M J Antony: Moments of introspection

Out of Court

"We must remember that woodpeckers inside pose a larger threat than the storm outside."

The judiciary is seen as a closed institution by the people, not only because the laws and procedures are complex and inscrutable but also because the personnel manning the system tend to hold back vital information from the consumers of justice. Even academic research into the working of the courts is not encouraged. With very little sunlight falling on the corridors of the courts, people tend to believe rumours which again are suppressed by the outdated Contempt of Court Act. Therefore, when the Supreme Court speaks of "something rotten" in the system, eyebrows are bound to be raised.

In an otherwise routine judgement in a dispute over allotment of industrial plots in Haryana, one of the judges made this following remark a few days ago: "It pains me to record out of my experience in this court for three years that the particular (Punjab & Haryana) high court is disposing of appeals in such a cavalier manner that nothing else is needed to bring discredit to the system itself." The order was passed by the high court even without trying to understand what the suit was for, what was the nature of the disposal of the suit by the lower courts and what the documents implied and what they established (Haryana State Industrial Development Corporation vs M/s Cork Manufacturing Co).

The judgement exhorted the courts in Haryana to show better application of mind while deciding cases, keeping in mind that "what they are performing is a divine function that is onerous and at the same time challenging." The apex court also came down heavily on the officials of the corporation for messing up its case and asked it to initiate action against them. The corporation was a "trustee of public property" and it was expected to conduct itself with all care and caution, the judgement said.

Such candid observations against the high courts are rare, for well or ill. Nearly two decades ago, the Supreme Court made certain remarks against the Calcutta high court, which allegedly passed injunction orders routinely on "oral applications". Petitions in writing were to follow the orders. When the Supreme Court passed unsavoury remarks against the high court which appeared in the press, the high court bar protested against the offending sentences and instantly went on strike.

Then there was this incredible case in which a judge of the Rajasthan high court issued contempt of court notices against his own chief justice and the division bench which passed orders which were not to his liking (State of Rajasthan vs Prakash Chand). He did not leave alone even former chief justices and one brother judge who later became the Chief Justice of India. The Supreme Court prefaced its judgement thus: "This is an unusual case...We wish we did not have to deal with a case like this but we shall singularly fail in our duties to the institution if we do not deal with the matter and take it to its logical conclusion."

Returning to the Punjab & Haryana high court, the Supreme Court last year dealt with a case in which a high court judge, while visiting district courts and jails in his administrative capacity, granted bail to an accused, provoking a woman who complained against him to move the Supreme Court. It stressed that though the high court had administrative jurisdiction over subordinate courts, granting bail or passing interim orders, however justified they may be, were not within the power of the judges on tour. There are legal procedures to be followed. "The high court cannot influence subordinate judiciary nor interfere with the judicial functions of subordinate judges," the court emphasised. These instances come at a time when the judiciary is almost vainglorious in its own self-assessment, basking in the perceived popular support it is receiving.

Read what the Supreme Court said two years ago in Tarak Singh vs Jyoti Basu: "Today the judiciary is the repository of public faith. It is the trustee of the people. It is the last hope of the people. After every knock at all the doors fail, people approach the judiciary as the last resort. It is the only temple worshipped by every citizen of this nation regardless of religion, caste, sex or place of birth. It is high time the judiciary took utmost care to see that the temple of justice does not crack from inside, which would lead to catastrophe in the justice delivery system resulting in the failure of public confidence in the system. We must remember that woodpeckers inside pose a larger threat than the storm outside."