Judicial Discipline

The recent directive of the Supreme Court to the High Court to exercise caution when summoning senior government officials to be present in the court is timely. Such a tendency of High courts and even administrative courts (who are vested with powers to issue notices of contempt) has been on the rise in the last few years, perhaps emboldened by the Supreme Court summoning the then Secretary, Department of Economic Affairs and the then Director of CBI to be present in the court on a daily basis in the notorious hawala scam case. Very often the courts exercise this power to show off their authority irrespective of considerations of expenditure involved and the waste of time. Surely this is not the only option available with the court to ensure compliance with their directions.
The recent observations of the apex court that judges should have modesty and humility and have respect for the executive are a refreshing departure from the remarks of Justice R.N.Agarwal in the DMK’s bandh call case. The sterling observations of Justice Gajendra Gadkar in the 1965 SC 745 emphasising “restraint, dignity and decorum” extracted in the brilliant article by V.R.Krishna Iyer “Contempt, Power and some Questions” (The Hindu, Oct 1st) should serve as model guidelines for the judges in their approach to the executive.
The strident criticism of the observations of Justice Agarwal in The Hindu followed by the reactions of the readers is a measure of the growing concern that the judiciary should not allow itself to be swayed by considerations other than judicial in dealing with sensitive matters having political overtones. There is no quarrel with the proposition that the Constitution envisages the independence of the judiciary within the overall scheme of the separation of powers. Judges like Cesaser’s wife, should be above suspicion. The example of the then Federal Court Judge Shri S.Varadachari in politely declining the invitation of Prime Minister Nehru to tea on this very ground shows the extent to which the judiciary was particular about its conduct in those days. The respect of the executive for the judiciary in the post independence period was reflected in the apology tendered by Nehru immediately after he was criticized by the Opposition for his muted criticism of Justice Vivian Bose of the Supreme Court when he was appointed as a Commission of Inquiry.
Since then, these healthy traditions have been given a short shrift. The judiciary did not cover itself with glory when it delivered a judgment upholding the declaration of Emergency, thus “crawling when it was asked to bend.” The then Chief Justice of India’s letter congratulating Indira Gandhi on her return to power and some judges seeking favours with the state governments for allotment of land for housing, eroded the esteem with which the public held the judiciary. In recent times, the delicate balance between the judiciary and the executive as laid down in the Constitution has been upset on several occasions. The ivory tower approach of the judges in the case where they have asserted that the judiciary alone has powers to transfer judges has only widened the gap. Politicians, especially those from the regional parties, have been making reckless and provocative statements against the judiciary. At such times it becomes all the more important for judges to exercise self restraint in reacting to such baits.
Considering the huge backlog of cases, judges need to devote their energy and time for clearing pending cases and resist the temptation to enter into the thicket of controversy. This will ensure that the prestige of the judiciary as a sentinel of democracy will be restored.