A person who has withdrawn from society and lives a solitary existence; a recluse is the most simple inference that can be drawn. Hermit is someone who doesn't look for answers in other's eyes and words but he looks within himself. He is the epitome of great understanding who seeks new directions and wants to unleash the truth at all cost. He is a mentor who is always giving guidance and can be addressed as a ‘guru' or a ‘trusted teacher'. Solitude of a person means seclusion or isolation, i.e. lack of contact with other people. It may stem from deliberate choice, contagious disease, disfiguring features or repulsive personal habits, or circumstances of employment or situation.
From the outside, solitude and loneliness look a lot alike. Both are characterized by solitariness. But all resemblance ends at the surface. Loneliness is a negative state, marked by a sense of isolation. One feels that something is missing. It is possible to be with people and still feel lonely -- perhaps the most bitter form of loneliness. Solitude is the state of being alone without being lonely. It is a positive and constructive state of engagement with oneself. Solitude is desirable, a state of being alone where you provide yourself wonderful and sufficient company. Solitude is a time that can be used for reflection, inner searching or growth or enjoyment of some kind. Deep reading requires solitude, so does experiencing the beauty of nature. Thinking and creativity usually do too.
Solitude suggests peacefulness stemming from a state of inner richness. It is a means of enjoying the quiet and whatever it brings. that is satisfying and from which we draw sustenance. It is something we cultivate. Solitude is refreshing; an opportunity to renew ourselves. In other words, it replenishes us.
Loneliness is harsh, punishment, a deficiency state, a state of discontent marked by a sense of estrangement, an awareness of excess aloneness. Solitude is something you choose. Loneliness is imposed on you by others.
We all need periods of solitude, although temperamentally we probably differ in the amount of solitude we need. Some solitude is essential; It gives us time to explore and know ourselves. It is the necessary counterpoint to intimacy, what allows us to have a self worthy of sharing. Solitude gives us a chance to regain perspective. It renews us for the challenges of life. It allows us to get (back) into the position of driving our own lives, rather than having them run by schedules and demands from without. Solitude restores body and mind. Loneliness depletes them. When we make an in-depth analysis we can understand that hermit is someone of is always seeking solitude, withdrawing himself from society with the aim to give up any sort of distractions.
Today when we take an overview of our society; ‘hermitage' exists in many faces which are no ways related with each other and the only thing that joins them is that thin line of few values, characters and virtues which are embedded in their behavior towards fellow human beings and in their attitude towards life. When we look at a saint, or as called in Christians, Father, or for that matter a Judge of today's world; we can very well relate them with a Hermit.
Though the world of a saint or a Father requires from them that they should lead their lives in solitude but when we look at a judge; we can see that many virtues of hermitage are self imposed and the other virtues have been imposed by society and past experiences of other ‘judges'.
The society has changed drastically over the years and so have changed its picture, our expectations and other aspects related with it. This is what we are going to discuss further that how hermitage has found its place in today's judiciary.
Role played by a Judge
After attaining independence the people of India adopted and chose for themselves a democratic form of government. Like any other modern democratic polity, the system in our country is also divided into three organs; viz. Legislature, Executive and Judiciary. The constitution divides the powers amongst three organs and makes them independent of each other, yet creating a system of checks and balances. The role assigned to judiciary is of utmost importance. This organ is vested with the duty to uphold constitution and guarantee that the rule of law envisaged in our constitution will always prevail.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, 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.”
The Judges thus are a privileged class and vested with duties of great responsibilities, 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 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; be prompt and courteous; not to engage himself in interviews with media, except with the lawful authority of his superiors; not accept pecuniary advantage.
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.
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.
The people of India look up to the judiciary to administer justice; justice that is fair; justice that is equal and even-handed; and justice that is unpolluted. This expectation is of eternal value. 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. These principles can be broadly categorized as first: 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.
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 and integrity of India and to truly and faithfully perform the duties of their offices without fear or favour 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.
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). Salus Populi Est Suprema Lex: Regard for public welfare is the highest law.
(ii). Audi Alteram Partem: No man shall be condemned unheard.
(iii). Nemo Debet Esse Judex In Propria Sua Causa: No man can be judge in his own cause.
(iv). Actus Curiae Neminem Gravabit: An act of the court shall prejudice no man.
A judge administers justice. The first and foremost expectation from him is that his actions have to be just. 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. 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. It is taboo for him to give a private audience to the litigants or their lawyers. He has to shun such category of social interactions.
A judge cannot create discipline in his court unless he himself 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 and would refrain from unnecessary utterances and would keep his temper in check.
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 silent 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 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 divinity. You are addressed as “ my lord”, almost like Him, so naturally you are inclined to belive. He is your colleague.”
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.
A judge need not be unsocial as his personal life would involve in 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. Moreover the tendency to invite judges for different seminars has increased over the last few years. Unfortunately the tribe of certain sections organizing seminars only to create a pretext to invite certain judges for a small session of lectures or discussion, followed by lavish hospitality, gives rise to anxiety as to whether the motives were holy or otherwise. Judges are required not 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. 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. Close association with individual members of the Bar, particularly those who practice in the same court should be avoided.
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 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.
Maria N. Greenstein in her article on “ Judicial Ethics” expressed her views over the issue by using the words that 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. 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”.
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. 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, allurements 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. A Judge should 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. A Judge should not engage directly or indirectly in trade or business, either by himself or in association with any other person. The duties of the judge render him a person in public service. There, therefore, be anything about his life which can remain hidden from public glare. His life must be an open book.
Coming to 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 general public. Hon'ble 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 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. A judge is also required to see to it that members of his family, at least who live with him subscribe to his philosophy. 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. When a judge sits on trial, he himself is on trial.
A Judge should also 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 member with a cause to be dealt with by him. The trust and confidence of ‘we the people' in judiciary stands on the bedrock of its ability to dispense fearless and impartial justice. Any action which may shake the foundation is not just permitted. Once having assumed the judicial office, the judge is a judge for 24 hours. Any conduct which tends to undermine public confidence in the integrity and impartiality of the court would be deleterious to the efficacy of judicial process. Unwritten code of conduct is writ large for judicial officers to emulate and imbibe high moral or ethical standards expected of a higher judicial functionary, as wholesome standard of conduct which would generate public confidence, accord dignity to the judicial office and enhance public image, not only of the judge but of the court itself.
