‘Some standards can be prescribed by law, but the spirit of, and the quality of the service rendered by; a profession depends far more on its observance of ethical standards. These are far more rigorous than legal standards…. They are learnt not by precept but by the example and influence of respected peers. Judicial standards are acquired, so to speak, by professional osmosis. They are enforced immediately by conscience.”
– Justice J.B. Thomas.
Judicial ethics are the basic principles of right action of the judges. It consists of or relates to moral action, conduct, motive, or character of judges; what is right or befitting for them. It can also be said that judicial ethics consist of such values as belong to the realm of the judiciary without regard to the time or place and are referable to justice dispensation. (First M.C. Setalvad Memorial Lecture delivered at New Delhi). There is no definite code for judicial ethics in India but there are three important documents which serve as a guide to be observed by Judges, essential for the independent, strong and respected judiciary, indispensable in the impartial administration of justice, and these documents are, Restatement of Values of Judicial Life adopted by the Chief Justices’ Conference of India, 1999; the Bangalore Principles of Judicial Conduct, 2002, and, the Oath of a Judge, as contained in the Third Schedule of the Constitution of India. It will be apposite to discuss the three documents so as to understand their objectives.
RESTATEMENT OF VALUES OF JUDICIAL LIFE (1999)
The Supreme Court of India adopted a Charter called the Restatement of Values of Judicial Life on 7th May, 1997. It is the restatement of the pre-existing and universally accepted norms, guidelines and conventions observed by Judges. The restatement was ratified and adopted by the Indian Judiciary in the Chief Justices’ Conference, 1999. All the High Courts of the country have also adopted the same. It reads as under:
(1) Justice must not merely be done but it must also be seen to be 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, whether in official or personal capacity, which erodes the credibility of this perception has to be avoided.
(2) A Judge should not contest the election to 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 should not permit any member of his immediate family, such as spouse, son, daughter, son-in-law or daughter-in-law or any other close relative, if a member of the Bar, to appear before him or even be associated in any manner with a cause 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 practice 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 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 judgments speak for themselves. He shall not give interviews 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 treatise or any activity in the nature of a hobby shall not be construed as trade or business).
(14) A Judge should not ask for, accept contributions 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 that office is held.
THE BANGALORE PRINCIPLES OF JUDICIAL CONDUCT
The Preamble of the Bangalore Principles of Judicial Conduct, 2002, states that the principles are intended to establish standards for ethical conduct of judges. They are designed to provide guidance to judges and to afford the judiciary a framework for regulating judicial conduct. They are also intended to assist members of the executive and the legislature, and lawyers and the public in general, to better understand and support the judiciary. These principles presuppose that judges are accountable for their conduct to appropriate institutions established to maintain judicial standards, which are themselves independent and impartial, and are intended to supplement and not to derogate from existing rules of law and conduct which bind the judge. The values of judicial ethics which the Bangalore Principles defines are, independence, impartiality, integrity, propriety, equality, competence and diligence, and implementation. These values have been defined on the following principles, as under: –
(i) Judicial independence is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects.
(ii) Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made.
(iii) Integrity is essential to the proper discharge of the judicial office.
(iv) Propriety, and the appearance of propriety are essential to the performance of all of the activities of a judge.
(v) Ensuring equality of treatment to all before the courts is essential to the due performance of the judicial office.
(vi) Competence and diligence are prerequisites to the due performance of judicial office.
(vii) Implementation – By reason of the nature of judicial office, effective measures shall be adopted by national judiciaries to provide mechanisms to implement these principles if such mechanisms are not already in existence in their jurisdictions.
THE OATH BY A JUDGE
Once a Judge has sworn to uphold the Constitution of India and the laws, he has to discharge his duties by guarding the constitutional values. By swearing in the name of God or making a solemn affirmation, a Judge invests in himself certain sacrosanct principles: –
(i) that I will bear true faith and allegiance to the Constitution of India as by law established;
(ii) that I will uphold the sovereignty and integrity of India;
(iii) that I will truly and faithfully, and to the best of my ability, knowledge and judgment perform the duties of office without fear or favour, affection or ill-will; and
(iv) that I will uphold the Constitution and the laws.
The Supreme Court of India, in a catena of judgments, has highlighted the importance of judicial ethics and the independence of judiciary. Some of the judgments are briefly discussed.
In S.P. Gupta v. Union of India, it was observed by the Supreme Court that the concept of independence of the judiciary is a noble concept which inspires the constitutional scheme and constitutes the foundation on which rests the edifice of our democratic polity. If there is one principle which runs through the entire fabric of the Constitution, it is the principle of the rule of law and under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the rule of law meaningful and effective. It is to aid the judiciary in this task that the power of judicial review has been conferred upon the judiciary and it is by exercising this power which constitutes one of the most potent weapons in armoury of the law, that the judiciary seeks to protect the citizen against violation of his constitutional or legal rights or misuse or abuse of power by the State or its officers.
In Tarak Singh v. Jyoti Basu, it was observed by the Supreme Court that: –
“Integrity is the hallmark of judicial discipline, apart from others. It is high time the judiciary must take utmost care to see that the temple of justice does not crack from inside, which will lead to a catastrophe in the justice-delivery system resulting in the failure of public confidence in the system. We must remember that woodpeckers inside pose a larger threat than the storm outside.”
