Illiteracy of the bar and bench
When technology has presented new challenges and laws are constantly being expanded, a proper orientation for persons who are supposed to implement the law becomes necessary.
THE recent salvo by a judge of the Madurai Bench of the Madras High Court lamenting the lack of knowledge of executive magistrates and a direction to the government to conduct training and refresher courses for them on basic concepts of criminal law has raised eyebrows. In this case, the lack of training was regarding executive magistrates (Collectors, Revenue Divisional Officers, and Tahsildars) who exercise certain powers under the Criminal Procedure Code, 1973 (CRPC).
The learned judge may be off the mark because these officers, who get through the Union Public Service Commission examination and enter the Indian Administrative Service (IAS), have to go through rigorous training at the Lal Bahadur Shastri National Academy of Administration in Mussoorie. The training consists of several parts, including training in administration and exercising magisterial powers. One may be surprised that learning horse-riding is a compulsory part of the training.
SEPARATION OF POWERS
Even before the CRPC 1973 was enacted, similar powers were provided under the CRPC of 1898. Under the old code, these magistrates also exercised judicial powers and heard cases sitting in a court that was normally called Court of the Sub-divisional Magistrate. However, after taking note of Article 50 of the Constitution, which provided for separation of powers of the judiciary and the executive, the new CRPC was enacted and many judicial powers were taken away from the executive magistrate. But to the surprise of many, the new CRPC is not notified in many of the north-eastern States even today and the sub-divisional magistrates and district magistrates continue to hear cases sitting in courts even today.
The Collectors, as they are called in the southern parts of India, and District Commissioners in other parts were also empowered as District Magistrates under the CRPC. Chapters VIII and X (Sections 106 to 124 and Sections 129 to 148) of the CRPC deal with the powers allotted to
A Sessions Judge in Madurai wrote in his order that he was impressed with the lectures given by resource persons at the NJA who insisted upon imposing severest penalties.
magistrates. They include the power mostly to deal with the law and order situation and to maintain peace and tranquillity in a local area. This power also includes several other hitherto unknown areas such as Section 133, under which an executive magistrate can pass a conditional order for removal of nuisance. A magistrate who took a municipality to task under this provision received appreciation from the Supreme Court, which recorded as under:
“The Magistrate, whose activist application of s. 133 CRPC, for the larger purpose of making the Ratlam municipal body to do its duty and abate the nuisance by affirmative action, has our appreciation” (Ratlam Municipality, 1980). It is under this executive power that prohibitory orders can be issued, security for keeping peace in local areas, and externment of anti-social elements can also be ordered.
Apart from the exercise of executive powers, revenue officers are also given the power of criminal prosecution under several enactments. They also exercise quasi-judicial power under various land reform laws. Under Section 21 of the Bonded Labour System (Abolition) Act, 1976, executive magistrates are empowered to prosecute offenders. However, the Madras High Court
struck down the said provision by stating that “the functions of the Judiciary and Executive are quite different. In other words it is clear that the Executive Magistrate has no role to play in conducting judicial trial and recording judicial decisions” (Gajendran, 2018).
NEW POWERS
In many different pieces of labour legislation, the power to grant relief has been vested with authorities of the labour department. In the proposed new Labour Codes, vast powers have been delegated to the executive authorities. While the legislative trend moves in a different direction, it is rather unfortunate that the judiciary should take the opposite direction by clinging on to old notions of so-called judicial powers. The modern administrative law does not make any such distinction.
A Constitution Bench of the Supreme Court upheld the Labour Commissioner’s power to grant prior approval in case of retrenchment of workmen (Section 25N) as valid even though there is no provision for appeal or revision against such an order. The bench held: “The absence of a provision for appeal or revision is not of much consequence especially when it is open to an aggrieved party to invoke the jurisdiction of the High Court under Article 226 of the Conexecutive
stitution” (Meenakshi Mills, 1982).
The High Court was aggrieved by the action of executive magistrates in not following the guidelines issued by the High Court under Section 122 of the CRPC wherein an executive magistrate can commit a person to imprisonment if he fails to give security or after executing a bond commits the breach of the same. The question is whether executive magistrates have a correct understanding of the law or whether they have deliberately violated the law. No one denies a proper orientation for persons who are supposed to implement the law.
