The Qualities Of A Good Judge
Hon’ble Shri. R. V. Easwar, Judge, Delhi High Court
With 20 years of experience in judicial office, Justice Easwar explains why some Judges are able to inspire confidence in the minds of the litigants. A Judge is like God and must develop sterling qualities to be able to occupy the high office. These qualities must be cultivated by everyone who aspires to the position of a Judge says Justice Easwar
Br. Veerabhadrappa, the Officiating President of the Income Tax Appellate Tribunal, Br. Manmohan, Vice-President of the Mumbai Zone, my esteemed erstwhile colleagues, and the newly appointed Members of the Tribunal:
A very good afternoon to all of you. It is a privilege accorded to me very kindly by Bro. Veerabhadrappa to address the newly appointed members of the Tribunal. The Tribunal is close to my heart for several reasons. I spent close to 20 years here and I tell you, those were some of the very best years of my life. Besides giving me a sense of satisfaction so far as the work aspect is concerned, it also gave me an exposure which otherwise I may not have had. I worked in several places of the country and both I and my family could imbibe the various cultural hues and enjoy the pleasure of meeting myriad kinds of our countrymen. The Tribunal was so kind to me. I had the benefit of sitting with several members coming from different social, cultural and career backgrounds. I learnt from every one of them. Every one of them, without exception, was considerate and kind to me and my family. The Tribunal has always been one family and I indulged in the brotherhood prevalent here. I therefore consider it my duty to be able to contribute whatever you think I can, to the institution I served.
In India, the tradition is to consider judges as God. The perception, from time immemorial, is that judges are God-incarnate and it is God Himself who dispenses justice through human agency. Therefore, in the appointment of judges since ages it has been the tradition to look for persons with sterling qualities
I take the liberty of welcoming you all to the Tribunal as I still consider myself to be part of this great judicial body. In its 70-odd years of existence, it has seen several ups and downs, but its core values have remained constant. It is to this august judicial body that so many apply, but so few are chosen. You will all be glad to know that you have been chosen from among some 450 odd aspirants. The government has reposed that kind of trust and confidence upon you, and you will, I am sure, in the years to come, turn out worthy of it. Today, the institution looks to you, and many others to come in the future, to further strengthen its pillars and foundation and particularly at this juncture when there is all-round erosion of the moral fibre.
I took the liberty, without consulting Brother Veerabhadrappa, of reversing the title of my speech from “Principles of natural justice and qualities of a judge” to “Qualities of a judge and the Principles of natural justice”, the reason being that the qualities of a judge is a subject that is somewhat general in nature and therefore should take precedence. I hope Bro. Veerabhadrappa will not mind!
May I begin with a clarification? The title “judge” traditionally is used to refer to a judge of the Supreme Court or the High Courts or the presiding officers of the subordinate judiciary — the civil and criminal courts. Some presiding officers of the special courts set up under the various statutes are also referred to as “judges”. But those whose offices have been created under a special law, particularly fiscal law, have different designations such as “adjudicating authority”, “member” etc. Particularly, in the legislation setting up the Tribunals, there are “members” who get promoted as Vice-Presidents or Vice-Chairmen or President or Chairman. A question may therefore arise as to whether it will be appropriate for me to title the speech as “qualities of a judge” while addressing members of a Tribunal.
I have always held the view that the title does not matter and it is the substance of the functions that should matter. Therefore, you need not feel a sense of discomfort or irrelevance or even a kind of inferiority complex when you are referred to as a ‘member’ and not as a ‘judge’. I say so on high authority. No less a person than Lord Denning thinks so. He thinks that the title does hardly matter, but what matters is the nature of the functions. If the incumbent performs judicial functions AND (it is an important ‘and’) he is independent of any influence or interference by the executive, he is entitled to be called a ‘judge’. The critical test, according to him, which the incumbent must pass is to enjoy the confidence of the people by acting independently of the executive. Now, the Tribunal passes this test admirably. It discharges judicial functions and for this proposition there is ample authority. It is independent of the executive, except that the ministry of law exercises only administrative control over it for budgetary allotments. Otherwise there is no interference in its functions which are regulated by itself and whenever some attempts were made to interfere, they were thwarted by the Supreme Court. Your independence is safe and secure; you need not fear while taking decisions which are just and right according to your judicial conscience. It is also comforting to note that in the Bangalore Principles of Judicial Conduct, 2002 adopted by the judiciary, echoes the view of Lord Denning by defining a “judge” as “any person exercising judicial power, however designated”.
