Consequences of adverse remarks made in judgments

It is not quite uncommon to note certain disparaging remarks in the Orders/judgments of various forums which are exceeding judicial discipline and approach and having far reaching consequences against whom these remarks have been made.  The remarks may be against lower adjudicating authorities by the Appellate Tribunal or against lower court by Sessions Court/ High Court. Sometimes remarks have also been made against professionals such as Advocates/ Chartered Accountants.  Intemperate language used in the Orders/ judgments and by casting aspersions may have far reaching consequences on the careers of the professionals/ lower authorities/ judicial officers including lowering of image of judiciary in the eyes of the public, credibility as a judicial officer.  Improper, uncalled for and unwarranted remarks in the orders/ judgments need to be expunged.

Remarks against lower judiciary 

2. From time to time, Hon’ble Supreme Court has reminded toadopt utmost judicial restraint against using strong language and imputation of corrupt motives against lower judiciary. In K.P. Tiwari v. State of M.P., 1994 Supp (1) SCC 540, Hon’ble Supreme Court reminded all concerned that using intemperate language and castigating strictures on the judges of the lower judiciary diminishes the image of judiciary in the eyes of public.  Notable observations made in this case are extracted as under:

“We are, however, impelled to remind the learned Judge of the High Court that however anguished he might have been over the unmerited bail granted to the accused, he should not have allowed himself the latitude of ignoring judicial precaution and propriety even momentarily. The higher courts every day come across orders of the lower courts which are not justified either in law or in fact and modify them or set them aside. That is one of the functions of the superior courts. Our legal system acknowledges the fallibility of the judges and hence provides for appeals and revisions. A judge tries to discharge his duties to the best of his capacity. While doing so, sometimes, he is likely to err. It is well said that a judge who has not committed an error is yet to be born. And that applies to judges at all levels from the lowest to the highest. Sometimes, the difference in views of the higher and the lower courts is purely a result of a difference in approach and perception. On such occasions, the lower courts are not necessarily wrong and the higher courts always right. It has also to be remembered that the lower judicial officers mostly work under a charged atmosphere and are constantly under a psychological pressure with all the contestants and their lawyers almost breathing down their necks – more correctly up to their nostrils. They do not have the benefit of a detached atmosphere of the higher courts to think coolly and decide patiently.  Every error, however gross it may look, should not, therefore, be attributed to improper motive. It is possible that a particular judicial officer may be consistently passing orders creating a suspicion of judicial conduct which is not wholly or even partly attributable to innocent functioning. Even in such cases, the proper course for the higher court to adopt is to make note of his conduct in the confidential record of his work and to use it on proper occasions.  The judges in the higher courts have also a duty to ensure judicial discipline and respect for the judiciary from all concerned. The respect for the judiciary is not enhanced when judges at the lower level are criticised intemperately and castigated publicly. No greater damage can be done to the administration of justice and to the confidence of the people in the judiciary than when the judges of the higher courts publicly express lack of faith in the subordinate judges for one reason or the other. It must be remembered that the officers against whom such strictures are publicly passed, stand condemned for ever in the eyes of their subordinates and of the members of the public. No better device can be found to destroy the judiciary from within. The judges must, therefore, exercise self-restraint. There are ways and ways of expressing disapproval of the orders of the subordinate courts but attributing motives to them is certainly not one of them. That is the surest way to take the judiciary downhill.”

3. Hon’ble Supreme Court in the case of Ishwari Prasad Misra v. Mohd. Isa (1963) 3 SCR 722, has stressed the need to adopt utmost judicial restraint against using strong language and imputation of corrupt motives against lower judiciary by observing that in such matters, the concerned Judge has no remedy in law to vindicate his position.

4. In the case of State of Uttar Pradesh vs. Mohammad Naim AIR1964 SC 703, the Hon’ble Supreme Court while striking a balance between the freedom of judges and their duties observed as under:

If there is one principle of cardinal importance in the administration of justice, it is this : the proper freedom and independence of judges and Magistrates must be maintained and they must be allowed to perform their functions freely and fearlessly and without undue interference by anybody, even by this court. At the same time it is equally necessary that in expressing their opinions judges and Magistrates must be guided by considerations of justice, fair play and restraint. It is not infrequent that sweeping generalisations defeat the very purpose for which they are made. It has been judicially recognised that in the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before courts of law in cases to be decided by them, it is relevant to consider (a) whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that conduct justifying the remarks ; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct. It has also been recognised that judicial pronouncements must be judicial in nature, and should not normally depart from sobriety, moderation and reserve.

