Author Name:   ranganathvg@legalserviceindia.com

Justice S.H. Kapadia said: “When we talk of ethics, the judges normally comment upon ethics among politicians, students & professors & others. But I would say that for a judge too, ethics, not only constitutional morality but even ethical morality, should be the base… ”

Ethics of Judges & Judicial Accountability

In a Democracy, the Judiciary, as a custodian of constitutional rights and obligations cannot be above public accountability. Judicial independence and accountability are interlinked. Hon'ble Mr. Justice S.H. Kapadia , Chief Justice of India said: “When we talk of ethics, the judges normally comment upon ethics among politicians, students and professors and others. But I would say that for a judge too, ethics, not only constitutional morality but even ethical morality, should be the base…[2]”

The well-known legal luminaries including Former Chief Justice of India S.Venkataramaiah and Former Judge of the Supreme Court D.A.Desai and another Former Judge of the Supreme Court Chennappa Reddy have expressed the view that if all the sections of the society are accountable for their actions, there is no reason why the Judges should not be so[3]. Former Chief Justice, Verma recognized the validity of this plea when he remarked on one occasion, “These days we (Judges) are telling everyone what they should do but who is to tell us? We have task of enforcing the rule of law, but does not exempt and even exonerate us from following it”.

It is perhaps pertinent to remember that every advanced democratic country has evolved its own procedure of judicial accountability. In India, time has now come to ensure judicial accountability, perhaps through the constitution of a National Judicial Commission and formation for forum of redressal of grievances of common man. Judicial independence and Judicial accountability are neither incompatible nor mutually exclusive concepts. Rather Judicial accountability concept increases the legitimacy of the judiciary amongst the people and vis-à-vis it discharges its duties more effectively and efficiently.

History teaches us that no justice can gain public respect by making it immune from public criticism; instead public confidence is reposed on an institution on the basis of its performance and transparency of it’s action. The same holds ground from the Indian Judiciary. Besides the aforesaid, a criminal law on defamation itself provides adequate safeguards to protect the reputation and dignity of the honest Judges in the country.

For proper implementation of this concept of judicial accountability, it is necessary that the Judges should follow a code of conduct which may be broadly called as ethics for Judges.

Code of Ethics of a Judge:-
1. Judicial decision to be honest:- It is, therefore, absolutely essential that in order that the Judge’s life is full of public confidence in their role in the society, the judicial decision is to be honest and fair. No judicial decision is honest unless it is decided in response to an honest opinion formed in the matrix of the judges proficient of law and fact. However, the perception of an individual judge may be wrong. But a wrong decision honestly made does not make that decision dishonest. A decision becomes dishonest if not decided on judicial conviction of fairness, honesty and neutrality. Judicial decisions can be tainted when such decision is based on conviction which has its origin to any external and irrelevant stimuli, such as, friendship with a lawyer, acquaintance of the Judge with the party to the litigation, obliging someone whom the judge knows who might have intervened in the decision making, receipt of gratification etc. In order to be a judge on whom public can repose confidence, he must be true to the judicial oath and must not allow anyone to interfere with that.



2. Judge trying a case is himself on trial:- Lord Denning M.R in his book[4] has observed as follows:-
“When a judge sits to try a case, he is himself on trail-before his fellow country men. It is on his behaviour that they will form their opinion on our system of justice. He must be robed in the scarlet of the red judge-so as to show that he represents the majesty of law. He must be dignified-so as to earn respect to all who appear before him. He must be alert to follow, all that case on. He must be understanding-to show that he is aware of the temptation that beset any one. He must be merciful so as to show that he too has that quality which dropeth as gentle rain from heaven upon the place beneath”.

Thus, the great guarantee of justice is not law but the personality of the judge and the way he discharges his duties and functions. The warranty of appointment of a judge does not confer on him a degree of wisdom, larger than he has. But it certainly places him under an obligation to dispose justice without fear or favour, affection or ill-will in consequence of his oath of office and not to go out of his way to be on the right side of the establishment which is the biggest litigant in any country. Therefore, if the element of the fear, favour, affection or ill-will come to play any role in the formation of judicial opinion or affect the judicial behaviour of a judge, the judgment though unimpeachable by the judge at the time of holding the office of a judge.

3. Code of ethics for the Judges:- In order to make a judicial decision fair, without any objective and without any bias, a Judge should follow certain code of ethics. The code of ethics which should guide a Judge in execution of the judicial functions may be summarized as follows:-

(i) The basic code of ethics is the principle that no man can be judge in his own cause[5]. The principle confines not merely to the cause where the Judge is an actual party to a case, but also applies to a case in which he has interest. A Judge should not adjudicate in a case if he has got interest therein. Judge do require a degree of detachment and objectivity in judicial dispensation. They being duty bound by the oath of office taken by them in adjudicating the disputes brought before the court in accordance therewith, Judges must remain impartial, should be known by all people to be impartial. This is made clear by the Supreme Court[6].

