New Delhi, Apr 16: Concerned over judiciary's image coming under a cloud in the wake of corruption charges, Chief Justice S H Kapadia today said there was a need for "clean man in black robe" and asked the political class not to protect corrupt judges.
"We have to live by examples. We need a clean man in black robe to uphold the independence and integrity of the judiciary," the CJI said while cautioning the judges from inevitably ending up in the political arena.
The CJI said judges should maintain self restraint and avoid being in touch with lawyers, political parties, their leaders or ministers and high ranking judges should not interfere in the administrative work of court lower to it.
"Internal interference from a high ranking Judge which, if resisted, could lead the lower ranking Judge being transferred or being denied promotion also needs to be deprecated. Similarly, political protection should not be given to corrupt Judges," Kapadia said at the fifth M C Setalvad memorial lecture.
"A Judge must inevitably choose to be a little aloof and isolated from the community at large. He should not be in contact with lawyers, individuals or political parties, their leaders or ministers unless it be on purely social occasions," he said.
The CJI's remarks assume significance as the issue of corruption allegedly involving sitting judges P D Dinakaran and Soumitra Sen, who are facing impeachment proceedings in Parliament, were raised by other speakers.
Senior advocates Anil Divan and P P Rao voiced serious concerns over judges being involved in corruption.
The CJI began his speech by saying that "I am an eternal optimist and I can see that in future things are going to improve as far as integrity and as far as credibility of the Supreme Court is concerned."
Kapadia said the judges should not accept any type of patronage and stick to judicial norms.
"The Judge should not accept patronage through which he acquires office, preferential treatment or pre-retirement assignment. These can give rise to corruption if and when quid pro quo makes a demand on such Judges", he said.
Kapadia stressed the need for protecting the integrity of judiciary saying "Judges must keep the part of impartial, objective, fearless and independent justice alive".
The CJI said he has avoided socialisation and even preferred not take the membership of any golf clubs as it would have left him mingling with advocates, politicians etc giving a negative impression to the people.
"Frequent socializing with particular members of the legal profession or with the litigants, including potential litigants, is certain to raise, in the minds of others, the suspicion that the Judge is susceptible to undue influence in the discharge of his duties," he said.
The CJI said there should be a fair criticism of judgements and irresponsible and illegitimate criticism should be avoided.
"Public and media criticism of judges and judgments is a common feature today throughout the common law world. Like other public institutions, the judiciary must be subject to a fair criticism.
"But, what I am concerned with is response to criticism, particularly, criticism, that is illegitimate and irresponsible.
"In the context of such illegitimate and irresponsible criticism, it must be borne in mind that love for justice is rare - what most people desire is justice which favours them."
Cautioning judges not to overtake the functions of the legislature, Chief Justice Kapadia said judiciary should maintain self restraint and respect seperation of power.
"We must refuse to sit as a super-legislature to weigh the wisdom of legislation. We must remember that our Constitution recognizes separation of powers and that the legislatures and the government can be made accountable for their legislation and actions by the electorate if they err," Justice Kapadia said.
"In many PILs, the courts freely decree rule of conduct for government and public authorities which are akin to legislation. Such exercises have little judicial function in them," he further said.
Kapadia said that the function of courts is to review the acts of the legislature and not to substitute their own policies on the society or the legislature.
"The Judges of the Supreme Court of India should revisit the original constitutional proposition that Courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to enact laws.
We are not concerned with the wisdom, need or appropriateness of the legislation," he said.
"Judicial activism which is not grounded on textual commitment to the Constitution or the statute, unlike activism in cases of human rights and life and personal liberty raises questions of accountability of judiciary whose members are not chosen by any democratic process and whose members are not answerable to the electorate or to the legislature or to the executive," he said.
He said that courts should be circumspect in understanding the thin line between law and governance while justifying their interference in policy matters.
"Its(courts) justification is that the other branches of government have failed or are indifferent to the solution of the problem. In such matters,I am of the opinion that the courts should be circumspect in understanding the thin line between law and governance.
"In such matters, the courts must try to ascertain whether the issue has a legal content or a political content. In the latter case, the courts should invoke the doctrine of deference," he said.
He, however, said that holding a law unconstitutional does not amount to legislation and it is the duty of the judges to pass such orders.
"Judges who invoke the Constitution to protect the rights of people and who declare a statute unconstitutional are not legislating from the Bench, nor are they thwarting the will of the majority. They are merely carrying out their oath of office and following the rule of law," he said. PTI
