Report No. 14
66. Hours of work.-
The question of hours of work in the High Courts has been the subject of some comment. It appears that normally the working hours of the High Courts in certain States like Andhra Pradesh and Madras are five and a quarter hours; in some other States, the Courts work for five hours while in one of the High Courts the working hours are only four. In our view, having regard to the nature of the work which the High Court Judges do, it would not be reasonable to expect them to work in court for a period longer than five hours a day.
The Courts which are working for less than five hours a day should forthwith bring up their working hours to five. It has to be remembered that apart from work in Court, Judges do a great deal of work outside court hours in writing their judgments, examining authorities and reading papers relating to matters which are to come on for hearing before them. A certain number of judges have also, in addition to the court and other work, to do administrative work. All these considerations will have to be kept in mind in fixing the number of court hours.
The Evershed Committee recommended a five-hour working days for the courts but it also recommended a reduction to enable the judges to read the papers in advance. We have recommended elsewhere the general adoption of the practice of reading papers in advance without a reduction in the hours of court sittings. The acceptance of that recommendation would render the raising of the number of court working hours impracticable.
67. Saturday sittings (Not practicable).-
The question of the Courts not working on Saturdays has also excited comment. It has been asked that at a time when the conditions in the country require every one to put forth his best effort why should the Judiciary not work on Saturdays also. A comparison is drawn in this connection between Judges and Ministers and other officials working on Saturdays. The subordinate judiciary, it is pointed out, also works on Saturdays. This criticism, we think, misses the essential difference between the work done by executive officers or the subordinate judiciary and the superior judiciary.
The work of a Judge in the Supreme Court and the High Court calls for concentrated attention for a period of four and a half or five hours every day. That is a very taxing effort; far more taxing than that involved in work of the other officials mentioned above. It has also to be remembered that in reaching his decision, the Judge has to act solely on his own responsibility. In many cases the Judge of the Superior Court is not only deciding the rights of particular parties but laying down the law which may bind the citizens in the Courts in that State in the case of a High Court and the whole country in the case of the Supreme Court.
It is but appropriate that for the efficient discharge of this heavy responsibility, the Judge of the superior Court should have his Saturday free to himself to ponder over.-tecases pending decision and inform himself of the law in connection with them. Those acquainted with the way in which the Judges of the Supreme Court and the High Courts work should be aware that Saturdays and Sundays are not free days for the Judges. Most of the Judges are to be found on Saturdays in the Court premises either working in the library or dictating judgments in cases in which hearings have finished. Some of them do similar work at their residence. Dictation of judgments and looking into papers relating to work for the ensuing week also consumes that larger part of a Sunday of these Judges.
As we have said above, it should be enough to fi4 a target of two hundred working days. Once the target is achieved , it should be left to the Courts to decide their vacations and free days.
However, mere formal adherence to notified court hours is not enough. It has come to our notice during our visits to the various High Court centres that the notified working hours are not observed and judges frequently start their Court late or rise earlier than the closing time. Apart from the loss of judge-power occasioned by these lapses, such a practice lowers the dignity of the Court in the public eye. The public and the lawyers expect punctuality above all from the Court. We may refer in this connection to the observations of Chief Justice Vanderbilt:1
1. American Bar Association Journal 1954, p. 31.
"The most irritating delay of all to the lawyer and the layman alike is the delay of the judge in getting on the bench in time in the morning. The jurors have to be there, the lawyers have to be there, and so do the litigants, the witnesses and the newspaper reporters- everybody except the judge. I am speaking only of my own state in the old days, and there are some New Jeresy lawyers here who know I am not exaggerating. You could hear peals of laughter emanating from the judge's chambers, and when His Honour emerged about half an hour later, he would seriously tell us he had been detained by important work in chambers. But you knew, despite his solemn assurance, that he had been listening to some story-teller recounting the jokes he would tell in his next speech."
While it may not be necessary to ring a bell to ensure punctuality as is done in at least two High Courts, much can be done in this regard by a Chief Justice possessing personality.
69. An all-India cadre of judges-the case for.-
The question of establishing an all-India cadre for Judges of the High Court with the incidence of a free transfer from one High Court to another has been pressed upon us by a substantial body of evidence. The importance of such a course was emphasized on two grounds. It was suggested that if a substantial number of Judges composing High Courts in all the States were persons who came from outside the State, it would greatly tend to develop a feeling of unity throughout the country and as the States Reorganiation Commission has said, "help in arresting parochial trends".
