Indian Judiciary: Guarding the guards
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Indian Judiciary: Guarding the guards

The judiciary’s independence does not free it from the duty of being publicly accountable in the democracy of India as it is known as the guardian of constitutional rights and obligations

Post by on Monday, July 4, 2022

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It is said – “Being a judge is as equally beautiful and utterly absorbing, as being a doctor or a scholar. The profession of being a judge is not a good career for persons who do not possess a sufficiently well-established sense of personal and professional dignity, the virtue of personal integrity, impeccable past, professional knowledge, social and family maturity, and personal maturity to be able to assume full responsibility for each ruling passed in accordance with the law and their own conscience.”

When being a judge is such a sacrosanct task, any actual or perceived lack of judicial integrity would definitely pose a great threat to the RULE OF LAW.

One of the primary guiding forces that dictates the desired conduct of a judge are THE BANGALORE PRINCIPLES, which were adopted in April 2003 by The United Nations Human Rights Commission as “the first ever instrument not drafted by representatives of governments to have been accepted and endorsed by the United Nations”

They are:

·         Independence.

·         Impartiality.

·         Integrity.

·         Propriety.

·         Equality.

·         Competence and diligence.

These principles are still in force and act as a beacon of light to all the judges helping them to act in a fair and impartial manner.

A recent development wherein three sitting Supreme Court judges, including the current CJI have set up a new Mediation Centre on land given by the Government has caused an uproar in the legal echelons of the society. The formation of The International Arbitration and Mediation Centre (IAMC) in Hyderabad under the initiative of  CJI N.V. Ramana, Justice Hima Kohli and the recently retired Justice L. Nageswara Rao wherein the first is the author of the deed of public charitable trust, and the remaining two are trustees of the same, along with few others has acted as a siren call for most people who contend that the judges could not have acted in their official representative capacity as the court, as per the norms, cannot set up a mediation initiative for a fee. Under such circumstances, setting up such a centre by seeking land from the government seems to be on the face of it- inappropriate.

In a democratic set up like that of India, the judiciary being the custodian of Constitutional rights cannot be said to be above public responsibility. Justice Mr Mukharjee and S.H. Kapadia have said-“When we talk about ethics, the judges normally comment upon ethics among politicians, students, professors, and others. But I would say that for a judge also ethics, not only constitutional morality but even ethical morality should be the base.” Every judge has to and must abide by the code of ethics. All decisions have to be honest. Care must be taken that no man is a judge in his own matter, This rule has to apply not only where a judge is a party to a case but also where he/she has an interest. The judges must ensure justice- “ Fiat Justitia, ruat caelum” i.e. let justice be done though the heavens fall! Principles of Equality have to and must be followed at all costs. Keeping all the above mentioned factors in view, it is indeed a dangerous trend to have judicial intervention in the matters of Mediation. Rule 2 of the Mediation /Conciliation Rules says:

The parties to a suit may agree on the name of a sole mediator/conciliator for mediating between them. In that event, he shall be appointed as mediator/conciliator.
If the parties fail to agree on the name of a mediator/conciliator, then the Court shall appoint one or more mediator/conciliators out of the panel of mediator/conciliator referred to in Rule 3.

The above rule clearly says that courts will interfere only when the parties themselves fail to agree on the name of a sole mediator/conciliator for mediating between them. Hence ‘suggesting’ the name of a mediation centre and/or a mediator at the outset may seem like a circumvention of the clearly stated rule 2.

Another bone of contention for most is the post-retirement jobs that are given to judges. The judges are always considered independent people with great wisdom and courage and their appointment is to always be free from any influence or pressure of executive and 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 service is of utmost importance, the acceptability of the judgement passed by the sitting judges is based upon the credibility of the honesty, integrity, conduct and character of the officer. If there is a lack of integrity and character of the judicial officer, the litigating public gets affected by it. The post-retirement jobs of the judges can have a major effect on the integrity of the judiciary as the judges are solitaires that have a large responsibility on their shoulders. The Apex court has held that 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.

The judiciary’s independence does not free it from the duty of being publicly accountable in the democracy of India as it is known as the guardian of constitutional rights and obligations. Constitutional as well as moral ethics are to be followed by judges while deciding cases. In connection to the issues over mediation center, it needs to be taken into account that over the recent past years, the Indian judiciary has welcomed the method of mediation for resolving disputes in light of the heavy burden of pending cases on the Indian courts. Mediation is considered the most important aspect of Indian judicial system as a dispute resolution. In fact, some Senior judges who were sensitive and public-spirited even went to the extent of trying to implement mediation within the official court system in the early years. These dynamic judges set up in-house mediation centers, offered staff and space, recommended cases, and helped organize and carry out training for lawyers who wanted to become mediators. Since Indians look up to judges for leads and directions in the sphere of dispute resolution, their participation and support was crucial. It is only because of the active steps taken in the right direction by these legal luminaries that the practice of mediation grew significantly with the increase in number of complex commercial and property disputes, and it was observed that following their retirement, a few judges began practicing mediation while some started undertaking training courses. The job of a mediator is completely in contrast to that of a judge as the former just facilitates a matter between the parties whereas the latter delivers the final decision that binds both the parties to a suit. The transition from being a judge to a mediator is a drastic one and needs to be handled with care. The judges who refer cases for mediation to certain centers also need to ensure that the judicial decision is free of all forms of bias so that it does not take sides and is fair in the real sense. Maintaining a fair judicial system is difficult but not impossible, and each country must take every step to ensure that its justice system is free from all forms of malpractice and malicious intent.

Trust, patience, knowledge, intelligence, impartiality, and good skills are the most important qualifications of a good mediators but these dark clouds which appeared in the Indian legal arena which are also visible in the statement made by the law minister Kiran Rijiju saying that 1631 complaints have been registered regarding judicial functioning and judicial corruption which have been forwarded to the chief justice of India show that all is not well in the Indian Judiciary. If the problem of mediator’s appointments in judicial system is not checked, chances are that it might blow out of proportion and lead to the end of the practice of a great movement of dispute resolution. It is therefore imperative that even post retirement, the judges should remain devoted to the integrity and independence of the judiciary and remember that – “So long as we may have an independent judiciary, the great interests of the people will be safe.”

 

(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. Email: swatijindalgarg@gmail.com) 

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