ISLAMABAD: The Supreme Court has observed that public condemnation of a judge not only harms the morale and confidence of the judge and his colleagues, but also lowers public trust in the judicial institution.

Justice Syed Mansoor Ali Shah made this observation while expunging strictures passed against two district judges by the Lahore High Court (LHC). The LHC while deciding appeals against the judicial orders of the two judges held that their conduct in a particular case prima facie seemed to be ‘dubious’ and passed strictures against them on June 22.

The judges approached the apex court for the redressal of their grievance against the stricture and direction passed by the LHC. They argued that the impugned strictures and directions passed against them were in derogation of the principles enunciated by the SC in the 2019 Nusrat Yasmin case and urged the court to expunge them.

Expunges strictures passed against two district judges by LHC

In his verdict, Justice Shah wrote: “Public reprimand of a judge of the lower court regarding his judicial conduct by an appellate court while sitting over his or her judicial decision, either by recording a stricture or a censorious remark in its appellate judgement or by summoning the judge and reproaching him orally in the open court, does not behove the judiciary of a constitutional democracy which boasts of the independence of a judiciary as its salient pillar.”

Every judge of the courts of this land — from the highest to the lowest — should be protected, the SC observed, adding that this immunity applied to every judge to ensure that judges remained free in thought and independent in their judgements.

Justice Shah also recalled the principles enunciated in the Nusrat Yasmin case, which highlights that an appellate court should not pass strictures relating to his efficiency or conduct, in its judgement against the judge of the lower court whose judgement or order was impugned before it.

Likewise, the appellate court should not summon in court the judge of the lower court whose judgement or order was impugned before it and in case of procedural errors or irregularities in the proceedings, may bring the same to the notice of the judge concerned through a confidential note, separate from its judgement.

These principles also stated that if the appellate court considered that a judge of lower court had exhibited grave inefficiency or committed serious misconduct in discharge of his judicial duty that warranted disciplinary action, it may inform the competent authority or the officer appointed by the competent authority to deal with such complaints through a confidential report. The authority or the officer concerned is to deal with such confidential report and proceed with it as per the relevant service laws, rules and instructions.

Calling lower judiciary the backbone of the country’s judicial system, the SC noted that district judges performed onerous task of dispensing justice at the frontline by dealing with a huge number of cases in a difficult and demanding environment. The judges of higher courts must appreciate the stressful and challenging conditions in which they work, the SC verdict added.

According to the SC judgement, the judicial system acknowledges the fallibility of judges and hence provides for appeals and revisions. The higher courts everyday come across lower courts orders which are not justified either in law or in fact and modify or set them aside. This was the function of an appellate court, the judgement highlighted, adding it was often said a judge who had not committed an error was yet to be born. “This applies to all judges, no matter how high or low in rank they maybe,” it stated.

As intemperate or extravagant criticism on the ability of a person having a contrary view was often founded on one’s sense of his own infallibility, this must be avoided and the judicial approach should always be based on the consciousness that everyone may make a mistake, Justice Shah said.

While examining the decision of a court below, the higher court was to assess the reasoning and the legality of the decision challenged before it and not the ability or conduct of the author judge, he said, explaining that the latter was disciplinary authority’s function. The higher court could, however, refer the matter to the disciplinary authority in the manner elucidated in Nusrat Yasmin case, only on the administrative side, the judgement contended.

“Unless we wish anarchy to prevail within the judicial system, a precedent of the apex court of the country must be followed by all other courts which owe unflinching fealty to its decisions under the constitution,” Justice Shah observed.

He said ignoring or refusing to follow the controlling precedent (Nusrat Yasmin case) of the Supreme Court amounted to judicial effrontery, offended the constitutional mandate, and weakened the public confidence in the decisions of the apex court of the country.

In the end, the SC expunged the strictures passed against the district judges with an observation that the LHC judge should act in accordance with the principles settled in the cited precedents if deemed it necessary.

Published in Dawn, December 23rd, 2021