Lessons from "Judges Against Justice: On Judges When the Rule of Law is Under Attack"

The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.

- Basic Principles on the Independence of the Judiciary, adopted on September 6, 1985 by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan, Italy

 A judge shall not only be free from inappropriate connections with, and influence by, the executive and legislative branches of government, but must also appear to a reasonable observer to be free therefrom.

 -The Bangalore Principles of Judicial Conduct, 2002 adopted by the Judicial Group on Strengthening Judicial Integrity, as revised at the Round Table Meeting of Chief Justices held at The Hague, November 25-26, 2002

Justice must not merely be done but it must also be seen to be done. The behaviour and conduct of members of the higher judiciary must reaffirm the people's faith in the impartiality of the judiciary. Accordingly, any act of a Judge of the Supreme Court or a High Court, whether in official or personal capacity, which erodes the credibility of this perception has to be avoided.

Every Judge must at all times be conscious that he is under the public gaze and there should be no act or omission by him which is unbecoming of the high office he occupies and the public esteem in which that office is held.

A Judge should practice a degree of aloofness consistent with the dignity of his office

- From RESTATEMENT OF VALUES OF JUDICIAL LIFE (As adopted by Full Court Meeting of the
Supreme Court of India on May 7, 1997)

In order to combat despotism, Montesquieu's The Spirit of the Laws argued for a constitutional government with three separate branches, each of which would have defined abilities to check the powers of the others.This book is the key reason why all democratic constitutions provide for separation of powers between legislature, judiciary and executive. 

Unlike India, the Union of States, United States of America (USA) has a Senate Judiciary Committee which was established in December 1816. It is a Committee of 21 Senators. This Committee has a Subcommittee on Separation of Powers besides six other Subcommittees on Constitutional amendments; Oversight of the Civil Rights Division of the Department of Justice; Enforcement and protection of constitutional rights; Statutory guarantees of civil rights and civil liberties; Separation of powers; Federal-State relations; and Interstate compacts. Prior to that a select committee of eight US Senators was appointed one day after the US Senate first convened in 1789 to draft what would became the Judiciary Act of 1789. The select committee was tasked with drafting what would become the Judiciary Act of 1789. The fact remains delegates to the Constitutional Convention of 1787 had not provide d for congressional committees when they drafted the Constitution of the USA.

Once upon a time there was one Sir Edward Chamier, Patna High Court's 1st Chief Justice who kept the judiciary separate from the executive. He refused to invite Viceroy Lord Hardinge and Bihar Lt. Governor Sir Edward Gait. Notably, he involved only judges in the Court's opening ceremony on March 1, 1916.

While reading Judges Against Justice: On Judges When the Rule of Law is Under Attack (2015), a book by Hans Petter Graver of Faculty of Law, University of Oslo, Norway, one was reminded of Looking Back: the autobiography of Mehr Chand Mahajan, former Chief Justice of India (1963). 

The latter recalled how the first Chief Justice of Patna High Court had refused to allow the Lieutenant Governor of Bihar to perform the opening ceremony of the  Patna High Court on March 1, 1916 unlike what happened at the Lahore High Court at its inauguration on April 1, 1919. Sir Michael O'Dwyer, the then Governor of the Punjab presided at the ceremony and administered the oath of office to Sir Henry Rattigan, the first Chief Justice the Lahore High Court. He wrote: "It is a sad commentary on the Punjab Bench and the Bar where the Lieutenant Governor not only presided at the function, but used it to proclaim the 'higher' status of the executive in the Punjab." At the tea party in the evening in the  spacious lawns of the Lahore High Court, he happened to be sitting at the same table with Sir Michael O’Dwyer. During the talk he said that he was strong enough to put a stop to any agitation that might take place in the Punjab. 

