A Non-Performing Judiciary Can't Be Said To Be Independent : Justice JB Pardiwala, Supreme Court Judge
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"We often talk of an independent judiciary- what do we mean by an independent judiciary? For a judiciary to be independent, it has to be a performing judiciary. A non-performing judiciary cannot be said to be independent. When I say performing judiciary, it means that every judge is free to decide matters before him in accordance with his assessment of the facts and his understanding of the...
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"We often talk of an independent judiciary- what do we mean by an independent judiciary? For a judiciary to be independent, it has to be a performing judiciary. A non-performing judiciary cannot be said to be independent. When I say performing judiciary, it means that every judge is free to decide matters before him in accordance with his assessment of the facts and his understanding of the law without any improper influences, inducements or pressures, direct or indirect, from any quarter or for whatever reason", said Justice J. B. Pardiwala on Thursday.
He was speaking at a Full Court Farewell organised by the Gujarat High Court on June 23 on his elevation to the Supreme Court.
"It is said that a man is known by the company he gets. A nation is known by the judiciary it has. The worth of a nation is measured by its judiciary which is seen as the ultimate keeper of the nation's conscience. Ours is such a judiciary which ensures to the people of this nation that the freedoms which are there under the Constitution will never be taken away and that history should never repeat itself", expressed the judge.
Continuing, he elaborated, "It can be said that the source of judicial power is the law, yet, in reality the effective exercise of the judicial power originates from two sources- externally, the source is the public acceptance of the authority of judiciary; and internally, and more importantly, the source is the integrity of the judiciary. The very existence of the justice delivery system depends on the judges who constitute the system. It is said that the life of law is justice and it is for the judge to breathe life into the law. But mere laws are not enough; men of character inspired by high ideals infuse life and spirit in the skeleton of law".
Justice Pardiwala stated that the administration of justice is one of the most essential functions of the State- "Many, many years ago, Harold Laski, an English political theorist and economist, in his tribute to Justice Holmes, described the hallmarks of a great judge. The list is long but what I like the most is that 'a great Judge must be a great man...He must be statesman as well as jurist, thinker as well as lawyer. What he is doing is to shape the categories through which life must flow, and he must have a constant sense of the greatness of his task. He must know the hearts of men, and yet ask to be judged from the conscience of their minds. He must have a constant sense of essential power, and yet be capable of humility in its exercise. He must be the servant of justice and not of its master, the conscience of the community and not of its dominant interests'".
He discussed that there are two basic roles of a judge in a democracy, and that too, in a very vibrant democracy like India- first, to uphold the Constitution and the rule of law; and secondly, to bridge the gap between the law and the society. "I shall feel my services have been amply rewarded if I have been able to carve out a place in your heart as a judge who was keen to do justice to the best of his abilities", he said.
Justice Pardiwala stated that if there are three prime requisites for the rule of law, they are a strong bar, an independent judiciary and an enlightened public opinion- "There can indeed be no greater indication of the decay in the rule of law than a docile bar, a subservient judiciary and a society with a choked conscience".
"Administration of justice is a very solemn duty and it demands wholehearted devotion. I believe that God alone is the true fountain of justice and judges are called upon to discharge the judicial functions as his agents. We are accountable to God for all that we do in the discharge of this function and therefore, it is necessary for us to do our best according to the light and wisdom given to us by Him. I have always felt that if we fail in doing justice to others, we shall not be entitled to claim justice for ourselves from God", he spoke.
Justice Pardiwala opined that the success of democracy in our country depends substantially, if not wholly, on the success of the rule of law- "In a modern democratic State, the functions of the legislature, the executive and the judiciary are well defined and the spheres of their respective activities are well-established. The progress and stability of a modern democratic State depends upon the vision, the wisdom and the foresight of its legislature, the efficiency and incorruptibility of its executive and the independence, impartiality and integrity of its judiciary."
Addressing the members of the bar, the judge reminded them that as lawyers, they don't only have a professional responsibility but a very definite social, ethical duty towards the society and towards the individual- "Just as a doctor has a sacred duty to preserve and prolong life, so has the lawyer the sacred duty to protect the physical, moral and intellectual integrity of the individual. The protection of the individual from either the State or other individuals must be reconciled with the essential requirement of modern society. However, it is a lawyer's duty to ensure that this process of reconciliation never involves a derogation from the fundamental personal rights of the individuals. Lawyers must be and remain crusaders in the field of the rule of law and human rights. That is my appeal to all of you".
