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Canons of Judicial Ethics:Y. K. Sabharwal,

Canons of Judicial Ethics
– Speech as part of MC Setalvad Memorial Lectures Series
Y. K. Sabharwal,
Chief Justice of India
M.C. Setalvad Memorial Lecture Series started last year. The first lecture
was delivered by Hon’ble Mr. Justice R.C. Lahoti, my worthy predecessor in the
office of the Chief Justice of India. The subject of the second lecture remains
the same as that of first lecture, viz. “Canons of Judicial Ethics”. As my senior
brother Justice Lahoti said on 22nd February 2005, “nothing could have been
more appropriate and befitting the memory of Setalvad than discussing ethics”.
M.C. Setalvad was an institution in himself, a professional virtues incarnate. He
was the tallest of the tall amongst the luminaries in the legal profession. A very
brilliant lawyer whose acute mental faculties, forensic abilities and the astute
power of articulation put him on such a high pedestal giving him a stature that
would always be difficult to parallel. He commanded respect from courts,
members of legal fraternity & public at large, one and all, for sterling qualities of
his character; a character so strong that he led by example while holding public
offices including that of the Attorney General for India. He has left behind a
legacy that everyone in the legal profession must bear in mind.
After attaining independence, the people of India adopted and chose for
themselves a democratic form of Government. Like any other modern
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democratic polity, the system in our country is also divided into three organs, viz.
Legislature, Executive and Judiciary. The Constitution divides the powers
amongst these three organs and makes them independent of each other, yet
creating a system of checks and balances. The role assigned to the judiciary is
of utmost importance. This organ is vested with the duty to uphold the
Constitution and guarantee that the rule of law envisaged in our Constitution will
always prevail. In order to ensure that the judiciary is able to discharge this
onerous responsibility, the concept of independence of the judiciary was planted
into the Constitution as one of its basic structures, tinkering with which is taboo.
The concept of independence of Judiciary was the cause of concern of
the Supreme Court in the case of S.P. Gupta Vs. Union of India [1981 (Suppl.)
SCC 87], and the Court observed thus: –
“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 armory 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.”
The Judges thus are a privileged class and vested with duties of great
responsibility, holding offices of public trust. It has been often said that the duty
of a Judge is a divine duty. The concept of rule of law is dependent on an
independent, fair and competent judiciary since Judges are, to borrow words
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from the Preamble of Model Code of Judicial Conduct adopted by American Bar
Association in 1990 “arbiters of facts and law for the resolution of disputes and a
highly visible symbol of Government under the rule of law”.
When we talk of ethics, we mean moral principles that have evolved to
keep us on the path of virtue or, to put it simply, morally correct. When we use
the word “canon”, it refers to principles of morality that are regarded as very lofty.
Almost every public servant is governed by certain basic Code of Conduct
which includes expectation that he shall maintain absolute integrity; devotion to
duty; do nothing which is unbecoming of a public office held by him; render his
best judgment in the performance of his official duties; be prompt and courteous;
not involve himself in acts of moral turpitude; not take part in party politics; not be
associated with activities that are pre-judicial to the interests of the sovereignty
and integrity of India or public order; not to engage himself in interviews with
media, except with the lawful authority of his superiors; not divulge official
information which has been entrusted to him in confidence; not accept pecuniary
advantage, in particular, from those with whom he is involved in official duties;
not to engage himself in private trade or business while holding public office; not
to indulge in alcoholism or gambling; to manage his financial affairs in such a
manner that he is always free from indebtedness and not to involve himself in
transactions relating to property with persons having official dealings with him.
But then, these are general principles governing the Code of Conduct for
all public servants. The office of a Judge requires much more. The Code of
Ethics expected of those in the judiciary goes beyond the call of duty of an
ordinary public servant.
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Much has been said down the ages about the code of ethics for the
judiciary. In more recent times, Indian judiciary ratified and adopted a charter
called “Re-statement of Values of Judicial Life” in the Chief Justices’ Conference
in 1999. At the International level, Principles of Judicial Conduct were approved
and adopted in November 2002 in the Round-Table Meeting of the Chief
Justices from several law systems held in Peace Palace in Hague, Netherlands. I
do not intend this to be a compendium of all rules of ethics for judges. I would
be highlighting only those, which to my mind are of prime importance.
