Editor’s Note: In this essay, Shreenath A. Khemka* critically assesses the honorary title of ‘Justice’ used as a prefix by judges of various High Courts and the Supreme Court of India. He argues that the usage of the title ‘Justice’ is unsustainable under Article 18 (1) of the Constitution.
When it comes to the practice of law, formalism is the norm. Neophytes, however, are quick to note the murmur of feudal vestiges in what is brushed aside as innocuous tradition. Although none (judges) now mandate the olden entente, very few been vocal against it. Therein, the bashfulness in addressing judges is of keen interest.
Titles were conferrals of aristocracy by the sovereign (monarch), which in turn promised heredity succession to political office (lordship), imperial property (estates), and common folk (serfs). Signifying distinct status by birth, titles exemplified everything odious with the sixteenth century. The peculiarity of the English judicial system characterized the apex Court as a body of Lords. The seventeenth-century colonial expansion successfully exported the English mores across the globe; and as Common Law spread, so did its feudal traditions.
While the Americans were quick to lose the habit of addressing judges as Lords, the latter colonies did not fare as well. Despite their outlawing in the emergent constitutional democracies, soft feudalism perpetuated. It was only at the end of the nineteenth century that judges even recognized its presence, and despite the dawn of the twenty-first century, only a handful have regurgitated its usage. And while titles of ‘Lords’ perished, titles of ‘Justices’ continued unabashed.
Conventionally, judges of appellate courts were conferred the appellation of ‘Justices’. Unlike a judge, a ‘Justice’ would not determine facts, but would rule on law. Hence, in India, judges of the Constitutional Courts came to be known as ‘Justices’. Interestingly, ‘Justice’ was never conferred as a title, and was restricted to a distinct species in the larger genus of judicial office. Its usage was linked to continuance in public office, much like “President Kovind” or “Prime Minister Modi”. However, unsurprisingly, ‘Justice’ became a titular prefix; with judges retaining it in private address, as well as consequent to them demitting office.
Article 18 (1) of the Indian Constitution explicitly disallows the conferral of any title. During the discussion in Balaji Raghavan v. Union of India (1995), on whether national awards were titular conferrals, the Supreme Court unpacked the history of Article 18’s insertion into the Constitution (Paras 18—25). As initially proposed by K. T. Shah, all titles were to be barred expect for academic, official, and honorific titles. However, when the clause was introduced in the Constituent Assembly, only ‘heritable titles’ were barred. The same was found lacking, and the term ‘heritable’ was removed. During reconsideration by the Drafting Committee it was felt by B. N. Rauthat outlawing perhaps did not extend to official and professional titles, and to honours bestowed for exceptional service. This echoed with the opinion of M. R. Masaniwho identified titles as appendages to one’s name, in contradistinction to honours. Therefore, the clause was redrafted to bar only heritable titles and privileges by birth. Notwithstanding, B. R. Ambedkardid not proceed with the redrafted clause. Subsequently, Article 18 (1) was enacted after incorporation T. T. Krishnamachari’samendment to create the sole exception for military and academic distinctions.
Prima facie, ‘Justice’ is not a military distinction. Ex facie, ‘Justice’ is also not an academic distinction. ‘Academic distinction’ must be identified by the intent behind Krishnamachari’samendment i.e. “the State might decide to revive academic titles like Mahamahopadhyaya, and lastly, because a university might not be completely divorced from a State”.
However, neither is ‘Justice’ explicitly conferred by the State as an academic title, not is it a distinction related to education at a University. Taking oath to a public office might be indicative of wisdom, but certainly does not confer any academic achievement. To the contrary, as per B. N. Rau,“titles such as “Field Marshal”, “Admiral”, “Air Marshal”, “Chief Justice” or “Doctor”” indicated an office or profession. However, such official and professional titles have not been saved by Article 18 (1).
Whilst official titles of ‘Field Marshal’, ‘Admiral’, and ‘Air Marshal’ would survive as military distinctions through public service, ‘Doctor’ would survive as academic distinction through a Medical or Doctoral Degree. On the other hand, ‘Chief Justice’ being a constitutional office would not be permissible as a title, more so, when every judicial member has been referred to in the Constitution as a ‘judge’ and not a ‘Justice’. Such distinction between title and profession (or office) has already been identified by the Supreme Court in Indira Jaising v. Supreme Court of India (2017), by adjudicating that the grant of ‘Senior Advocate’ would not amount to the conferral of a title under Article 18 (1) (Para 24).
Surprisingly, judicial convention itself suspends the usage of ‘Justice’ when judges ascend public offices or resume litigation. The notable example being of Ranjan Gogoi, whose Warrant as a nominated member of Rajya Sabha did not mention ‘Justice’. However, the same treatment is not met for military and academic titles, with judges, lawyers, and ministers retaining their titular prefixes. Therefore, even if ‘Justice’ is permissible as a title under Article 18, it stands at a diluted pedestal than others.
While under Article 124 judges are granted constitutional immunity quatheir public office, all paraphernalia arising therefrom is saved under Article 125. However, no guarantee or protection is extended to any titular grant in either of the Articles. Interestingly, even if ‘Justice’ is to be treated as an academic title, removal of a judge under Article 124 (4) (especially on the ground of misconduct) would be an event of forfeiture. This is of relevancy because both in military and academia, titles are prone to cashiering and forfeiture upon proven indiscipline, misconduct, and moral turpitude. With the example of C. S. Karnanand S. N. Shukla, it becomes difficult to reconcile the retention of such honorific judicial titles, despite indictment for indignation towards discipline and propriety.
Servility in the name of politeness is an excuse to perpetuate feudal overlords. Judges do perform venerable functions, but in a democracy, no one should be allowed to flash a status of having occupied a public office. Equality dictates freedom from ascribed status.
“You may do justice, without personifying yourself as one”.
* Lawyer at the High Court of Punjab & Haryana, Cambridge (2018) & NALSAR (2017); with inputs from Ritesh Mukherjee—lawyer at the High Court of Delhi, Europa (2020) & ILS Pune (2017).
