06/02/2022
PLD 2022 SC 7
Strictures not to be passed against judges of district judiciary.
Horizontal and vertical precedents.
Compliance of articles 189 and 201 and judicial effrontery.
“Every judge of the courts of this land - from the highest to the lowest - should be protected to the same degree, and liable to the same degree. If the reason underlying this immunity is to ensure that they may be free in thought and independent in judgment, it applies to every judge, whatever his rank.”
i. An appellate court should not pass strictures in its judgment against the judge of the lower court whose judgment or order is impugned before it, relating to his efficiency or conduct;
ii. An appellate court should not summon in court the judge of the lower court whose judgment or order is impugned before it, to explain why and how he or she has made that judgment or order;
iii. An appellate court, if notices such procedural errors or irregularities in the proceedings conducted by the lower court which, it thinks, should not be repeated in other cases, may bring the same to the notice of the judge concerned through a confidential note separate from its judgment;
iv. An appellate court, if is of the considered but tentative view supported by reasonable grounds that the judge of the lower court has exhibited grave inefficiency or has committed serious misconduct in discharge of his judicial duty that warrants disciplinary action, 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 further as per the relevant service laws, rules and instructions, notwithstanding the view of the appellate court, in the same manner as it or he deals with other such complaints.
Public reprimand of a judge of the lower court regarding his judicial conduct by an appellate court while sitting in judgment over his or her judicial decision, either by recording a stricture or a censorious remark in its appellate judgment or by summoning the judge and reproaching him orally in open court, does not behove the judiciary of a constitutional democracy which boasts of the independence of judiciary as its salient pillar. Any such public condemnation of a judge lowers the public trust in the judicial institution, besides the harmful effect it has on the morale and confidence of the judge concerned as well as of his colleagues.
The District Judiciary is the backbone of our judicial system, and the judges of the District Judiciary perform the onerous task of dispensing justice at the frontline by dealing with a large number of cases in a difficult and demanding environment. The judges of the higher courts must appreciate the stressful and challenging conditions in which these judges perform. Our judicial system acknowledges the fallibility of judges, and hence provides for appeals and revisions. Higher courts everyday come across orders of the lower courts which are not justified either in law or in fact and modify or set them aside; that is the function of an appellate court. It is often said that a judge who has not committed an error is yet to be born. This applies to all judges, no matter how high or low in rank they maybe. The intemperate or extravagant criticism on the ability of a person having a contrary view is 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. While examining the decision of a court below, the higher court is to assess the reasoning and the legality of the decision challenged before it and not the ability or conduct of the author judge. The latter is the function of the disciplinary authority. The higher court, if so decides, can refer the matter to the disciplinary authority.
A decision of the Suprreme Court, to the extent it decides a question of law or enunciates a principle of law, is binding on all other courts of the country including the High Courts, under the mandate of Article 189 of the Constitution of the Islamic Republic of Pakistan 1973 (“Constitution”). Similar is the binding effect of such a decision of a High Court, under Article 201 of the Constitution, on all courts subordinate to that High Court. To appreciate the scope and extent of the binding force and authority of judicial precedents, they may be classified into two categories: vertical and horizontal precedents. Vertical precedents mean the decisions of a higher court, and horizontal precedents mean the decisions of the same or coordinate court. All courts are absolutely bound by the vertical precedents of a higher court. This binding tie is often said to be a matter of “owing obedience”. Articles 189 and 201 of our Constitution also reinforces the binding effect of the vertical precedents. Judges are therefore obliged to follow a vertical precedent even when they disagree with it; this ensures a degree of national uniformity in judicial decisions. The judges have little room to decide how much weight or value is to be given by them to that precedent. 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 of the country who owe unflinching fealty to its decisions under the Constitution. Ignoring or refusing to follow the controlling precedent of this Court amounts to judicial effrontery, offends the constitutional mandate, and weakens the public confidence in the decisions of the apex Court of the country. As Jackson J. said, humbly but firmly, of the Supreme Court: “we are not final because we are infallible, but we are infallible only because we are final.”A higher court generally adheres to horizontal precedents - its own earlier decisions - but it may depart from or overrule any of its own decisions by sitting as a larger bench if there is a compelling justification to do so.
