In defence of the Kerala High Court: The recent outburst in the Supreme Court

Bar & Bench September 10 2019

Haris Beeran

"We are final not necessarily because we are always right – no institution is infallible – but because we are final." These were the remarks made by former Chief Justice of India YK Sabharwal at a seminar on ‘Erosion of values in the judicial system and its refurbishment’, held in December 2006.

This is the essence of law settled by the Supreme Court in its various judgments. But when a Learned Judge of the Supreme Court of India severely castigates a fellow constitutional functionary - a judge of a High Court - who is merely discharging his duty, it brings down the morale, dignity and confidence of the High Court Judges. Resultantly, it acts as an impediment to their decision-making process.

I was an unfortunate witness to the proceedings that took place in a courtroom of the Supreme Court on Friday, September 6, 2019 when a Learned Judge of the Supreme Court embarked on a withering attack against a sitting Judge of the Kerala High Court for passing an order purportedly in contravention of a judgment of the  Supreme Court.

The said Learned Judge of the Supreme Court even went to the extent of announcing the name of the Kerala High Court judge in open court. He thundered:

"It is a very objectionable order. Who is this judge? Tell his name loud. Let everyone know.

Who is this judge Justice [...] ? What kind of judge is he?"

Viewed from any perspective, the Learned Judge ought to have avoided passing the observations.

The said Learned Judge is no stranger to such outbursts. On one occasion, he even called out a fellow judge of the Supreme Court for passing an interim stay of his orders, stating that the said judge “should not have touched it." However, maybe the only light at the end of the tunnel could be that the principle of equality enshrined under Article 14 of the Constitution has been vociferously upheld, since both a Supreme Court as well as High Court Judge have been reprimanded.

Stating that the order passed by the Kerala High Court was in contravention of the decision of the Supreme Court, the Ld. Judge went further:

"No, no, no. The High Court has no right to tinker with our decision. This is the height of judicial indiscipline. Tell your judges in Kerala they are part of India." 

The State of Kerala has, thanks to the ingenuity of its tourism ministry, been known worldwide as “God’s Own Country”. I am sure that the Ld. Judge is aware of the tagline. I must point it out, for anybody under any misconceptions, that the said “Country” referred to is, and always will be a part of India.

Alluding that the judges in the State of Kerala are under the impression that they are not a part of this great country is an allegation that ought not to be made, or taken lightly.

Now that the issue has been settled, we must move onto the judicial propriety of making such statements as well as the impact it has on the subordinate judiciary as a whole.

Under the Constitutional scheme of the judiciary, the Supreme Court and the High Court are both courts of record. The High Court is by no means a court “subordinate” to the Supreme Court in its strictest sense. This principle has been observed by the Supreme Court itself in Tirupati Balaji Developers P. Ltd. v. State of Bihar.  In fact, in certain areas i.e. writ jurisdiction enjoyed by both courts, the powers available to the High Courts of the various States are much wider than those enjoyed by the Supreme Court.

Furthermore, the Supreme Court does not have any power of superintendence over the High Courts in various States, akin to the powers of superintendence exercised by the High Courts over the subordinate judiciary in a State. The principle seems to have been glossed over by the Ld. Judge when he commended his tirade.

It is no doubt that the Supreme Court is the highest court of appeal. However, in being the final guardian of rights of the people, it also has some responsibility while correcting orders of judges of the High Court.

The Supreme Court in KP Tiwari v. State of MPwhile dealing with similar observations passed by a judge of the High Court regarding a subordinate judge, has succinctly observed,

"...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, differences in views of higher and lower court is purely a result of a difference of approach and perception. On such occasion, 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...Every error, however gross it may look, should not, therefore, be attributed to improper motive.

The judges in the higher courts have also a duty to ensure judicial discipline and the respect for the judiciary from all concerned. The respect for the judiciary is not enhanced when judges at the lower level are criticized intemperately and castigated publicly. No greater damage can be done to the administration of justice and to the confidence of the people of 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...No better device can be found to be 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 not one of them. That is the surest way to take the judiciary downhill.”

Therefore, maybe the Ld. Judge should have been mindful of the Supreme Court’s own directions and practiced a certain degree of restraint as opposed to berating the Kerala High Court judge. This would have done more to preserve the dignity and history of the great institution he represents, lest it be lowered in the eyes of the general public.

The Government of Kerala bearing the brunt for non-compliance with the orders of the Court is not an unusual phenomenon. As a government for the people and by the people, there will be reasons for it to look at the human impact of such decisions including the sentiments of its people – something which is, unfortunately, lacking nowadays in the decisions of the Supreme Court.

Being the last court of appeal, the Supreme Court should act more like a guardian and protector of justice and equity, rather than a mouthpiece of outbursts and insults.

The author is an advocate at the Supreme Court of India.

Disclaimer: The views and opinions expressed in this article are those of the author’s and do not necessarily reflect those of Bar & Bench.


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