‘JUSTICE MUST SEEN TO HAVE BEEN DONE’ FOR NOTHING INSTILLS MORE PUBLIC CONFIDENCE
By: Purvish Jitendra Malkan
किं कार्यमश्य वै ब्रत दण्डो वै कोऽस्य पात्यताम्।
सम्यक्प्रणिहिते दण्डे प्रजा भधति रक्षिता॥३२॥[1]
Adequate and appropriate punishment is seen to have been awarded to the delinquent in accordance with law, (Justice must be seen to have been done in accordance with law), for nothing instills more confidence in people’s minds.
The doctrine of people’s confidence in the administration of justice could be traced from a period of Lord Rāmāchandra (c. 2350-1950 B.C.). “Rāmā-Rajya” is a term which symbolises ideal administration or governance. “Rāmā’s rule” is still proverbial for Golden Age[2]. During the inaugural address in the first meeting of the Constituent Assembly of India, its Chairman Dr. Sachchidananda Sinha said that the assembly has a vision of restoring India to her pristine glory[3]. Meaning thereby, they aimed to frame a Constitution, which could be a blueprint for administration and governance as similar to that of Rāmā-Rajya.
Dhārmā means an ultimate principle of appropriate, social, and rational human behavior. Dhārmā in true letter and spirit could be said to have prevailed during Lord Ramchandra period. In Rāmāyana one finds that Devi Sita too was exiled in the name of Dhārmā, for itinstilled public confidence through Nayaya of Lord Rāmā. Devi Sita was sent to exile after hearing a washerman shouting at his wife who had taken refuge in the house of the a boatman during a storm as, “Get out, Rāmā may keep a wife who has spent many nights in another man’s house, but I will not”.[4](emphasis supplied)
Lord Rāmā in order to avoid mockery, criticism, and disgrace of a dynasty at the hands of the public, having first hand witnessed people’s derision, preferred to send Devi Sita to exile. Though Lord Rāmā fully being aware of Devi Sita’s complete innocence had taken criticism upon the queen as a shame and disgrace of a dynasty. While exiling Sita, thus Lord Rāmā stated that:
“अकीर्तिर्यस्य गीयेत लोके भूतस्य कस्यचित्
पतत्येवाधमाँल्लोकान् यावच्छब्दः प्रकीर्त्यते। ॥१२॥
If anyone’s disgrace is the subject of discussion, then such human will fall in the eyes of the public, he remains to be there till such disgraceful discussion continues.
अकीर्तिर्निन्द्यते देवैः कीर्तिलोकेषु पूज्यते ॥
कीर्त्यर्थ तु समारम्भः सर्वेषां स्नुमहत्मनाम्। ॥१३॥
God condemns disgrace and praises fame. All the auspicious occasions of the great Mahatmas are for the purpose to establish the best fame.
अप्यहं जीवितं जह्यां युष्मान् वा पुरुषर्षभाः
अपवादभयाद् भीतः किं पुनर्जनकात्मजाम्।॥१४॥[5]
Oh. best of humans, I can sacrifice myself and you all to save from public disgrace. Even Sita can be sacrificed to save dynasty from disgrace”.
Lord Rāmā held the honour, respect, and fame of the Ishvaku dynasty above Devi Sita the queen (Devi Laxmi herself), and had given prominence to public opinion while balancing his personal opinion about the queen for protecting the image of a dynasty with its sovereignty. Dhārmā to Lord Rāmā was to protect fame and grace of his dynasty even at the cost of exiling the queen, who in his personal opinion was blameless. According to lord Rāmā, queen of the Ishvaku dynasty had to be above blame, criticism and suspicion. Mocking by the public would provide an opportunity to the people to feel superior to the King and subjugate an entire Dynasty to continuous disgrace till it was remedied. So is the situation with Judges. Judges must be above blame, criticism and suspicion to protect the grace of Judiciary. Even slightest disgrace, mocking, criticism or suspicion to a judge would require a judge to lay his hands off for an issue where he is such subjected. Judge’s personal opinion for himself is immaterial when public opinion is not in his favour. If personal opinion of a Judge for himself is given prominence over public opinion, then not only the judge but the institution of judiciary would be subjected to disgrace and it will continue with disgrace till such mocking.
Let me narrate yet another story of Lord Rāmā. Once when Lord Rāmā was resting beneath a tree and where he happened to hurt a squirrel with his foot unknowingly. Rāmā noted blood of squirrel near his foot and the squirrel suffering from pain due to injury caused by him. Lord Rāmā asked squirrel as to why it did not complain or cried when it was being hurt. The squirrel replied obediently that “if the injury would have been caused by someone else, I would have complained to My-Lord, but when My-Lord himself causes injury, whom shall I complain as My-Lord will not be able to punish himself to my satisfaction. I will always have a doubt in my mind as to the extent that whether the punishment that My-Lord has imposed upon self was sufficient and adequate”. Squirrel, since it did not have confidence upon the justice that would have been rendered by Lord Rāmā for the injury that he caused to squirrel, it preferred not to complain at all than to lose trust and confidence upon the Lord.