(ii) Judges must not fear to administer justice. “Fiat justitia, ruat caelum” that is “let justice be done though the heavens fall” should be followed as a motto by a Judge. Every unjust decision is reproach to the law of the Judge who administers it. A judge should not allow either reason of the Judge who administers it. A Judge should not allow either reasons of State or political consequences, however, formidable they might be, to influence his decision. He should guard against intimidation of powerful outside interests, which often threatened the impartial administration of justice and keep himself free from application of crude pressure, which may result in manipulation of the law for political purposes at the behest of the government in power or anybody else. Lord Mansfield’s observation in this context in the celebrated case of John Wilkes is worth noting. John Wilkes had published a seditious libel in a paper called the North Briton. He had fled abroad and been outlawed. He returned and himself asked for the outlawry to be reversed, but he was cast into prison meanwhile. He was a popular hero and many supported him and urges his release. Numerous crowds thronged in or around West Minister Hall. Pamphlets were issued in the name of the people dictating the Judges the way they should decide. Reason of policy were urged emphasizing the danger to the Kingdom by commotions and general confusion. This is how Lord Manfield answered them when he came to give Judgment:

“ Give me leave to take the opportunity of this great and respectable audience, to let the whole world know, all such attempts are in vain. Unless we have been able to find an error, which will bear us out, to reverse the outlawry, it must be affirmed. The Constitution does not allow reasons of State to influence our judgments: God forbid it should. We must not regard political consequences, we are bound to say “fiat justitia, ruat caelum”. The Constitution trusts the King with reasons of State and policy; he may stop prosecutions; he may pardon offences; it is his, to judge whether the law or the criminal should yield. We have no election. We are to say, what we take the law to be; if we do not speak our real opinions, we prevaricate with God and our consciences.. Once for all, let it be understood, that no endeavours of this kind will influence any man who at present sits here”[7].

(iii) Parties to the dispute be treated equally and in accordance with the principles of law and equity. A judge does not belong to any person or section or division or group. He is the judge of all people. In the courts of law there cannot be double standard-one for the highly and another for the rest. A Judge should not have any concern with personalities who are parties to the case but only with merits[8]. He must treat the parties to the dispute equally, giving them an equal opportunity during the trial. The Rt.Hon.Lord Hewart of Bury, Lord Chief Justice of England, said that it is “essential to the proper administration of justice that every party should have an opportunity of being heard, so that he may put forward his own views and support them by argument and answer the views put forward by his opponents”[9].

The Supreme Court said in the celebrated case “No man’s right should be affected without an opportunity to ventilate his views”[10]. A Judge is , therefore, expected to be serene and even-handed, even though his patience may be sorely tried thereby and the time of the court appear to be wasted[11]. Lord Reid’s observation in Wiseman’s case is worth noting in this context when he said that “where the decision is to be reached by a body acting judicially there must be a balance between the need for expedition and the need to give full opportunity to the defendant to see the material against him”[12].

After all justice, in the words of Lord Denning, “should not be done as speedily as dust can fall from the foot”[13].

It deserves mentioning here that the court’s time is not wasted unnecessarily if a matter is heard in details to the satisfaction of the parties to the dispute with equal opportunity to all. Even the defeated person in that event leaves the court precincts with the feeling that he received what he deserved. “Justice must be felt to be just by the community if democratic legality is to animate the rule of law”[14]. And if the invisible audience sees that parties to the dispute were not treated equally, a chorus of no confidence will be heard to say that the deprived party had no chance to defend his stances.

In classical language of metaphor, the God of Justice sits on a golden throne, but at his feet sit two lions-‘law and equity’. A Judge will fail to discharge his duty if he disregards their presence and participation. The first duty of a Judge is to administer justice according to law, the law which is established by the legislative authority or the binding authority of precedent. Where the law appears clear, he can shrug his shoulders, bow to what he regards as the inevitable and apply it. If the law should be in danger of doing injustice then equity should be called in to remedy it. Equity was introduced to mitigate the rigour of the law. A Judge may, if he has moral intellectual, social or other twinges, set out to make new law if he thinks the existing legal situation unsatisfactory. But he risks troubles if he goes about it too blantantly; and if the law has been declared in statutory form, it may prove too much for him, dislike it though he may.

(iv) Distances may be maintained from the relations and acquaintances, parties to the dispute and their lawyers. Judges should be cautious in their outlook and approach. They should neither provide supportive stool to their sons and daughters, close relations and acquaintances in order that they may succeed in the profession nor recognize chosen ones in that sphere.