5. In State of M.P. v. NandlalJaiswal- 1993 Supp (1) SCC 681, the Apex Court stated as follows:

We may observe in conclusion that Judges should not use strong and carping language while criticising the conduct of parties or their witnesses. They must act with sobriety, moderation and restraint. They must have the humility to recognise that they are not infallible and any harsh and disparaging strictures passed by them against any party may be mistaken and unjustified and if so, they may do considerable harm and mischief and result in injustice.

6. In Braj Kishore Thakur v. Union of India (1997) 4 SCC 65, Apex Court noted that while allowing an appeal filed by the Collector of Customs, Patna against the grant of bail to two persons who were allegedly found in possession of 97 Kg of non-duty paid ganja, the Ld. Single Judge of Patna High Court made detrimental remarks against Sessions Judge-cum-Special Judge, Purnia. The Hon’ble Supreme Court expunged the remarks and observed as under:

“No greater damage can be caused to the administration of justice and to the confidence of people in judicial institutions when Judges of higher courts publicly express lack of faith in the subordinate Judges. It has been said, time and again, that respect for judiciary is not enhanced by using intemperate language and by casting aspersions against lower judiciary. It is well to remember that a judicial officer against whom aspersions are made in the judgment could not appear before the higher court to defend his order. Judges of higher courts must, therefore, exercise greater judicial restraint and adopt greater care when they are tempted to employ strong terms against the lower judiciary.”

7. In the case of A.M. Mathur v. Pramod Kumar Gupta (1990) 2 SCC 533, the Hon’ble Supreme Court observed that judicial restraint and discipline are as necessary to the orderly administration of justice as they are to the effectiveness of the army. The duty of restraint, this humility of function should be constant theme of our Judges. This quality in decision-making is as much necessary for Judges to command respect as to protect the independence of the judiciary. Judicial restraint in this regard might better be called judicial respect, that is, respect by the judiciary. Respect to those who come before the court as well to other coordinate branches of the State, the executive and the legislature. There must be mutual respect. When these qualities fail or when litigants and public believe that the Judge has failed in these qualities, it will be neither good for the Judge nor for the judicial process.

8. In ‘K’ A Judicial Officer, In re, (2001) 3 SCC 54, the Hon’ble Supreme Court observed as follows:

Several cases are coming to our notice wherein observations are being made against the members of subordinate judiciary in the orders of superior forums made on judicial side and judicial officers who made orders as Presiding Judges of the subordinate courts are being driven to the necessity of filing appeals to this Court or petitions before the High Courts seeking expunging of remarks or observations made and sometimes strictures passed against them behind their back. We would therefore like to deal with a few aspects touching the making of observations or adverse comments against judicial officers and methodology to be followed if it becomes necessary.

A Judge entrusted with the task of administering justice should be bold and feel fearless while acting judicially and giving expression to his views and constructing his judgment or order. It should be no deterrent to formation and expression of an honest opinion and acting thereon so long as it is within four-corners of law that any action taken by a subordinate judicial officer is open to scrutiny in judicial review before a superior forum with which its opinion may not meet approval and the superior court may upset his action or opinion. The availability of such fearlessness is essential for the maintenance of judicial independence. However, sobriety, cool, calm and poise should be reflected in every action and expression of a Judge.

9. In the case of ‘K’ A Judicial Officer vs’. Registrar General, High Court (SC 24.05.2010),Hon’ble Supreme Court happened to examine the judgment of the High Court which has observed against Ld. District Judge as under:
10. This attitude of the learned District Judge is out of sheer arrogance and disrespect to the lawful orders passed by subordinate Courts. Even if he is disagreeable with the findings reached by the Subordinate Courts in granting injunction in favour of the defendants in the suits filed by them, unless those orders are set aside or modified, as the case may be, in parallel proceedings, he cannot nullify those injunction orders so granted in favour of the defendants which can be done only by the appellate Court in the appeal, if any filed. Admittedly, no such appeals were preferred against the temporary injunction orders granted in favour of the defendants. In the absence of the same, granting injunction in favour of the plaintiffs will not only create law and order problem but also diminish the image of the judiciary among the general public and the implementing agencies of the injunction order like police, as they will be in a turmoil situation as to which injunction order would be implemented. It must be remembered that it is the duty of every member of the legal fraternity to ensure that the image of the judiciary is not tarnished and its respectability eroded. The manner in which proceedings were taken by the learned Judge exposes a total lack of respect for judicial discipline. Judicial authoritarianism is what the proceedings in the instant case smack of. It cannot be permitted under any guise. Judges must be circumspect and self-disciplined in the discharge of their judicial functions. Further, the impugned order, if allowed to stand, will create a law and order problem and lead to unrest and fight among the parties with each one having injunction order in their favour.

