Judges, Don’t Preach

Surbhi Tandon & Snigdha Jain (CCS Interns)

A judge’s obligation to the public starts and ends with his or her analysis of the law, its correct use, not with the preaching of personal beliefs or preferences.  Chief Justice S H. Kapadia once said, “High Courts and the Supreme Court are courts of principles. The judges should not speak anything beyond the principles of a particular case. Let us not give lectures to the society. The problem is sometimes we judges impose our own values, our own likes or dislikes on the society”. The Karnataka High Court seems to have missed this message.

Last week the Karnataka High Court dismissed a habeas corpus petition (a legal writ which allows a person to be free of unlawful detention) by a Bangalore resident seeking reunion with his newly married wife, who he claimed was being illegally detained by her parents. The court observed that girls below the age of 21 cannot judge the character of the person they choose to marry. The court further observed that a girl below 21 years must have the consent of her parents in order to get married. “Parents should choose the boy for a girl aged below 21, as it is they who bear the brunt of an unsuccessful marriage,” the Bench said. Is this just a ‘judgment’ or a generalized appraisal of a women’s inability to choose a suitable life-partner? Judges act as the new age custodians of morality who feel the need to define what is ethically correct and incorrect. Judges when delivering judgments ought to remember that their sole duty, as the upholders of the judiciary, is to pass verdicts based on facts and laws, not on what they perceive ought to be done.

The Supreme Court revealed, in February this year, that 3,21,27,796 cases were still pending in Indian Courts as of October 2010.  Some judges, it seems, find time to ‘arrange marriages’ despite the logjam of cases.  The Karnataka High court is no exception when it comes to the judiciary preaching moral norms. Former Chief Justice K. G. Balakrishnan thought that “due regard” should be given to a rape victim’s wish if she “chooses” to marry the rapist, or have the baby conceived as a result of this forced crime. Given the Indian social fabric one can imagine how much of a “choice” such a “choice” is.  A sample of such magnanimity was on display at the Orissa High Court in May 2009 on the hearing of a Cuttack district rape case. The Court gave the perpetrator a pick: either languish in jail or marry the victim.  A strange sense of justice indeed.

The way ahead for fair judicial verdicts lies in Indian judges developing a code of conduct which enables them to perform their duties without any moral or ethical bias; one which does not dictate what is right or wrong according to conservative social norms. The conclusion being, don’t preach!