"Independence and Impartiality"
Lodhi Road, New Delhi
Lodhi Road, New Delhi
" Independence and Impartiality "
A judicial scandal has always been regarded as far more deplorable than a scandal involving either the executive or a member of the legislature
and ‘impartiality’ are most crucial concepts.
The two concepts are separate and distinct.
‘Impartiality’ refers to a state of mind and attitude of the court or
tribunal in relation to the issues and the parties in a particular case,
while ‘independence’ refers
not only to the state of mind or attitude, but also to a status or relationship
to others __ particularly to the executive branch of
that rests on objective conditions or guarantees.
to Chief Justice Lamer : “The overall objective of guaranteeing
judicial independence is to ensure a reasonable perception of impartiality;
judicial independence is but a “means”
to an end. If judges could be perceived as “impartial”
without judicial “independence”, the requirement of independence
would be unnecessary. However, judicial
independence is critical to the public’s perception of impartiality.
Independence is the cornerstone, a
necessary prerequisite for judicial impartiality.”
concept of judicial independence has been described in golden letters in one of
the judgments of the Supreme Court of India.
“To keep the stream of justice clean and pure,
the Judge must be endowed with sterling character, impeccable integrity
and upright behaviour. Erosion
thereof would undermine the efficacy of the rule of law and the working of the
Constitution itself. The Judges of
higher echelons, therefore,
should not be mere men of clay with all the frailties and foibles,
human failings and weak character which may be found in those in other
walks of life. They should be
men of fighting faith with tough fibre not susceptible to any pressure,
economic, political or of any sort. The
actual as well as the apparent independence of judiciary would be transparent
only when the office-holders endow those qualities which would operate as
impregnable fortress against surreptitious attempts to undermine the
independence of the judiciary. In
short, the behaviour of the Judge
is the bastion for the people to reap the fruits of the democracy, liberty and
justice and the antithesis rocks the bottom of the rule of law.”
Unless the judges function without fear and favour, the question of their being
impartial or independent does not arise. “Judges
owe their appointment to the Constitution and hold a position of privilege under
it. They are required to
‘uphold the Constitution and the laws’, ‘without fear’ that is without
fear of the executive; and
‘without favour’ that is without expecting a favour from the executive.
There is thus a fundamental distinction between the master and servant
relationship between the government and the Judges of High Courts and the
Supreme Court.” 
and impartiality and objectivity would be tall claims hollow from within, unless
the judges be honest __ honest
to their Office, honest to the society and honest to themselves.
“…the society’s demand for honesty in a judge is exacting and
absolute. The standards of judicial
behaviour, both on and off the Bench, are normally extremely high.
For a judge, to deviate from such standards of honesty and impartiality
is to betray the trust reposed in him. No excuse or no legal relativity can
condone such betrayal. From the
standpoint of justice, the size of the bribe or scope of corruption cannot be
the scale for measuring a Judge’s dishonour.
dishonest Judge not only dishonours himself and disgraces his office but
jeopardizes the integrity of the entire judicial system.
judicial scandal has always been regarded as far more deplorable than a scandal
involving either the executive or a member of the legislature.
The slightest hint of irregularity or impropriety in the court is a cause
for great anxiety and alarm. ‘A legislator or an administrator may be found
guilty of corruption without apparently endangering the foundation of the State.
But a Judge must keep himself absolutely above suspicion; to preserve the
impartiality and independence of the judiciary and to have the public confidence
perform the duties of judicial office without fear or favour, affection or
ill-will is the same thing as performing the duties with independence,
impartiality and objectivity. In
order to achieve this a certain degree of aloofness is required to be maintained
by the judges. According to Justice
P.B. Gajendragadkar – “Judges ordinarily must observe certain rules of
decorum in their social behaviour. A little isolation and aloofness are the
price which one has to pay for being a judge, because
a judge can never know which case will come before him and who may be
concerned in it. No hard and fast rule can be laid down in this matter, but some
discretion must be exercised.”
