Tirupati Balaji Builders declared (about which we had written extensively earlier) that the High Court and Supreme Court are like brothers under the Constitutional framework of India, both being endowed with wide and important powers (the Supreme Court also aptly pointed out that the scope and jurisdiction of High Court under Article 226 of the Constitution was in fact larger than what the Supreme Court could avail under the similar provision in Article 32) and entrusted with the responsibility of ensuring rule of law. The Supreme Court on that occasion had inter alia observed as under;

8. Under the constitutional scheme as framed for the judiciary, the Supreme Court and the High Courts both are courts of record. The High Court is not a court 'subordinate' to the Supreme Court. In a way the canvass of judicial powers vesting in the High Court is wider Inasmuch as it has jurisdiction to issue all prerogative writs conferred by Article 226 of the Constitution for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose while the original jurisdiction of Supreme Court to issue prerogative writs remains confined to the enforcement of fundamental rights and to deal with some such matters, such as Presidential election or inter-state disputes which the Constitution does not envisage being heard and determined by High Courts. The High Court exercises power of superintendence under Article 227 of the Constitution over all subordinate courts and tribunals; the Supreme Court has not been conferred with any power of superintendence. If the Supreme Court and the High Courts both were to be thought of as brothers in the administration of justice, the High Court has larger jurisdiction but the Supreme Court still remains the elder brother. There are a few provisions which give an edge, and assign a superior place in the hierarchy, to Supreme Court over High Courts. So far as the appellate jurisdiction is concerned, in all civil and criminal matters, the Supreme Court is the highest and the ultimate court of appeal. It is the final interpreter of the law. Under Article 139-A, the Supreme Court may transfer any case pending before one High Court to another High Court or may withdraw the case to itself. Under Article 141 the law declared by the Supreme Court shall be binding on all courts, including High Courts, within the territory of India. Under Article 144 all authorities, civil and judicial, in the territory of India -- and that would include High Court as well -- shall act in aid of the Supreme Court.

The Supreme Court may as well do well to consider its own advice in a Presidential Reference answered by it (AIR 1965 SC 745, In Re Keshav Singh)  (though in a different context, vis-a-vis the legislature and high court, but equally relevant in the present matter) where it reflected upon the role played by High Court and the manner in which two constitutional institutions were required to interact;

43. ... Speaking broadly, all the legislative chambers in our country today are playing a significant role in the pursuit of the ideal of Welfare State which has been placed by the Constitution before our country, and that naturally gives the legislative chambers a high place in the making of history today. The High Courts also have to play an equally significant role in the development of the rule of law and there can be little doubt that the successful working of the rule of law is the basic foundation of the democratic way of life. In this connection it is necessary to remember that the status, dignity and importance of these two respective institutions, the Legislatures and the Judicature, are derived primarily from the status, dignity and importance of the respective causes that are assigned to their charge by the Constitution. These two august bodies as well as the Executive which is another importance constituent of a democratic State, must function not in antimony not in a spirit of hostility, but rationally, harmoniously and in a spirit of understanding within their respective spheres, for such harmonious working of the three constituents of the democratic State alone will help the peaceful development, growth and stabilisation of the democratic way of life in this country.

In the same decision the Supreme Court further noted that detached objectivity was required to be maintained by the Apex Court when examining the conduct of a constitutional body in as much as its own objectivity is on trial in such a scenario. The Constitutional Bench therein observed as under;

44. But when, as in the present case, a controversy arises between the House and the High Court, we must deal with the problem objectively and impersonally. There is no occasion to import heat into the debate or discussion and no justification for the use of strong language. The problem presented to us by the present reference and though its consideration may present some difficult aspects, we must attempt to find the answers as best we can. In dealing with a dispute like the present which concerns the jurisdiction, the dignity and the independence of two august bodies in a State, we must remember that the objectively of our approach itself may incidentally be on trial. It is, therefore, in a spirit of detached objective enquiry which is the distinguishing feature of judicial process that we propose to find solutions to the questions framed for our advisory opinion. If ultimately we come to the conclusion that the view pressed before us by Mr. Setalvad for High Court is erroneous, we would not hesitate to pronounce our verdict against that view. On the other hand, if we ultimately come to the conclusion that the claim made by Mr. Seervai for the House cannot be sustained, we would not falter to pronounce our verdict accordingly. In dealing with problems of this importance and significance, it is essential that we should proceed to discharge our duty without fear or favour, affection or ill-will and with the full consciousness that it is our solemn obligation to uphold the Constitution and the laws.

