“Alas! we are “all the common growth of the Mother Earth’ – even those of us who wear the long robe.”
Supreme Court of India talked on this issue in the case of ‘Siddharth Vashishth @ Manu Sharma v. State (NCT of Delhi) ’ as follows-
“The higher Courts in exercise of their appellate or original jurisdiction may find patent errors of law or fact or appreciation of evidence in the judgment which has been challenged before them. Despite this, what is of significance is that, the Courts should correct the error in judgment and not normally comment upon the judge. The possibility of taking a contrary view is part of the system.
The judicial propriety and discipline demand that strictures or lacerating language should not be used by the higher Courts in exercise of their appellate or supervisory jurisdiction. Judicial discipline requires that errors of judgments should be corrected by reasons of law and practice of passing comments against the lower courts needs to be deprecated in no uncertain terms. The individuals come and go but what actually stands forever is the institution.
It is also desirable, that the language which may imply an allegation of suspicion in the performance of function of the Court should be carefully examined and unless it is absolutely established on record, comments should be avoided.
Let us examine various judgments of this Court which have persistently taken the view and discouraged observations or disparaging remarks by the higher Courts against the other Courts.
In the case of A.M. Mathur vs. Pramod Kumar Gupta & Ors. (1990) 2 SCC 533 the Court stated the dictum that 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 constant theme of our judges. The 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. The avoidance of even the appearance of bitterness, so important in a judge, required him not to cast aspersions on the professional conduct of the appellant and that too without an opportunity for him to meet such situation. The Court set aside the disparaging remarks that had been made by the High Court against the Advocate General.
In the case of a judicial officer approaching Supreme Court for expunction of disparaging remarks on his conduct made by the High Court in the matter of ‘K’ A Judicial Officer (2001) 3 SCC 54, the Court cautioned the higher courts to use the power of superintendence with great care and circumference before making remarks on unworthy conduct of an officer, his criticism or adverse remarks in relation to judicial pronouncement should be avoided.
The Court held as under:
“A Subordinate Judge faced with disparaging and undeserving remarks made by a court of superior jurisdiction is not without any remedy. He may approach the High Court invoking its inherent jurisdiction seeking expunction of objectionable remarks which jurisdiction vests in the High Court by virtue of its being a court of record and possessing inherent powers as also the power of superintendence.
The view is settled by the law laid down in Raghubir Saran (Dr) vs. State of Bihar (1964) 2 SCR 336. However, if a similar relief is sought for against remarks or observations contained in judgment or order of the High Court the aggrieved judicial officer can, in exceptional cases, approach this Court also invoking its jurisdiction under Articles 136 and/or 142 of the Constitution. ”
In the case of Zahira Habibulla H. Sheikh & Anr. vs. State of Gujarat & Ors. (2004) 4 SCC 158 another Bench of Supreme Court in unambiguous terms expressed its concern about entertaining undesirable submissions against the working of an institution and adverse observations being made in the paragraphs of the judgment. The Court noticed that High Court had made observations and remarks about persons/constitutional bodies like NHRC who were not before it.
Proceedings of the Court normally reflect the true state of affairs. Even if it is accepted, that any such submission was made, it was not proper or necessary for the High Court to refer to them in the judgment to finally state that no serious note was taken of the submissions.
Avoidance of such manoeuvres would have augured well with the judicial discipline. The expunction and deletion of the contents of paragraph three of the judgment except the last limb therein is ordered and it shall be always read to have not formed part of the judgment.
Similarly, a three Judge Bench of Supreme Court in the case of Samya Sett vs. Shambhu Sarkar & Anr. (2005) 6 SCC 767, again concerned with expunction of adverse remarks made against the Additional Sessions Judge, who was the appellant. The High Court had observed that, ignoring of directions should imply an arrogant attitude of the learned Judge and was in breach of the canons of judicial discipline and damage the judicial system.
The Court has, in several cases, deprecated the practice on the part of judges in passing strictures and in making unsavoury, undeserving, disparaging or derogatory remarks against parties, witnesses as also subordinate officers.
It is also worthwhile to refer judgment of Court in the case of Parkash Singh Teji vs. Northern India Goods Transport Company Private Limited and Another, (2009) 12 SCC 577. Supreme Court, while considering the order of the High Court, declining to expunge the adverse remarks against the appellant/judicial officer has observed “judicial restraint and discipline are as necessary to the orderly administration of justice as they are to the effectiveness of the army”.
