A Non-Performing Judiciary Can’t Be Said To Be Independent: Justice JB Pardiwala
It must be said right at the outset itself that Justice Jamshed Burjor Pardiwala who garnered a lot of national limelight in the beginning of May was appointed as a Judge at the Apex Court on May 9, 2022. He superseded a phenomenal 48 Judges and Chief Justices to become the Apex Court Judge by dint of his merit. He was number 3 in seniority in Gujarat High Court and 49th in all India seniority list. He is the fourth Parsi Judge to serve at the Apex Court and also it must be mentioned that he is the first minority High Court Judge to be appointed in the last five years to the top court after Justice S Abdul Nazeer. Like Justice Nazeer, he too has not ever been appointed Chief Justice of any State and has directly been made a Supreme Court Judge.
In hindsight, it must be mentioned here that Justice Pardiwala will definitely get the benefit of being appointed so early as Apex Court Judge and will go on to succeed Justice PS Narasimha as CJI on May 3, 2028. He will have a tenure of two years, three months and eight days as CJI and will ultimately retire on August 11, 2030. He is known all over for delivering judgments well within time and the quality of his judgment also speaks for itself.
Justice Pardiwala was born on August 12, 1965 into a reputed family of lawyers who are based in South Gujarat’s Valsad. His great grandfather Navrojji Bhikaji Pardiwala began his legal practice in Valsad in 1894. Justice Pardiwala did his schooling from St Joseph Convent School in Valsad, graduation from JP Arts College in Valsad and LLB from KM Mulji College in Valsad. He began his legal practice in January 1989 and by 1990 had started practicing in the Gujarat High Court at Ahmedabad. In 1994, he was elected as a Member of the Bar Council of Gujarat which he retained until 2000. In 2002, he was appointed as a Standing Counsel at the Gujarat High Court and cleared about 1200 pending matters in his tenure.
His career as a Judge started on February 17, 2011 with his appointment as Additional Judge of the Gujarat High Court. He was made a permanent Judge on January 28, 2013. He also got the privilege of serving as President of the Gujarat State Judicial Academy. He has written 1807 judgments as Gujarat High Court Judge and sat on 2,195 Benches. He adjudicated matters that were primarily pertaining to criminal law, civil law, services and indirect taxation.
While speaking at a Full Court Farewell that was organized by the Gujarat High Court just recently on June 23 on his elevation to the Supreme Court, Justice Pardiwala minced just no words in holding unequivocally that, “We often talk of an independent judiciary – what do we mean by an independent judiciary? For a judiciary to be independent, it has to be a performing judiciary. A non-performing judiciary cannot be said to be independent. When I say performing judiciary, it means that every Judge is free to decide matters before him in accordance with his assessment of the facts and his understanding of the law without any improper influences, inducements or pressures, direct or indirect, from any quarter or for whatever reason.” There is a lot of sense in what he has said and all the Judges must always definitely bear this in mind while delivering decisions.
While underscoring the paramount importance of judiciary in the smooth running of the country, Justice Pardiwala also minced just no words to clearly state that, “It is said that a man is known by the company he gets. A nation is known by the judiciary it has. The worth of a nation is measured by its judiciary which is seen as the ultimate keeper of the nation’s conscience. Ours is such a judiciary which ensures to the people of this nation that the freedoms which are there under the Constitution will never be taken away and that history should never repeat itself.”
While continuing in a similar vein, Justice Pardiwala then also elaborated stating that, “It can be said that the source of judicial power is the law, yet, in reality the effective exercise of the judicial power originates from two sources externally, the source is the public acceptance of the authority of judiciary; and internally, and more importantly, the source is the integrity of the judiciary. The very existence of the justice delivery system depends on the Judges who constitute the system. It is said that the life of law is justice and it is for the Judge to breathe life into the law. But mere laws are not enough; men of character inspired by high ideals infuse life and spirit in the skeleton of law.”