Now we can take “Code of Conduct for United States Judges” as reference wherein a legal document is present laying down the ‘canons' of conduct by a ‘Judge'.
This Code applies to United States Circuit Judges, District Judges, Court of International Trade Judges, Court of Federal Claims Judges, Bankruptcy Judges, and Magistrate Judges. Certain provisions of this Code apply to special masters and commissioners as indicated in the "Compliance" section. In addition, the Tax Court, Court of Appeals for Veterans Claims, and Court of Appeals for the Armed Forces have adopted this Code. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved.
A judge may serve as a member, officer, or director of an organization or governmental agency devoted to the improvement of the law, the legal system, or the administration of justice. A judge may assist such an organization in planning fund-raising activities and may participate in the management and investment of funds, but should not personally participate in public fund-raising activities. A judge may make recommendations to public and private fund-granting agencies on projects and programs concerning the law, the legal system, and the administration of justice. A judge may solicit funds from other judges over whom the judge does not exercise supervisory or appellate authority. A judge shall not personally participate in membership solicitation if the solicitation might reasonably be perceived as coercive or is essentially a fund-raising mechanism.
A judge may write, lecture, teach, and speak on non-legal subjects, and engage in the arts, sports, and other social and recreational activities, if such vocational activities do not detract from the dignity of the judge's office or interfere with the performance of the judge's judicial duties. A judge should not: (1) act as a leader or hold any office in a political organization; (2) make speeches for a political organization or candidate or publicly endorse or oppose a candidate for public office; (3) solicit funds for or pay an assessment or make a contribution to a political organization or candidate, attend political gatherings, or purchase tickets for political party dinners, or other functions.
Our judiciary has also led down certain rules and regulations regarding the conduct of our judges which are contained in The Judges (Inquiry) Bill,2006; Section 36 wherein it is stated that every judge who is so appointed as a judge of a Supreme Court or High Court shall annually give intimation of his assets and liabilities to the Chief Justice of India or the Chief Justice of High Court, as the case may be.
When we talk about a law student who becomes an advocate in the initial stage of his career and later on holds the position of a Judge, the new atmosphere and responsibility is hard to adapt to. The expectations, perceptions and dilemmas of the judge's role contribute to the individual's transition from lawyer to judge. This transition takes months or years to complete. It is a major change in which the new judge has to keep distance from lawyer friends developed over years of law practice and a network of judicial colleagues has to be painstakingly evolved. The new role substantially changes the perspective from which one views the trial, the law, the profession, justice in society and dynamics of rule of law.
"The Judge's Book" a valuable handbook prepared by the National Judicial College and the American Bar Association and widely circulated among judges in U.S.A. and outside, quotes a study of the socialization process to describe the transition in the role of a new judge. This study finds that "there are four steps to the socialization of a judge and that moving through all the steps takes at least fifteen years of judicial service. The first of these steps, Professional Socialization, occurs in the period before a person becomes a judge, and includes law school, legal practice experiences, and other career-related experiences. The second step, Initiation and Resolution, includes the first five years on the bench. During this period the judge undergoes an initial adjustment and self-concept change in trying to define his or her role as a judge.
Towards the end of this stage there is a resolution of role conflicts, and a transition to the decision to remain on the bench. The third step, Establishment, covers years six through fifteen on the bench. During this stage the role of the judge changes from that of altruist and legalist to guardian of the law, as another role definition and resolution of conflict occurs within the judge.
The final step, Commitment, begins when the judge has served on the bench 15 or more years. During this final stage, there is an increased commitment to the bench, marked by a satisfaction with judicial life. The new judge would do well to consider these findings and to be thereby forewarned of what lies ahead". (Alpert, Atkins and Ziller, "Becoming a Judge : The Transition from Advocate to Arbiter" 62 Judicature 325 (1979) quoted in The essential qualities of a good judge are listed in the Judge's Book as follows:
(a) Graciousness : A trial judge should cultivate the ability to be gracious and to listen attentively to the parties and their cases. A good hearing is soothing to the soul. So the judge should make it a point to show interest in every case, no matter how unimportant it seems to be.
(b) Moral Courage : A judge should not expect to be popular. He should develop the courage to do justice whatever the consequences.
(c) Reputation for Fairness : This is something one can develop only by actually being fair and giving such an impression to the people concerned. How a judge conducts his or her private life as well as the judge's manner in the courtroom can give the appearance of unfairness even in a judge who is, in fact, fair.
(d) Mercy : A good judge will have the mercy to apply when appropriate.
(e) Patience : It may seem to be a waste of time to listen to extensive arguments on a point on which the judge has made up his or her mind. But judges owe it to the lawyers to listen to their arguments. One object of the adversary system is to afford an opportunity to correct premature judgments which all human minds are prone to form ... There is no more sorry spectacle than a trial judge throwing his weight around. A judge should be dignified and firm but should not be mean.
The confident and enlightened judge frames commands in the form of requests, makes them in a pleasant way, and is respected. The insecure judge shouts orders, which are obeyed but without respect.
(f) Ability to Communicate : A trial judge is a teacher who must learn to transform legal phrases into plain English that can be understood by lay people without jeopardizing its legal soundness.
(g) Decisiveness : A judge who does not possess decisiveness should acquire it. Thoughtful consideration is essential, but indecisiveness is inconsistent with judicial responsibility. And having decided, the judge should announce the decision with a show of confidence that it is right
(h) Honesty and Integrity : These are qualities essential for every gentleman and more so for a person occupying the office of judge. In judges these qualities should be transparent and unquestionable
Virtues of A Hermit And A ‘Judge'
Taken in its widest sense virtue means the excellence of perfection of a thing, just as vice, its contrary, denotes a defect or absence of perfection due to a thing. In its strictest meaning, however, as used by moral philosophers and theologians, it signifies a habit superadded to a faculty of the soul, disposing it to elicit with readiness acts conformable to our rational nature. "Virtue", says Augustine, "is a good habit consonant with our nature." There are Nine Pagan Virtues of a Hermit which decipher the personality of anyone who is addressed as a hermit or is said to be in contrast.