"Leaders succeed in part because of their skills and their capabilities, but what counts more is the faith people bestow in you. 11 1/2 years at the High Court, I was driven by the need to make the state of Gujarat a better place for its citizens, and this need was fuelled every day by an undying faith you, the community of people, had in me. It is often asked, 'Does the society really need another lawyer?' India has roughly 1.8 million lawyers. This means there is one lawyer for every 736 persons and yet there are thousands of people who remain unrepresented. So yes, we do need lawyers, we need bold and confident lawyers because access to justice is a basic human right. Law is a service business with strong emphasis on providing service. I strongly believe it is your ethical responsibility to provide your services in the public interest, in furtherance of a safe, fair and just society", he urged.
"To the younger generation hearing me, you are creatively patriotic. Believe in yourself and attach yourself to a cause greater than yourself. One of my great pleasures on the bench has been to witness how the junior members of our bar, who I had known in their professional infancy, have grown up to become formidable advocates. It makes me happiest to see the zealous spirit of this new generation of lawyers. You are the hope and future of the nation. It lies in your fierce hands to uphold the integrity of the judiciary and make this nation a better place for your children! Ability may take you to the top but character will keep you at the top", continued Justice Pardiwala.
He explained that character is not about honesty and sincerity but about doing the right thing when you are tempted to do the wrong- "Roscoe Pound so eloquently captured this. He said that lawyers should be willing to say to clients that 'Yes, the law lets you do that but don't do it. It is a rotten thing to do'. He goes on to say, 'Our role as lawyers transcends the technical, it requires us to consider the public's welfare in addition to the interest of the private client. That is how it should be'. Perhaps if as a community, all lawyers were better at fulfilling this aspect of our public service obligation, you could elevate your collective reputation and finally make the list of the most admired professions, a list where teachers and members of our military always rightfully stand."
"But this was not always the case. Today law might have the reputation of being a money making business. But there was a time when its true essence was of a service business. The important duty of the profession is to act as the interpreter, guide and faithful servant of the community. Man may be a little lower than the angels, he has not yet shed off the brute and the brute within is apt to break loose on occasions. To curb and control that brute, we need a rule of law. We also need the rule of law for the settlement of disputes which are bound to arise in the affairs of man and in ensuring the rule of law, the most significant part is perhaps played by the lawyers. Lawyers play the central role in the functioning of the nation and in upholding the values that guide our country today. It was only due to the selfless guidance and statesmanship of the legal profession that the Indian national movement gained participation and its impact reached far beyond immediate political consequences", continued Justice Pardiwala.
"For over 11 years of judgeship, I have drawn from your energy as a community who has demanded change. Over the years, I delivered a plethora of judgments. The words were mine but the feeling of accomplishment was shared by us all. A strong bar is essential if the judiciary is to function properly. Because unless the bar is strong, the grievances of the people will not be properly and effectively ventilated. By a strong bar, I don't mean a discourteous or disrespectful bar. A lawyer can be courteous and respectful and yet bold and vehement in his arguments. By a strong bar, I mean a bar which does its duties effectively of ventilating the grievances of the people", said the judge.
"The soul of India is its Constitution; our Republic, foresight of dynamic visionaries. What a great edifice they built ensuring sovereignty with democratic values. The Constitution is our bedrock, ensuring our safety and security, it outlines the process which keeps us rooted in values. We read it for reference and for every policy decision. Without it, we would be lost and make many mistakes. It is now 75 but we keep turning it because it guarantees the rights and sets the benchmarks for responsibilities...Welfare of all is its primary concern but it is for the legal fraternity to protect its sanctity and safety", iterated Justice Pardiwala.
He was of the view that even those who are not a part of the legal fraternity also have a responsibility to be a dutiful member of the society; that as a society, we must keep striving to make our world a better place for the future generations to come- "The courts and lawmakers cannot do this alone. Each of you must rise and do your little part in making this society you live in more inclusive, fair and just. Friends, do not fear the change that comes with time. Embrace it. This constant change is the hallmark of a successful society. Remember one thing, that change is the only constant...I strongly believe in the words of Barack Obama- 'Change only happens when ordinary people get involved and they get engaged and they come together to demand it'".
Delivering the concluding remarks, Justice Pardiwala stressed that "this last part of my address is very important", urging the audience to "listen" to him- "Always stand united when it comes to protecting the honour and dignity of the High Court as an institution. Never allow anybody to undermine the value of institution, the honour of institution. Never allow anybody to (unclear) the institution Whatever maybe the personal differences amongst you all, such differences should be buried when it comes to standing tall to protect the honour and dignity of the institution."