With this end in view the Commission recommended "that at least one-third of the number of Judges in a High Court should consist of persons who are recruited from outside the State". They also pointed out that the acceptance of their suggestion will have the advantage of extending the field of choice of High Court Judges and also the "advantage of regulating staffing of the higher Judiciary as far as possible on the same principles as in the case of Civil Service."1 The second ground on which a transferable cadre of Judges was suggested was that a judiciary so recruited would be more independent having less local connections. As a leading member of the Bar put it:
1. States Reorganisation Commission Report, p. 233 (para. 861).
"The large section of it (the Bar) to-day would applaud any move which makes the judiciary transferable because then these local considerations etc., established through contact in clubs, social societies etc. would just disappear, A transfer from different States and from time to time would at least have the effect of breaking up undesirable connections".
A further consideration which affects the smaller High Courts and which tends largely in favour of the acceptance of this suggestion is that these High Courts have experienced difficulties in constituting Division Benches for hearing some cases as one or more of the Judges recruited from the State had been interested in the case at an earlier stage either as counsel or as a party or happened to be related to one or more of the litigants. In fact we found several cases on the files of the High Courts of Assam and Orissa undisposed of by reason of this difficulty. At the time we visited these States the strength of the High Court of Assam was two Judges and that of Orissa four Judges.
70. Transferability of judges.-
Judges of the High Court are under Article 222 of the Constitution transferable from one High Court to another by the President after consultation with the Chief Justice of India. This power has been rarely exercised. In fact some evidence before us stated that such a power was likely to affect the independence of the High Court judiciary inasmuch as State executive may make efforts to obtain the transfer of a judge who for some reason or other had not found favour with it.
71. Local connections and the need for transfers.-
It is no doubt true that judges recruited from the State itself have local connections and probably know some of the litigants whose cases come before them. We are dealing elsewhere generally with the need for the judges to keep themselves detached and mix less freely at clubs and social gatherings so that their contacts may not be such as to embarrass them in the discharge of their duties, and, what perhaps is more important, that the public may not consider that a judge may not be impartial by reason of his contacts or connections. It may be that in some cases the existence of such contacts and connections has led to a belief that justice has not been done as impartially as it should have been.
72. Free transfers inadvisable.-
We are, however, unable to say that as a whole, members of the High Court judiciary recruited from within the State have failed to maintain that attitude of detachment and impartiality which is expected of them. Indeed, it would only be fair to them to say that by and large they have fully adhered to the traditions of their high office. It appears to us, therefore, that the argument based on the need for the judges to have less local connections has not much force. Even persons appointed to the High Court Bench from outside would in the course of a few months form connections in the State to which they are appointed though perhaps not to the same extent. It would, we think, be unjust to treat members of the Bar or the Service appointed to the High Court judiciary as suspects who need to be moved from place to place to keep them to correct standards.
73. Unified cadre desirable but not free transfers.-
A unified cadre of High Court Judges with free transfers all over the country would undoubtedly greatly help to break down the barriers of regionalism which unfortunately hold sway in many parts of the country. At the same time we have to consider carefully the effect which the suggested measure would have on recruitment to the High Court bench from the Bar in a State. The local Bar has for years rightly been a recruiting ground for the High Court Bench and during recent years recruitment from the Bar has been on the increase. As far as we can visualize, the Bar must remain the main recruiting ground for the future.
We have already dealt earlier with the difficulties which are at present being experienced in making selections of judges from the Bar and have suggested measures for making satisfactory selections from the Bar. We feel that the difficulty of recruiting leading men from the Bar will be greatly accentuated, if the acceptance of a judgeship involves the probability of transfer from the home State to another State as an ordinary incident of that office. We are therefore averse to making a recommendation which is likely to affect adversely recruitment of competent persons from the local Bar.
74. Outside element (Zonal appointments).-
We are, however, suggesting elsewhere a scheme for an All-India Judicial Service, which like the All-India Administrative Service, will supply members to the higher Judiciary of all States and be recruited on an All-India basis. If this recommendation is accepted, it will result in a certain number of service Judges of the High Courts being persons drawn from outside the State. It should also be possible, as has happened recently in some cases to recruit as judges members of the Bar from outside the State.