Those pagan's of a hermit are as follows:-
• Wisdom: Good judgment, the ability to perceive people and situations correctly, deliberate about and decide on the correct response
• Piety: Correct observance of ritual and social traditions; the maintenance of the agreements, (both personal and societal), we humans have with the Gods and Spirits. Keeping the Old Ways, through ceremony and duty
• Vision: The ability to broaden one's perspective to have a greater understanding of our place/role in the cosmos, relating to the past, present and future
• Courage: The ability to act appropriately in the face of danger
• Integrity: Honor; being trustworthy to oneself and to others, involving oath-keeping, honesty, fairness, respect, self-confidence...
• Perseverance: Drive; the motivation to pursue goals even when that pursuit becomes difficult
• Hospitality: Acting as both a gracious host and an appreciative guest, involving benevolence, friendliness, humor, and the honoring of "a gift for a gift"
• Moderation: Cultivating one's appetites so that one is neither a slave to them nor driven to ill health, (mental or physical), through excess or deficiency
• Fertility: Bounty of mind, body and spirit, involving creativity, production of objects, food, works of art, etc., an appreciation of the physical, sensual, nurturing...
Importantly, we can see that these are divided into Dumezil's three functions of society: Wisdom, Piety and Vision are of the First Function; Courage, Integrity and Honor are of the Second Function; and Hospitality, Moderation and Fertility are of the Third Circle.
Besides the above stated virtues few more can be cited which are as follows:-
1. Has to be just: A hermit's action should always speak for itself and should be embedded with fairness and rationality.
2. Sets an example for others: A Hermit is always different from other fellow human beings. It is inherent in his character that he will set up such examples of discipline and restraint that others feel the need to follow him.
3. Social/Asocial: A Hermit leads his life in seclusion but still he interacts with others in such a manner that they are inspired and are able to come over patty issues and confusions of life.
4. Open to correction: A Hermit never believes that he is perfect and has achieved everything. He is always open to correction and makes persistent efforts to get over his mistakes and learn more and more.
Now when we look up to the qualities of a judge (discussed before), we
will come across the gross similarity between the two. What qualities we
look in a judge are basically the height of perfection which a ‘Hermit'
achieves in his life. The qualities which lay down the path for being a
‘Judge' have to go through same path and have to inculcate certain aspects
of being a ‘Erimite'. The modern era expects from a person holding the
responsibility of being a ‘Judge' to be gracious not just by words but
also by conduct; he has to be courageous because he is the one who has to
stand in all trying times with the truth; ‘being patient' is what the
judges are duty bound to be and must inculcate in there persona; the
strength to take decision without being dishonest and holding integrity to
the best is what is the ‘perfect characteristic portrait' of a Judge.
When we look back at what Dumezil's description of the three circles it
entangles all the qualities of a Judge. Where a hermit is described as one
to acting as both a gracious host and an appreciative guest, involving
benevolence, friendliness, humor, and the honoring of "a gift for a gift";
we expect our judges to cultivate the ability to be gracious and to listen
attentively to the parties and their cases. A good hearing is soothing to
the soul. So the judge should make it a point to show interest in every
case, no matter how unimportant it seems to be. A hermit by his vision and
his ability to broaden one's perspective to have a greater understanding
of our place/role in the cosmos, relating to the past, present and future
is addressed as the same; likewise a Judge thoughtful consideration and
the manner to announce the decision with a show of confidence that it is
right again encompasses the character of a hermit.
The basis of being a part of judiciary and holding such a responsibility
is a persons honesty and integrity, these are qualities essential for
every gentleman and more so for a person occupying the office of judge. In
judges these qualities should be transparent and unquestionable. Like wise
a hermit is always trustworthy to oneself and to others; involving
oath-keeping, honesty, fairness, respect and self-confidence. Patience and
perseverance are the key words attached with both ‘Judges and ‘Hermit' in
the manner that it may seem to be a waste of time to listen to extensive
arguments on a point on which the judge has made up his or her mind. But
judges owe it to the lawyers to listen to their arguments. One object of
the adversary system is to afford an opportunity to correct premature
judgments which all human minds are prone to form ...
There is no more
sorry spectacle than a trial judge throwing his weight around. A judge
should be dignified and firm but should not be mean and for the latter it
is inevitable to have the motivation to pursue goals even when that
pursuit becomes difficult.
Thus we can see that when we compare the two distinct personality of being
a ‘Judge and being a ‘Hermit' we get to know that the two enrich each
other in varied manners. But a point where this similarity is there but
the extend to which it is present varies is ‘solitude and seclusion'. The
society and the responsibility which a judge has expects from him to as
social as is required but not to such an extend that he becomes the ‘apple
of the eye' for media. His personality should be such that the occasions
which a judge is part of must enhance and strengthen the people's
confidence in judiciary. The words, the manner and the way a judge carries
himself have to command respect and honor; not only from well established
personas but from a layman as well. A judge should always be present on
such occasions which reflect the role he plays in a society but such
number of occasions should be restricted to such an extent that he doesn't
become a ‘public figure'.
Statutory provisions regarding the conduct of a Judge Judicial office is
essentially a public trust. Society is, therefore, entitled to expect that
a Judge must be a man of high integrity, honesty and required to have
moral vigour, ethical firmness and impervious to corrupt or venial
influences. He is required to keep most exacting standards of propriety in
judicial conduct. Any conduct which tends to undermine public confidence
in the integrity and impartiality of the court would be deleterious to the
efficacy of judicial process. Society, therefore, expects higher standards
of conduct and rectitude from a Judge. Unwritten code of conduct is writ
large for judicial officers to emulate and imbide high moral or ethical
standards expected of a higher judicial functionary, as wholesome standard
of conduct which would generate public confidence, accord dignity to the
judicial office and enhance public image, not only of the Judge but the
court itself. It is, therefore, a basic requirement that a Judge's,
official and personal conduct be free from impropriety; the same must be
in tune with the highest standard of propriety and probity. The standard
of conduct is higher than expected of a layman and also higher than
expected of an advocate. In fact, even his private life must adhere to
high standards of probity and propriety, higher than those deemed
acceptable for others. Therefore, the Judge can ill-afford to seek shelter
from the fallen standard in the society.