The people of India look up to the judiciary to administer justice; justice
that is fair; justice that is equal & even-handed; and justice that is unpolluted.
This expectation is of eternal value. The principles of ethics that is the conduct
of an ideal Judge arise out of what is a legitimate well-entrenched right of the
people for whom the judicial institution has been created. It is the right of the
people of India that the courts will give them their due in the form of justice. The
rules of ethics are nothing but a corresponding sacred duty on the part of the
Judges to live up to those expectations.
There are certain cardinal principles of judicial ethics that apply to any
person holding a judicial office whether at the level of subordinate judiciary or in
the highest court of the land. I would broadly categorize these principles into
three: one, concerning the acts attributable to his official functions as a Judge;
second, concerning his conduct while in public glare; and third, the expectations
of him during his private life. Necessarily, most of these principles will overlap
the three spheres of life of a Judge.
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The oath taken by the Judges at the time of taking over the judicial offices
reminds them of their responsibilities and sums up the subject at hand truly, fully
and effectually. It obliges them to be faithful to the Constitution of India. They
undertake that they shall uphold the sovereignty & integrity of India and to
truly and faithfully perform the duties of their offices without fear or favour,
affection or ill-will and in doing so shall render judgment to the best of their
ability and knowledge. This in a way summarizes the code of ethics for those
holding judicial offices.
The oath to uphold and be faithful to the Constitution binds the Judge to
the ethos and philosophy enshrined in the Constitution, the supreme law of the
land. Since the concept of equality before the law is one of the salient features
of the Constitution, it naturally implies that a Judge is expected to always be fair
and impartial in his judgment. It is an age-old adage, oft-quoted in legal circles,
that ”Justice is not only to be done but must be seen to have been done”. The
obligations arising from the above principle are myriad. The Judge must be
even-handed. His approach must be consistent, irrespective of the fact as to
who is before him in the dock. He is to sit with open mind. This also means
that he cannot act on pre-conceived notions. He may have his own independent
views and approach to a given subject. But, in his judgment there can be no
room for personal idiosyncrasies. He is in the judgment seat in a fiduciary
character. He has to apply law as has been established and evolved. He can
give a definite direction to the law by adding his views to the debate on a
particular issue, keeping himself within the four corners of judicial propriety. His
personal whims or caprice can have no role to play in the discharge of his
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official duties. It is his duty to apply the law as it exists rather than develop the
law anew every time a new person appears before him.
There are certain well-entrenched rules founded on principles of public
policy which reflect as to what is expected in the conduct of a Judge. These rules
include the following: –
i) Regard for the public welfare is the highest law (SALUS
POPULI EST SUPREMA LEX).
ii) No man shall be condemned unheard (AUDI ALTERAM
PARTEM).
iii) No man can be judge in his own cause (NEMO DEBET
ESSE JUDEX IN PROPRIA SUA CAUSA).
iv) An act of the Court shall prejudice no man (ACTUS CURIAE
NEMINEM GRAVABIT).
These principles are fundamental rules in the administration of justice and
are based on rules of good sense and fair play. Some of these are clubbed
together to be categorized as rules of natural justice.
A Judge administers justice. In order to do justice, the first and foremost
expectation of him is to be just. In my view, this expectation itself is the fountain
source of all that can be put in the realm of canons of judicial ethics. His life
must be one open to probity. As a person, in order to be just, has to be morally
right, a Judge has also to be fair & impartial to all concerned. He cannot have
any pre-disposed state of mind. It is wrong to say that a person has the power to
be a Judge. It is rather his duty to judge and, seen in this light, it is expected that
his judgment would not be actuated by concerns of private interests or
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considerations. He must hold the scales of justice evenly. He has to be exact.
He has to be merciful. He has to be decisive. He has to be upright and
resolute.
The above straight away takes us to the concerns about consistency. A
fair Judge will always be consistent in his approach to the appreciation of facts
and application of law to the facts found proved before him. Inconsistencies in
the judgment of an individual bring bad name to the institution. They invite
criticisms worded such as “Show me the face and I will show you the law”.
