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When judges' perspective, personal views, prejudices influence judgments

By NS Venkataraman* 

In all democratic countries, including USA and India, judiciary has become a very decisive and powerful entity, often directing the course of events, sometimes even more than the governments by over ruling the decision of the governments. Some discerning observers think that the limits of power of judiciary are blurred and unclear.
In democratic countries, though elected representatives (politicians) govern the country; people look upon the judiciary as the necessary option for people having disputes to seek remedy, as the credibility of the politicians often have become suspect in the eyes of the public.
There cannot be a scenario without judiciary in any country. Absence of judiciary is unimaginable, as otherwise disputes have to be settled between individuals or groups only by resorting to force and violence. In other words, existence of judiciary is viewed as a pre condition to ensure an orderly society.
When individuals or groups approach judiciary with disputes and seek judgement, it is inevitable that one party would get favourable judgement and another party would get unfavourable judgement. Inevitably, the party getting a favourable judgement would hail the judge for the objective approach and capability to judge the matter, while those not getting favourable judgement would think that the judge has been unfair or the judge has erred. Certainly, the positions of the judges are unenviable, as they cannot please all.
In all democratic countries, there is rule of law and provisions in the constitution and the judges are supposed to deliver judgements keeping the rule of law and constitution in view. But, in practical circumstances, this is always not possible and judges have to view the matter concerning the disputes in a holistic manner, with an analytical and judicious mindset.
When viewing the matter in a holistic manner and keeping the ground realities in view and ensuring fairness in the view of the judge, it is inevitable that the perspectives and personal views and prejudices of the judges would come into play.
This is the reason why judges often differ between themselves, while judging the same dispute matter. Often, we see situations where a higher court overrules a lower court and three or five judges sitting in a bench give different views and different judgements in the same case. Which judge is right and which judge is wrong?

Misgivings

In such circumstances, several judgements of the courts are viewed with misgivings by one section of people or the other.
Such perspectives may be there among people, since many think that the selection process for judges are not transparent and fool proof. Further, there is also a view that all judges may not be incorruptible, which is often proved by the fact that some judges have been caught on corruption charges.
The net result of the scenario is that it has become extremely difficult to anticipate the judgement by judges and as to which side the judgement would go. In some cases, the judgements of the courts have caused considerable shock and surprise amongst people.
In US courts, there are number of cases now being heard about the dealings of former US President Donald Trump, who is now trying to seeking re-election as the next President of USA. The judgements in different courts on the cases relating to Donald Trump have gone in different ways, with people getting confused as to which judgement is appropriate and which is not.
Why are British judges taking so long time to repatriate those who have run way from India on facing possible arrest?
In British courts, number of cases are being heard about the activities of a few Indians who have gone to Britain, after running away from India, as they have faced the possibility of arrest by the Indian government due to their unlawful activities such as tax evasion, loan default, money laundering.   
The Indian government wants them to be repatriated but the British courts are giving a long rope to these persons, with their cases being prolonged for a very long time. Many people in India wonder why British judges should take such long time and allow such protracted hearings, when it is “open and shut case”.
In India, the chief minister of a state was arrested by the Enforcement Directorate for enquiring into what the enforcement authority term as criminal activities. The Supreme Court released the chief minister on bail, since the court said that he cannot be denied the right for campaigning during the ongoing parliamentary election in the country. This is so, particularly in a situation where another court has opined that there is prima facie criminal case against the chief minister.
The Enforcement Directorate argued that the bail should not be given to a person facing criminal charges for campaigning in the election, as this would set a very bad precedent. According to the Enforcement Directorate, granting bail would open Pandora's box, as several other politicians facing criminal charges would seek bail for themselves, claiming that they too need to do election campaigning. 
 However, the learned judges thought it fit to release the chief minister facing criminal charges by providing bail till the completion of the election date. 
In any case, there is no alternative other than seeking court judgements to settle disputes. While one would agree with the judgement or not, the judgements have to be accepted at the face value. This is the ground reality.
---
*Trustee, Nandini Voice For The Deprived, Chennai

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