Therefore the determination of a lis / issue which carries serious implications over the dignity and institution such as the High Court should have been trodden without undue haste.

Much needs to be said, however, on the fate of a petition which may be presented by the High Court for expunging  of the above observations. One recalls the test laid down by a four judge bench of the Supreme Court way back in 1964 wherein Mohd. Naim (AIR 1964 SC 703) the Court observed as under;

The last question is, is the present case a case of an exceptional nature in which the learned judge should have exercised his inherent jurisdiction under s. 561-A Cr. P. C. in respect of the observations complained of by the State Government ? If there is one principle of cardinal importance in the administration of justice, it is this : the proper freedom and independence of judges and Magistrates must be maintained and they must be allowed to perform their functions freely and fearlessly and without undue interference by any body, even by this court. At the same time it is equally necessary that in expressing their opinions judges and Magistrates must be guided by considerations of justice, fairplay and restraint. It is not infrequent that sweeping generalisations defeat the very purpose for which they are made. It has been judicially recognised that in the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before courts of law in cases to be decided by them, it is relevant to consider (a) whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that conduct justifying the remarks ; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct. It has also been recognised that judicial pronouncements must be judicial in nature, and should not normally depart from sobriety, moderation and reserve.

Thus is one were to consider these tests, it is clear that none of the tests above are satisfactory borne out from a perusal of the order in consideration. The fact situation with which the Court was dealing with in the case of Mohd. Naim further goes on to show the extent to which the Supreme Court has gone in its quest to ensure that casting remarks are duly removed from records. The factual matrix of that case was noted in the following terms;

In the case before us the learned judge chose to make sweeping and general observations gainst the entire police force of the State. The case before him related to only one police officer, Mohammad Naim, about whose conduct the learned judge was undoubtedly justified in making adverse remarks. The learned Judge himself realised that the remarks which he had made were much too general and sweeping in character, because in his later order he said that the remarks were meant for the police force in Uttar Pradesh only and he further said he would have expunged the remarks under the head (a) referred to earlier, if the party aggrieved had come before him. We consider that the remarks made by the learned judge in respect of the entire police force of the State were not justified on the facts of the case, nor were they necessary for the disposal of the case before him. The learned judge conceded that the general remarks he made were not based on any evidence in the record; he said that he drew largely from his knowledge and experience at the Bar and on the Bench. Learned counsel for the appellant has very frankly stated before us that the learned judge has had very great experience in the matter of criminal cases, and was familiar with the method of investigation adopted by the local police. He has contended, however, that it was not proper for the judge to import his personal knowledge into the matter. We do not think that in the present case we need go into the question as to the extent to which a judge or Magistrate may draw upon his experience in assessing or weighing evidence or even in judging the conduct of a person. We recognise the existence of exceptional circumstances in a case where the judge or Magistrate may have to draw upon his experience to determine what is the usual or normal conduct with regard to men and affairs. We say this with respect, but it appears to us that in the present case even allowing' for the great experience which the learned judge had in the matter of criminal trials, his statement that "there was not a single lawless group in the whole country whose record of crime came anywhere near the record of that organised unit which is known as the Indian Police Force" was wholly unwarranted and, if we may say so, betrayed a lack of judicial approach and restraint. The learned judge referred to no material on which this observation was based, nor did he say that his experience of criminal trials gave him an occasion to compare the records of crime of various lawless groups in the State vis-a-vis the Police Force. To characterise the whole Police Force of the State as a lawless group is bad enough ; to say that its record of crime is the highest in the State is worse and coming as it does from a Judge of the High Court, is sure to bring the whole administration of law and order into disrepute. For a sweeping generalisation of such a nature, there must be a sure foundation and the necessity of the case must demand it. We can find neither in the present case. We think that the State Government was justifiably aggrieved by such a sweeping remark. Similar in nature is the remark about the stinking of "every fish in the police force barring, perhaps, a few." The word "perhaps" seems to indicate that even about the few, the learned judge had some doubt. We consider that these sweeping generalisations defeat their own purpose. They were not necessary for the disposal of the case against Mohammad Naim. It would have been enough for the learned judge to say that when a large number of police officers were resorting to an objectionable method of investigation, it was unnecessary to pick out one petty officer and prosecute him for doing what several others had done with impugnity, It was wholly unnecessary for the learned judge to condemn the entire police force and say that their record of crime was the highest in the country. Such a remark instead of serving the purpose of reforming the police force, which is the object the learned judge says he had in mind, is likely to undermine the efficiency of the entire police force. We think that in his zeal and solicitude for the reform of the police force, the learned judge allowed himself to make these very unfortunate remarks which defeated the very purpose he had in mind. 

