Judicial Ethics: Indispensable for Justice?
Judicial ethics are the fundamental principles guiding the proper conduct and moral actions of judges. These ethics pertain to the appropriate behaviour, intentions, and character expected of judges, outlining what is right and suitable for them. Essentially, judicial ethics encompass values integral to the judiciary, applicable universally and timelessly, and are directly linked to the administration of justice.
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.
What are the 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.
What are the Bangalore Principles of Judicial Conduct, 2002?
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. 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.
What is 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 sacrosanct principles: -
(i)
that he will bear true faith and allegiance to the Constitution of India as by law established;
(ii)
that he will uphold the sovereignty and integrity of India;
(iii)
that he will truly and faithfully, and to the best of his ability, knowledge and judgment perform the duties of office without fear or favour, affection or ill-will; and
(iv)
that he will uphold the Constitution and the laws.
What are the canons of judicial ethics as per Justice Y. K. Sabarwal, Former Chief Justice of India?
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.
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.
Muneeb Rashid Malik is an Advocate practicing before the Hon’ble Supreme Court of India and he is the Legal Advisor to Kashmir Uzma. He tweets @muneebmalikrash.
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