By Justice Kamaljit Singh Garewal
A day in the life of a judge
A sad and a long lonely day
I walk the avenue and hope I’ll run into
The welcome sight of you coming my way
I stop just across from your door but you are never home any more
So back to my room and there in the gloom
I cry tears of good bye.
—Adapted from a song by Carl Sigman and Luis Bonfa to the tune of the Portuguese ballad Manha de Carnaval
The judge holds a pen in one hand and a book in the other, and with these, he dispenses justice. To rich and poor alike, to underprivileged condemned by the system, to women and children, to anyone who appears in his court with a petition. The entire judicial system is centred around such a simple and straightforward pathway. It’s a lonely life. Judges have no one to discuss their cases with. After lawyers have said their bit and given a long list of references and left the court, the judge is finally alone. He would naturally be mentally exhausted but has no time to waste. When lawyers’ work ends, the work of judges begins. He has to get down to deciding the matter and writing his judgment. The solitariness of a judge’s life drives him to solitary hobbies like reading, gardening or walking. Judges begin to love solitude.
It would help a judge calm down if he was to remind himself of Mahatma Gandhi’s talisman and look out of the window. “Whenever you are in doubt, or when the self becomes too much with you, apply the following test. Recall the face of the poorest and the weakest man whom you may have seen, and ask yourself, if the step you contemplate is going to be of any use to him.”
A judge is, of course, appointed to deliver justice. There are rules for his appointment. And with his appointment, the judge gets his defined jurisdiction regarding what he can do or must do and what he must not do. The book the judge holds is the law passed by the legislature giving the procedures he must follow before he delivers his verdict. Offences and punishments are clearly defined in the book he holds. There must be petitioners before him to receive justice, they must be treated equally and fairly. They must be heard and the opposite party must reply before judgment is entered.
On and on, in every part of our vast country, day in and day out, cases are being heard and decided. Such is the wonderful play of justice on display for everyone to witness. And it is up to them to decide if the judgment has been fair, impartial, reasonable, proportionate and acceptable. One must ponder upon how a judge really works, what enhances the quality of his judgments, what chemistry goes on in his brain and which tortious paths he traverses to reach a fair conclusion.
Recently, Chief Justice of India (CJI) NV Ramana spoke about the misconception in the minds of people that judges have an easy life. He said that “judges stay in big bungalows, work only 10 to 4 and enjoy their holidays. Such a narrative is untrue. It is not easy to prepare for more than 100 cases every week, listen to novel arguments, do independent research, and author judgments, while also dealing with the various administrative duties of a judge, particularly of a senior judge… Therefore, when false narratives are created about the supposed easy life led by judges, it is difficult to swallow”. He added that it’s the duty of the Bar to refute these false narratives and educate the public about the work put in by judges.
Every judge, in whichever jurisdiction he sits, from the lowermost junior division to the Supreme Court, has plenty of work to do every day—from reading petitions, hearing cases, recording evidence, writing opinions and keeping abreast with the law. Judges work to their capacity and capability. It’s enough if they work and decide cases honestly, impartially and quickly. One is not sure if society expects more than even, fair-minded justice. The general public, the members of the Bar and the media are generally not aware of what judges do in their study or chambers.
A judge’s position is a haloed one, not in the sense of a saintly halo, but in a secular sense. A person who is appointed to decide a dispute between two citizens or between the citizen and the State is expected by everyone, and not just the contestants, to be independent, fair and impartial. He is also required to be just. From the time a judge sits in court till the time he rises, his every word—written or spoken—his every gesture, his every action is noticed by all those who appear before him. At the end of the day, after the judge has risen, the audience returns home; some with satisfaction, others with disappointment, but all, by and large, with a feeling that justice has been done.
Let us see how the Bar looks at this judicial drama enacted every day. Lawyers are sugar and honey when they appear in court. The warmth of lucre provided by a newly acquired client is a strong factor. They have promised their client the sky, but the promise is confined mostly to obtaining stay or securing bail. They make all kinds of peripheral promises to clients and keep pumping money from his pocket. When these promises are not fulfilled (or the promised favourable order is not passed), the lawyer is hard pressed to give some explanation to the man who handed him considerable cash. Most lawyers earn at least ten times more fees than a judge’s salary, which, in India is a pittance compared to developed countries whereas lawyers’ fees are of international standard. The Bar must support the judiciary and not weaken it with unfound criticisms.
