Chambers of Ishaan Garg
Ch. No. 217, Western Wing, District & Sessions Court, Tis Hazari, New Delhi, Delhi 110054
+91 8851742417, +91 8800386163
This Court has laid down in several reported decisions that higher courts should observe restraint and disparaging remarks normally should not be made against the learned members of the lower judiciary. In Ishwari Prasad Mishra vs. Mohd. Isa (1963) 3 SCR 722, a Three Judge Bench of this Court has emphasized the need to adopt utmost judicial restraint against using strong language and imputation of motive against the lower judiciary by noticing that in such matters the concerned Judge has no remedy in law to vindicate his position. The law laid down by this Court in the matter of expunction of remarks where a subordinate Judge has been subjected to disparaging and undeserved remarks by the superior Court, is well settled by this Court in the matter of `K' a Judicial Officer Vs. Registrar General, High Court of Andhra Pradesh 2001 (3) SCC 54. In the said decision this Court has succinctly outlined the guidelines in this regard in paragraph 15 of the said Judgment as under: "........The existence of power in higher echelons of judiciary to make observations even extending to criticism incorporated in judicial orders cannot be denied. However, the High Courts have to remember that criticisms and observations touching a subordinate judicial officer incorporated in judicial pronouncements have their own mischievous infirmities. Firstly, the judicial officer is condemned unheard which is violative of principles of natural justice. A member of subordinate judiciary himself dispensing justice should not be denied this minimal natural justice so as to shield against being condemned unheard.
Secondly, the harm caused by such criticism or observation may be incapable of being undone. Such criticism of the judicial officer contained in a judgment, reportable or not, is a pronouncement in the open and therefore becomes public. Thirdly, human nature being what it is such criticism of a judicial officer contained in the judgment of a higher court gives the litigating party a sense of victory not only over his opponent but also over the Judge who had decided the case against him. This is subversive of judicial authority of the deciding Judge.
Fourthly, seeking expunging of the observations by a judicial officer by filing an appeal or petition of his own reduces him to the status of a litigant arrayed as a party before the High Court or Supreme Court- a situation not very happy from the point of view of the functioning of the judicial system. And last but not the least, the possibility of a single or casual aberration of an otherwise honest, upright and righteous Judge being caught unawares in the net of adverse observations cannot be ruled out. Such an incident would have a seriously demoralizing effect not only on him but also on his colleagues. If all this is avoidable why should it not be avoided?"
http://www.lawweb.in/2015/01/when-judicial-officer-can-be.html
However, this Court has further provided that the parameters outlined hereinbefore must not be understood as meaning that any conduct of a subordinate judicial office unbecoming of him and demanding a rebuff should be simply overlooked. This Court has outlined an alternate safer and advisable course of action in such a situation, that is of separately drawing up proceedings, inviting the attention of the Hon'ble Chief Justice to the facts describing the conduct of the subordinate Judge concerned by sending a confidential letter or note to the Chief Justice. The actions so taken would all be on the administrative side with the subordinate Judge concerned having an opportunity of clarifying his position and he would be provided the safeguard of not being condemned unheard, and if the decision be adverse to him, it being on the administrative side, he would have some remedy available to him under the law.
Again, in K.P. Tiwari vs. State of M.P. 1994 Supp. (1) SCC 540, this Court had to remind all concerned that using intemperate language and castigating strictures on the members of lower judiciary diminishes the image of judiciary in the eyes of public and, therefore, the higher courts should refrain from passing disparaging remarks against the members of the lower judiciary. The record would show that the appellant had discharged her judicial duties to the best of her capacity. To err is human. It is often said that a Judge, who has not committed an error, is yet to be born. This dictum applies to all the learned Judges at all levels from the lowest to the highest. The difference in views of the higher and the lower courts is purely a result of a difference in approach and perception. But merely because there is difference in views, it does not necessarily establish that the lower courts are necessarily wrong and the higher courts are always right. Therefore, this Court in several reported decision has emphasized the need to adopt utmost judicial restraint against making the disparaging remarks so far as members of lower judiciary are concerned.
Supreme Court of India
Mona Panwar vs High Court Of Judicat.At ... on 2 February, 2011
Bench: J.M. Panchal, H.L. Gokhale
Citation;2011 ALLMR(cri) SC