In Krishna Swami v. Union of India and Ors. , it was held that that the
holder of office of the judge of the Supreme Court or the High Court
should, therefore, be above the conduct of ordinary mortals in the
society. The standards of judicial behavior, both on and off the Bench,
are normally high. There cannot, however, be any fixed or set principles,
but an unwritten code of conduct of well-established traditions is the
guidelines for judicial conduct. The conduct that tends to undermine the
public confidence in the character, integrity or impartiality of the Judge
must be eschewed. It is expected of him to voluntarily set forth wholesome
standards of conduct reaffirming fitness to higher responsibilities.
To keep the stream of justice clean and pure, the Judge must be endowed
with sterling character, impeccable integrity and upright behavior.
Erosion thereof would undermine the efficacy of the rule of law and the
working of the Constitution itself. The Judges of higher echelons,
therefore, should not be mere men of clay with all the frailties and
foibles, human failings and weak character which may be found in those in
other walks of life. They should be men of fighting faith with tough fiber
not susceptible to any pressure, economic, political or any sort. The
actual as well as the apparent independence of judiciary would be
transparent only when the office holders endow those qualities which would
operate as impregnable fortress against surreptitious attempts to
undermine the independence of the judiciary. In short, the behavior of the
Judge is the bastion for the people to reap the fruits of the democracy,
liberty and justice and the antithesis rocks the bottom of the rule of law.
In the Constitution of India, Article 124 (4) and Article 124(5). states
the provision with regard to the punishment and the procedure which a
Judge has to undergo when he is suspected to be not efficient enough to
hold the responsibility he has been endowed with.
Article 124(4) and Article 124(5). states as following:
(4). A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehavior or incapacity.(5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehavior or incapacity of a Judge under clause (4).
In The Government of India Act, 1935; Clause (b) of the proviso to sub-Section 2 of Section 200,which related to judges of the Federal Court, it was prescribed that "a judge may be removed from his office by order of the Governor-General on the ground of misbehavior or of infirmity of body or mind, if the Judicial Committee of the Privy Council, on reference being made to them, report that the judge ought on any such ground to be removed". Similar provisions were made with regard to judges of the High Court in Section 220. It would thus appear that prior to the coming into force of the Constitution of India, it was necessary to have a determination by a judicial body about the alleged grounds of misbehavior or infirmity of mind and body before a judge of the Federal Court or High Court could be removed.
Mauro Cappelletti in 'The Judicial Process in Comparative Perspective' says “Two main features of this accountability type can be identified; first, the fact that account has to be given to 'political' bodies, ultimately to the legislative and/or the executive branches by means of essentially 'political', non-judicial processes; second, and perhaps even more characteristically, the fact that account has to be given not, or not primarily, for 'legal' violations, but rather for behavior (and this might include private, out-of-office behavior) which is evaluated on the basis of 'political' criteria”.
Therefore after going through these statutory provisions we can say that the most peculiar and striking feature of these provisions is that, they lay emphasis on a word ‘behavior'; behavior which doesn't imply the same as a legal violation i.e. violating any law of the land but means the behavior in a court room, or in the premises of the court or even in private life.
Perhaps the best illustration of political accountability can be found in the systems of the common law tradition. In England, judges (like any other officials) can be impeached 'before the House of Lords, at the suit of the House of Commons', although this practice has fallen into desuetude; moreover, higher court judges can be 'removed from office by the Crown on an address presented to Her Majesty by both Houses of Parliament'. The idea behind this 'address' procedure is that judges are appointed 'during good behavior, hence, they can be removed upon breach of the condition. Misbehavior includes such situations as 'the case of conviction upon an indictment for any infamous offence of such a nature as to render the person unfit to exercise the office', but also 'improper exercise of the functions appertaining to the office, or non-attendance, or neglect of or refusal to perform the duties of the office'. Of course the decision of the Houses and the Crown can only be an essentially political one, not a purely juridical decision, even though we are informed that the removal procedure is subject to some extent 'to the rules of natural justice'....
Reliance has been placed on the classic treatise of Erskine May's "The Law, Privileges, Proceedings and Usage of Parliament" . A motion is described as a "proposal made for the purpose of illustrating the decision of the House". According to Erskine May, certain matters may be raised by only a substantive motion. He says:
Certain matters cannot be debated, except on a substantive motion which allows a distinct decision of the House. Amongst these are the conduct of the sovereign, the heir to the throne or other members of the Royal Family, a Governor-General of an independent territory, the Lord Chancellor, the Speaker, the Chairman of Ways and Means, Members of either House of Parliament and judges of the superior courts of the United Kingdom, including persons holding the position of a judge, such as a judge in a court of bankruptcy and a county court, or a recorder....
It
was held in the case Committee of Judicial Accountability Vs. Union of
India and others that according to Article 124 of Constitution of
India it is not suggested that it is open to Court to examine legality of
final decision taken by Parliament under Article 124 (4). It cannot be
presumed that Court has parallel jurisdiction resulting in issuance of
contradictory directions therefore Courts including Supreme Court has no
jurisdiction to pass any Order in relation to proceedings for removal of
Judge of Superior Courts.
In the case K.Veeraswami Vs. Union of India, in the para.9 it was
held that “In order to launch a prosecution against a Judge either of the
Supreme Court or of the High Court or the Chief Justice of the High Court
previous sanction of the authority competent to remove a Judge from his
office is mandatory required. The question, therefore, arises who is the
authority competent to grant sanction. The Judge of the Supreme Court or
the Judge of the High Court is appointed under the provisions of Article
124 or under the provisions of Article 217 respectively. A Judge of the
Supreme Court shall be appointed by the President by the warrant under his
hand and seal after consultation with such Judges of the Supreme Court and
of the High Court in the State as the President may deem necessary for the
purpose and shall hold office until he attains the age of 65 years.
Similarly, a Judge of the High Court shall be appointed by the President
by the warrant under his hand and seal after consultation with the Chief
Justice of India, the Governor of the State, and in case of an appointment
of the Judge other than the Chief Justice, the Chief Justice of the High
Court and shall hold office except in the case of an additional judge till
he attains the age of 62 years. It is, therefore, evident that a Judge of
the Supreme Court as well as a Judge of the High Court is a constitutional
functionary as has been observed by this Court in the decisions cited
hereinbefore and to maintain the independence of the judiciary and to
enable the Judge to effectively discharge his duties as a Judge and to
maintain the rule of law, even in respect of lies against the Central
Government or the State Government.
