S Murlidharan

Judges need to be provocative

S. MURLIDHARAN | Updated on March 12, 2018

Digvijay Singh

BL24_COURT

So what, if the Supreme Court called CBI a caged parrot? It is justified in making oral observations.

The Supreme Court’s description of the Central Bureau of Investigation (CBI) as a parrot in a cage has predictably raised the hackles of the ruling UPA dispensation at the Centre, specially the Congress Party. But its leader Digvijay Singh clearly betrayed ignorance over conduct of court proceedings when he said that the judges should hold their tongue and say whatever they want to in their written order, whether interim or final.

He went on to say that off-the-cuff remarks of judges, not being part of the ultimate order, inevitably go unchallenged.

Singh’s reading of the apex court’s description of the CBI is unwarranted. A judge needs to ask provocative questions to bring out the best defence from the counsels.

A judge who does not rock the boat during the hearings could be handicapped by the lack of best viewpoints from either side, to the detriment of justice.

Probing and provocative questions from the bench have often left counsels sheepish and red-faced. A docile judge would be as much remiss in his job as a teacher who, parrot-like, reads the lesson and walks away gleefully at the sound of the bell announcing end of the class.

A teacher cannot adopt a ‘take it or leave it approach’, nor can he teach mechanically or robotically. Likewise, a judge should not allow himself to be led by the nose by wily counsels.

An alert judge can demolish the argument of the counsel by pointing out the apparent cracks therein, then and there. In the Coalgate issue, the judges had to get at the truth because the investigative-cum-prosecuting agency was hand-in-glove with the government of the day.

When such an agency is perceived to be weak, , it heightens the responsibility of the judiciary to view the prosecutor himself with suspicion.

Singh’s fear, that off-the-cuff remarks, being oral observations, cast a slur on the person the observations are made against without right to appeal, is unfounded.

First, he is jumping the gun by presuming that the judges would not express themselves as freely while writing their judgment.

Conscientious judges do not breeze into the courtroom without preparation. They are self-aware in their actions.

Second, assuming the Supreme Court is somehow brought around to the view that the CBI, after all, was a picture of probity does not castigate it in its written order, the CBI should feel vindicated. It can go to town, saying that in the course of proceedings it could prove its innocence, which is why the Court refrained from making its scathing observations in writing. So, why does Singh protest so much?

Obiter dicta

Even in a written order, often there are passing observations, known as obiter dicta, not strictly a part of the operative order. It is a time-honoured principle of jurisprudence that obiter dicta are like sage counsel from judges that merit respect though they may not command compliance.

Justice Chinappa Reddy’s famous observations in the 1985 Supreme Court verdict in the McDowell Company Ltd case that tax avoidance amounts to bending the law without breaking it even today rings a bell in the minds of the cognoscenti. But that has not prevented crooks from indulging in tax avoidance.

If obiter dicta do not command compliance, off-the-cuff oral observations command much less. Yet, as said earlier, they must be made in the interests of justice.

The UPA government has been protesting overmuch over the CAG’s findings that there was a revenue loss of a staggering Rs 1,76,000 crore as a result of an opaque policy of ‘first come first served’. This has resulted in sundry builders, among others, cornering the licences.

But to a sharp judicial mind, the fact that there was a back-to-back sale of shares of companies who had nothing to show apart from these licences would tell the entire story. Such judges would never buy P. Chidambaram’s disingenuous argument that such sale of shares was a collective act of smartness!

(The author is a New Delhi-based chartered accountant)

Published on May 23, 2013

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