Former Chief Justice of India J.S. Khehar once wrote, “Every day is a matter of learning” (District Judge, Gwalior, 2014). It is not only executive magistrates, but even the judges who require training. For this purpose, judicial academies have been established in all States and a National Judicial Academy is functioning in Bhopal.
Commenting on the training, Justice R.V. Raveendran, former judge of the Supreme Court, recently wrote: “But the training is found to be inadequate in many States. Further, in view of the large number of vacancies, many a time, newly appointed judicial officers are posted without undergoing the full course of training. The quality and period of
training differ from State to State. Many judicial academies do not have qualified, experienced and committed faculty. Bad or wrong training is worse than no training. The training of new judges should be properly structured and should be of adequate duration”.
A Sessions Judge in Madurai (Tamil Nadu) who took the lectures at the Academy seriously, while ordering the death penalty for an offender (where it is necessary to give a special reason for the same, that is, that it could be only for a rarest of the rare case that such a penalty can be imposed), wrote in his order that at the National Judicial Academy he was impressed with the lectures given by resource persons who insisted upon imposing severest penalties. The Madras High Court upheld this order.
SUPREME COURT’S INTERVENTION
On appeal by the accused, the Supreme Court reversed the death penalty and dealt with the scope of the lectures at the academy in the following lines:
“Criminal Court while deciding criminal cases shall not be guided or influenced by the views or opinions expressed by judges on a private platform. The views or opinions expressed by the judges, jurists, academicians, law teachers may be food for thought. Even the discussions or deliberations made on the State Judicial Academies or National Judicial Academy at Bhopal only update or open new vistas of knowledge of judicial officers. Criminal courts have to decide the cases before them examining the relevant facts and evidence placed before them, applying binding precedents. Judges’ or academicians’ opinions, predilection, fondness, inclination, proclivity on any subject, however eminent they are, shall not influence a decision making process, especially when judges are called upon to decide a criminal case which rests only on the evidence adduced by the prosecution as well as by the defence and guided by settled judicial precedents. National Judicial Academy and State
Judicial Academies should educate our judicial officers in this regard so that they will not commit such serious errors in future” (Omaprakash, 2012).
While the subordinate judges are bound to attend the orientation programmes and in-service training at the State and national level, which will be taken into account in their career promotions, there is no requirement for high court judges to do so. There are many high court judges who refuse to attend any such training programmes at the National Academy.
They openly say that having been appointed to a constitutional office they do not require any such training. To remove such wrong notions, all Supreme Court judges attended a colloquium at the National Judicial Academy a few years ago.
It is rather unfortunate that persons who are selected to the higher judiciary have no requirement of any academic orientation and training. When the development of technology has thrown new challenges and the horizon of new laws have considerably expanded, it is unnecessary to state that proper training is necessary. It is unthinkable that without exposure to different branches of law, one can decide matters of considerable importance.
MANDATORY TRAINING PROGRAMMES
Under the present collegium system of selection, the capacity of a person is never tested and the selection is based on several considerations, some of which have no bearing on the performance to be done by such persons. It is high time the Supreme Court evolves a method by which even members of the higher judiciary are mandatorily required to go for training programmes so as to orient themselves to the new challenges. The COVID-19 pandemic and the resultant online hearing by courts also exposed the inadequacy of judges in many courts in grappling with the situation.
A judgment rendered by a Himachal Pradesh High Court judge was quashed solely on the ground that it was incomprehensible and it was remanded for fresh consideration. Never in the history of courts has an order been overruled on the ground of an inability to understand the same.
Besides the lack of understanding of an issue, there is one more aspect to the poor quality of judgment rendering. In the adversarial system which India has adopted, the role played by lawyers is also significant. Unless the quality of presentation of cases before courts improves, it may have a direct impact on the decision-making. That is why Justice V.R. Krishna Iyer, the renowned jurist, once said: “The illiteracy of the bench is the direct outcome of the illiteracy of the Bar.” m Justice K. Chandru is a retired judge of the Madras High Court.
It is not only executive magistrates, but even the judges who require training.