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Forum Home > Thought on Governance > the juducial mind

kewal sethi
Member
Posts: 33

 

judicial mind

 

in a judgment or orders (i am never surewhat it should be called), the supreme court directed that the chiefinformation commissioner should be a person with a judicial mind. it was of theopinion that a retired ias officer does not qualify under this definition.

under our democracy, supreme court cannever be wrong unless it, itself, admits that it was wrong. but what isjudicial mind?

it goes without saying that all judges arelawyers. it is a world of the lawyers. the laws are made by the lawyers for thelawyers. even the constitution was written by the lawyers and for the lawyersand contains so many provisos that sometimes it makes nonsense of the originalprovision. but then we have to decide if all lawyers possess this judicial mindor does becoming a judge, especially of a superior court, confers judicialmind.

so what is judicial mind? where is it foundand how is it nurtured? this is the subject matter of this essay. thediscussions will be restricted to judges.

what does a judge do? he hears the partiesand their witnesses, weighs the evidence, which may be written or oral, andgives his decision. in this he is helped by the lawyers who appear for the twosides. one of the parties is satisfied with his decision. the other goes toanother judge and asks him to hear the parties again, to weigh the evidenceagain and to give a decision. many a time the second judge reaches a differentconclusion, based on the same evidence, same arguments.

so who has the right judicial mind, thefirst judge or the second. if there is a provision, the parties can go to athird judge and asks him to go over the case again. and who knows what hisjudicial mind may decide.

now what is there which stops a commonperson from weighing the same evidence, go over the same arguments and decidewhich appeals to him better. may be his decision might not be in accordancewith what another person thinks about it but that happens even when thepresiding 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 versedin legal matters.

if this is so, why does the judge needlawyers to represent the two sides? he knows the law, he has decided an umpteennumber of cases, he has the practice. why can he not decide by himself? why hashe to be helped in understanding the law or the facts? 

let us see the other side. theadministrator does his job which involves weighing the arguments for andagainst the proposal before him. he takes a decision. sometimes his decision issubject to approval or disapproval of a superior officer who has the same factsand the arguments before him. their decisions may affect a large number ofpersons, some not present, some may not even be knowing that he exists and isbeing called upon to take decisions which will affect him. the administratorhas to keep this person, this absent person, before him and take a decision. isnot his job harder than that of the judge, who has the parties before him toarticulate their side of the case?

the only difference is that theadministrator does not have lawyers to assist him. he is on his own. in otherthings he is on the same footing as the judge. the evidence, the arguments, thealternatives – 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 butwhich needs elaboration. the decision of the judge affects only two parties,which are present before him. how it affects others, is not relevant. some mayquote his decision to support their stand in some other case even if theirevidence is different but it will be before another judge who may or may nothave 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 aboutthird parties. obviously he cannot think about the impact his decision may haveon general public. how it will affect the society cannot form basis of hisdecision in the case before him.

another point. what happens if the partiesconcerned deliberately withhold some evidence. if the lawyers representing themdo not, again deliberately, inform him correctly about the legal position aboutthe decision taken on similar facts (note – similar not identical) by someoneelse, may be a superior judge. the presiding judge proceeds on the basis ofwhat he is told and not what the facts are or the precedents are. his decisionis influenced by acts of omission and commission on the part of the parties andtheir lawyers. an administrator cannot and does not proceed on these lines. hemust take into account the overall effect of his decision into consideration.he is concerned about the society, about the future, about the likely impact ofhis decisions in times to come. in that respect, he is superior to the judgedespite the absence of the 'judicial mind'. if the presence of lawyers is whatgives the 'judicial mind', it can be prescribed that he will have them. but histraining gives him a better understanding of the situation. in democracy, onemust constantly keep the citizen in mind and this is what administrator istrained to do, not the judge.

i rest my case.

 

 

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December 5, 2013 at 6:05 AM Flag Quote & Reply

OP Mishra
Member
Posts: 55

Sir,

As I understand that-

A mind which is trained to interpret the subjective laws is a JUDICIAL mind. Subjective laws are those which varies from lawer to lawers,  court to court and judge to judge. Where as the mind which is trained to execute the law as under stood by him which also vary from administrator to adminitrator, is a administrative mind.

Constitutionally, no professional is authorized to interfere in the profession of others.

It is similar to to Hiduism where professions were categorized as per division of profession and  which got converted latter on  in to a very strong CASTE based system. Citizen were  also kept in mind while formulating  the CASTE based system by birth, for providing GODDS & SERVICES to them.

LAW MAKERS, LAW INTERPRETERS & LAW EXECUTERS are new castes in the democratic system of MANAGEMENT (by adoption and not by birth) with the help of subjective laws, in addition to law makers, law interpreters and law executers of various religious subjective laws.

We are expert in tolerating both even if they don't deserve.

Thank & Regard 

 


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December 9, 2013 at 10:09 PM Flag Quote & Reply

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