Again it was pointed out, “A Judge tries to discharges his duties to the best of his capacity, however, sometimes is likely to err. It has to be noted that the lower judicial officers mostly work under a charged atmosphere and are constantly under psychological pressure. They do not have the benefits which are available in the higher courts. In those circumstances, remarks/observations and strictures are to be avoided particularly if the officer has no occasion to put forth his reasonings.”
In Alok Kumar Roy vs. Dr. S.N. Sharma (1968) 1 SCR 813 the vacation Judge of the High Court of Assam and Nagaland passed an interim order during vacation in a petition entertainable by the Division Bench. After reopening of the Court, the matter was placed before the Division Bench presided over by the Chief Justice in accordance with the High Court Rules. The learned Chief Justice made certain remarks as to “unholy haste and hurry” exhibited by the learned vacation Judge in dealing with the case.
When the matter reached Supreme Court Wanchoo C.J., observed: (SCR pp 819 F820A)
“It is a matter of regret that the learned Chief Justice thought fit to make these remarks in his judgment against a colleague and assumed without any justification or basis that his colleague had acted improperly. Such observations even about Judges of subordinate courts with the clearest evidence of impropriety are uncalled for in a judgment. When made against a colleague they are even more open to objection.
We are glad that Goswami J. did not associate himself with these remarks of the learned Chief Justice and was fair when he assumed that Dutta, J. acted as he did in his anxiety to-do what he thought was required in the interest of justice. We wish the learned Chief Justice had equally made the same assumption and had not made these observations castigating Dutta J. for they appear to us to be without any basis. It is necessary that judicial decorum has to be maintained at all times and even where criticism is justified it must be in language of utmost restraint, keeping always in view that the person making the comment is also fallible.”
In State of M.P. vs. Nandlal Jaiswal (1986) 4 SCC 566 disparaging and derogatory remarks were made by the High Court against the State Government. When the matter came up before Supreme Court and a complaint was made against these remarks, it was observed by the Court that the remarks were “totally unjustified and unwarranted”.
Bhagwati, C.J. stated: (SCC p.615,para 43)
“43 We may observe in conclusion that judges should not use strong and carping language while criticizing the conduct of parties or their witnesses. They must at with sobriety, moderation and restraint. They must have the humility to recognise that they are not infallible and any harsh and disparaging strictures passed by them against any party may be mistaken and unjustified and if so, they may do considerable harm and mischief and result in injustice.”
“I have never known any judges, no difference how austere of manner, who discharged their judicial duties in an atmosphere of pure, unadulterated reason. Alas! we are “all the common growth of the Mother Earth’ – even those of us who wear the long robe”.
Similar was the view of Thomas Reed Powell, who said: “Judges have preferences for social policies as you said and I. They form their judgments after the varying fashions in which you and I form ours. They have hands, organs, dimensions, senses, affections, passions. They are warmed by the same winter and summer and by the same ideas as a layman is”.
“In the present case, however, as we have already noted in the earlier part of the judgment, whether the order passed by the appellant was correct or not, but the remarks made, strictures passed and directions issued by the learned Single Judge of the High Court against the appellant were improper, uncalled for and unwarranted.
Apart from the fact that they were neither necessary for deciding the controversy raised before the Court nor an integral part of the judgment, in the facts and circumstances of the case, they were not justified. We, therefore, direct deletion of those remarks.”
In line with the consistent view of Supreme Court, we are of the considered view that the Division Bench could have avoided making such observations which directly or impliedly indicates towards impropriety in the functioning of the Court, appreciation of evidence by the learned Judge and/or any other ancillary matter. The content and merit of the judgment would have remained unaffected even if such language or comments were not made against the learned trial Judge.
The respect of judiciary and for the judiciary, is of paramount consideration. Every possible effort should be made and precaution taken which will help in preservation of public faith and individual dignity. A judicial consensus would require that the judgment should be set aside or affirmed as the case may be but preferably without offering any undesirable comments, disparaging remarks or indications which would impinge upon the dignity and respect of judicial system, actus curiae neminem gravabit.
Despite exercise of such restraint, if, in a given case, the Court finds compelling reasons for making any comments in that event it will be in consonance with the basic rule of law and adherence to the principles of natural justice that view point of the concerned learned Judge should also be invited.