In India, the tradition is to consider judges as God. The perception, from time immemorial, is that judges are God-incarnate and it is God Himself who dispenses justice through human agency. Therefore, in the appointment of judges since ages it has been the tradition to look for persons with sterling qualities. Justice Rama Jois says, quoting Dharmakosa, that the King shall appoint as members of the court of justice, honourable men of tried integrity who are able to bear the burden of the administration of justice and who are well-versed in the sacred laws, rules of procedure and are noble and impartial towards friends and foes. Katyayana adds that the king should appoint as judge one who is not cruel, who is sweet-tempered, kind, clever and energetic but not greedy. According to the learned judge, all our Dharmashastras and smruthis with one voice lay down that dispensation of justice is the highest ‘Dharma’ of judges. He says that if a judge fails to dispense justice and upholds injustice, he is sure to suffer for his act.
This, I think, sums up the basic qualities of a judge. I do not think that there is any greater quality that is required of a judge than his judicial instinct and sense of integrity and honesty. George Orwell wrote this about the English judge, as he is seen traditionally, having regard to the uncompromising British system of appointing judges: “The hanging judge — that evil old man in scarlet robe and horsehair wig, whom nothing short of dynamite will ever teach what century he is living in, but who will at any rate interpret the law according to the books and will in no circumstances take a money bribe — is one of the symbolic features of England”.
It is in my view totally unfair that a honest member should be put in such a situation as to feel a sense of vicarious guilt for what a handful may have done. That affects his judicial work, disturbs his mental peace. We all owe it to ensure that no such situation arises. We have no right to put the institution in jeopardy, nor to place our fraternity in an awkward situation as described above, It is our responsibility by our impeccable conduct to ensure that the judicial body which we serve is not dragged into any kind of scandal
The Bangalore Principles of Judicial Conduct states that “integrity is essential to the proper discharge of the judicial office”. It is not necessary to dwell upon this further, as integrity and honesty are a “given”, they constitute the foundation of the judicial edifice. Justice K. Ramaswamy observed that a judicial scandal is the worst form of all scandals, because it shakes the public confidence in the judiciary and the judges and erodes the rule of law. Nothing worse can happen than this! If we look back and around, we will find that every problem in the judiciary has its roots in the lack of integrity. We need to save ourselves, by developing a strong will-power, from avarice, greed and pelf which are lurking round the corner to devour us. Any act of indiscretion not only mars the reputation of that individual member, but the public proceeds to tar the entire institution with the same brush and that would be very unfortunate. It demoralises the right-thinking members who constitute the majority. The black-sheep is always in a minority, but the damage they can cause affects the reputation of the entire institution and it would be very difficult to salvage the situation for a long time. This should be realised. The further difficulty in such situations is this. A right-thinking judge or a member cannot reply to general remarks about the integrity of the institution as a whole. This creates a deeper sense of insecurity in him; he feels suffocated. It is in my view totally unfair that a honest member should be put in such a situation as to feel a sense of vicarious guilt for what a handful may have done. That affects his judicial work, disturbs his mental peace. We all owe it to ensure that no such situation arises. We have no right to put the institution in jeopardy, nor to place our fraternity in an awkward situation as described above, It is our responsibility by our impeccable conduct to ensure that the judicial body which we serve is not dragged into any kind of scandal. I quote th former Chief Justice of India, Justice Lahoti:
“From the standpoint of justice, the size of the bribe or the scope of corruption cannot be the scale for measuring a judge’s dishonour. A single dishonest judge not only dishonours himself and disgraces his office but also leopard jeopardises the integrity of the entire judicial system”.
We all know the words of Lord Acton that “power corrupts and absolute power corrupts absolutely”. Lack of integrity is essentially an instance of abuse of power. Henry Cecil, an English judge of repute in his Hamlyn lectures says that every sane person abuses his power from time to time, “but a judge has many more opportunities of doing this than most other people”. Abuse of power, in the case of members or judges, may take many forms. It may be a simple remark made in the course of the proceedings which may have a permanent effect upon a person. It may be a refusal to let counsel develop a point and if the counsel is a junior member of the Bar, it could even affect his prospects. Making hurtful statements in the course of the proceedings, pulling up parties by using language disproportionate to the requirements of the situation and so on also amount to abuse of power. Abuse of power may also arise in making irrelevant statements in the orders about matters with which a member has no concern. The Tribunal is not a constitutional authority; it is a creature of the Income Tax Act. It cannot sermonise or read out homilies. An instance of an abuse of power is really an instance of immaturity. These are pitfalls which must be carefully avoided. In short, and in the words of Henry Cecil, “a judge has to learn to control his adrenal glands and if he is not able to control them, he should not be appointed to the Bench”.
