“Judicial reticence has much to commend it; it preserves the neutrality of the judge, it shields him or her from controversy, and it deters the more loquacious members of the judiciary from exposing their colleagues to controversy.”
Sir Anthony Frank Mason, ninth Chief Justice of Australia from 1972 to 1995
“An obiter dictum…is a gratuitous opinion, an individual impertinence....the passing opinion of a Judge expressed when it is not called for.”
Dictionary of Legal Quotations
“Judges who covet publicity, or convey the appearance that they do, lead any objective observer to wonder whether their judgments are being influenced by the prospect of favourable coverage in the media.”
— The US Court of Appeals, in the Microsoft case
Judges in India are speaking too much, far, far too much, from the Bench during hearings, unburdening themselves far too long-windedly on the merits of the case while the hearing is proceeding or even at the admission stage. Coming from a family of lawyers, I have had occasion to watch great judges in action after Independence.
During my service in the 1950s, until the judiciary was finally separated from the executive, I have myself been the presiding officer of the Court and have appeared before, or known, the High Court and Supreme Court judges of those times.
They confined themselves, while sitting on the Bench, to asking pointed and relevant questions of the Counsel arguing before them to get any ambiguities in points of law or fact clarified.
I recall no occasion when they made wide-ranging running commentaries which could be interpreted as their having made up their minds before both sides had presented their versions of the case in full.
In the 1950s, the quality of legal education, the standards of legal practice, the awareness of judicial traditions and, generally, adherence to norms of judicial conduct in India were on par with the best anywhere else. Judges considered it binding to follow Lord Kilmuir whose prescription for keeping the judiciary insulated from the controversies of the day holds the ground to this day.
He put it pithily thus: “So long as a Judge keeps silent his reputation for wisdom and impartiality remains unassailable: but every utterance which he makes in public, except in the course of the actual performance of his judicial duties, must necessarily bring him within the focus of criticism.” (I doubt whether anyone has even heard of Lord Kilmuir these days!)
In the last few decades, there is a rising trend of judges not only making off-the-cuff observations from the Bench, as if they are handing down impromptu verdicts, but liberally sprinkling their comments with harsh expressions detracting from the majesty of law.
The media too have begun using in their headlines words such as ‘slamming' ‘slapping' and ‘banging'. This causes demoralisation among parties to cases, and raises doubts in the public mind about the cases getting a fair and impartial hearing.
As a former judge of the Supreme Court, Justice Markandey Katju, said: “Judges do not speak for themselves except through their judgments.” It becomes incumbent on them to follow this principle since people look upon what judges say or do with respect even in these days of ebbing credibility of Constitutional authorities and take even their casual remarks as sacrosanct and final. The higher judiciary should, therefore, conduct itself with becoming reticence, since modesty adds to the majesty of law.
The National Judicial Academy should make judicial restraint and reticence the subject of discussion among those deputed for refresher courses.
There is a corresponding need for restraint on the part of media as well in reporting the cases coming up before the higher judiciary. They should refrain from playing up the seemingly peremptory admonitions administered from the Bench in the course of the hearings, lest they be construed by the lay public as the judges' considered opinion.