- kewal sethi
in a judgment or orders (i am never sure what it should be called), the supreme court directed that the chief information commissioner should be a person with a judicial mind. it was of the opinion that a retired ias officer does not qualify under this definition.
under our democracy, supreme court can never be wrong unless it, itself, admits that it was wrong. but what is judicial mind?
it goes without saying that all judges are lawyers. it is a world of the lawyers. the laws are made by the lawyers for the lawyers. even the constitution was written by the lawyers and for the lawyers and contains so many provisos that sometimes it makes nonsense of the original provision. but then we have to decide if all lawyers possess this judicial mind or does becoming a judge, especially of a superior court, confers judicial mind.
so what is judicial mind? where is it found and how is it nurtured? this is the subject matter of this essay. the discussions will be restricted to judges.
what does a judge do? he hears the parties and their witnesses, weighs the evidence, which may be written or oral, and gives his decision. in this he is helped by the lawyers who appear for the two sides. one of the parties is satisfied with his decision. the other goes to another judge and asks him to hear the parties again, to weigh the evidence again and to give a decision. many a time the second judge reaches a different conclusion, based on the same evidence, same arguments.
so who has the right judicial mind, the first judge or the second. if there is a provision, the parties can go to a third judge and asks him to go over the case again. and who knows what his judicial mind may decide.
now what is there which stops a common person from weighing the same evidence, go over the same arguments and decide which appeals to him better. may be his decision might not be in accordance with what another person thinks about it but that happens even when the presiding person is a judge (and a lawyer). i know that the answer would be 'training'. the lawyer is trained in law, it will be argued. the second argument will be 'practice'. the lawyer goes over the law again and again and this means he is well versed in legal matters.
if this is so, why does the judge need lawyers to represent the two sides? he knows the law, he has decided an umpteen number of cases, he has the practice. why can he not decide by himself? why has he to be helped in understanding the law or the facts?
let us see the other side. the administrator does his job which involves weighing the arguments for and against the proposal before him. he takes a decision. sometimes his decision is subject to approval or disapproval of a superior officer who has the same facts and the arguments before him. their decisions may affect a large number of persons, some not present, some may not even be knowing that he exists and is being called upon to take decisions which will affect him. the administrator has to keep this person, this absent person, before him and take a decision. is not his job harder than that of the judge, who has the parties before him to articulate their side of the case?
the only difference is that the administrator does not have lawyers to assist him. he is on his own. in other things he is on the same footing as the judge. the evidence, the arguments, the alternatives – are there for him also. so why does he not have judicial mind? does presence of lawyers give 'judicial mind' to the judge?
consider another aspect hinted above but which needs elaboration. the decision of the judge affects only two parties, which are present before him. how it affects others, is not relevant. some may quote his decision to support their stand in some other case even if their evidence is different but it will be before another judge who may or may not have same views about the case especially when the evidence is not identical, which usually can never be the case. but, in any case, when arriving at the decision, the judge is not thinking about third parties. obviously he cannot think about the impact his decision may have on general public. how it will affect the society cannot form basis of his decision in the case before him.
another point. what happens if the parties concerned deliberately withhold some evidence. if the lawyers representing them do not, again deliberately, inform him correctly about the legal position about the decision taken on similar facts (note – similar not identical) by someone else, may be a superior judge. the presiding judge proceeds on the basis of what he is told and not what the facts are or the precedents are. his decision is influenced by acts of omission and commission on the part of the parties and their lawyers. an administrator cannot and does not proceed on these lines. he must take into account the overall effect of his decision into consideration. he is concerned about the society, about the future, about the likely impact of his decisions in times to come. in that respect, he is superior to the judge despite the absence of the 'judicial mind'. if the presence of lawyers is what gives the 'judicial mind', it can be prescribed that he will have them. but his training gives him a better understanding of the situation. in democracy, one must constantly keep the citizen in mind and this is what administrator is trained to do, not the judge.
i rest my case.