Apart from financial or pecuniary integrity about which there can be no compromise, intellectual honesty or integrity is the uppermost requirement of a judge. The decision-making process is basically a purely intellectual exercise. A member of the Tribunal (or a judge) is expected to display utmost transparency and honesty in taking every step of the process. What does intellectual honesty mean? It means, according to me, that you should have an open-mind, be receptive to arguments, be prepared and willing to learn, and be courageous enough to accept that you can be wrong and should take pains to deal with every argument advanced in the case. It also means that you shall not conveniently omit to deal with arguments or citation of authorities which are at variance with what you feel should be the right decision in the case. Every argument, coming from a senior counsel or a junior member of the Bar, must be given its due importance; every authority cited should be deferred to. But dealing with arguments and authorities cited does not merely mean referring to them without meeting or answering them. If you do so, that would be intellectually dishonest. The danger in the adage that justice must not only be done but should appear to be done is that a judge or a member may conceal injustice by appearing to do justice. If you merely refer to the arguments without effectively dealing with them, that would be a case of justice appearing to be done, without actually being done. The same goes for binding precedents. A good judge always reaches the conclusion to which the arguments and authorities take him; he never decides the case in accordance with what he thinks is right, and then look for reasons and authorities to support it.
Precedent and reasoning go hand in hand. Lord Devlin says that he would prefer to use a precedent as a mountaineer’s rope rather than a hangmen’s rope. A precedent embalms a principle; it constitutes the foundation of legal reasoning. A well-trained judge would prefer to follow a precedent, for it provides him with the “most conclusive logic”, in the words of Andrew Goodman, a barrister of repute. But the use of precedents requires care. One could easily get lost in the maze of precedents. A precedent many times inspires you to chart unknown territory. It may help you improvise and innovate. But in all this, there has to be a sense of proportion and as member of the Tribunal you should be able to keep the precedents to the minimum, since your order must contain all the relevant factual findings and the mandate of the Act for you is to find the facts. Judge Hammerton it was who said that “Get the facts first and the law will follow”.
That takes me to the passing of the orders. You have been given the liberty of passing orders as you “think fit”, but think you must. Section 254(1) itself contains the seeds of the end-product, namely, the order in appeal and what it should consist of. When it says “thinks fit” it clearly gives a mandate to you to bestow your thoughts on the dispute and resolve it by giving reasons. Giving of reasons is the bedrock of the order. I will deal with the reasoning part of your order when I come to the principles of natural justice.
A good judge listens well. Ernest Hemingway complained that “When people talk, listen completely (because) most people never listen”. Hearing a case is not merely sitting through the arguments without any expression in your face except nod frequently to show that you are following the arguments. It is much more than that. Hearing really means attentive listening or effective listening. Great judges have been great listeners. Seervai refers to Justice T.L. Venkatarama lyer of the Supreme Court appreciatively as a good listener. That great judge adopted the attentive style of hearing. Counsel would be invited to formulate their propositions and address them one by one and the judge would pay attention closely. In case you have doubts, please feel free to query the counsel. Uncleared doubts clog the disposal of the appeals. Fifteen minutes more spent in the Bench will save you five hours of toil and research in the chamber. Budh Sen, senior advocate, says in his book that “one common feature noticeable among the judges in the early days of the Supreme Court was their humility, their patience in hearing counsel in an unhurried manner and their willingness to give themselves sufficient time for reflection and consultation which alone could find expression in those monumental judgments that had stood the test of time”. Effective or attentive listening also implies that frequent interruptions to the counsel’s arguments should be avoided. You should wait for an opportune moment to put questions. Counsel often come well-prepared and may have arranged their thoughts in a particular way. Your questions should not break the chain of thoughts. Allow them to develop a point and then test its validity by your questions. I must say that your attitude towards the junior section of the Bar should be a little more lenient or indulgent. Don’t take out your impatience on them or snap at them! A kind or encouraging word either in the course of his arguments or in the order will motivate him to do better. A harsh word or a snub may snuff out the spirit in him forever, and that would be the loss of the Bar and the Bench. Remember this.
