SG Tushar Mehta takes swipe at ‘bully’ judges in his book

NEW DELHI: Extraordinary courtroom reverence shown worldwide by lawyers to judges has afflicted some judges with a false sense of divinity, turning a few ‘My Lords’ into bullies, senior advocate and solicitor general Tushar Mehta says in his upcoming book — a take that avoids contempt but may still raise sensitive hackles on the bench.

Mehta has compiled incidents from foreign courtrooms to illustrate his “bullies on the bench” theme that could hold a mirror to Indian judiciary. In ‘The Bench, the Bar and the Bizarre’, he writes, “Judicial bullying takes many forms. Some judges interrupt counsel incessantly, while others cross the line from firmness to humiliation”.

Public rightly expects highest standards from judges: SG

He says though the judicial system is primarily meant for litigants, they can’t demand safeguarding of their constitutional and statutory rights, but plead through their counsel with “His Lordship’s kind permission”. “Even a patent legal absurdity coming from the bench is met first (by lawyers) with ‘We bow down to Your Lordship’, before the advocate dares to ‘take the liberty’ of offering an ‘alternative proposition for His Lordship’s kind consideration’,” he says.

Sarcastic in tone, the book is arguably a courageous take, that too by a serving law officer, on the widely shared lament in the bar about condescending judges on the bench weaponising their exalted status and power asymmetry. Mehta, whose nearly eight year tenure as SG — beginning 2018 — is the second longest after legendary CK Daphtary’s 13-year tenure as first SG, says the judiciary is the most respected branch of the State.

“That respect may be extracted through the blunt instrument of contempt powers, or it may be sustained by commanding the genuine confidence of stakeholders, confidence born of fairness, neutrality and civility in the treatment of litigants and lawyers,” he says.

He also says judges across countries have always frowned at and struck down any external oversight of their work or a mechanism to hear complaints against them, seen as “intrusion into independence of judiciary”.

TOI has an exclusive copy of the book that wanders into jurisdictions across the world to meticulously choose many interesting and incisive examples from courtroom dramas.

Mehta also acknowledges the problems judges face. “In almost all jurisdictions, courtrooms are overcrowded and congested spaces that provide anything but a pleasant working environment. Judges labour under crushing caseloads with minimal infrastructure and scarce institutional support. Their resources are often wholly disproportionate to the volume and complexity of matters they are expected to decide,” he says.

Remunerations of judges, especially at the trial level, is modest and frequently fails to keep pace with inflation. “Added to this are the daily provocations of unreasonable litigants and irritating lawyers, who can test even the most disciplined judicial temperament,” Mehta writes.

But while showing empathy, Mehta says the difficulties facing them cannot be an alibi for judges to be uncivil in courtrooms. Judges are sourced from the very system, its pressures, imperfections and provocations, he says.

Mehta says the public rightly expects highest standards of conduct from judges, as they can remove an arrogant or errant politician by voting them out but not an arrogant or errant judge. On the line of Arun Jaitley’s pet dialogue to describe unreasonable arrogant judges as “tyranny of the unelected”, Mehta writes, “He or she is neither directly accountable nor answerable to the people. Any deviation from the ideal judicial composure risks eroding the very faith that sustains the institution of judiciary.”

Referring to the huge power imbalance inside a courtroom, the SG says, “When a judge becomes arrogant, abusive, interruptive or intolerant during arguments, it is not a contest between equals. The lawyer’s options are few and unpalatable. To reciprocate in kind is to risk one’s client’s interests and one’s own professional survival… It is usually left to a brave litigant, rather than counsel, to draw the attention of the higher body to such judicial behaviour.”
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