Crossing the line on the judicial front

AN impeachment motion has been moved against Justice Shekhar Kumar Yadav of the Allahabad High Court over his remarks at a recent event of the Vishva Hindu Parishad (VHP). There is no chance that the move will succeed because the ruling dispensation is against it. Indeed, Uttar Pradesh Chief Minister Yogi Adityanath has strongly supported Justice Yadav.

The cardinal and eternal essence of the dispensation of justice is that it must not only be done but also be manifestly done.

There are reports that Justice Yadav has been asked by the Supreme Court Collegium to meet it. The latter has no legal authority to do so. Hence, he will be within the law to skip the meeting. However, if he does meet the Collegium, it can draw his attention to the Restatement of Values of Judicial Life, adopted by the Supreme Court in May 1997. It can advise him to observe them, but if he chooses to ignore them, it can really do nothing except recommend his transfer from the Allahabad HC. It is possible, though, that the government may not act on the recommendation.

Thus, as matters stand, Justice Yadav virtually enjoys immunity for his remarks at the VHP function. Yes, there is one step the HC Chief Justice can take. He can decide not to allot judicial work to the judge on the ground that the comments have made him unfit to adjudicate cases. But that will require a very courageous Chief Justice in our contentious times.

Paragraphs 8 and 9 of Restatement of Values of Judicial Life read: “A Judge shall not enter into public debate or express his views in public on political matters or on matters that are pending or are likely to arise for judicial determination. A Judge is expected to let his judgments speak for themselves. He shall not give interview to the media.”

In the past, judges did not seek to attract attention either to themselves or their personal views on national affairs. They seldom gave lectures or participated in public functions. This was based on the sound principle that the public should have confidence that their decisions were based on the facts and the law and no other consideration. The cardinal and eternal essence of the dispensation of justice is that it must not only be done but also be manifestly done. Today, too, many judges of superior courts follow this principle and avoid the temptation of airing their views in public. However, if the feeling gains currency in the judiciary that there is nothing objectionable for judges to comment on issues such as the Uniform Civil Code (UCC) — a matter which may come up for adjudication — the present restraint exercised by most of the judges may get eroded to the detriment of the administration of justice in India. That will damage the national good.

Justice Yadav not only spoke on the UCC but also did so in terms of rank communalism. All through his address, he spoke as a Hindu and addressed Muslims as a separate community. This violates the basic tenet of a judge: she/he will not distinguish between citizens on the grounds of religion either as individuals or as a group. It is particularly sad that Justice Yadav gave the go-by to the proud traditions of the Allahabad High Court, whose judges, even during the days of colonialism, strove to pursue the path of rectitude and reticence as well as fierce independence.

Justice Yadav may be suited for public life. He would have full freedom there to express his opinions, and if he is elected to a legislature, he can strive to ensure that these are converted into law. There is little doubt that political forces in the country that are supporting him may welcome him into their fold. They may find him an asset, for his VHP speech shows that he is a fluent public speaker who will be able to convey their beliefs succinctly to the public.

I hope readers will forgive me for striking a personal note. My family members had a century-long association with the Allahabad HC as lawyers and judges. I moved away to the field of diplomacy, but have vivid recollections of the principles followed by my father, who retired as Chief Justice of this court. He told me that a judge should not only speak through his judgments but also confine those judgments to the law and facts of the case. He should not make obiter dicta, let alone use judgments to lecture society or point to national infirmities. That was the duty of other organs of the state.

These views are no longer in vogue. But Justice Yadav’s speech should lead all thinking Indians to ponder on what the public should expect of a judge. I will venture to suggest that brilliance or larger-than-life qualities are not needed in a judge. What is required is that she/he apply the law fairly and fearlessly without prejudice to anyone. Justice Yadav’s speech has raised doubts about his objectivity, a basic judicial quality. By creating an unmistakable impression of ‘us’ versus ‘they’ — and clearly indicating who fall in these categories — the remarks have cast a cloud over his outlook as a judge.

Values and conduct in all areas of India’s public life have changed in more than seven decades since Independence. This is the natural process of things. The cultural practices of various institutions have also changed, and some need to be done away with consciously. There is no reason why judges of superior courts allow themselves to be addressed as “their lordships”. However, fundamental principles relating to institutions do not admit any change. Justice Yadav breached them in his address at the VHP event. He should, therefore, resign.

It is tragic that every issue concerning propriety has become a plaything between the government and the Opposition in India. Justice Yadav’s speech, a matter of judicial propriety, has also met that fate.