QUALITIES OF A JUDGE
India believes in independence and impartiality of judges. The Constitution guarantees these twin indispensable requirements of an efficient justice delivery system. The Income Tax Appellate Tribunal has always functioned independently and impartially. It is all the more important because today the stakes involved in the matters reaching the Tribunal are very high, and the issues are of far-reaching importance for the economy and growth of the country. Whenever we talk of independence and impartiality, we probably have in mind only executive interference. That is only part of the story. We have also to be independent of pulls and pressures from every one, including the taxpayers, lobbyists and pressure groups. At times, you may also face professional associations making an orchestrated attempt to indirectly influence your thinking and decisions, and though such occasions are practically non-existent, they cannot be ruled out. Just as you will not bow down to the influence of the executive, you will also not bow down to such pressures, whatever be the consequences. The former Chief Justice of India, Justice Lahoti, in his address on “judicial ethics” in the first M.C. Setalvad memorial lecture, quotes Chief Justice Lamer on the twin aspects of judicial independence and judicial impartiality:
“The overall objective of guaranteeing judicial independence is to ensure a reasonable perception of impartiality; judicial independence is but a means to an end. If judges could be perceived as impartial without judicial independence, the requirement of independence would be unnecessary. However, judicial independence is critical to the public perception of impartiality. Independence is the cornerstone, a necessary pre-requisite for judicial impartiality”.
The attributes of a judge were brought out lucidly in the judgment of Justice K. Ramaswamy of the Supreme Court in C. Ravichandran Iyer vs A.M. Bhattacharjee (1995) 5 5CC 457. He lists the following:
a) A judge should be endowed with sterling character, impeccable integrity and upright behaviour;
b) Judges should be men of fighting faith with a tough fibre not susceptible to any pressure, economic, political or of any sort;
c) Judges cannot be men of clay, amenable to all human failings and all frailties and foibles of life.
To the above list, Chief Justice Lahoti adds that a judge has to be honest not only to himself and his office but to the society as well, because “the society’s demand for honesty in a judge is exacting and absolute”.
It is a misnomer to think that a member of the Tribunal functions as a judge only in court and in the office of the Tribunal and once the working hours are over, he is a free citizen of India and can do what pleases him. He certainly has all the rights of a free citizen of the country, guaranteed under the Constitution. But even in his private and social life, he is expected to conduct himself in a manner commensurate with the dignity of his office and the position he holds. So far as maintaining a strict vigil on his own conduct is concerned, there are no off-hours. He occupies a judicial office which has been given to him in trust. His conduct must show that he deserves it. He should be careful and choosy about the company he keeps, the places he visits and the tastes he displays. In this, he should be guided by his own right-thinking peers. It is better that you always be on guard and err on the side of caution. It is ultimately the impression others gain from his conduct that is important, not what he thinks about himself. According to Henry Cecil, “good manners among judges are as important as a good legal brain….”. A summing up of the other qualities which a judge should possess, applicable equally to members of the Tribunal, will be like this:
a) Punctuality, both in maintaining office and court timings and in delivering the orders;
b) Patience — a judge has to learn to control his adrenal glands and his temper;
c) Desisting from making unfair remarks against anybody;
d) A judge should not pretend to know something which he in fact does not know — Shakespeare called it being most assured about matters of which a judge is most ignorant (“As you like it”)
e) He should be courteous and patient and in full command of all his faculties. He should come to court fresh and ready to take the strain of the day’s work bearing in mind that if he is not alert and sharp throughout the day, the standard of justice will decline;
f) A judge or member of the Tribunal has to take great care that no one can even suggest that he has decided in favour of a party because he knew him or his advocate or because of some information given to him by one party in the absence of the other;
g) A judge should never hear a case if he is aware that he knows one of the parties even slightly;
h) He should always disclose any pecuniary interest which he has in the entity which is before him;
i) The greatest harm that a judge can do is not merely actual injustices, that is, wrong decisions, but in sending the litigants and their counsel away with a feeling that they have not been properly heard.
A judge is accountable. Judicial accountability is one of the checks on abuse of power and tyranny. In his article titled “Who will judge the judges?”, Justice Krishna Iyer, that worthy champion of the downtrodden says that in the name of judicial independence, we cannot have judicial absolutism and tyranny. Thus judicial accountability promotes regard for the means to attain justice. Judicial independence is not something that should exist for the personal benefit of the judges; it is designed to protect people and democracy. When a law clerk asked judge Learned Hand, a federal judge of great repute who did not make it to the US Supreme court, as to whom the judges are accountable, he replied, pointing out to his library: “Sonny, to those books. It is to those books I am accountable and none else. Even those nine bozos in Washington, who sometimes reverse me, cannot make me decide as they wish”. Accountability takes you along the path of judicial conscience and a judge must have a judicial instinct. Chief Justice William Howard Taft of the US remarked on judicial accountability thus:
“Nothing tends more to render judges careful in their decisions and anxiously solicitous to do exact justice, than the consciousness that every act of theirs is to be subject to the intelligent scrutiny of their fellowmen, and to their candid criticism.”