While then dwelling on the virtues of a good Judge, Justice Pardiwala then envisaged that, “The administration of justice is one of the most essential functions of the State. Many, many years ago, Harold Laski, an English political theorist and economist, in his tribute to Justice Holmes, described the hallmarks of a great judge. The list is long but what I like the most is that ‘a great Judge must be a great man…He must be statesman as well as jurist, thinker as well as lawyer. What he is doing is to shape the categories through which life must flow, and he must have a constant sense of the greatness of his task. He must know the hearts of men, and yet ask to be Judge from the conscience of their minds. He must have a constant sense of essential power, and yet be capable of humility in its exercise. He must be the servant of justice and not of its master, the conscience of the community and not of its dominant interests.”
While mentioning about the basic role of a Judge in a democracy, Justice Pardiwala then pointed out that, “There are two basic roles of a Judge in a democracy, and that too, in a very vibrant democracy like India – first, to uphold the Constitution and the rule of law; and secondly, to bridge the gap between the law and the society. I shall feel my services have been amply rewarded if I have been able to carve out a place in your heart as a Judge who was keen to do justice to the best of his abilities.”
While adding more to it, Justice Pardiwala then stated that if there are three prime requisites for the rule of law, they are a strong bar, an independent judiciary and an enlightened public opinion. He also minced absolutely no words to clearly point out that, “There can indeed be no greater indication of the decay in the rule of law than a docile bar, a subservient judiciary and a society with a choked conscience.”
Furthermore, he also clearly stated that, “Administration of justice is a very solemn duty and it demands wholehearted devotion. I believe that God alone is the true fountain of justice and Judges are called upon to discharge the judicial functions as his agents. We are accountable to God for all that we do in the discharge of this function and therefore it is necessary for us to do our best according to the light and wisdom given to us by him. I have always felt that if we fail in doing justice to others, we shall not be entitled to claim justice for ourselves from God.”
He also was of the firm view that, “The success of democracy in our country depends substantially, if not wholly, on the success of the rule of law. In a modern democratic State, the functions of the legislature, the executive and the judiciary are well defined and the spheres of their respective activities are well-established. The progress and stability of a modern democratic State depends upon the vision, the wisdom and the foresight of its legislature, the efficiency and incorruptibility of its executive and the independence, impartiality and integrity of its judiciary.”
While addressing the members of the Bar, Justice Pardiwala sought to remind them that as lawyers, they don’t only have a professional responsibility but a very definite social, ethical duty towards the society and towards the individual. Justice Pardiwala while making a fervent appeal exhorted to lawyers saying that, “Just as a doctor has a sacred duty to preserve and prolong life, so has the lawyer the sacred duty to protect the physical, moral and intellectual integrity of the individual. The protection of the individual from either the State or other individuals must be reconciled with the essential requirement of modern society. However, it is a lawyer’s duty to ensure that this process of reconciliation never involves a derogation from the fundamental personal rights of the individuals. Lawyers must be and remain crusaders in the field of the rule of law and human rights. That is my appeal to all of you.”
In addition, Justice Pardiwala also said that, “Leaders succeed in part because of their skills and their capabilities, but what counts more is the faith people bestow in you. 11 ½ years at the High Court, I was driven by the need to make the state of Gujarat a better place for its citizens, and this need was fuelled every day by an undying faith you, the community of people, had in me. It is often asked, ‘Does the society really need another lawyer?’ India has roughly 1.8 million lawyers. This means there is one lawyer for every 736 persons and yet there are thousands of people who remain unrepresented. So yes, we do need lawyers, we need bold and confident lawyers because access to justice is a basic human right. Law is a service business with strong emphasis on providing service. I strongly believe it is your ethical responsibility to provide your services in the public interest, in furtherance of a safe, fair and just society.”
While exhorting the younger generation to work hard with zeal according top priority to character, Justice Pardiwala then said that, “To the younger generation hearing me, you are creatively patriotic. Believe in yourself and attach yourself to a cause greater than yourself. One of my great pleasures on the Bench has been to witness how the junior members of our Bar, who I had known in their professional infancy, have grown up to become formidable advocates. It makes me happiest to see the zealous spirit of this new generation of lawyers. You are the hope and future of the nation. It lies in your fierce hands to uphold the integrity of the judiciary and make this nation a better place for your children! Ability may take you to the top but character will keep you at the top.”
