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CASE LAW ON JUDICIAL ACTIVISM

K. Veeraswami v. Union of India [(1991) 3 SCC 655], majority of the Constitution Bench upheld the power of the police to investigate into the disproportionate assets alleged to be possessed by a Judge, an offence under Section 5 of the Prevention of Corruption Act, 1947 subject to prior sanction of the Chief Justice of India to maintain independence of the judiciary. By interpretive process, the Court carved out primacy to the role of the Chief Justice of India, whose efficacy in a case like one at hand would be considered at a later stage. Duty of the Judge to maintain high standard of conduct. Its judicial individualism - whether protection imperative? Judicial office is essentially a public trust. Society is, therefore, entitled to except that a Judge must be a man of high integrity, honesty and required to have moral vigour, ethical firmness and impervious to corrupt or venial influences. He is required to keep most exacting standards of propriety in judicial conduct. Any conduct which tends to undermine public confidence in the integrity and impartiality of the court would be deleterious to the efficacy of judicial process. Society, therefore, expects higher standards of conduct and rectitude from a Judge. Unwritten code of conduct is writ large for judicial officers to emulate and imbibe high moral or ethical standards expected of a higher judicial functionary, as wholesome standard of conduct which would generate public confidence, accord dignity to the judicial office and enhance public image, not only of the Judge but the court itself. It is, therefore, a basic requirement that a Judge's official and personal conduct be free from impropriety; the same must be in tune with the highest standard of propriety and probity. The standard of conduct is higher than expected of a layman and also higher than expected of an advocate. In fact, even his private life must adhere to high standards of probity and propriety, higher than those deemed acceptable for others. Therefore, the Judge can ill-afford to seek shelter from the fallen standard in the society.