In High Court of Judicature at Bombay v. Udaysingh, it was observed by the Supreme Court that: –
“Maintenance of discipline in the judicial service is a paramount matter and since the acceptability of the judgment depends upon the credibility of the conduct, honesty, integrity and character of the office and since the confidence of the litigant public gets affected or shaken by the lack of integrity and character of the judicial officer…”
Justice Y. K. Sabarwal, Former Chief Justice of India, while delivering a lecture on the canons of judicial ethics, emphasized on a variety of ethical values which a judge needs to possess. Some of which are, as under: –
Public Speech – Judges must be cautious of their role and responsibilities while engaging in public speech. Law is supposed to be founded upon morality and judges have to do with making law and its interpretation. Hence, the ethical obligation rests harder upon their shoulders. Judges must constantly be aware of their role and position in society and cannot be frivolous in the use of their words. It need not be stated that the words from a judge whether inside or out of the court room carry far more weightage than an average citizen.
Public Trust – A judge must respect and honour his judicial office. It is an institution of public trust and he must endeavour to leave such office with higher respect and public confidence than when he inherited it. Societal equilibrium and faith in rule of law depends on the strength of the dignity of the judicial office. Judges are after all temporary occupants of an office that existed before us and will continue to exist after our exit.
Family Conduct – Judges are bestowed with the responsibility of judging the conduct of fellow citizens. Therefore, it is only natural that they be expected to make truthful decisions in their own lives. If they succumb to making the wrong choices, they lose the moral authority to judge the lives of others. Further, Judges are not only held responsible for their own conduct but also for that of their families. Such relationships may sometimes give rise to complex ethical challenges as they may place additional restrictions on the family members of a judge. Therefore, great caution also needs to be exercised by a judge and his family and friends while conducting themselves.
Recusal – A judge may often encounter situations where a conflict of interest arises or where there is an apparent conflict of interest which may require him to recuse himself from the matter. Bias is one of the factors that may require recusal. While considering the question of bias a judge may have to evaluate not only whether he would indeed be influenced in his decision but also whether he may be perceived as being biased which may weaken public trust ultimately. Ethical considerations play a decisive role in influencing a judge’s recusal from a case.
Compassion and Conscience – Being compassionate as a judge is as indispensable judicial ethic. A judge’s metamorphosis from a student of law, to a practitioner and later as a judge often desensitizes us to the gravity and the impact of our work on litigants and the general public. Thus, while upholding the rule of law if a judge can award a patient hearing to both the parties and be compassionate in his application of law, it often alleviates their suffering and certainly enhances their respect for the judiciary.
Avoiding Bias – The strength of our judiciary also depends on their ability to treat citizens of various religious, social and economic backgrounds without bias or prejudice. A judge like any other individual must guard against succumbing to biases. It is true that no judge worthy of his office would knowingly permit any cloud of prejudice to darken his understanding or to influence his decision.
Constitutional Values – A creative judge’s starting point is a belief in a changing or evolving society, in which there is a continuous need for the law to be modified so as to bring it back into touch with social need. He must juxtapose evolving societal needs with our resilient and visionary Constitutional principles which have stood the test of time.
Justice Dipak Misra, Former Chief Justice of India, while speaking at a Judicial Colloquium on Judicial Ethics & Conduct highlighted the following points: –
(1) It is paramount on the part of a judicial officer to constantly remember that at court he is alone. He is responsible for his own deeds and actions.
(2) Maintaining punctuality during court hours is a respect for Rule of Law.
(3) A judge must have intellectual integrity which means avoidance of egotism and self-hypocrisy.
(4) A judge should have physical morality, intellectual objectivity and constitutional ethicality.
(5) As a part of an institution, one must believe in institutional collegiality.
(6) Imposition of adequate sentence in criminal matters is a sacrosanct duty of judicial officers and judges.
(7) Writing a judgment is an energy spending exercise, both mental as well as physical. It has to be well directed.
(8) Ambition should be mothered by honesty and not the vice-versa.
(9) Never think yourself as holier than thou and others are beneath you. It is sincerity and ethicality that eventually matters and not preaching of it.
(10) To understand the nuances and subtleties of law one has to fall in love with law.
(11) Procrastination in rendering of decision not only depicts laziness but unethicality.
CONCLUSION
A Judge must always discharge his duties by upholding the Constitution and the laws with a strong character, impeccable integrity, and an upright conduct. The duties of Judicial office must also be performed, keeping in mind the principles of independence, impartiality and objectivity, which are the hallmarks of judicial values and professionalism. Sir Stephen Sedley, a former Judge of the Court of Appeal of England and Wales, has stated that independence and impartiality are the twin pillars without which justice cannot stand. If a judge has even a remote possibility of having a sub-conscious bias, he should recuse and he shall never hear and decide a matter in which a member of his family, a close relation or a friend is concerned. A Judge should even recuse himself from a matter if there is a reasonable basis for a litigant to expect that his matter should not be heard by a particular Judge, in order to avoid apprehensions in the mind of the litigant that the Judge is in favour of the opposite party. Therefore, Judges must always keep judicial ethics and values in their mind because such ethics are the foundations on which the pillars of judiciary are built. In the words of Prof. John S. Hastings: –
“It must be a conscience alive to the proprieties and the improprieties incident to the discharge of a sacred public trust. It must be conscience governed by the rejection of self-interest and selfish ambition. It must be a conscience propelled by a consuming desire to play a leading role in the fair and impartial administration of justice, to the end that public confidence may be kept undiminished at all times in the belief that we shall always seek truth and justice in the preservation of the rule of law. It must be a conscience, not shaped by rigid rules of doubtful validity, but answerable only to a moral code which drive irresponsible judges from the profession. Without such a conscience, there should be no judge.”