The Judge is made totally independent of the control and influence of the
executive by mandatory embodying in Article 124 or Article 217 that a
Judge can only be removed from his office in the manner provided in Clause
(4) and (5) of Article 124.Thus,a Judge either of the High Court or of the
Supreme Court is independent of the control of the executive while (sic)
cases between the parties including (sic) Central Government and State
Government uninfluenced by the State in any manner (sic). It is beyond any
pale of doubt (sic) at there is no master and servant relationship or
employer and employee relationship between a Judge of the High Court and
the President of India in whom the executive power of the Union is vested
under the provisions of Article 53 of the Constitution. The President has
not been given the sole power or the exclusive power to remove a Judge
either of the Supreme or of the High Court from his office though the
President appoints the judge by warrant under his hand and seal after
consultation with such of the Judges of the Supreme Court and of the High
Court in the States as he may deem necessary for that purpose and in case
of the appointment of the Judge of the High Court, the President appoints
a Judge by warrant under his hand and seal after consultation with the
Chief Justice of India, the Governor of the State and in a case of
appointment of a Judge other than the Chief Justice, the Chief Justice of
the High Court. The only mode of removal of a Judge from his office on the
ground of proved misbehavior or incapacity is laid down in Clauses (4) and
(5) of Article 124.”
Thus it is clearly evident from the judgments that a ‘political' element
is involved in the process of removal of a Judge, which Mauro Cappelletti
in 'The Judicial Process in Comparative Perspective' has mentioned about.
Now the main aspect which comes to the mind is what is the meaning and the
scope of this word and expression ‘misconduct'? Article 124(4) of the
Constitution sanctions action for removal of a Judge on proved misbehavior
or incapacity. The word "misbehavior" was not advisedly defined. It is a
vague and elastic word and embraces within its sweep different facets of
conduct as opposed to good conduct. In the Law.
Lexicon by P. Ramanatha Aiyar, collected from several decisions, the
meaning of the word "misconduct', is stated to be vague and relative term.
Literally, it means wrong conduct or improper conduct. It has to be
construed with reference to the subject matter and the context wherein the
term occurs having regard to the scope of the Act or the statute under
consideration. In the context of disciplinary proceedings against
Solicitor, the word misconduct was construed as professional misconduct
extending to conduct "which shows him to be unworthy member of the legal
profession." In the context of misrepresentation made by a pleader, who
obtained adjournment of a case on grounds to his knowledge to be false a
Full Bench of the Madras High Court in Re: A First Grade Pleader held that
if a legal practitioner deliberately made, for the purpose of impeding the
course of justice, a statement to the court which he believed to be untrue
and thereby gained an advantage for his client, he was guilty of gross
improper conduct and as such rendered himself liable to be dealt with by
the High Court in the exercise of its disciplinary jurisdiction.
Misconduct on the part of an arbitrator was construed to mean that
misconduct does not necessarily comprehend or include misconduct of a
fraudulent or improper character, but it does comprehend and include
action on the part of the arbitrator which is, upon the face of it,
opposed to all rational and reasonable principles that should govern the
procedure of any person who is called upon to decide upon questions in
difference and dispute referred to him by the parties. Misconduct in
office was construed to mean unlawful behavior or include negligence by
public officer, by which the rights of the party have been affected.
In Krishna Swami Vs. Union of India, K. Ramaswamy, J., considered
the scope of 'misbehavior' in Article 124(4) and held in paragraph 71 that
"every act or conduct or even error of judgment or negligent acts by
higher judiciary per se does not amount to misbehavior. Willful abuse of
judicial office, willful misconduct in the office, corruption, lack of
integrity, or any other offence involving moral turpitude would be
misbehavior.
Misconduct implies actuation of some degree of metis rea by the doer.
Judicial finding of guilt of grave crime is misconduct. Persistent failure
to perform the judicial duties of the Judges or willful abuse of the
office dolus malm would be misbehavior. Misbehavior would extend to
conduct of the Judge in or beyond the execution of judicial office. Even
administrative actions or omissions too need accompaniment of means rea.”
Thus this case is a classic example where the judgment itself gave rise to
the proposition that virtues of a ‘good Judge' and those of a hermit
coincide with each other. Like a hermit is expected to be trustworthy,
honest, fair, has an element of hospitality in his behavior etc. similarly
here K.Ramaswamy,J. have contemplated that misbehavior may be present in
the form of corruption, lack of integrity, any offence involving moral
turpitude; whether in or beyond the execution of judicial office, which
obviously are completely contradictory to the characteristics of a ‘good
Judge'.
Guarantee of tenure and its protection by the Constitution would not,
however, accord sanctuary for corruption or grave misbehavior. Yet every
action or omission by a judicial officer in the performance of his duties
which is not a good conduct necessarily, may not be misbehavior indictable
by impeachment, but its insidious effect may be pervasive and may produce
deleterious effect on the integrity and impartiality of the Judge. Every
misbehavior in juxtaposition to good behavior, as a constitutional
tautology, will not support impeachment but a misbehavior which is ' a
good behavior may be improper conduct not befitting to the standard
expected of a Judge. Threat of impeachment process itself may swerve a
Judge to fall prey to misconduct but it serves disgrace to use impeachment
process for minor offences or abrasive conduct on the part of a Judge. The
bad behavior of one Judge has a rippling effect on the reputation of the
judiciary as a whole. When the edifice of judiciary is built heavily on
public confidence and respect, the damage by an obstinate Judge would rip
apart the entire judicial structure built in the Constitution.
There might occur instances where the ‘misbehavior' is of such a nature
that it leads to discontent in the public but is not that grave that it
can lead to any judicial action. In such cases a lacuna arises which gives
rise to some very delicate issues.