A Judge will always execute the duties of his office diligently & faithfully.
This broad proposition can be further divided into several sub-mores.
The notions of fairness and impartiality give rise to certain special norms
for Judges. These norms are designed so that he remains independent and
uninfluenced. His job is to hear the parties in the open court. It is thus taboo
for him to give a private audience to the litigants or their lawyers. He has to
shun social interactions with such category of persons at all costs. The
concept of courts functioning under the public glare generally called “open court”
is not an idle one. It is based on the principle of transparency because that reinforces
faith and confidence of the public in the system. It is, therefore, a
sacred duty of every Judge to function in the open in discharge of his official
duties.
The judicial procedure and practice are regulated by pre-set rules and
norms. It is true that procedural law is hand-maid of justice. But, at the same
time, it is also true that procedural law has been evolved on the basis of
experience of last several centuries. Each step of the procedure prescribed by
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the law has a definite purpose and philosophy behind it. In order to do complete
justice, sometimes the Judge may have to shed the straitjacket of the procedure
but this cannot become a norm. Compliance with the procedure established
by law ensures that the litigants remain aware of the progress of the case in the
Court and would not be taken by surprise at any step of the way.
The judicial system in India faces the challenge of huge arrears. The
figures of pendency at all levels are staggering. It may sound clichéd to say that
“delayed justice” is “denied justice”. But, every litigant legitimately expects quick
justice. With the courts crushed under the weight of sheer numbers, it is not
easy to render quick justice. Need to expedite the wheels of justice in each case
continues to be of great relevance and importance. In order to meet the lawful
expectations of the people at large, it is imperative that each Judge must be in
full control & command of his court. This brings us to another area of judicial
ethics.
A Judge cannot be in command of his court unless he is fully committed
to the task assigned to him. It is expected from him that he would not adopt the
mentality of a menial clerk who works for certain fixed hours of the day to earn
his living. The office of Judge is not a service or employment in the ordinary
sense of the term. It is an office of public service. A Judge remains a Judge 24
hours a day, 7 days a week and 365 days a year. He thinks about the cases on
board even while he is asleep.
In order to show such commitment, a Judge must first cherish the
solemn duty he has undertaken. It naturally flows from the above that the
Judge must be studious, thorough, prepared and well conversant with the
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factual or legal nuances of the litigation he is handling. This requires preparation
before the hearing so that the hearing is properly controlled. This also requires
calm & dispassionate disposition & study after the hearing. A Judge who is
alive to the contours of the case before him would never permit unending
cross-examination or infinite arguments. He would always be in charge and
full command of the proceedings in the Court and keep the counsel on either
side focused on the issues to be addressed.
This achieves several positive results. A Judge answering to these traits
will have a Cause List that utilizes his judicial time to the optimum. Such a
Judge would not like to sit idle and, therefore, shall ensure that he has requisite
number of cases lined up before him so as to remain pre-occupied throughout
the normal working hours. Speaking in the context of trial Judges, a conscious
Judge would always ensure that only relevant and crucial witnesses in such
number are called on each working day before him as can be examined and
thereafter discharged without being burdened with the obligation to be called
again and again. He would studiously protect harassment of the litigants in
general and witnesses in particular, by unscrupulous elements. His
proceedings will always ensure that the procedure is strictly followed and each
case makes the requisite progress, at least to the extent of the step for which it
was listed on any given date. All this care & caution shown by a vigilant Judge
would not only underscore that he is a resolute man firmly in control, earning
him good respect and reputation in the public and the Bar but also facilitate
expeditious disposal of cases in his Court.
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It naturally flows from the above that a Judge can never be unjustifiably
absent from duty. He has to be available & accessible to the people at large
who are expected to invoke his jurisdiction for redressal of their grievances. In
nutshell, a Judge has to be punctual & regular in adhering to the court hours.
The need for punctuality and regularity is not only to have full control over the
work but also to have a moral authority to check indiscipline amongst those
who are expected to play a role in the functioning of the Court, including the
court staff, members of the Bar, the litigants, witnesses etc. Conversely put, and
as a natural corollary, he would not abdicate his duties or unconscionably
refuse to use his jurisdiction to do justice.