Since judging is not a profession but a way of life, the judge must distance himself from the parties to the dispute and their lawyers during the conduct of the trial. One can notice now a days the growth of a new caste in legal profession who thrive not by intellectual or professional capabilities but by utilizing their close connection with the judges. The growth of this suspicious trend can be checked if practicing lawyers and sitting judges avoid meeting frequently in private. Persons who occupy high public offices must take care to see that those who claim to be close to them are not allowed to exploit that closeness, alleged or real[15].

(v) Too much of activity and participation in social functions be avoided.

It is often said that as a result of a very considerable amount of ordinary social activity, a Judge may become identified with people and points of view, and litigants may think they may not get fair trial. To repel that feeling, a Judge should avoid too much of social activity. Again, Judges should be very selective in attending social functions. Judges in England and USA generally decline such participation. If they attend even a private function, they ask for the list of invites. The Supreme Court in Ram Pratap Sharma v Daya Nand issued a note of caution to the effect that it is proper for a Judge not to accept any invitation and hospitality of any business or commercial organization or of any political party or of any club or organization run or sectarian, communal or parochial lines[16].

(vi) Media Publicity be avoided

As far as possible a Judge should keep off the media. He should refrain from expressing his views in media on matters either pending before him or likely to appear for judicial consideration. Else he may be accused of prejudging the issue and his neutrality may be questioned thereby. Lord Widgery, Lord Chief Justice of England since 1971 to 1980, said that “the best judge is the man who should not court publicity and should work in such a way that they don’t catch the eyes of the newsmen”. Lord Hailsham said that the “best judges are those who do not find their names in the The Daily Mail and still, who abhor it”[17].

(vii) Need of restrainment be not overlooked.

Socrates said, four things belong to a Judge; to hear courteously, to answer wisely, to consider soberly and to decide impartially.

In the matter of making disparaging remarks against a person or authority whose conduct comes into consideration before a court of law, a Judge should consider: (a) whether the concerned party or authority is before the court or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on their conduct justifying the remarks; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct[18].

Judicial pronouncement, it may be noted, should be judicial in nature and should not normally depart from sobriety, moderation and reserve[19].

A Judge should have the ability to recognize that he is not infallible and any party may be unjustified and if so, it may do considerable harm and mischief and result in injustice[20].

(viii) Judges not to yield to procrastinative tactics of the lawyer: It is the duty of the Judge to see that the lawyer does not intentionally delay the proceedings of the court by seeking repeated adjournments. When a complaint is made to the State Bar Council against an advocate for drawing of disciplinary proceedings by the Disciplinary committee of the State Bar Council on the ground that the concerned advocate had been seeking repeated adjournments for postponing the examination of the witnesses who are present in the court without making alternative arrangement for their examination, conduct of such advocate has been held by the Supreme Court to be professional or other misconduct, and it is the duty of the Bar Council of India has refused to entertain such a complaint against an advocate and the said order of the State Bar Council has been affirmed by the Bar Council of India, the Supreme Court in N.G.Dastane v Srikant S.Shinde[21] directed the complaint made by the client be enquired into by the disciplinary Committee of the State Bar Council. Apart from the question of the professional misconduct of the advocate, the Supreme Court has observed that the judicial magistrate who yielded to the procrastinative tactics should remain answerable to the High Court so that action can be taken against the magistrate on the administrative side for such serious latches. This decision of the Supreme Court clearly demonstrates that it is within the judicial ethics of a judge not only to administer justice honestly, impartially but also to administer it expeditiously. If the Judge or the Magistrate finds that an advocate is unnecessarily taking procrastinative tactics to delay the proceedings before the Judge, it is the duty of the Judge to take proper steps so that the concerned advocate is not encouraged to use such procrastinative tactics and to delay the trial.

Restatement of Values of Judicial Life
In India on 7th May 1997 a 16 point code of conduct, for ensuring proper conduct among members of the higher judiciary was adopted by the Judges of the Supreme Court and the High Courts with the Gujarat High Court as the sole dissenter, reportedly. The 16 point code which the Judges prefer to describe as “The Restatement of Values of Judicial Life” is believed to have become effective since then. It was drafted by a Committee of five Judges, headed by Justice Dr.A.S.Anand, as he then was. The other members were Justice S.P.Barucha, Justice K.S.Paripoornan, Justice M.Srinivasan and Justice D.P.Mohapatra. The 16 point code[22] stipulates:

(1) Justice must not merely be done but it must also be seen as done. The behaviour and conduct of members of the higher judiciary must reaffirm the people’s faith in the impartiality of the judiciary. Accordingly, any act of a Judge of the Supreme Court or a High Court, weather in official or personal capacity, which erodes the credibility of the perception has to be avoided.