In the case C. Ravichandran Iyer Vs. Justice A.M. Bhattacharjee and Ors
, in the para. 26 it was stated that “Bad conduct or bad behavior of a
Judge, therefore, needs correction to prevent erosion of public confidence
in the efficacy of judicial process or dignity of the institution or
credibility to the judicial office held by the obstinate Judge. When the
Judge cannot be removed by impeachment process for such conduct but
generates widespread feeling of dissatisfaction among the general public,
the question would be who would stamp out the rot and judge the judge or
who would impress upon the Judge either to desist from repetition or to
demit the office in grace? Who would be the appropriate authority? Who
would be the principal mover in that behalf? The haitus between bad
behavior and impeachable misbehavior needs to be filled in to stem erosion
of public confidence in the efficacy of judicial process. Whether the Bar
of that Court has any role to play either in an attempt to correct the
perceived fallen standard or is entitled to make a demand by a resolution
or a group action to pressurize the Judge to resign his office as a judge?
The resolution to these questions involves delicate but pragmatic approach
to the questions of constitutional law.”
The Advocates Act, 1961 gave autonomy to a Bar Council of a State or Bar
Council of India and Section 6(1) empowers them to make such action deemed
necessary to set their house in order, to prevent fall in professional
conduct and to punish the incorrigible as not befitting to the noble
profession apart from admission of the advocates on its roll. Section
6(1)(c) and rules made in that behalf, Sections 9, 35, 36, 36B and 37
enjoin it to entertain and determine cases of misconduct against advocates
on its roll. The members of the judiciary are drawn primarily and
invariably from the Bar at different levels. The high moral, ethical and
professional standards among the members of the Bar are preconditions even
for high ethical standard of the Bench. Degeneration thereof inevitably
has its eruption and tends to reflect the other side of the coin. The Bar
Council, therefore, is enjoined by the Advocates Act to maintain high
moral, ethical and professional standards, which of late is far from
satisfactory.
Their power under the Act ends thereat and extends no further. Article 121
of the Constitution prohibits discussion by the members of the Parliament
of the conduct of any Judge of the Supreme Court or of High Court in the
discharge of his duties except upon a motion for presenting an address to
the President praying for the removal of the Judge as provided under
Article 124(4) and (5) and in the manner laid down under the Act, the
Rules and the rules of business of the Parliament consistent therewith. By
necessary implication, no other forum or fora or platform is available for
discussion of the conduct of a judge in the discharge of his duties as a
Judge of the Supreme Court or the High Court, much less a Bar Council or
group of practicing advocates. They are prohibited to discuss the conduct
of a judge the discharge of his duties or to pass any resolution in that
behalf.
It is true that freedom of speech and expression guaranteed by Article
19[1](a) of the Constitution is one of the most precious liberties in any
democracy. But equally important is the maintenance of respect for
judicial independence which alone would protect the life, liberty and
reputation of the citizen. So the nation's interest requires that
criticism of the judiciary must be measured, should be strictly rational,
sober and proceed from the highest motives without being colored by
partisan spirit or pressure tactics or intimidator attitude. The Court
must, therefore, harmonies constitutional values of free criticism and the
need for a fearless curial process and its presiding functionary, the
Judge, If freedom of expression sub serves public interest in reasonable
measure, public justice cannot gag it or manacle it; but if the court
considered the attack on the Judge or Judges scurrilous, offensive,
intimidator or malicious, beyond condonable limits, the strong arm of the
law must strike a blow on him who challenges the supremacy of the rule of
the law by fouling its source and stream. The power to punish the
condemner is, therefore, granted to the court not because Judges need the
protection but because the citizens need an impartial and strong
judiciary.
In the case C. Ravichandran Iyer Vs. Justice A.M. Bhattacharjee and Ors.
In the para .6 it was discussed whether a Bar Council or Bar Association
is entitled to pass resolution demanding a judge to resign, what is its
effect on the independence of the judiciary and whether it is
constitutionally permissible. Shri Nariman contended that the Supreme
Court and the High Court are two independent constitutional institutions.
A High Court is not subordinate to the Supreme Court though
constitutionally the Supreme Court has the power to hear appeals from the
decisions or orders or judgments of the High Courts or any Tribunal or
quasi-judicial authority in the country. The Judges and the Chief Justice
of a High Court are not subordinate to the Chief Justice of India.
The constitutional process of removal of a Judge as provided in Article
124(4) of the Constitution is only for proved misbehavior or incapacity.
The recent impeachment proceedings against Justice V. Ramaswami and its
fall-out do indicate that the process of impeachment is cumbersome and the
result uncertain. Unless corrective steps are taken against judges whose
conduct is perceived by the Bar to be detrimental to the independence of
the judiciary, people would lose faith in the efficacy of judicial
process. Bar being a collective voice of the court concerned has
responsibility and owes duty to maintain independence of the judiciary. It
is its obligation to bring it to the notice of the Judge concerned the
perceived misbehavior or incapacity and if it is not voluntarily corrected
they have to take appropriate measures to have it corrected. Bar is not
aware of any other procedure than the one under Article 124(4) of the
Constitution, and the Act. Therefore, the BBA, instead of proceeding to
the press, adopted democratic process to pass the resolution, in
accordance with its bye-laws, when all attempts made by it proved
abortive. The conduct of the Judge betrayed their confidence in his
voluntary resignation.
Consequently, the BBA was constrained to pass the said resolution. Thereby
it had not transgressed its limits. Its action is in consonance with its
bye-laws and in the best tradition to maintain independence of the
judiciary. Shri Nariman also cited the instance of non-assignment of work
to four Judges of the Bombay High Court by its former Chief Justice when
some allegations of misbehavior were imputed to them by the Bar. He,
however, submitted that in the present case the allegations were against
the Chief Justice himself, and so, he could not have been approached. He
urged that if some guidelines could be laid down by this Court in such
cases, the same would be welcomed.
In the para.10 of the above stated case it was discussed as following:-
“ The diverse contentions give rise to the question whether any Bar
Council or Bar Association has the right to pass resolution against the
conduct of a Judge perceived to have committed misbehavior and, if so,
what is its effect on independence of the judiciary. With a view to
appreciate the contentions in their proper perspective, it is necessary to
have at the back of our mind the importance of the independence of the
judiciary. In a democracy governed by rule of law under written
Constitution, judiciary is sentinel on the qui vive to protect the
fundamental rights and to poise even scales of justice between the
citizens and the State or the States inter se. Rule of law and judicial
review are basic features of the Constitution. As its integral
constitutional structure, independence of the judiciary is an essential
attribute of rule of law.