A Judge cannot create discipline in his Court unless he leads by example.
In this view, restraint and discipline are most important attributes of an ideal
Judge. Such a Judge would maintain dignity and decorum in his Court; would
not indulge in loose talk; would refrain from unnecessary utterances and would
keep his temper in check. Since he would not himself indulge in intemperate
language, he would not allow anyone else to do so. It naturally inheres in this
trait that such a Judge would always be polite & considerate and imbued with a
sense of humility. He would not disturb the submissions of the lawyers midway
only to project a “know-all” image for himself. This also means that he would be
sitting with an open mind, eager to be advised by the counsel of the parties.
Any power in absence of accountability would turn into a tyranny. It is
the cardinal pre-requisite of democracy and rule of law that power is
accompanied by accountability. Judges can be accountable only by
demonstrating exemplary conduct and behaviour and showing a cultured image.
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Some critics have accused judges to be prone to developing “a God
complex”. George Mikes in his article “Professional Deformities” writes as under :
“It was not that Judges were, or are, Sadists.
Very few of them are. But sooner or later most
of them develop a ‘God complex.’ When
everyone keeps kowtowing to you; when
people laugh at your silliest jokes and listen to
your most, trivial utterances though they were
the Sermons on the Mount; when the outcome
of quarrels and arguments, and often the fates
of men, and women and their children rest in
your hands; when you cannot be sacked from
your job, however, incompetent or senile you
become ..… when, in other words you are
treated like God, then it is difficult not to
believe in your own divinity. You are
addressed as “My Lord”, almost like Him, so
naturally you are inclined to believe. He is your
colleague. ”
It is a matter of saving grace that he ends by observing:
I should point out, however, that this rule, like
all rules, lacks universal validity. I have known
cunning geese. I have met naïve foxes. And I
have known modest and almost human
Judges.
Some time back I came across a quote which goes something like this:
“Never become so intelligent; never become so high; never become so wise; that
some day no one may be able to see the human in you”. It is necessary, and it
is my firm view, that judges must remain humane and considerate. They have
been vested with divine duties but they would never attain divinity. They are
mere agents of the superior power that controls us to do justice between man
and man. They have to bear in mind the maxim “Do not do unto others what you
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would not have others do unto you”. A humane Judge will always be just and
merciful. He would always remember that “mercy seasons justice”.
A just and humane Judge will always be non-partisan. He would be
above narrow considerations and not prone to external influences. His
judgment would be dispassionate. He would not identify with the cause of a
particular section of society. It naturally follows from this that a Judge would
always be aboveboard and demonstrate absolute integrity not only in his Court
but also in his private life outside the Court. He would refrain from socializing
unnecessarily not only with the persons having official work in his Court but also
generally with the society at large, since there is no guarantee as to who could
have a case coming in his Court in the future. If his commitment to the job is
sincere, he would virtually be left with no time for social life beyond a point.
A Judge need not be unsocial as his personal life would involve his near
and dear ones. Yet, he is expected to be asocial, since his movement in any
particular section of the society might give rise to reasonable apprehensions in
the minds of the litigants about his independence.
I now come to a touchy subject. The tendency to invite judges for different
seminars has increased over the last few years. If the intentions were purely
academic, this should be a welcome trend. But, unfortunately the tribe of certain
sections organizing seminars only to create a pretext to invite certain judges for a
small session of lectures or discussions, followed by lavish hospitality, gives rise
to anxiety as to whether the motives were holy or otherwise. Personally
speaking, I have nothing against judges participating in academic seminars,
workshops etc. But this cannot become a regular routine. Judges cannot afford
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to make themselves so accessible that they loose the aura of authority around
them. The position in the office of a Judge puts him on a high pedestal in the
temple of justice. Too much familiarity with those who frequently visit their courts
on official business slackens the authority and has the possibility of breeding
contempt.
Further, speaking from public platforms, may be on legal issues,
generates the possibility that the judges might end up publicly discussing cases
pending before them. This would not be healthy. This would create an
impression in the mind of the litigants involved in such a case that the Judge is
sitting with a pre-disposed mind.
