Belling the Cat: Judges under fire!
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Belling the Cat: Judges under fire!

Margaret Cavendish the Great English philosopher has rightly said that – “A judge is easy to be had, but to get an impartial judge, is a thing so difficult”

Post by on Tuesday, August 23, 2022

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Recent comments by Justice P Krishna Bhat of the Karnataka High Court who retired recently have again caused a stir in the hallowed corridors of the courts of justice by suggesting that judges, Lokayuktas and other higher officials should subject themselves to narco-analysis tests if there are allegations levelled against them. Justice Bhat was speaking at a farewell organised for him in the high court. He went on to say that "It may appear absurd and drastic. Judges, judicial officers and such other high functionaries like Lokayukta/UpaLokayukta, etc, should offer themselves for narco-analysis test,"

The statement was given in context of the complaints that are being heard alleging that judges during their probation and promotions end up delivering judgements that they are told to. It was also said by him that "Such situations have caused incalculable damage to credibility of the functionary in particular and institution at large." 


In fact, a new study titled- Jobs for Justice(s): Corruption in the Supreme Court of India has thrown light on the relationship between post-retirement jobs and pre-retirement judgements, a concern that has been flagged by many, including law makers and even judges. It has further shown that authoring pro-government judgements increases the likelihood of post-retirement jobs for judges. The study constructed a data set of Supreme Court of India cases involving the government for 1999-2014 and it was found that the incentives to pander have a casual effect on judicial decision making and that they are jointly determined by the importance of the case and whether the judge retires with enough time left in a government’s term to be rewarded with a prestigious job.


Justice P Krishna Bhatt also said that the judges who expect differential and deferential treatment ‘render themselves unfit to hold and public positions. Such vanities are destructive of judicial independence.’ The said statement came in context of a High Court judge who wrote to the then Chief Justice to take action against a District Judge because the latter did not receive him personally at the airport. 

Offering the narco-analysis test as a solution to the complaints that were being made against the judges, it was also felt that the imposition of such a test would act as deterrence to all those judges who go against the rule of law in order to get personal gratification. Being a judge is a sacrosanct task hence any actual or perceived lack of judicial integrity would definitely pose a great threat to the RULE OF LAW.


Elaborating on what he meant, Justice Krishna also said-"If the progeny of the judges of the most superior court in the country call on the judicial officers at their residence with eager litigants in tow with an attempt to pass slips and thereafter, drop the name of their forbear with hints of protection, then there is a serious problem to the independence of the judiciary," 

The dangers of such conduct cannot be stressed enough. Judges are always considered independent people with great wisdom and courage and their appointment is to always be free from and influence or pressure of executive or legislative bodies. The powers, rights and duties of the judges not only apply inside the courtrooms, but also outside of them. In various judgements, the courts have opined that justice relies heavily on perception and as the maintenance of the discipline in the judicial services is of utmost importance, the acceptability of the judgement passed by the sitting judge is based upon the credibility of honesty, integrity, conduct and character of the officer. Any lack of integrity, whether actual or perceived, shown by a judge, will immediately affect the litigating public. The Apex court has also held that the judicial officers cannot have two different standards, one in court and another outside, they should have only one standard, and that is honesty, integrity and justice. Five things are requisite to a good officer — ability, clean hands, despatch, patience, and impartiality.A lack of even one of these is sufficient to raise doubts on his suitability to sit as a judge.


Another study by the Vidhi Centre for Legal Policy in 2016 found that out of 100 retired Supreme Court judges, as many as 70 had taken government-appointed positions. This has to be taken into account, keeping in mind that the Union Government is the single biggest employer of retired Supreme Court judges. It has also been noticed these days, that such appointments are not transparent and follow no particular system. They are politically driven and hence pose a big threat as they give an opportunity to the government to dangle these cushy jobs as a carrot before the judges while hearing cases involving the government. Another point to ponder is that the Indian State is the biggest litigator before the courts with at least 46% of the pending litigation having the state as a party. As per the study, in 56% of these post-retirement appointments, it is a mandate that the position must be filled by a retired judge as the majority of the post retirement jobs for the Supreme Court judges are as judges in the Tribunals like National Consumer Dispute Redressal Commission, National Company law Tribunal and others. These tribunals are quasi-judicial bodies that were constituted in order to reduce the burden of the courts but it has been observed recently that most of the seats in the tribunals are lying vacant these days which is further reducing their effectiveness.


The acceptance of his nomination in the Rajya Sabha by the Retired Chief Justice of India, Ranjan Gogoi which is an unprecedented action has thrown a big question mark on the system of post retirement jobs being offered to the judges. Statistics show that the odds that a Supreme Court justice gets a post-retirement job is increased by 15-20% with every judgement that is favourable to the government. Even though there are judges who take up private jobs and use their experience and skills in other areas, there are also judges who get appointments from the Supreme Court itself like Justice R M Lodha who was handed the BCCI case. Then there are judges like Justice V R Krishna Iyer who became a Supreme Court judge after being a minister and judges who take statutory jobs like posts with bodies like National Green Tribunal, National Human Rights Commission. It is pertinent to see here that it is a politician who ultimately decides the name of the judges who will hold these positions in the Commissions and it is most often than not based on criteria other than merits.



Most people also say that 65 years is a very young age to retire. A suggestion was made to increase this retirement age to 70 years on the condition that any statutory position that has to be given, shall be given only within the tenure of the judge. This was thought to make an impact that would counter the post-retirement incentives however no steps have been taken as yet in this direction.


The suggestion by Justice P Krishna Bhat regarding conducting a narco-analysis test also comes with its own problems as it cannot be conducted on any person without his consent as per the judgement of the Apex court.Such procedures “are illegal and a violation of personal liberty", as has been ruled by a three-judge bench headed by Chief Justice K.G. Balakrishnan. Prosecuting agencies and the police have been using such tests and various courts in the country have been giving conflicting judgements on their validity. Conducting these tests on the judges would also have far reaching consequences as there are other legalities that have to be considered. The fact that “no person accused of any offence shall be compelled to be a witness against himself" as per Article 20(3) of The Constitution of India cannot also be overlooked. Even though there is no scientific literature to prove that truth serum works, human rights groups have held the tests to be mental torture and violative of the fundamental rights of a person.


Justice ES Venkataramaiah has said-

"An independent Judiciary can be attained by the judge internalising certain values and virtues. It is the judge who is a recluse who makes for an independent judiciary”.


At the end of the day, every single judge, carries on his shoulders, the responsibility of ensuring that the sanctity and the impartiality of the judiciary is maintained and remains untainted.


Trust, patience, knowledge, intelligence, impartiality and good skills are the most important qualifications of a good and independent judge and if this problem of a non-independent judiciary is not checked, chances are that it will eat up the entire system from within.


The bedrock of our democracy is the rule of law and that means we have to have an independent judiciary, judges who can make decisions independent of the political winds that are blowing, however, it also needs to be kept in mind thatIndependence of Judiciary means independence from Executive and Legislature, and not independence from accountability.


(The author is an Advocate on Record practising in the Supreme Court of India,   Delhi High Court and all District Courts and Tribunals in Delhi. She has done her Doctorate in Criminal Law and is the Legal Member in the Internal Complaints Committee of various private as well as Government Organizations. She is also an empanelled advocate of various government institutions. Email: 


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