While elucidating further, he made it clear that character is not about honesty and sincerity but about doing the right thing when you are tempted to do the wrong – Roscoe Pound so eloquently captured this. He said that lawyers should be willing to say to clients that ‘Yes, the law lets you do that but don’t do it. It is a rotten thing to do’. He goes on to further say that, “Our role as lawyers transcends the technical, it requires us to consider the public’s welfare in addition to the interest of the private client. That is how it should be. Perhaps if as a community, all lawyers were better at fulfilling this aspect of our public service obligation, you could elevate your collective reputation and finally make the list of the most admired professions, a list where teachers and members of our military always rightfully stand.”
Still more, he then says that, “But this was not always the case. Today law might have the reputation of being a money making business. But there was a time when its true essence was of a service business. The important duty of the profession is to act as the interpreter, guide and faithful servant of the community. Man may be a little lower than the angels, he has not yet shed off the brute and the brute within is apt to break loose on occasions. To curb and control that brute, we need a rule of law. We also need the rule of law for the settlement of disputes which are bound to arise in the affairs of man and in ensuring the rule of law, the most significant part is perhaps played by the lawyers. Lawyers play the central role in the functioning of the nation and in upholding the values that guide our country today. It was only due to the selfless guidance and statesmanship of the legal profession that the Indian national movement gained participation and its impact reached far beyond immediate political consequence.”
Moving on, Justice Pardiwala then also points out recalling that, “For over 11 years of Judgeship, I have drawn from your energy as a community who has demanded change. Over the years, I delivered a plethora of judgments. The words were mine but the feeling of accomplishment was shared by us all. A strong Bar is essential if the judiciary is to function properly. Because unless the Bar is strong, the grievance of the people will not be properly and effectively ventilated. By a strong Bar, I don’t mean a discourteous or disrespectful Bar. A lawyer can be courteous and respectful and yet bold and vehement in his arguments. By a strong Bar, I mean a Bar which does its duties effectively of ventilating the grievances of the people.”
While hailing the role of Constitution in nation building, Justice Pardiwala then hastened to add that, “The soul of India is its Constitution; our Republic, foresight of dynamic visionaries. What a great edifice they built ensuring sovereignty with democratic values. The Constitution is our bedrock, ensuring our safety and security, it outlines the process which keeps us rooted in values. We read it for reference and for every policy decision. Without it, we would be lost and make many mistakes. It is now 75 but we keep turning it because it guarantees the rights and sets the benchmarks for responsibilities. Welfare of all is its primary concern but it is for the legal fraternity to protect its sanctity and safety.”
Not stopping here, Justice Pardiwala then also while according due importance to the role of a common citizen added noting that, “Even those who are not a part of the legal fraternity also have a responsibility to be a dutiful member of the society; that as a society, we must keep striving to make our world a better place for the future generations to come. The courts and lawmakers cannot do this alone. Each of you must rise and do your little part in making this society you live in more inclusive, fair and just. Friends, do not fear the change that comes with time. Embrace it. This constant change is the hallmark of a successful society. Remember one thing, that change is the only constant…I strongly believe in the words of Barack Obama – ‘Change only happens when ordinary people get involved and they get engaged and they come together to demand it’.”
While then delivering the concluding remarks, Justice Pardiwala minced no words to hold while urging the audience to listen to him with attention that, “This last part of my address is very important. Always stand united when it comes to protecting the honour and dignity of the High Court as an institution. Never allow anybody to undermine the value of institution, the honour of institution. Never allow anybody to (unclear) the institution. Whatever may be the personal differences amongst you all, such differences should be buried when it comes to standing tall to protect the honour and dignity of the institution.”
In conclusion, Justice JB Pardiwala made a very brief yet brilliant speech and he has dwelt on the right aspects so well. He has made it indubitably clear in his speech that a non-performing judiciary can’t be said to be independent. To put it differently, he makes it absolutely clear that Judges must be certainly free to decide the matters before them in accordance to their assessments of facts and understanding of the law without any improper influences, inducements or pressures, direct or indirect, from any quarter or for whatever reason. No doubt, there is a lot of merit in what he has said so brilliantly and it must be certainly adhered to! No denying it!