Thus, it is imperative that fairness and impartiality of a judge must be visible to all. If public opinion is not in favour of a judge of being impartial or fair, even though judge himself is of the opinion of being fair and unbiased he must lay off his hands in rendering justice. Acting contrary would affect dignity of the institution of the judiciary as a whole. Grace of an institution cannot be put at stake to adhere to a Nayaya-Palak’s personal set of beliefs for himself.
Lord Hewart, Chief Justice asserted Rule of Law in Britain and had given vociferous importance to unbiased justice in his words, “It is not merely of some importance, but is of fundamental importance that justice should not only be done but manifestly and undoubtedly be seen to be done.”[6]
Public confidence shall not be equated with public opinion. Public opinion is the limb of legislation whereas public confidence is that of the judiciary. Law is to be enacted in terms of public-opinion and it ought to be interpreted in a manner that secures ends of public confidence. Public trust and confidence with public satisfaction in the administration of Justice is a priority of the institution of Justice. The rule against bias is the fundamental requirement for securing confidence. Manu-Smriti in chapter seven with respect to the rules and conduct which should be followed by the King and the mode by which he shall achieve the highest success has laid down criteria of being a king to be pure and impartial for exercising the rod of punishment to the delinquent.
शुचिना सत्यसंधेन यथाशास्त्रानुसारिणा ।
प्रणेतुं शक्यते दण्डः सुसहायेन धीमता ॥३१॥[7]
A pure, impartial, devoid of pleasure of the senses, an intelligent king possessed of good allies and acting conformably to the teaching of the Sastra is alone capable of exercising the rod of punishment.
Justice Frankfurter has observed that “The Court’s authority – possessed of neither the purse nor the sword – ultimately rests on sustained public confidence in its moral sanction”[8]Judiciary being ‘least dangerous branch’ from amongst our country’s democratic mechanism it has managed to hold command for a long time now even against substantial law-making majorities because of its special status of it being with the public.[9] The public confidence here does not mean and to understand, to gain popularity. It means to ensure the need to sustain the people’s sense that justice is done in a fair, objective and unbiased manner. Judicial decision howsoever may be honest and unbiased it may be, must pass the muster of public confidence in reflecting an impartial and unbiased approach of a judge in reaching the conclusion.
The rule against bias has evolved to a great extent. Applying the test of likelihood of bias, Lord Denning has held that the judge must be above bias or prejudice. It is in the judge’s hand to protect the institution of the judiciary from being impartial, biased or carried away by any senses. Lord Denning says it: “Justice must be rooted in confidence and confidence is destroyed when right-minded people go away thinking the judge was biased”[10] (emphasis supplied). It is true that judges are human and humans are a social animal. Therefore, ideal isolation for a judge from personal senses may not be completely possible. However, isolation to the extent possible is desired.
Rule of bias is summarised in the following principles:
- Nemo debet esse judex in propria causa – No man shall be a judge of his own cause.[11]
- “It is not merely of some importance, but is of fundamental importance that justice should not only be done, but manifestly and undoubtedly be seen to be done.”[12]
- Judges, like Ceasar’s wife, should be above suspicion.”[13]
The rule against bias has been developed to secure public confidence in the judiciary. It is not sufficient that the judge must not only be unbiased but must show himself to be unbiased. The visible unbiased attitude of the judiciary could only secure public confidence and protect the fame of the judicial institution. Judiciary is the ultimate hand which could protect people from the mighty hands of a majoritarian legislature and superpower executives. It is, therefore, the prestige and stature of this institution that is to be protected. Judges, therefore, must see that public confidence is maintained by their conduct. Judges are expected not to act in any manner which could hamper public confidence in the slightest manner. Distrust in the judicial institution may mark the beginning of the end of the society.
The competence and performance of the Judges in the judicial activities inside the Court-rooms and also in their non-judicial activities must be of levels well valued and regarded by the community at large. Manu-Smriti (Supra) has defined certain conducts for King which he is required to adhere to like pure, impartial, devoid of pleasure of the senses and learned. Defined conduct of King in Manu-Smriti would be equally applicable to the Judges as a judicial function is one of the functions of Sovereign. If I may take the liberty to elaborate upon other conducts which is expected norms of judges in present time, it could be ethics, courage, personal integrity, experience, hard-work, suitability to workload, punctuality, courtesy, patient hearing, good judgments meeting the points raised by the Counsel and pronouncement of Judgment in prompt time are some of the important facets of expected norms of the Judges. If majority of Judges practice these essentials, there would be a good judiciary, inspiring public faith and confidence.
The recent judgment of the Hon’ble Supreme Court of India rendered by a five-judge bench in Indore Development Authority[14] in my humble opinion has turned to its head the principle of ‘primacy of public confidence in the judiciary,’ by laying down the test that “it is for the Judge to decide and to find out whether he will be able to deliver impartial justice to a cause with integrity with whatever intellectual capacity at his command and he is not prejudiced by any fact or law and is able to take an independent view. The answer would lie in examining whether without having any bias or without any pressure or not even irked by such a prayer for recusal, can he decide the case impartially”.
