Should judges explain judgements?
The Indian Express has objected to the comments of Justice A K Ganguly on the 2G spectrum judgment in a television interview, saying ‘only the verdict should speak for itself’.
MADABHUSHI SRIDHAR says judges also have a constitutional right to speak.
Thursday, Feb 23 13:07:30, 2012
The Indian Express has objected [i] to the comments of Justice A K Ganguly on the 2G spectrum judgment given by him and Justice G S Singhvi, saying ‘only the verdict should speak for itself’. While in office ethical and administrative restrictions prevent judges from giving any clarification or explanation to their judgments. The inherent complexity of law and tendency of lawyers and judges to make it more complex necessitated its explanation. If not judges, someone has to explain or comment for the common man who is affected by defective polices and their striking down by Judiciary. If a concerned judge himself explains it, it should not be a wrong.
The Constitution specified that any Government has to collectively administer and be responsible collectively for what it has decided. Besides this collective responsibility, the Constitution has also embodied principle of separation of powers strictly between the judiciary and executive. With ‘checks and balances’ envisaged, the judiciary has been endowed with obligation of examining the policies on the touchstone of this rule book.
Though the Legislature is expected to be different from Executive also, it did not remain separate but intertwined with each other which does not augur well for democracy. Over and above all these principles, the people were guaranteed with freedom of speech to be vocal against wrongful policies or to challenge them before the court of law. The story of 2G spectrum is a sad combination of failures and successes of working of the systems--first this controversial policy whether it is the result of a collective decision or individually decided by A Raja, second it was alleged that the licenses were given for extraneous considerations, third the policy was challenged on one hand and prosecution was sought for corruption on the other, and lastly the Public Interest Litigation which helped Judiciary to exercise its review power.
Karan Thaper was right in questioning in his ‘Devils Advocate’ program [iii] on It appears that you have pinned the blame entirely on Mr Raja but you haven't paid sufficient heed to the principle of the collective Cabinet responsibility. Surely such a momentous decision requires that the Cabinet also accept the responsibility? Justice Ashok Kumar Ganguly answered: I think from the judgment, if you look at the judgment facts properly, you find that the minister concerns didn't pay heed to the request made by the another minister, including the request made by the law minister to put the matter before the empowered committee. The judge was categorical that in this instance the principle of collective responsibility was not followed, though it will apply, it was not applied to this incident. Then Karan said: Raja acted unilaterally which is why his colleagues in Cabinet possibly don't share any blame? ,
Though judge answered saying ‘possibly yes’, the cabinet has to share responsibility either for facilitating or not objecting to it. Why was not the whole Government responsible for it? May be that was not part of the ‘issue’ before the court in this case.
Somnath Chatterjee, former speaker of Lok Sabha and leading lawyer has raised a question[iii]Whether courts should decide policy— in this case, first-come-first-served policy has been replaced with auction — or confine themselves to adjudicating if a policy is legal and if it had been implemented without breaking the law? :
As Justice Ganguly rightly pointed out, the SC can strike down the policy for not being in consonance with the Constitution, but it cannot substitute its policy for it, because it is not the job of Judiciary[iv]. This is the plainest duty of the court under the Constitution and in discharging such duties, Court does not act above the Constitution but acts in accordance with it.
Upholding the supremacy of the Constitution Somnath Chatterjee said: Trying to appropriate executive powers can be very tempting. Well, the Supreme Court is supreme. But it cannot interfere with executive policies and decisions; even by justifying that larger public interest is involved. It has to be kept in mind that nobody is above the Constitution. Justice Ganguly replied: the judgment was not delivered either out of temptation or out of any desire to appropriate executive powers.
While criticizing that the Court cannot interfere with the executive policies and decisions even in larger public interest and, by doing so, the Court assumes that it is above the Constitution, Mr Chatterjee must have ignored the point that the principle of judicial review is basic structure of our Constitution. The Court can certainly scrutinize and even strike down policy decisions of the executive when such decisions are unconstitutional.
Our basic problem with judiciary is delay and the ‘accused’ powerful like A Raja, will knock the doors of Supreme Court several times before the trial court begins its basic job of proving crime and sending corrupt to jail. The other problem is subordinate judiciary has to meticulously follow the higher courts’ dicta. Justice Ganguly said that his judgment would not have any impact on the ongoing criminal proceedings against Raja in the trial court. That might be his assumption. In actuality it is almost impossible to imagine that trial courts will not be influenced by the Apex Court observations as their judgments would ultimately tested before them only. The Bhopal case is the best example to explain how the apex court’s verdict limits the freedom of a trial judge.
In the interview Justice Ganguly stated that the Supreme Court determined that sanction for prosecution of corrupt public servants would be deemed to have been granted if the competent authority does not take a decision within four months was valid for the judiciary as well. This is how the Supreme Court makes ‘law’, expanding the legislature made law. The trial court has to follow this as an additional principle of anti-corruption law. One senior district judge said: the lower court has to examine the officer that sanctioned the prosecution in the court of law, which is an important step in the trial. When sanction is deemed as proclaimed by Supreme Court, the trial court will not find any officer that ‘sanctioned’ to examine, which might vitiate the entire trial. This issue is not answered so far.
There is a need to comment, criticize, object to and explain the decisions of the higher courts because they have to be applied and followed by lower courts. The public in general are interested in and it is in public interest that judges of higher courts evolve a mechanism of explaining the judgments in the interests of justice. Not only the ordinary citizen, but also the judges have constitutional right to speak. There is a need to speak.
Madabhushi Sridhar isProfessor & Coordinator, Centre for Media Law & Policy NALSAR University of Law