This observation of Rattigan assumes significance in the backdrop of agitation against The Anarchical and Revolutionary Crimes Act of 1919 (Rowlatt Act), a repressive legislation enacted during the tenure of Viceroy Lord Chelmsford. It was aimed at curbing seditious activities, through independent tribunals against whose decision lay no appeal, and before whom the accused had no right to be legally represented. It gave the Colonial Government the right to arrest and detain any suspected person without a warrant. The provisions of the Rowlatt Act were a continuation of many provisions of the Defence of India Act of 1915. He recalled that Mahatma Gandhi had proclaimed a plan for a countrywide protest against their passage. As he was boarding the train which was bringing him to Lahore he was arrested. The news of his arrest stunned the Punjab and a hartal was immediately organised in most of the big cities in the Punjab. The atrocities during the Martial Law-regime that followed in the Punjab showed that judiciary acted as an extended arm of the executive. It paved the way for the massacre at Jalianwala Bagh on the April 13, 1919 and a regime of terror never before witnessed since the days of the first war India's independence in 1857. Justice Mahajan recalled Lala Har Kishan Lai was defended by Sir Hassan Imam, a great lawyer from Patna although the trial of the leading personalities of Lahore who were put behind the bars by a Tribunal was a farce. The Tribunal was presided over by Justice Lesli-Jones. Notably, Sir Henry Rattigan, then the Chief Justice of the Punjab Chief Court and Justices Shadi Lai, Chevis, Lesli-Jones, Broadway,  and Le-Rossignal were the prominent judges. 

Notably, a meeting presided over by Mazharul Haque at the Qila Maidan, Patna decided the program for April 6, 1919. A 24-hour fast was to be observed, and all other work was to be suspended for the day. Sir Syed Hasan Imam led the peaceful procession as part of the ‘Satyagraha Day’. In December 1919, the colonial government abandoned the Rowlatt Act. A proclamation issued by the the King issued granted a royal amnesty to those who had been jailed or detained for political crimes and commuted the sentences of those who had less than a year to serve. It is evident that judiciary did not have the autonomy to act against the unjust measures of the government. It acted as if it was an extended arm of the executive.

Sir John Douglas Young, a retired Judge of the Allahabad High Court wrote: "The separation of the Executive from the Judiciary has been for years, and continues to be, one of the crying needs of India. No government, British, Indian or Congress, wishes to part with the power over the lives and fortunes of those they govern, given them by control of the magistracy. Various reasons are given for not transferring the magistracy to the high court- all of them without substance. The principal objection is said to be on the ground of expense. There is now foundation for this objection. Some magistrates already do little or not judicial work; they can remain under Government. The residue, taking all the judicial work, can be transferred to the high Court with power to Government to call upon their services in an emergency."

He added: "Before Congress Government took over power in most of the provinces under the new constitution of 1935, no individual or body was louder in their cries for the separation of the Executive from the Judiciary than Congress. They alleged, possibly with some justification, that members of their party had suffered from the ability of government under the existing system to imprison their opponents. I had talked to many of my friends in Congress of this subject, and found them unanimous that this ancient abouse should cease. "Only let Congress govern this country" I was told "and you will wee how this iniquitous arrangement will at once come to an end". On this ground I welcomed the advent of Congress as rulers in 1937. I was doomed to disappointment: not one of the Congress Provincial Governments could bear to part with power. The subordinate judiciary, in criminal matters, remained bound to the Executive." Allahabad High Court has published the views of Sir John Douglas Young. Justice Satish Chandra, former Chief Justice of the High Court, Allahabad and Calcutta cited these views in his essay.

Graver's book explores the situations under which judges have to function in the face of systematic erosion of the ideals of the rule of law. It grapples with questions like: What happen when states become oppressive and the judiciary contributes to the oppression. How can one evaluate the actions of judges who contribute to oppression from a legal point of view. How can one understand their participation in oppression from a moral point of view. In the face of the emerging trend of tribunalisation and executivisation of the judiciary in India since the 1980s, the lessons of the book assumes huge significance.