(2) A Judge should not contest the election of any office of a Club, society or other association; further he shall not hold such elective office except in a society or association connected with the law.

(3) Close association with individual members of the Bar, particularly those who practice in the same court shall be eschewed.

(4) A Judge shall not permit any member of his immediate family to, such as spouse, son, or daughter, son-in-law, or daughter-in-law, or any other close relative, if as member of the Bar, to appear before him or even be associated in any manner with a case to be dealt with by him.

(5) No member of his family, who is a member of the Bar, shall be permitted to use the residence in which the judge actually resides or other facilities for professional work.

(6) A Judge should practise a degree of aloofness consistent with the dignity of his office.

(7) A Judge shall not hear and decide a matter in which a member of his family, a close relation or a friend is concerned.

(8) A Judge shall not enter into a public debate or express his views in public on political matters or on matters that are pending or are likely to arise for judicial determination.

(9) A Judge is expected to let his judgement speak for themselves. He shall not give interview to the media.

(10) A Judge shall not accept gifts or hospitality except from his family, close relations and friends.

(11) A Judge shall not hear and decide a matter in which a company in which he holds shares is concerned unless he has disclosed his interest and no objection to his hearing and deciding the matter is raised.

(12) A Judge shall not speculate in shares, stocks or the like.

(13) A Judge should not engage directly or indirectly in trade or business, either by himself or in association with any other person. (publication of a legal treaties or any activity in the mature of a hobby shall not be constructed as trade business).

(14) A Judge should not ask for accept contribute or otherwise actively associate himself with the raising of any fund for any purpose.

(15) A Judge should not seek any financial benefit in the form of a perquisite or privilege attached to his office unless it is clearly available. Any doubt in this behalf must be got resolved and clarified through the Chief Justice.

(16) Every Judge must at all times be conscious that he is under the public gaze and there should be no act or omission by him which is unbecoming of the high office he occupies and the public esteem in which the office is held.

These are only the “Restatement of the Values of Judicial Life” and are not meant to be exhaustive but illustrative of what is expected of a Judge.

Conclusion:
Need of a new law suggested: The only remedy is to provide a legal conscience and for that there is necessity to enact a new law on the lines of Prevention and Corruption Act, 1988 under the purview of which the judges of the Supreme Court and the High Courts shall be brought, because neither the impeachment procedure of the Judges as provided in the Constitution nor the internal judicial machinery to prevent the corruption of Judges of the Higher Judiciary in India is workable.
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[2] “Kapadia cautions judges against judicial activism”, NEW DELHI, May 3, 2010 available at http://beta.thehindu.com/news/national/article420137.ece (Last Visited on June 14, 2010).
[3] Rama Reddi Padala, “Advocates Practice” Vol.2 at 1469, Hyderabad, Padala Rama Reddi Educational Society
[4] “The Family Story” page no. 162
[5] It is the Latin principle “Nemo debt esse judex in causa propria sua” which literally means that no man can be a judge in his own cause.
[6] Dr.D.C.Saxena v Hon’ble Chief Justice of India (1996) 5 SCC 216.
[7] Rex v Wilkes (1769) 4 Burr, Part-IV, p.2562.
[8] Nand Lal Mishra v Kanhaiya Lal Misra AIR 1960 SC 882
[9] Rt. Hon. Lord Hewart of Bury, Lord Chief Justice of England; The New Despotism, p.47
[10] Charan Lal Sahu v Union of India AIR 1990 SC 1480 ; (1990) 1 SCC 613
[11] R.Viswanathan v Abdul Wahjid AIR 1963 SC 1 at p.51 per Hidayatullah J
[12] Wiseman v Borneman (1971) AC 297 at p.308
[13] Lord Denning, “The Family Story” , p.168
[14] Mohinder Singh Gill v The Chief Election Commission AIR 1978 SC 851; (1978) 1 SCC 405
[15] Satyendra Narayan Singh v Ram Nath Singh AIR 1984 SC 1755; (1984)4 SCC 217.
[16] AIR 1977 SC 809
[17] David Pannick QC, “Judges”
[18] State of Uttar Pradesh v Mohammad Nizam AIR 1964 SC 703.
[19] State of Uttar Pradesh v Mohammad Nizam AIR 1964 SC 103
[20] State of Madhya Pradesh v Nandlal Jaiswal AIR 1987 SC 251 at page 287
[21] AIR 2001 SC 2028
[22] Restatement of values of Judicial life available at http://judicialreforms.org/files/restatement_of_values_jud_life.pdf (Last Visted on June 14, 2010)

The  author can be reached at: ranganathvg@legalserviceindia.com

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