The concept is best demonstrated in a real life anecdote which I would
like to reproduce in the words of Justice Gajendragadkar himself. He
feature which I did not very much appreciate was that judges used to accept
invitations for dinners from lawyers far too frequently. I consistently refused
to join such dinners. When S.R. Das
was due to retire, there were a
number of dinners and S.K. Das found that I was not accepting any one of these
invitations. He came to me and said: “Brother, accept at least one so that the
Chief may not misunderstand you.” So
I did accept one and, when we met to dine in a hotel, I was amazed to see that
we were not dining in an exclusive room but in the general hotel itself, which
was otherwise crowded by other diners and it was a lawyer who was entertaining
us as a host to the large number of visitors present in the hotel. With my
Bombay background, I did not relish this prospect at all;
and not feeling happy about such dinners I conveyed my views to S.R. Das.
With his characteristic tact, he said, “Yes, I see your point.”
it is interesting to note that R.A. Jahagirdar (who has contributed a beautiful
preface to the autobiography and, in fact, he is the one who was successful in
persuading Justice Gajendragadkar to write his memoirs) has put an asterisk on
the words ‘Bombay background’ and inserted a footnote which reads – “The
Bombay background has considerably changed.
Cases of judges being entertained in luxury hotels are not infrequent and
have been discussed in the Press”.
Gajendragadkar goes on to record –
“The undesirable and perhaps intended motivation for such invitation for dinners became patent in another case. That was a dinner arranged ostensibly by a lawyer who was a benamidar of the proprietor of a hotel chain. So far as I know, I and K.C. Das Gupta did not attend. Most of others did. The dinner was held on a Saturday at a hotel. On Monday next, before the Bench over which B.P. Sinha presided and I and K.C. Das Gupta were his colleagues, we found that there was a matter pending admission between the management of the hotel chain and its workmen. I turned to Sinha and said: “Sinha, how can we take this case? The whole lot of supervisors and workmen in the hotel is sitting in front and they know that we have been fed in the hotel ostensibly by the lawyer but in truth at the cost of the hotel, because the very lawyer who invited the judges to the dinner is arguing in the hotel’s appeal.” Sinha, the great gentleman that he was, immediately saw the point and said: “This case would go before another Bench.” 
sad incident is quoted by Justice V.R. Krishna Iyer while describing how
he refused to budge an inch though tremendous pressure was sought to be built
upon him, by none else than the then Law Minister Late Shri Gokhale who himself
has had a brief stint as a judge in Bombay, to pass an absolute order of stay on
the judgment of Allahabad High Court in the case of Indira Gandhi
vs. Raj Narain.
The narrated incident has a lesson to learn.
I may quote –
“By way of a distressing deviation, I may mention an anecdote of a few years ago. A vacation judge was telephoned by an advocate from a five star hotel in Delhi. He mentioned that he was the son of the then Chief Justice and wished to call on the vacation judge. Naturally, since the caller was an advocate, and on top of it, the son of the Chief Justice, the vacation judge allowed him to call on him. The ‘gentleman’ turned up with another person and unblushingly told the vacation judge that his companion had a case that day on the list of the vacation judge. He wanted a ‘small’ favour of an ‘Interim stay’. The judge was stunned and politely told the two men to leave the house. Later, when the Chief justice came back to Delhi after the vacation, the victim judge reported to him about the visit of his son with a client and his ‘prayer’ for a stay in a pending case made at the home of the Judge. The Chief Justice was not disturbed but dismissed the matter as of little consequence. ‘After all, he only wanted an interim stay’, said the Chief justice, ‘and not a final decision’. This incident reveals the grave dangers of personal visits to judges’ residences under innocent pretexts. This is the way functional felony creeps into the judiciary. A swallow does not make a summer may be, but deviances once condoned become inundations resulting in credibility collapse of the institution”
He says – “Judgeship has diamond-hard parameters”.