In S.P. Gupta v. Union of India in paragraph 27, this Court held
that 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. Judicial review is one of
the most potent weapons in the armory of law. The judiciary seeks to
protect the citizen against violation of his constitutional or legal right
or misuse or abuse of power by the State or its officers. The judiciary
stands between the citizen and the State as a bulwark against executive
excesses and misuse or abuse of power by the executive.
It is, therefore, absolutely essential that the judiciary must be free
from executive pressure or influence which has been secured by making
elaborate provisions in the Constitution with details. The independence of
judiciary is not limited only to the independence from the executive
pressure or influence; it is a wider concept which takes within its sweep
independence from any other pressure and prejudices. It has many
dimensions, viz., fearlessness of other power centers, economic or
political, and freedom from prejudices acquired and nourished by the class
to which the judges belong.”
Justice Douglas in his dissenting opinion in Stephen S. Chandler v.
Judicial Council of the Tenth Circuit of the United States stated:
No matter how strong an individual judge's spine, the threat of punishment
the greatest peril to judicial independence - would project as dark a
shadow whether cast by political strangers or by judicial colleagues. A
federal judge must be independent of every other judge... Neither one
alone nor any number banded together can act as censor and place sanctions
on him. It is vital to preserve the opportunities for judicial
individualism.
The Judges (Inquiry) Act, 1968 has been enacted by Parliament to regulate
the procedure for the investigation and proof of the misbehavior or
incapacity of a Judge of the Supreme Court under Clause (5) of Sub-section
1 of Article 124 of the Constitution. The Judges (Inquiry) Rules, 1969
have been framed under Section 7(4) of the Judges (Inquiry) Act, 1968. The
said Act and the Rules made there under only provide for removal of a
Judge on the ground of proved misbehavior or inability.
There are Rules called the Judges (Inquiry) Rules, 1968 formed under the
Judges (Enquiry) Act prescribing procedure for holding an inquiry against
the Judge. Section 4(1) of the Judges (Inquiry) Act, 1968 states that at
the conclusion of the investigation, the Committee shall submit its report
to the Speaker or, as the case may be, to the Chairman, stating therein
its findings on each of the charges separately with such observations on
the whole case as he thinks fit. The Speaker or the Chairman, as the case
may be, shall cause that report to be laid before the House of People and
the Council of States. Section 6 provides that if the report of Committee
contains a finding that the Judge is not guilty of any misbehavior or does
not suffer from any incapacity, then, no further step shall be taken in
either House of Parliament.
Clause (5) of Article 124 enables enactment of a special law by the
Parliament to regulate the procedure for presentation of an address and
for the 'investigation' and 'proof of the 'misbehavior' or incapacity of a
Judge under Clause (4). It is in exercise of this power that the
Parliament has enacted the Judges (Inquiry) Act, 1968. It is significant
that Clause (5) of Article 124 covers the field of 'investigation' and
'proof' of the 'misbehavior' of a Judge. There can be no doubt that the
expression 'misbehavior' is of wide import and includes within its ambit
criminal misconduct as defined in Sub-section (1) of Section 5 of the Act
as also lesser misconduct of a Judge falling short of criminal misconduct.
The special law envisaged by Article 124(5) for dealing with the
misbehavior of a Judge covers the field of 'investigation' and 'proof of
the 'misbehavior' and the only punishment provided is by Article 124(4) of
removal from office. There is no escape from the conclusion that Article
124(5) is wide enough to include within its ambit every conduct of a Judge
amounting to misbehavior including criminal misconduct and prescribes the
procedure for investigation and proof thereof.
Thus, even for the procedure for investigation into any misbehavior of a
Judge as well as its proof, a law enacted by the Parliament under Article
124(5) is envisaged in the constitutional scheme. Such a law in the form
of the Judges (Inquiry) Act, 1968 and the rules framed there under has
been enacted. These provisions were made in the Constitution and the law
there under enacted when the Prevention of Corruption Act, 1947 was in the
Statute Book. The prior enactment and existence of the Prevention of
Corruption Act, 1947 at the time when Clause (4) and (5) of Article 124 of
the Constitution were framed, does indicate the constitutional scheme that
a separate parliamentary law to deal with the investigation and proof of
misbehavior of a Judge was clearly contemplated by providing a special
machinery for this category of constitutional functionaries
notwithstanding the general law available and applicable to the public
servants in general, which included the Prevention of Corruption Act,
1947,
In India, today more and more time in the newscasts on radio and
television and more space in the daily newspaper are devoted to judicial
proceedings, especially criminal cases, since by their very nature, they
have sensation value, and other cases which in the opinion of the press
will catch public interest. There is increasing and intense public focus
on Courts and the cases filed in them. Whether reported in daily newspaper
or in electronic media, Indians avidly devour this information, since they
are curious about what happens in Court. Now that the Courts have come
under the media's microscope, they are likely to remain there forever. As
with most changes both positive and negative consequences have flowed from
this. A Positive by-product of changes spurred by the media and addressed
by the Courts is that more Indians are aware of their constitutional
rights than ever before. Therefore misbehavior on part of the Judges
specially in criminal matters is under scrutiny.
An example was set in the case of Vikas Yadav Vs. State of Uttar
Pradesh, the case came under Criminal Procedure Code, 1973 ,Section
407 dealing with transfer of case. Behavior in court brought about an
apprehension in the mind of accused that they may not get a fair trial
which led to a controversy as to admissibility or relevance of question
involved it was held that in trying criminal cases, Judge should neither
be too vocal nor to be excited in observations or comments and court to
deal with lawyers in a respectable manner; Judge made avoidable remarks
like he knows how to deal with persons like the petitioner. Even the Asstt.
Public Prosecutor stated that certain directions of the Judge to witnesses
bound to cause prejudice to the prosecution case itself.
However, since the trial was in progress it was improper to transfer the
case to another court of competent jurisdiction in the midstream so the
Judge was directed to follow the guidelines. It was observed by Justice
R.C. Chopra that “It is the need of the hour that criminal cases are
handled firmly so that the confidence of general public in the
administration of justice is preserved but the Judges trying criminal
cases should neither be too vocal nor too excited in making observations
or comments which may have the tendency to send wrong signals to the
parties. Orders passed by the Court should always be well considered and
balanced so that the justice is not only done but it should also be seen
to have been done. Judicial discipline and Court decorum must be
maintained in all situations. It should be remembered that sobriety and
equilibrium are judicial ornaments of a Judge. A Judge may be the master
of his court but he remains a servant of law."