11. We are deeply perturbed and pained with the attitude of the learned District Judge in granting injunction in favour of the plaintiffs. For the reasons best known to the learned District Judge, he appears to have decided to grant injunction in favour of the plaintiffs in support of which, the above 4 reasons were assigned with contradictory observations as already pointed out. For the forgoing reasons, we cannot sustain the impugned order passed by the lower Court and the same is liable to be set aside.”

In para 13 of its order, the Division Bench of the High Court gave the following directions:

“Registry is directed to place this order as well as the impugned order before the Administrative Committee. A copy of this order shall remain placed on the personal file of the officer concerned.”

10. Against the above observations of the High Court, the Hon’ble Supreme court has held that although, the order of injunction passed by the appellant (the District Judge) may not be legally correct or justified and he may have committed an error in not taking serious view of the conduct of the plaintiffs who had apparently concealed the factum of injunction orders having been passed in favour of the defendants in the suits filed by them and, therefore, the Division Bench of the High Court may be fully justified in setting aside the order of injunction, but there was absolutely no justification for the Division Bench to make highly disparaging remarks against the appellant as a judicial officer casting doubts on his ability to decide the cases objectively. The Apex Court further held that the use of the words `out of sheer arrogance and disrespect to the lawful order‘ and the expression `judicial authoritarianism‘ shows that the Division Bench ignored the words of caution administered by this Court in several judgments including those referred to hereinabove and castigated the appellant without any justification. It was further held that the observations and remarks made by the Division Bench of the High Court are bound to adversely affect the image of the appellant in the eyes of the public, his credibility as a judicial officer and also affects his career. The Apex Court further observed that if the Division Bench of the High Court had kept in view the judgments of this Court, it would not have made disparaging remarks against the appellant, which, in the facts and circumstances of the case, were not at all called for.

Remarks against professionals

11. Much less remarks have also been made against Advocates/ Chartered Accountants in the judgments. Such remarks are again uncalled for especially when Advocates/ Chartered Accountants have been performing their professional duty.  Further, such remarks albeit having no direct bearing on the conclusions made in the case are uncalled and in fact the decisions should not be influenced even if the particular professional is not able to assist the court in arriving at the judicious conclusion.   In the earliest judgment in Philip William RavanshaweHardlessVs. Gladys Isabel Hardless and Ors. AIR 1940 Lahore, it was held that  a passage which is not necessary to the conclusion of the Judge nor even necessary to his argument and is likely to militate seriously against party’s earning a living in his profession should be expunged from the judgment.

12. Apex Court in ArunDevendraOza v. State of Gujarat – (2001) 10 SCC 195, dealing with the adverse observations against a learned Advocate, relied on the quoted decision in the case of ‘K’ A Judicial Officer, In re, ((2001) 3 SCC 54) and expunged the adverse remarks against him. The relevant portion of the said Judgment reads as follows:

As a matter of fact, excepting the introductory paragraph, the entire four-page judgment contains disparaging remarks about the advocate concerned. We have had the occasion to look at a photostat copy of the original petition which is said to have been underlined by the learned Single Judge himself. It is true that there are certain typographical errors but the same are not such as to warrant remarks from the court about the efficiency or lack of knowledge of English literature (sic language) and that of law so far as the advocate is concerned. It is rather unfortunate that what is noticed above has not been kept in view. We would like to highlight that there should be a proper amity between the Bench and the Bar rather than any element of arrogance or superiority on one side. Proper coherence will bring the best out of the judiciary and make the justice delivery system of the country more effective. We are anguished at the writings of the learned Single Judge and we sincerely hope that this attitude would come to an end with this matter only and there would not be any repetition of the same. We may record that in the past some such incidents have also happened and this Court had to intervene in one or two matters earlier.

With these observations as above, we do feel it expedient to delete the entire judgment, excepting however, the order portion which reads: ‘Hence leave granted. Appeal admitted. The appeal thus stands disposed.