In Krishna Swami v. Union of India & Ors. [(1992) 4 SCC 605 at 650-51], one of us (K. Ramaswamy, J). held that the holder of office of the Judge of the Supreme Court or the High Court should, therefore, be above the conduct of ordinary mortals in the society. The standards of judicial behaviour, both on and off the Bench, are normally high. There cannot, however, be any fixed or set principles, but an unwritten code of conduct of well-established traditions is the guidelines for judicial conduct. The conduct that tends to undermine the public confidence in the character, integrity or impartiality of the Judge must be eschewed. It is expected of him to voluntarily set forth wholesome standards of conduct reaffirming fitness to higher responsibilities. To keep the stream of justice clean and pure, the Judge must be endowed with sterling character, impeccable integrity and upright behaviour. Erosion thereof would undermine the efficacy of the rule of law and the working of the Constitution itself. The Judges of higher echelons, therefore, should not be mere men of clay with all the frailties and foibles, human failings and weak character which may be found in those in other walks of life. They should be men of fighting faith with tough fibre not susceptible to any pressure, economic, political or any sort. The actual as well as the apparent independence of judiciary would be transparent only when the office holders endow those qualities which would operate as impregnable fortress against surreptitious attempts to undermine the independence of the judiciary. In short, the behaviour of the Judge is the bastion for the people to reap the fruits of the democracy, liberty and justice and the antithesis rocks the bottom of the rule of law.
In S.P. Gupta vs. Union of India [(1981) Supp. SCC 87] in paragraph 27, this Court held that if there is one principle which runs through the entire fabric of the Constitution it is the principle of the rule of law, and under the Constitution it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the rule of law meaningful and effective. Judicial review is one of the most potent weapons in the armoury of law. The judiciary seeks to protect the citizen against violation of his constitutional or legal rights or misuse or abuse of power by the State or its officers. The judiciary stands between the citizen and the State as a bulwark against executive excesses and misuse or abuse of power by the executive. It is, therefore, absolutely essential that the judiciary must be free from executive pressure or influence which has been secured by making elaborate provisions in the Constitution with details. The independence of judiciary is not limited only to the independence from the executive pressure or influence; it is a wider concept which takes within its sweep independence from any other pressure and prejudices. It has many dimensions, viz., fearlessness of other power centers, economic or political, and freedom from prejudices acquired and nourished by the class to which the judges belong.
In P.N. Duda vs. P. Shiv Shankar [AIR 1988 SC 1208]
Administration of justice and Judges are open to public criticism and public scrutiny. Judges have their accountability to the society and their accountability must be judged by their conscience and oath of their office, that is to defend and uphold the Constitution and the laws without fear and favour. This the Judges must do in the light given to them to determine what is right. Any criticism about the judicial system or the Judges which hampers the administration of justice or which erodes the faith in the objective approach of Judges and brings administration of justice into ridicule must be prevented. The contempt of Court proceedings arise out of that attempt. Judgments can be criticised, motives of the Judges need not be attributed. It brings the administration of Justice into deep disrepute. Faith in the administration of justice is one of the pillars through which democratic institution functions and sustains. In the free market place of ideas, criticism about the judicial system or Judges should be welcomed, so long as such criticisms do not impair or hamper the administration of justice. This is how the courts should approach the powers vested in them as judges to punish a person for an alleged contempt, be it by taking notice of the matter suo motu or at the behest of the litigant or lawyer. It has to be admitted frankly and fairly that there has been erosion of faith in the dignity of the Court and in the majesty of law and that has been caused not so much by scandalising remarks made by politicians or ministers but the inability of the courts of law to deliver quick and substantial justice to the needy. It is a criticism which judges and lawyers must make about themselves. We must turn the search light inwards. At the same time, the Court cannot be oblivious of the attempts made to decry or denigrate the judicial process, if it is seriously done.  
In Rama Dayal Markarha v. State of Madhya Pradesh, [1978] 3 S.C.R. 497, where it was held that fair and reasonable criticism of a judgment which is a public document or which is a public act of a Judge concerned with administration of justice would not constitute contempt. In fact, such a fair and reasonable criticism must be encouraged because after all no one, much less Judges, can claim infallibility. Such a criticism may fairly assert that the judgment is incorrect or an error has been committed with regard to law or established facts. But when it is said that the Judge had a predisposition to convict or deliberately took a turn in discussion of evidence because he had already made up his mind to convict the accused or has a wayward bend of mind, is attributing motives, lack of dispassionate and objective approach and analysis and prejudging of issues, that would bring administration of justice into ridicule. Such criticism sometime interferes with the administration of justice and that must be judged by the yardstick whether it brings the administration of justice into ridicule or hampers administration of justice. After all, it cannot be denied that pre-disposition or subtle prejudice or unconscious prejudice or what in Indian language is called "Sanskar" are inarticulate major premises in decision making process. That element in decision making process cannot be denied, it should be taken note of.
It has to be borne in mind, as has been said by Banjamin N. Cardozo in "The Nature of the Judicial Process" that the judge as the interpreter for the community of its sense of law and order must supply omissions, correct uncertainties and harmonize results with justice through a method of free decision. Courts are to "search for light among the social elements of every kind that are the living force behind the facts they deal with".  
In E.M. Sankaran Namboodiripad v. T. Narayanan Nambiar, [1971] I S.C.R. 697, this Court had to deal with this jurisdiction in respect of Mr. Namboodiripad who at the relevant time was the Chief Minister of Kerala. He had held a press conference in November, 1976 and made various critical remarks relating to the judiciary which inter alia was described by him as "an instrument of oppression" and the Judges as "dominated by class hatred, class prejudices", "instinctively" favouring the rich against the poor. He also stated that as part of 564 the ruling classes the judiciary "works against workers, peasants and A other sections of the working classes" and "the law and the system of judiciary essentially served the exploiting classes" (emphasis supplied) It was found that these remarks were reported in the newspapers and thereafter proceedings commenced in the High Court of Kerala. The appellant Shri Namboodiripad was called upon to show cause why he should not be committed for contempt. In his affidavit the appellant stated that the reports were "substantially correct", though incomplete in some respects. The appellant further claimed that his observations did no more than give expression to the Marxist Philosophy and what was contained in the programme of the Communist Party of India. By a majority judgment of the High Court the appellant was convicted for contempt of court and fined Rs. 1000 or simple imprisonment for one month. He moved this Court by an appeal. He contended that the law of contempt must be read without encroaching upon the guarantee of freedom of speech and expression under Article 19(1)(a) of the Constitution and that the intention of the appellant in making his remarks at the press conference should be examined in the light of his political views which he was at liberty to put before the people. He sought to justify the remarks as an exposition of his ideology which he claimed was based on the teachigs of Marx and Engels and on this ground claimed protection of the first clause of Article 19(1) of the Constitution. The conviction of the appellant was upheld by this Court. It was observed by Hidayatullah, C.J speaking for the Court that the law punishes not only acts which do not in fact interfere with the courts and administration of justice but also those which have that tendency, that is to say, are likely to produce a particular result. Judged from the angle of courts and administration of justice, there was no doubt that the appellant was guilty of contempt of court. The Chief Justice observed whether the appellant misunderstood the teachings of Marx and Engels or deliberately distorted them was not to mush purpose. The likely effect of his words must be seen and they clearly had the effect of lowering the prestige of judges and courts in the eyes of the people. (emphasis supplied) That he did not intend any such result may be a matter for consideration in the sentence to be imposed on him but could not serve as a justification. This Court further held that the appellant had misguided himself about the true teachings of Marx, Engles and Lenin. According to the Chief Justice he had misunderstood the attack by them on State and the laws as involving an attack on the Judiciary. No doubt the courts, while upholding the laws and enforcing them, do give support to the State but they do not do so out of any impure motives. To charge the Judiciary as an instrument of oppression, the Judges as guided and dominated by class hatred, class 565 interests and class prejudices, instinctively favouring the rich against the poor is to draw a very distorted and poor picture of the Judiciary. It A was clear that the appellant bore an attack upon judges which was calculated to raise in the minds of the people a general dissatisfaction with and distrust of all judicial decisions. According to the Chief Justice it weakened the authority of law and law courts (emphasis supplied). It was further held that while the spirit underlying Article 19(1)(a), must have due play, the Court could not overlook the provisions of the second clause of that Article. Its provisions are to be read with Articles 129 and 215 which specially confer on this Court and the High Courts the power to punish for contempt of themselves. Although Article 19(1)(a) guaranteed complete freedom of speech and expression, it also made an exception in respect of contempt of court. While the right is essential to a free society, the Constitution had itself imposed restrictions in relation to contempt of court and it could not therefore be said that the right abolished the law of contempt or that attack upon judges and courts would be condoned.