Even further, the issues of law that are generally debated in the
workshops, seminars or conferences are closely interlinked with the political
issues of the day. A Judge, in order to be impartial, has to be apolitical. In his
personal life, he may have certain leanings towards a particular political
philosophy. But those leanings cannot reflect in his official exertion. A Judge
must never get himself bracketed with a particular political philosophy.
I think Marla N. Greenstein in her article on “Judicial Ethics” as published
in Judges’ Journal (Vol.42 of Winter 2003) brought out by American Bar
Association put the precept in a more balanced manner. The views to be
expressed by a Judge in public debate do not necessarily, or always, mean that
he would sit with closed mind if same issue comes up before him. Yet, Judges
enjoy high public respect. Words from a Judge in a public forum carry more
power than those of a mere citizen. So the right to speak from public platform is
“not a right to be exercised flippantly”.
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The concept of “due application of mind” involves a mental disposition
where the Judge is not only open to listen, comprehend and weigh in balance the
arguments advanced before him but is also open to correction. Judges are
also human beings, prone to frailties as any other human would be. They also
sometimes err. It is their bounden duty to be always eager to review, if allowed
in law, so that they could undo injustice, if any, done at their hand or at least
revise their view so that same mistake would not recur; this, because repetition
of error would be suspect as intentional or motivated and therefore,
unpardonable.
I talked of external influences. Every Judge in the course of his career is
subjected to tests by external influences. They could be in the form of pressure
tactics, threats, allurement etc. It is the times when such external influences
come into play that the true strength of the character of the Judge comes to the
fore. The duties of the Judge render him a person in public service. He is thus a
public property. There cannot, therefore, be anything about his life which
should remain hidden from public glare. His life must be an open book. It flows
from this that the assets and liabilities of the Judge are known to one and all.
His financial or property transactions should have no nexus with his official
dealings. He must declare the same scrupulously and at no cost should engage
himself with anyone connected with his official duties.
Judges also deal with public money in the management of the Court. All
transactions involving public money by the Judges must necessarily be strictly
adhering to the financial rules so that he can be accountable. Any deviation from
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the norms invites criticism putting a question mark on his credibility and integrity
which a Judge, in the larger interest of the public confidence, can ill-afford.
Coming to the allurements, a Judge must train himself in the beginning of
his judicial career not to fall prey to offers of valuable gifts in cash, kind or service
from members of the general public. Hon’ble Mr. Justice Krishna Iyer in his book
“Law and the People” went to the extent of observing thus:
“It must be said that the independence of judiciary
which plays the useful role in democratic societies in
checking a class biased Government is being
undermined in our country, by such devices as
making judges, after retirement or on the eve of
retirement, governors, ambassadors, vice chancellors
etc. These plums have a seductive influence on
superannuating gentlemen and should be avoided, if
we are purists regarding the independence of the
judiciary.”
A judge cannot afford to be accused of acts of moral turpitude. He cannot
indulge, in or outside his court, in such behavior as can create doubts about the
credibility of his character. His behavior has to be a model one. Only then he
would be able to command respect. Like it has been said: “Caesar’s wife has
also to be above suspicion”. The duty to remain within the bounds of morality is
not restricted to the Judge himself. He is to see to it that members of his family,
at least those who live with him also subscribe to this philosophy. A scandalous
behavior on the part of a Judge, even in his private affairs, is bound to affect his
image and prestige in the office of the Judge. This is why the general precept for
judges that any member of family practicing in the same Court should not be
allowed to do his professional work from the official residence of the Judge.
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Much has been said about the need for a Code of Ethics for the judiciary
at various points of time. Question arises as to what is the necessity of
reiterating the principles which are known to all of us. I would answer it this way.
The principles may be known to us. But with all democratic institutions facing the
crisis of credibility in the fast changing socio-economic norms, there is always a
need to keep reminding ourselves of the Code of Conduct the judiciary is
expected to follow. These principles, if reiterated time and again, would
hopefully get ingrained in the minds of young judges so that what is expected of
them becomes their second nature. The reiteration is also required so that the
public at large, in general, and the legal fraternity, in particular, are also wary and
do not allow, or lead, those on the Bench into going astray.
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