A judge’s independence, paradoxically imposes duties on him (or her): duty to decide according to law and binding precedent, rather than individual choice of the judge’s notion of justice of the case; the duty to not only do justice, but follow a fair procedure which accords with notions of justice: “appear to be doing justice”, which in turn would mean that the judge is not completely “free” to follow a personal agenda, but has to decide the merits of the case, according to facts presented by parties.
The second duty – another dimension of independence- is that judges do not decide cases by dictates of popularly held notions of right and wrong. Indeed a crucial part of the judge’s mandate is to uphold those fundamental values upon which society organizes itself; here, if the judge were to follow transient “popular” notions of justice, the guarantees of individual freedoms, entrenched in the Constitution, would be rendered meaningless.
The precondition of ‘public confidence’ runs the risk of being misunderstood. The need to ensure public confidence does not mean the need to ensure popularity.
All power – judicial power being no exception – is held accountable in a modern Constitution. Holders of power too are expected to live by the standards they set, interpret, or enforce, at least to the extent their office demands.
court is of the opinion that the volitional nature of the resolutions, should be seen as the higher judiciary’s commitment to essential ethical behaviour, and its resolve to abide by it.
Members of the higher judiciary in this country occupy high Constitutional office; the Constitution designedly devised only one procedure for removal, and conferred immense confidence on these functionaries. The assumption was, and continues to be that holders of these offices are women and men of impeccable credentials, and maintain the highest standards of probity in their professional and personal lives. They are deemed to be aware of the demands of their office, and the role of judges. Therefore, if they consciously decide to create a self-regulatory norms, their adherence is guaranteed.
it is immediately apparent that the CJI cannot be a fiduciary vis-à-vis Judges of the Supreme Court; he cannot be said to have superior knowledge, or be better trained, to aid or control their affairs or conduct. Judges of the Supreme Court hold independent office, and are there is no hierarchy, in their judicial functions, which places them at a different plane than the CJI.
If public servants – here the expression is used expansively to include members of the higher judiciary too – are obliged to furnish asset declarations, the mere fact that they have to furnish such declaration would not mean that it is part of public activity, or “interest”.
no law bars public servants from acquiring properties, or investing their income. The obligation to disclose these investments and assets is to check the propensity to abuse a public office, for private gain. If the information applicant is able to demonstrate what Section 8(1) (j) enjoins the information seeker to, i.e. that “the larger public interest justifies the disclosure of such information” the authority deciding the application can proceed to the next step, after recording its prima facie satisfaction, to issue notice to the “third party” i.e. the public servant.
The obligation to give access or deny access to information, is today controlled by provisions of the Act, as it presently exists. It nowhere obliges disclosure of assets of spouses, dependants and children – of judges. Members of the higher judiciary are, in this respect entitled to the same protection – and exemptions- as in the case of other public servants, including judicial officers up to the District Judge level, members of All India services, and other services under the Union.
For the purposes of this case, however, the particulars sought do not justify or warrant that protection; all that the applicant sought is whether the 1997 resolution was complied with. That kind of innocuous information does not warrant the protection granted by Section 8 (1)(j).
An honest, but strict or unpopular judge can be unfairly vilified, without anyone giving his version; similarly, unfounded allegations of improper personal behaviour cannot be defended by the judge in public, even though they can be levelled freely; they may tarnish his reputation or worse, and he would have to smart under them, under the haunting prospect of its being resuscitated every now and then.
The perception that the wheels of justice grind too slowly, in the meanwhile, continues. For the litigant, who pins his hopes on speedy resolution of his disputes, these explanations may wear thin; yet the judge who tries cases is not superhuman; the judge is as human as any other citizen.
The popular public perception is that judges do not work after official hours, and enjoy long vacations, a hangover of the British Raj. On the contrary, a crushing load ensures that judges put in equal number of hours, sometimes more, than what is spent by them, in open court, resulting typically in 10-14 hour working days, at times more. Most Saturdays are working days, if the judicial officer or the judge has to be “on par” with the judgments and orders that are to be prepared and announced. If judges have to understand and deal with all the cases listed before their courts, they would also have to spend some time, beforehand, reading up the previous day.
It would be useful to quote Dr. Barrack, from “The Judge in a Democracy” again, as it summarizes the values which every judge is committed to live by: “ As a judge, I do not have a political platform. I am not a political person. Right and left, religious and secular, rich and poor, man and woman, disabled and nondisabled, all are equal in my eyes. All are human beings, created in the image of the Creator. I will protect the human dignity of each. I do not aspire to power. I do not seek torule. I am aware of the chains that bind me as a judge and as the president of the Supreme Court. I have repeatedly emphasized the rule of law and not of the judge. I am aware of the importance of the other branches of government – legislative and executive – which give expression to democracy. Between those two branches are connecting bridges and checks and balances. I view my office as a mission. Judging is not a job. It is a way of life. Whenever I enter the courtroom, I do so with the deep sense that, as I sit at trial, I stand on trial.”
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