The legislature is where laws are made, but neither the legal drafting nor the actual debate at the time of the passage of bills is ever conducted by lawyers. No importance is given to jurisprudence during debates. This was also a concern expressed by CJI Ramana recently. The result is imperfectly drafted laws, which leads to an exponential increase in court cases. Bad laws, like bad men, create good lawyers, and rich too, but this is no consolation to judges who have to keep striking down bad legislation.
The legislators do not go back to their constituents and admit that they were remiss in drafting a flawed clause. They often do not realise what went wrong, but occasionally when they do, they say the judge was anti-government, pro-tenant, anti-this or pro-that. It seems to be no part of the legislative business to uphold laws interpreted by judges.
The law minister is quickly charged with the duty of amending the law to overcome difficulties which cropped up before courts. Who is supreme, about this there is never going to be an answer. Both the legislature and the judiciary, nay all three (including the executive) are the three pillars of democracy. But collectively, judges have had a much more rigorous training for their task, whereas the legislators never get trained, often not even on the job. However, they do pass bad or defective laws, and clog up the courts with unnecessary litigation.
The French Conseil D’Etat, the highest administrative court in France, was established by Emperor Napoleon, and sits in the beautifully preserved Palais Royale, which was a royal residence before the Revolution. The judges, apart from hearing judicial cases, also sit as government’s advisers in a legislative chamber where bills are debated before being sent to Parliament. These advisory opinions are generally respected, though sometimes law approved by the Conseil D’Etat is challenged on the judicial side.
It’s worth considering the introduction of such a reform by creating seats in the Rajya Sabha for retired judges, for the nation to benefit from their experience and knowledge of jurisprudence. We have a retired chief justice already adorning the Upper House. Quite frankly this is a good step if the retired chief justice’s views are heard by the House when a tricky legal point is debated. Maybe we should have at least 25 seats for retired judges in the Rajya Sabha to contribute to law reform with their vast experience. The French model deserves a close look.
Our Supreme Court does possess advisory jurisdiction, continuing since Government of India Act 1935 but is rarely used to bring clarity to laws. Taking the advice of judges before a bill is presented is not a bad thing, far better than waiting for the constitutionality of the law being cleared by the Supreme Court after several years of its passage.
When a judge was threatened by the police in Madhya Pradesh for summoning an MLA’s husband as a co-accused in another MLA’s murder or when a judge was deliberately knocked down and killed in Jharkhand, serious concerns arose regarding their security. A suggestion was made in the columns of this magazine to create a cadre of judicial police on the lines of US judicial marshals to protect judges, courts and most importantly, the judicial system. In this regard, the Supreme Court can act on its own under Article 146 and High Courts under Article 229 of the Constitution to create posts of marshals to protect the judiciary.
A judge says all he wishes to say in carefully crafted sentences, in simple prose and balanced judgments. A judge has no desire to join issue with the media, but the media is not really interested in knowing what were the reasons for the verdict. The media wants to tell its audience the entire story in its own way. But it also has to bear a lot of pressure from the barons who control it. This is a hugely competitive world.
In other words, the newspaper or the television company has to produce profits to support the lifestyles of its owners. The judge’s work produces no profits for him, although this cannot be said about the lawyers who appear before him in Court or the party in whose favour the verdict has been pronounced.
A day in a judge’s life is busy, very busy. The Bar knows this, but of late has begun to be hyper-critical of judges and the judiciary in an overly unsympathetic way. If a judge’s order or judgment is not what was expected, one can rest assured that he shall be criticised for any number of reasons which shall be beyond fair judicial criticism. The question that should be asked from lawyers is whether the legal profession can exist and continue to prosper if judgments are continually attacked when not to the liking of the parties.
—The writer is former judge, Punjab & Haryana High Court, Chandigarh and former judge, United Nations Appeals Tribunal, New York