The chief function of a judge is to hear and decide cases. When a judge hears but does not decide he fails. If such failure is of a High Court Judge it is grave. It strikes at the root of Article 14 of the Constitution. Article 14 commands a judge to be fair and reasonable in the performance of his functions. While assuming office, a High Court Judge makes an affirmation that he will perform the duties of his office without fear or favour, affection or ill-will and that he will uphold the Constitution and the laws. Failure to decide a case within a reasonable time after hearing would amount to violation of such affirmation.
Justice Krishna Iyer once said: “The judicial process, of which the robes and the gowns are symbols, is currently being charged with administration of injustice and, in that limited sense, is an ‘under-trial’. A writ may well issue from the omnipotent Court of the People of India to restructure the system, reorient the cadres, re-set the rights and reform the methodology of justicing, so that callous legality may be replaced by human justice.” Repeated and endless arguments are the order of the day. Unacquaintance with the precedents and unpreparedness to hear are common sight in Courts. A constitutional court becomes a civil court or a criminal court when the Bench and the Bar are unaware of constitutional goals. The Bar should learn to pinpoint the issues. And the Bench should be ready to grasp and go beyond. If not, a Writ will issue from the people commanding the Judges to adhere to their affirmation.
There is a cry for speedy justice everywhere. There is a cry for speedy justice everywhere. There are seminars, lectures and discussions on how to reduce delay in Courts. A number of suggestions are being made at these seminars. The suggestions again touch numbers. There should be more number of Courts, more number of Judges and more number of Special Tribunals etc. Experience shows that mere numbers do not make much difference.
Let us examine one facet of judicial process. A case is called out for hearing. The lawyer commences his argument. The judge hears. The lawyer can make his point in five minutes or in five days, nay in five weeks. The more the lawyer is learned, the more time he takes to make his point. It is unfortunate. The judge may render the judgement the next day, or the next week or the next month, nay the next year. The lawyer may be proud of his capability of holding the Court for long and making other lawyers wait endlessly. The judge may feel thrilled to see the transcript of his judgement running into pages and pages. Certainly the litigants cannot feel as the lawyer and the judge do. His only concern is that he should be done justice without delay and without much expenses. He cannot appreciate month-long arguments and mile-long judgements.
The litigant cannot wait for his case to be heard for weeks after weeks because the previous case goes on and on. Even after a case is over, it is not over. It may be heard against for several reasons. It may be heard again for several weeks. The litigant should wait for his turn. The litigant may be suffering from unemployment. He may be one knocking at the doors of Government for his pension but in vain. He may be an under-trial prisoner languishing in jail for no fault of his. Or he may be a person who has denied compensation for his lands acquired by the Government. These litigants should wait till their cases are found worth hearing by the Judges. The delay occurs thus, continues and engulfs every docket.
What a Judge can do about it at all – there is a whisper in the corridors of the Court. It is the Judge and the Judge alone who can remove delay in justice. The desire to do is what is needed. It is said that the Bar is meant to make clear statements. The Bench is to make more clear statements. This is possible only when the Bar and the Bench are thoroughly prepared in advance. If the Bar fails in its duty to the Court, the Bench should step into correct the Bar. After all, Court’s time is precious, more precious than anything else. Because justice is watchword of the Constitution and the Courts are administering it.
Speedy justice is the concern of every citizen. If so, can an advocate be permitted to make arguments for days and days together ? It would be fair that time-limit is fixed for arguments. An advocate can be given a maximum of 5 hours to argue a case. If he feels that his arguments would take more than 5 hours, he should file written arguments supplementing his oral arguments. Similarly, a judge cannot take months to deliver judgements. He should be in a position to deliver judgements within a week of conclusion of arguments. A judge need not take even a week. He can dictate his judgements in open Court immediately after the arguments are over. The practice prevalent in the Gujarat High Court is salutary. Almost all the judges of the Gujarat High Court dictate judgements in open Court the moment the arguments are over. The advocates are at liberty to point out to the Judge at the appropriate time of dictation if there creeps in any misstatement of fact in the judgement. The Judges would ask the advocates before concluding the judgement whether there is any point ”argued but not considered.” This practice of Gujarat High Court should be emulated by all High Courts to curb the complaint that “justice delayed is justice denied”.
Benjamin Cardoze, a great American judge, says: “The Judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in the social life.” Of course, the judge has a discretion to render his judgements today or tomorrow or thereafter. But can he say that he cannot decided the case he heard because he leaves the High Court where he heard the case ? Can he leave his office to assume his new office leaving aside his primary responsibility of rendering judgements in the case he heard ?
If a judge ignores rendering judgements in the case he heard and assumes his new office of a Judge of other High Court, he administers injustice. He violates oath. He ignores the “primordial necessity of order in the social life”. The case may concern the livelihood of a workman who was dismissed from service arbitrarily by the management years ago. The case may tough the life of an innocent person in jail. If the case is to be reheard by another judge it will not only be colossal wastage of judicial time but will prove an unbearable burden to the litigants. The lawyer may not be willing to argue the case for the second time without fees. The litigant may not be in a position to pay lawyer’s fees for the second time. The State will not compensate this lapse on the part of the judge.
Is there any constitutional prohibition against delivering judgements in cases heard by a Judge of a given High Court after he assumes his office in some other High Court ? When the policy of transfer of judges from one High Court to another is in vogue, the Judge has to complete the work of rendering judgments before his assumption of his new office. Or, he may prepare and send his judgments for pronouncement in his previous High Court, after he assumes his new office. When judgements are not dictated in open Court immediately after the conclusion of arguments, such contingency would arise. This can be remedied by the judge himself.
The Supreme Court has in Justice AM Bhattacharjee’s case”: (1955) 5 SCC 457 observed: “Judicial office is essentially a public trust. Society is, therefore, entitled to expect that a Judge must be a man of high integrity, honesty and required to have moral vigour, ethical firmness and impervious to corrupt and venial influence. Hew 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”. Efficacy of judicial process is what we want today. Effective access to justice and speedy justice are the constitutional objectives. The Judge is to direct his performance towards achievement of these objectives.
A Judge of the High Court can be removed from office on the ground of proved misbehaviour or incapacity, says the Constitution. Will the act of “hearing cases but not deciding them” amount to proved misbehaviour or incapacity ?
Justice, judge thyself.
- M Radhakrishnan