It sometimes happens in the smaller States that the local Bar has not men of outstanding stature who could be invited to be judges of the High Court. Even in the larger States it may become necessary on occasions to appoint persons with special knowledge and experience in certain branches of law. In such cases members of the Bar from outside the State may be invited to the Bench. We have also recommended that where the senior-most puisne Judge does not have the very special qualifications needed by a Chief Justice, a Judge from outside the State should be appointed the Chief Justice.
The recent creation of various zones in the country and the efforts to treat the States forming part of these zones as one unit for various purposes would, we hope, lead to the States forming part of each zone to be the recruiting ground for appointments to the High Court from the members of the Bar in these States. It is hoped that in this manner the expectation of the States Reorganisation Commission that at least one third of the High Court Judges would be persons drawn from outside the State will be realised.
75. Aloofness necessary in judges.-
In the early British days and till very recently, the British and the Indian Judges maintained as a rule a tradition of isolation and aloofness, declining to mix freely with members of the public and the executive at clubs and other social functions. That was the British tradition of the Judges living, in the words of Sir Winston Churchill, "their whole lives within strict and rigid limits".1 So zealous were these Judges to guard their independence and the public confidence in their impartiality, particularly in reference to the executive, that it was said of one High Court that the Chief Justice and Judges would not approach the precincts of the Government House.
There was a comment that such an attitude was not justified and was unnecessarily rigid. On the other hand, there was a considerable body of opinion favouring the view that judges should remain in isolation. "But if it was an extreme position, it was an extreme position in the right direction because there might be an extreme position in the other direction, which would not be for the good of the State."2
1. Parliamentary Debates (Hansard) House of Commons Debates, dated 23-3-1954, Vol. 525, col. 1061.
2. C.C. Biswas House of the People Debates, Vol. II, Part II, col. 2728.
76. Falling off in standards.-
We have indeed in recent years reached what was called "an extreme position in the other direction". Far from avoiding the precincts of the Government House, Judges have come to treat invitations from the Government House as "commands." Newspapers tell us of Chief Justices and Judges being "granted" interviews by Ministers. Though a few Judges still maintain the old isolation, a large majority sees nothing incorrect in freely mixing with the executive.
The attitude of judges in regard to contacts with the public seems also to have completely altered. It has become frequent for judges, newly appointed to the bench, to accept invitations to entertainment not only from representative associations but from individual members of the Bar and even from private citizens. We have been told of a High Court Judge appointed to the Supreme Court Bench being entertained at a party by a private citizen. Indeed, some individual members of the Bar seem to have made it a practice to entertain all incoming Judges. It was said in the evidence before us that these things "which used to happen in Delhi at one time" are now happening in other places.
77. Restraint and dignity necessary.-
It appears to us that such behaviour by the judges must lead to a loss of the high respect in which the judges should be held by the community. If the public is to give profound respect to the judges, the judges should, by their conduct try and deserve it. Not by word or deed should they give cause for the belief that they do not deserve the pedestal on which we expect the public to place them. It appears to us that not only in the performance of his duties but outside the Court as well, a Judge has to maintain an aloofness amounting almost to self-imposed isolation. In the words of an eminent Statesman, Sir W. Churchill:
"A form of life and conduct far more severe and restricted than that of ordinary people is required from Judges and, though unwritten, has been most strictly observed. They are at once privileged and restricted. They have to present a continuous aspect of dignity and conduct."1
1. Parliamentary Debates (Hansard) House of Commons Debates, dated 23-3-54, Vol. 525, col. 1062.
It has to be realised that if the public is to believe that justice is being impartially administered, judges cannot rub shoulders with one and all in a manner which any other person may do. Their public activities and even their pronouncements outside the Court have to be consistent with the isolation which their office demands. The lapse in the observance of these essential rules of conduct has undoubtedly, in some measure, affected the prestige of the judges in the public eye.
In the United States, the Bar, alive to the dignity and conduct which should be maintained, has formulated1 what have been called the "Canons of Judicial Ethics". The Judges in our country have followed the unwritten British Code of Conduct which is not the less strict by reason of it not being written.
