Of judges and judicial communication

By Saurabh Malik

A judge speaks through his judgments, but the judiciary as a whole needs to make a statement about its functioning by putting to an end “shall we talk” predicament and indulging in direct judicial communication.

In a self-governing system where demand for more democratic accountability in a public setup is a well recognised and accepted fact and the need for transparency is no more within the sphere of debate, the judiciary too needs to do away with the obsolete and archaic principles of secrecy and discretion.

It needs to pull down the insurmountable walls shielding its administrative functioning from public glare and make people feel nearer to the justice delivery system by making them aware of its complexities and intricacies.

Every court gives reasons for decisions taken on the judicial side during the hearing of cases. The courts, under obligation to give reasons, do state in their judgments and orders why, and on what facts, circumstances and laws, are the decisions based. It comes as an assurance to the litigant that the court’s decision is not arbitrarily and there are convincing reasons for the orders.

The judiciary, in fact, has since long been following the doctrine of appearance in its judicial functioning, where “not only must Justice be done; it must also be seen to be done”. But the principle considered sacrosanct on the judicial side loses its meaning when it comes to administrative decisions.

Confidentiality in its functioning on the administrative side is a fact the judiciary makes no secret about. For a judge or the prosecutors to make statements is still deemed to be inappropriate and needless. The judiciary almost always works from behind an iron curtain and what takes place in full court and collegium meetings becomes apparent only after the decisions are made public, or find their way into the public domain through media leaks.

The judiciary did make a statement about its functioning in January, 2018, with four sitting Judges of the Supreme Court deciding to speak not just through their judgments, but by holding a press conference and raising concerns regarding the integrity of the institution. But that an extreme case.

Sir Anthony Frank Mason, the ninth Chief Justice of Australia from 1987 to 1995, said judicial reticence has much to commend it; it preserves the neutrality of the judge, it shields him or her from controversy, and it deters the more loquacious members of the judiciary from exposing their colleagues to controversy.

But much has changed since then. The media and other modes of communication have undergone extensive progression. A possible aftermath of the change is that half truth and full lies about decisions taken by the judiciary on its administrative side have done more damage to the institution than the decisions themselves.

It has brought about a loss of trust in the justice delivery mechanism and every decision, no matter how bonafide it is, takes little time to assume the shades of an unfounded and unsubstantiated judicial scandal.

The Supreme Court, in an exceptional move, came out with a statement that said certain reports relating to recommendations recently made by the collegium regarding transfer of Chief Justices/Judges of the high courts have appeared in the media.

It said each of the recommendations for transfer was made for cogent reasons after complying with the required procedure in the interest of better administration of justice. It would not be in the interest of the institution to disclose the reasons for transfer. But the collegium, if found necessary, would have no hesitation in disclosing the same.

The courts need to remember that judicial communication is no more in the realm of desirability. It is essential to come out with precise and constructive information without breaching the procedural values and damaging the image of justice delivery mechanism.

Judges, like Caesar’s wife, should be above suspicion. But when their silence speaks louder than their words and creates an aura of suspicion toward his own image or the mechanism’s conduct, quietness needs to be shunned.

The judges need not comment on individual cases, but the judiciary needs to augment its image and build credibility and public confidence towards the Court through effective communication. Ways need to be devised for the judiciary to indulge in effective communication with society and mass media and its members should be made aware of communication strategies for improving grasp and acceptance of their administrative decisions.

Only SC can hear disputes between Centre, state govts

When the Centre and the states fight, the high courts cannot act as a referee. Only the Supreme Court can step in. The Punjab and Haryana High Court has ruled that the high courts had no jurisdiction to hear disputes between the Government of India and the state governments and only the Supreme Court had original jurisdiction to hear such disputes. The Bench asserted high court lacked jurisdiction in case of disputes that were essentially between the Government of India and state government in view of the Article 131 of the Constitution of India. Article 131 makes it clear the Supreme Court of India has original jurisdiction over such matters once it is established that the dispute is between a state government and the Government of India regardless of its nature.