In Shri Baradakanta Mishra etc. v. The Registrar of Orissa High Court & Anr. etc. [1974) 1 SCC 374], the appellant, a District judge was suspended and a spate of litigation in that behalf had ensued. When an order of suspension was set aside by the Government, in exercise of his power under Article 235, the High Court further ordered suspension of him pending enquiry of the allegations made against judges in a memorandum and letters sent to the Governor in a vilificatory criticism of the judges in their function on the administration side. When contempt action was initiated, he challenged the jurisdiction of the court and the competency to initiate action for contempt on the specious plea that the acts done by the High Court were on the administration side and were not judicial actions. A three-Judge Bench had negatived the plea and convicted the appellant under section 12 of the Act. When the matter had come up before this court, a constitution Bench considered the gravamen of the imputations and had held that the allegations made against the court in the memo submitted to the Governor constituted scurrilous allegations against the High Court. Again some of the allegations made in the memo of appeal and various communications to the Supreme Court were held to constitute contempt of the Court and the conviction was confirmed though sentence was reduced. This Court held that imputation of improper motives, bias and prejudice constitutes contempt under Section 2[c] of the Act.

In L.D. Jaikwal v. State of U.P. [1984) 3 SCC 405], the conduct of an advocate in using abusive language in pleadings and vilification of a judge was held to constitute contempt under Section 2 [c] (i) of the Act and his sentence under Section 12 of the Act was upheld.

In Re: Shri S. Mulgaokar [(1978) 3 SCC 497] the conduct of a senior advocate in publishing a pamphlet imputing improper motives to the Magistrate who decided his case was held to constitute substantial interference with the due administration of justice. His conviction was accordingly upheld though sentence was reduced.

In K.A. Mohammed Ali v. C.N. Prasannan [(1994) Supp. 3 SCC 509] while arguing the case, the counsel raised his voice unusually high to the annoyance of the Magistrate and used derogatory language against the Magistrate before whom he conducted the trial of an accused. His conviction and sentence for contempt was accordingly upheld.
A.M. MATHUR Vs. RESPONDENT: PRAMOD KUMAR GUPTA DATE OF JUDGMENT22/03/1990 BENCH: SHETTY, K.J. (J) BENCH: SHETTY, K.J. (J) SAHAI, R.M. (J) CITATION: AIR 1990 SC 1737

While allowing a writ petition, one of the Judges deliv- ered the main Judgment invalidating the decision of the Government on the ground that it violated Article 14 of the Constitution. The other Judge delivered a separate, but concurring opinion which contained highly disparaging re- marks attributing mala fides and underhand dealing on the part of the State Government. Several appeals were filed against the said decision before this Court.
Judicial restraint and discipline are as neces- sary 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 Execu- tive and the 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 unchallengeable control of the Court domain. But they cannot misuse their authority by intemperate comments, undignified banter or scathing criticism of counsel, parties or witnesses. 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. 

KARNATAKA LAND LAWS