Sometimes judicial independence and true judicial conscience have led to somewhat tragic situations, but that is not to say that it is good reason to give them up, for that would be more tragic, in fact the death-knell of the judicial system. We all know under what circumstances one of our greatest judges, a champion of freedom and liberty, had to quit office. The loss to our judiciary was greatest, but judicial independence emerged victorious. In his case, it was not a mere lip service to judicial independence; he was ready to, and in fact did, pay the price for being fiercely independent.
Lord Patrick Devlin of the Queen’s Bench of the High Court of England in his book “The Judge” writes that the social service which the judge renders to the community is the removal of a sense of injustice. According to him, “To perform this service the essential quality which he needs is impartiality and next after that the appearance of impartiality. I put impartiality before the appearance of it simply because without the reality the appearance would not endure”. The sense of justice which a judge imbibes in the minds of the public and the impartiality, including the appearance of impartiality, are supreme judicial virtues, according to the learned law Lord. It is his view that “We ought never to forget that judges……. are the institutions which secure us from comparable disorders within the nation and that their value to the community is to be measured by the extent to which they do this and not by the extent to which their judgments and verdicts are pleasing to the critical eye”.
We ought not in the ultimate analysis forget that judges are human beings and are prove to err. The error by itself is not fatal, for it can be corrected in appeal or review, depending upon the procedural law. But if the error is the end-product of an unfair or biased hearing and an improper procedure giving a go-by to the essential steps in the decision-making process, that reflects poorly upon the judge. This is one principle that is fundamental and permeates through judicial systems in all democratic countries. The ultimate decision may be wrong, but the means of reaching the decision should all be right, just and proper.
I will now move on to the other branch of today’s topic, that is, the Principles of Natural Justice.
Justice really means fairness in action. The principles of natural justice are all about fairness or fair play. According to Lord Evershed, Master of the Rolls in the leading case of Abbott v Sullivan (1952) 1 KB 189, “the principles of natural justice are easy to proclaim, but their precise extent is far less easy to define”. It is with this difficulty in the background that we must attempt to approach, analyse and appreciate the topic.
At some point of time, it appears that natural justice and natural law were words that were used interchangeably but in the past several decades the words are used to denote certain rules that are to be followed in judicial proceedings.
Several definitions of what the rules or principles of natural justice are have been attempted but all of them can be synthesised into the following basic principles:
a) No man shall be a judge in his own cause;
b) Both sides should be heard, which is denoted by the maxim “audi alteram partem”.
In several early judgments these principles have been expressed in different words but the substance was the same. In an early decision in England in 1885 the Earl of Selborne, Lord Chancellor used the expressions “substantial requirements of justice” and “essence of justice”. He also stated that an opportunity of being heard shall be given to the party likely to be affected by the decision of the adjudicating authority, that the person charged must be informed of what he is being charged with, that he must act impartially and honestly, that he should not act under the dictates of another person and so on and so forth. All these however refer to the same idea and are only refinements or extensions of the two basic rules mentioned above. In 1949, Lord Tucker in Russell v Duke of Norfolk sorted out the issue with consummate ease and provided a solution in the following words, which are by and large accepted even today as a satisfactory answer to the question: “The requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with and so forth.”
In India, the meaning of ‘natural justice’ came up for consideration in the Supreme Court in the case of Swadeshi Cotton Mills v UOl AIR 1981 SC 818 where Justice Sarkaria, speaking for himself and Justice D.A. Desai observed thus:
“The phrase is not capable of a static and precise definition judges nurtured in the traditions of British jurisprudence often invoked it in conjunction with a reference to “equity and good conscience”. Legal expertsof earlier generations did not draw any distinction between ‘natural justice’ and ‘natural law’. Natural justice was considered as “that part of natural law which relates to the administration of justice”.
What is the difference between “natural justice” and “legal justice” or “justice according to law”? It has been recognised that natural justice, when authoritatively formulated by law becomes legal justice. These two are therefore not water-tight compartments.
Lecture delivered by Justice Easwar on 21st February 2012, during the Orientation & Training Programme of newly appointed Members of Income Tax Appellate Tribunal. Reproduced with permission from the AIFTP Journal, March 2012