13. In the case of Deepa vs. Consumer Disputes Redressal – 2006 (1) KLT 778, the Hon’ble Kerala High Court was concerned about the remarks made against Govt. Pleader by the Consumer Disputes Redressal Forum, Kannur, the relevant part of the decision is as under:

The interpretation made by the judgment debtor in the petition that since the title deed is given no compensation need be given is also seems to be a strange interpretation as we never heard of. With regard to that aspect, we are very sorry to say that the Advocate who is appearing is alleged to be a Government Pleader having 9 years’ experience in the Bar and is a lady who has not even gone through the C.P. Act or the C.P.C. provisions with regard to execution of order or decree under Order XXI of CPC or the provisions of Consumer Protection Act with regard to execution of orders passed by the Consumer Forums. This petition itself is filed under Section 151 of CPC. The fundamental principle is that execution court cannot go beyond the decree order. That is applicable to consumer forums that the consumer forum cannot go beyond the order in execution under Section 25 or 27 of C.P. Act. The Forum has to invoke either Section 25 and 27 of C.P. Act in execution of order under the C.P. Act. Normally, under C.P. Act, Advocates are allowed to appear with permission of the Forum. An ordinary prudent man who knows English or who gets a translation of the above order in the known language like a consumer may not feel any difficulty in understanding the meaning of the above order. We are further worried about the appointment of Govt. Pleader like the above Advocate because government will lose the cases as the pleaders are not taking care in contesting cases and giving proper advice to parties. There is no reviewing or revisional power under the C.P. Act to the same District Forum which issued orders.

…So, we are invoking Section 25 of the C.P. Act for getting the amount to the complainant under the R.R. proceedings with a strong advice to the counsel at least to go through the C.P. Act before appearing for a consumer.

14. The Hon’ble Kerala High Court held that the impugned strictures are unwarranted and that the strictures were passed without putting the Govt. Pleader on notice. Those disparaging remarks were totally unwarranted for the disposal of the case. The strictures, which are challenged by the Govt. Pleaderwere expunged.

15. In the case of MadhukarB.Thakoor vs. ITAT – [2015] 374 ITR 1 (Bom),Hon’ble Bombay High Court has held that expression of opinions must be guided by considerations of justice, fair play and restraint and that adverse remarks against assessee and his representative and imposition of costs are not justified. In this case, certain remarks were against a Chartered Accountant appearing on behalf of appellant assessee before Income Tax Appellate Tribunal, who was performing his professional duties.  The following observations were made by the ITAT: 

“At the time of hearing, this position clearly manifest from the applications of the assessee was confronted to the learned counsel for the assessee.   He, however, still proceeded to make stale and sterile submissions in an attempt to somehow support and justify the miscellaneous applications filed by the assessees.   This attempt, in our opinion, clearly amounts to misuse of process of Law. The filing of these frivolous miscellaneous applications by the assessees seeking rectification of the order of the Tribunal which is clearly beyond the scope of section 254(2) and the stale and sterile submissions made by the learned counsel for the assessee in support thereof thus have resulted in wastage of the precious time of the Tribunal which, in our opinion, justify imposition of cost on the assessee. We, therefore, dismiss these miscellaneous applications filed by the assessee being devoid of any merit and impose a cost of Rs. 5,000 on each of the assessee.”

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16. The Hon’ble High court held that if these comments and remarks, adversely affecting them are not required for the decision of a case and it could be justly and fairly reached on the basis of material produced and the arguments canvassed, then, the Courts and Tribunals should refrain from passing any adverse remarks or making harsh comments on the conduct of the parties. Sobriety and restraint in judicial conduct is of paramount importance. Even if the Presiding Officer, members of the Tribunal are agitated by prolong arguments and often needless, still they must not lose patience and to an extent as to comment upon the conduct of the Advocates or representatives.

17. Truly so, the remedy lies elsewhere if it is felt that there is professional mis-conduct by professionals such as Chartered Accountants/ Advocates. If the courts feel, the matter can be referred to Institute of Chartered Accountants/ Bar Council which can take appropriate action.   There is no need to make remarks in the judgments which are for consumption of parties concerned or for public at large if those judgments are reportable.

18. The following emerges out of the analysis of above judgments:

• The concerned Judge/ authority against whom such remarks have been made has no remedy in law to vindicate his position as he stands condemned for ever in the eyes of their subordinates and of the members of the public.

• It diminishes the image of judiciary in the eyes of public.

• Every error, however gross it may look, should not, therefore, be attributed to improper motive.

• Even in cases, where a particular judicial officer may be consistently passing orders creating a suspicion of judicial conduct, the proper course for the higher court to adopt is to make note of his conduct in the confidential record of his work and to use it on proper occasions.

• In case of professionals, instead of making remarks in judgments, matter can be separately referred to Institute of Chartered Accountants/ Bar Council.