1. In 1924 by the American Bar Association and amended from time to time.
78. Conduct on the Bench.-
The unwritten code of conduct which governs a Judge applied to him in a greater degree in the performance of his duties on the Bench. In the course of the evidence we were told of some Judges taking too aggressive a part in the course of trials, sometimes taking upon themselves the task of questioning witnesses and frequently interrupting the arguments of counsel. The adoption of such a course cannot fail to have an unfortunate effect on the Bar and the litigating public. It has been said:
"A Judge who intervenes too much could drain the case of all joy from the point of view of the advocate who whether he had won or lost comes out of the court an exhausted person."
Though intervention in order to appreciate counsel's argument is necessary and desirable, a volley of questions repeatedly asked may lead the advocate entirely oft the track and ruin his argument. Undue interruption is not unusual particularly in case of Advocate-Judges in the Supreme Court and the High Courts. We do not for a moment suggest that the Court should not control the proceedings by asking counsel to restrict his arguments to the points which really arise and to avoid repetition. If such a control were not practised, we would have the other extreme in which very often senior counsel indulge in prolix and repetitious arguments without interruption by judges. In this matter, we have to strike the golden mean between the "talkative" judge and a judge of "the strong silent type". The part which a Judge has to play has been aptly described by the Court of Appeal in the following words:1
1. Jones v. National Coal Board, (1957) 2 All ER 154 (159).
"The Judge's part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lie. If he goes beyond this, he drops the mantle of a Judge and assumes the robe of an advocate; and the change does not become him well. Lord Bacon spoke right when he said that patience and gravity of bearing is an essential part of justice; and an over-speaking Judge is no well-tuned symbol."
79. Role of the Chief Justice (Best utilisation of judge-power).-
On the Chief Justice will fall the responsibility of utilising the judge-power at his disposal to its optimum capacity. Each Court will, in the nature of things, consist of quick Judges and slow Judges, judges with experience in certain classes of work and others. As stated by Chief Justice Vanderbilt:1
1. The Challenge of Law Reform, p. 87.
"Every judge if he is to do his best should be assigned wherever possible the kind of judicial business in which he excels".
There may be Judges who have not had enough training in criminal work and dislike it. The disposal by such Judges of criminal work is bound to be slow and unsatisfactory. The same results will follow if a Judge familiar with criminal work is put to dispose of the civil file. These matters are of particular importance as we have in many High Courts matters of a specialised nature like the income-tax and sales-tax references. We found that in some of the High Courts, these considerations were being completely disregarded, so that matters were dragging on at a considerable length before Judges unaccustomed to deal with them.
Senior judges to deal with admission.- In the present state of congestion of the files in the High Courts it is also essential that each Court should make use of its most experienced and competent Judges to deal with admissions. If matters are examined carefully at the admission stage and only deserving cases admitted, there will be a great saving in the time of the court. The figures that have been placed before us show that a large percentage of matters admitted-in some cases as much as 70 or 80 per cent-are eventually dismissed.
A careful examination of these matters at the admission stage and the weeding out of cases which have no merit in them, would obviously lead not only to a saving in the judge-power but also a saving of considerable expense to the litigants. A strong and capable judge dealing with admissions could, after a careful hearing at the admission stage, restrict the matters admitted to cases which really deserve a reconsideration.
80. Administrative duties of the High Court.-
It should not be forgotten that one of the most important duties which a High Court performs is the administrative duty of supervising the work of the subordinate courts. The subordinate judiciary in the State can function with efficiency only if the High Court seriously scrutinizes the work of subordinate judicial officers, attends to the needs of subordinate courts like the provision of court-houses, the transfer of judges, the supply of law books and the like.
Our inquires have revealed that the importance of these duties is not recognised and that they are neglected in some of the High Courts. Indeed, views have been expressed in some quarters that the High Courts' function ends with the disposal of the cases pending before them and that the supervision of the lower judiciary and the imparting of a tone to the judicial administration in the whole State by a watchful supervision of the subordinate courts is no part of the legitimate function of the High Court.
Such a view is entirely erroneous. It should not be difficult for the High Court to perform its administrative duties if the work of supervision over subordinate courts is distributed among several judges, there being an overall supervision on general questions by the Court as a whole. It appears to us that the laxity of supervision by the High Court has in a large measure contributed to a considerable decline in the efficiency of the subordinate judiciary, in some of the States.