Judges Shouldn't Play At Being Legislators; They Should Leave That Job To The Elected: Justice Antony Dominic In His Farewell Speech

Justice Antony Dominic, who retired as the Chief Justice of Kerala High Court on Tuesday, delivered his farewell speech in his signature poetic fashion that dominated several judgments authored by him as well.

Justice Dominic began his speech by welcoming Justice Hrishikesh Roy, who was appointed as the Acting Chief Justice of Kerala High Court on Tuesday, saying,

"For an individual or an institution, time goes on; life moves on. You lose one thing to gain another – perhaps a better one. As I leave the arena, I am pleased and delighted to present to you a parting gift: a gem from North-East Gauhati – land of pristine beauty and pure hearts.

Before I pay my homage to this great institution and to all of you, I heartily welcome Shri Justice Hrishikesh Roy to the judicial fraternity of Kerala. I assure him on behalf of all of us that he will have the best of times here."

He also thanked the Bar for supporting him throughout,and went on to emphasize on the institution being larger than the individual, with an analogy of a river: "Every river has a name, but no river has the same water flowing the next minute. Still we call the river with the same name. And a river always flows to have a confluence with the ocean.

Every institution has an identity, but never the same people. As the water in a river changes, so do people in an institution. But, we still call it by the same name. And this institution always runs to have a confluence with the ocean of justice."

He then asserted that Judges should not partake in the task of policy making, asserting that this should be left to the legislators. He said, "...a judge's strength lies in his knowing his weaknesses. I understood I am not a politician; I understood that the judiciary is a passive branch of the State, and I understood that my decisions should reflect the law; they never should seek to set policy. If ever a judge believed that he could decide according to his policy, it is a judicial fallacy...

... In a world governed by a proper conception of their role, judges do not play at being legislators; they leave that job to the elected."

Thereafter, in what seemed like a response to Justice Kemal Pasha's farewell and post-retirement allegations, he said, "I know sometimes people cannot control their emotions, they persist with their notions as if they were facts. They lose balance, but blame others. Their defence is that they follow their conscience. My sympathies are with them, for to err is human and, as is often said, with great ignorance, comes great confidence."

He went on to deliver a caveat for his colleagues as well, saying, "I can only serve a caveat on my colleagues: even righteous indignation and holy horror are impertinent intruders in an affair of justice. Emotional justice has no standing in the forum of right reason."

Notably, Justice Pasha, who had retired last week, had in his farewell speech criticized the present High Court collegium for neglecting the candidature of competent lawyers and not recommending them for elevation to the Bench.

Without taking any names, Justice Pasha had said that the recent incidents at the High Court had diminished its reputation, and had added, "Appointment of judges is not a family property of someone to be partitioned. I do not believe that judgeship should be allotted to each and every religion, caste or ssub-caste I learn from media that some names from the Bar have been recommended for elevation. If the names given by the media are correct, I can very well say that most of the judges of this Court including me have no good fortune to see even the faces of some of those persons. Is it good for the judiciary?"

In interviews given to Malayalam news channels after his retirement, he had also expressed displeasure with the mid-March roster change that took him off criminal jurisdiction. Curiously, the change was made after he pronounced judgments in two significant cases with wide political ramifications.

One judgment had ordered CBI inquiry in the Shohaib murder case, in which a congressman was hacked to death allegedly at the instance of CPI(M) workers. The second one was his judgment in the Syro-Malabar Church land scam case, wherein he had ordered registration of FIR against Cardinal Mar George Alenchery and other Catholic priests. With such allegations, Justice Pasha had given to the Kerala High Court its own master of the roster controversy, with its after-effects finding traces in the farewell speeches of outgoing Judges.