In Pramod Kumar Gupta (AIR 1990 SC 1737), the Supreme Court further declared that even the appearance of bitterness on the part of a judge was abhor-able. The Supreme Court therein invoked the wise words of Justice Cardozo to set the record straight. Therein it was observed as under;

No doubt each Judge is independent to form an opinion of his own in deciding cases or in any phase of the decisional function. But the facts of the present case against the background of the views ex- pressed by this Court apropos to the earlier strictures against the Government, should have warned B.M. Lal, J., no matter how clear he was in his mind, not to criticise the appellant. The avoidance of even the appearances of bitterness, so important in a Judge required him not to cast aspersions on the professional conduct of the appellant. Justice Cardozo of course said:

"The great tides and currents which engulf the rest of men, do not turn aside in their course, and pass judges by. We like to figure to ourselves the processes of justice as coldly objective and impersonal. The law, conceived of as a real existence, dwelling apart and alone, speaks, through the voices of priests and ministers, the words which they have no choice except to utter. That is an ideal of objective truth toward which every system of jurisprudence tends ..... It has a lofty sound; it is well and finely said; but it can never be more than partly true. " [The Nature of the Judicial Process by Benjamin N. Cardozo p. 168-169]

Justice Felix Frankfurter, put it with a different emphasis: "Judges are men, not disembodied spirits. Of course a Judge is not free from preferences or, if you will, biases.[Some observations of Felix Frankfurter, J., on the Nature of Judicial Process of Supreme Court Litigation 98 Proceedings AM Phil Society 233 (1954)]

It is true that the judges are flesh and blood mortals with individual personalities and with normal human traits. Still what remains essential in judging, Justice Felix Frankfurter said:

"First and foremost, humility and an understanding of the range of the problems and (one's) own inadequacy in dealing with them, disinterestedness ..... and allegiance to noth- ing except the effort to find (that) pass through precedent, through policy, through history, through (one's) own gifts of insights to the best judgment that a poor fallible crea- ture can arrive at in that most difficult of all tasks, the adjudication between man and man, between man and state, through reason called law." [The Judiciary and Constitutional Politics--Views from the Bench by Mark W. Cannon and David M.O.'s Brien p. 27.]

Judicial restraint and discipline are as necessary to the orderly administration of justice as they are to the effectiveness of the army. The duty of restraint, this humility of function should be a constant theme of our judges. This quality in decision making is as much necessary for judges to command respect as to protect the independence of the judiciary. Judicial restraint in this regard might better be called judicial respect; that is, respect by the judiciary. Respect to those who come before the Court as well to other co-ordinate branches of the State, the Executive and Legislature. There must be mutual respect. When these qualities fail or when litigants and public believe that the judge has failed in these qualities, it will be neither good for the judge nor for the judicial process. The Judges Bench is a seat of power. Not only do judges have power to make binding decisions, their decisions legitimate the use of power by other officials. The Judges have the absolute and unchallenged control of the Court domain. But they cannot misuse their authority by intemperate comments, undignified banter or scathing criticism of counsel, parties or witnesses. We concede that the Court has the inherent power to act freely upon its own conviction on any matter coming before it for adjudication, but it is a general principle of the highest importance to the proper administration of justice that derogatory remarks ought not to be made against persons or authorities whose conduct comes into consideration unless it is absolutely necessary for the decision of the case to animadvert on their conduct. (See (i) R.K. Lakshmanan v.A.K. Srinivasan, [1976] I SCR 204 and (ii) Niranjan Patnaik v. Sashibhushan Kar, [1986] 2 SCC 567 at 576.

We feel that the words of wisdom reflected in this judgments would be considered in its perspective when an application for expunging of remarks is made before the Court.

Post-script rejoinder

Subsequent to this post, the petition filed by the Allahabad High Court for expugning of remarks had been disposed. The same is covered in our subsequent post.