In my opinion, to put straight the point is that a fundamental rule of justice is the people’s confidence in the judge and not the confidence of the judge in himself as being impartial and unbiased. A judge must not decide and find whether he will be able to deliver impartial justice to a cause with integrity, more particularly when right-minded people think of the judge being biased or will not deliver impartial justice. When the confidence of right-minded people is not with the judge, the judge must recuse himself in deciding the cause. Acting upon a cause by a judge when recusal has been sought would lead to mocking and criticising such action of the judge and would ultimately criticizing the institution and thereby institution would be disgraced and it will continue to be so till mocking and criticism subsists.
Supreme Court further in the judgment of Indore Development Authority (Supra) has held in para 44 as “… nothing should come in the way of the dispensation of justice or discharge of duty as a judge and judicial decision-making. There is no room for prejudice or bias. Justice has to be pure, untainted, uninfluenced by any factor, and even decision for recusal cannot be influenced by outside forces.” Supreme Court has given the proximity to the duty of a judge and his opinion of himself being unbiased or impartial as against the primacy of people’s opinion, which is contrary to well-settled principles of Dhārmā being derived right from a period of Rāmāchandra. If the importance of the performance of duty of a judge is balanced against the reputation of the institution which could be protected by such non-performance of his duty by a judge, then the balance would definitely lean heavily in favour of the reputation, grace and fame of the institution. The judge might feel to be failing in performing his duty by recusing in a cause, which in the opinion of a judge for himself is that he is impartial and unbiased, but such recusal would instil confidence in the minds of people for the judicial institution as a whole.
The situation when recusal has been sought on the ground that litigant or public has no confidence in getting justice at the hands of a particular judge, then permitting the very same judge to find out whether he will be able to deliver impartial justice would be a decision of one own cause. In my opinion therefore, always it would be beneficial to protect the public confidence by a recusal rather than to decide for maintaining the precious assets in the judiciary by building public confidence.
It is true that it is the duty of the Judge to dispense justice in an impartial and unbiased manner. However, such duty must have been manifestly and undoubtedly be seen to be dispensed in an unbiased and impartial manner. The grace of the judicial institution will only be preserved and protected till the confidence of the public exists in the judgment of being impartial and unbiased.
In my opinion, by the judgment of Indore
Development Authority (Supra), public confidence has been lost for the decision
that is to be rendered on the merits of the cause involved in the said case.
Further by said judgment, the institution is subjected to mockery and criticism.
The test rendered in the said judgment as mentioned hereinabove is contrary to
the fundamental principles of Natural Justice. Therefore, in order to uphold
the grace of the institution, said judgment does require reconsideration.
* Advocate-on-Record, Supreme Court of India; Visiting faculty, Symbiosis Law School, Noida and P.hd Scholar G. D. Goenka University
[1] Uttar Kāndā, Shrimad Valmiki Rāmāyan (Geeta Press, Gorakhpur, Verse 32, Appended 2nd Part to Chapter 59)
[2] A.D. Pusalker, Traditional History from the Earliest Time to the Accession of Parikshit, 295 (Bhavan’s Book University, The History and Culture of The Indian People – “The Vedig Age” Seventh Edition)
[3] Dr. Sachchidananda Sinha, I Constituent Assembly Debates, Lok Sabha Secretariat, 7 Book No 1
[4] Devdutt Pattannaik, Sita an Illustrated Retelling of Ramayana, 272 (Penguin Books)
[5] Uttar Kāndā, Shrimad Valmiki Rāmāyan (Geeta Press, Gorakhpur, Verse 12 to 14, Chapter 45)
[6] R. Vs Sussex Justices, (1924) 1KB 256;
[7] ManuSmriti, (Chowkhamba Vidyabhawan, Varanasi, Verse 31 Chapter Seven)
[8] Baker Vs. Carr 369 US 186 (1962)
[9] Gregory A. Cldeira, Ohio State University, Article on Nither the Purse Nor the Sword: Dynamics of Vs. Public Confidence in the Supreme Court; published in JSTOR available at https://www.jstor.org/stable/1960864?read-now=1&seq=1#metadata_info_tab_contents retrieved on 23.05.2020 at 4:20PM
[10] Metropolitan Properties Ltd. Vs Lannon, (1968) 2 All IR 304
[11] Egerton Vs. Lord Derby, (1613) 12, Frome United Breweries vs Bath Justices (1926) AC 586: (1926) ALL ER 576
[12] R. Vs Sussex Justices, (Supra)
[13] Lesson v. General Council of Medical Education & Registration, (1886-90) All ER 78
[14] Indore Development Authority Vs. Manohar Lal, 2019 SCC Online SC 1392 (Views Expressed are Personal)