Justice must not merely be done but it must also be seen to be done. The
behavior 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.
It is inappropriate to state that conviction and sentence are no bar for
the Judge to sit in the Court. We may make it clear that if a Judge is
convicted for the offence of criminal misconduct or any other offence
involving moral turpitude, it is but proper for him to keep himself away
from the Court. He must voluntarily withdraw from judicial work and await
the outcome of the criminal prosecution. If he is sentenced in a criminal
case he should forthwith tender his resignation unless he obtains stay of
his conviction and sentence.
He shall not insist on his right to sit on the Bench till he is cleared
from the charge by a Court of competent jurisdiction. The Judge whose
character is clouded and whose standards of morality and rectitude are in
doubt may not have the judicial independence and may not command
confidence of the public. He must voluntarily withdraw from the judicial
work and administration. The emphasis on this point should not appear
superfluous. Prof. Jackson says "Misbehavior by a Judge, whether it takes
place on the bench or off the bench, undermines public confidence in the
administration of justice, and also damages public respect for the law of
the land; if nothing is seen to be done about it, the damage goes
unrepaired. This must be so when the judge commits a serious criminal
offence and remains in office”.
In S.P. Gupta and Ors. etc. v. Union of India and Ors. , it was
clearly pointed out that a High Court Judge is a high constitutional
functionary and while dealing with the question of the machinery having
legal sanction to deal with a High Court Judge against whom allegations of
lack of integrity and corruption were made, it was stated as under:
“... Baldly put, the question is: Should an Additional Judge whose
misbehavior or lack of integrity has come to the fore be continued as an
Additional Judge or confirmed as a Permanent Judge? The answer at the
first impulse and rightly would be in the negative but the question
requires deeper consideration. If the misbehavior or lack of integrity is
glaringly self-evident the question of his continuance obviously cannot
arise and in all probabilities will not engage the attention of the
appointing authority, for, the concerned Judge in such a situation would
himself resign but when we talk of misbehavior or lack of integrity on the
part of an Additional Judge having come to the fore, by and large the
instances are of suspected misbehavior and/or reported lack of integrity
albeit based on opinions expressed in responsible and respectable quarters
and the serious question that arises is whether in such cases the
concerned Additional Judge should be dropped merely on opinion material or
concrete facts and material in regard to allegations of misbehavior and/or
lack of integrity should be insisted upon? In my view since the question
relates to the continuance of a high constitutional functionary like the
Additional Judge of High Court it would be jeopardizing his security and
judicial independence if action is taken on the basis of merely opinion
material.
Moreover, no machinery having legal sanction behind it for holding an
inquiry - disciplinary or otherwise against the concerned judge on
allegations of misbehavior and/or lack of integrity obtains in the
Constitution or any law made by the Parliament, save and except the
regular process of removal indicated in Article 124(4) and (5) read with
Article 218 and the Judges (Inquiry) Act, 1968. Therefore, the important
question that arises in such cases of suspected misbehavior and/or
reported lack of integrity is who will decide and how whether the
concerned Judge has in fact indulged in any misbehavior or act of
corruption? In the absence of satisfactory machinery possessing legal
sanction to reach a positive conclusion on the alleged misbehavior or an
act of corruption the decision to drop him shall have been arrived at
merely on the basis of opinions, reports, rumors or gossip and apart from
being unfair and unjust to him such a course will amount to striking at
the root of judicial independence.
The other alternative, namely, to continue him as an Additional Judge for
another term or to make him permanent if a vacancy is available and then
take action for his removal under the regular process indicated in Article
124(4) and (5) read with Article 218 and Judges (Inquiry) Act, 1968 may
sound absurd but must be held to be inevitable if judicial independence, a
cardinal faith of our Constitution, is to be preserved and safeguarded.
Not to have a corrupt Judge or a Judge who has misbehaved is
unquestionably in public interest but at the same time preserving judicial
independence is of the highest public interest. It is a question of
choosing the lesser evil and in inevitable course has to be adopted not
for the protection of the corrupt or dishonest judge but for protecting
several other honest, conscientious and hardworking Judges by preserving
their independence; it is a price which the Society has to pay to avoid
the greater evil that will ensue if judicial independence is sacrificed.
Considering the question from the angle of public interest therefore, I am
clearly of the view that while considering the question of continuance of
the sitting Additional Judges on the expiry of their initial term either
as Additional Judges or as Permanent Judges the test of suitability
contemplated within the consultative process under Article 217(1) should
not be invoked - at least until such time as proper machinery possessing
legal sanction is provided for enabling a proper inquiry against an
alleged errant Judge less cumbersome than the near impeachment process
contemplated by Article 124(4) and (5) of the Constitution.”
“... As the law now stands it is not open to any single individual,
whether it is the President or the Chief Justice of India or anybody else
to take cognizance of any allegations of misbehavior or of incapacity of a
Judge and to take any legal action on their basis under the Judges
(Inquiry) Act, 1968. One hundred Members of the Lok Sabha or fifty Members
of the Rajya Sabha alone can initiate any action on such allegations.
Naturally, all others are excluded from taking cognizance of them and
acting on them”.
In the case K.Veeraswami Vs. Union of India it was held in the para.
125. “It appears that the framers of the Constitution, while dealing with
such constitutional functionaries, contemplated merely their removal from
office in the manner provided in Article 124(4) as the only punishment;
and a special law enacted by the Parliament under Article 124(5), even for
investigation and proof of any misbehavior alleged against a superior
Judge instead of the general law was clearly visualized when the alleged
misbehavior is connected with his office. A charge of corruption against a
superior Judge amounting to criminal misconduct by abuse of his office
would certainly fall within the ambit of misbehavior contemplated under
Article 124(5), since misbehavior of a Judge in the form of corruption by
abuse of his office would be an act of gross misbehavior justifying his
removal from office, irrespective of other legal sanction, if any, to
punish a corrupt Judge. It cannot be imagined that the framers of the
Constitution provided for removal of a superior Judge on lesser grounds of
misbehavior but not for the gross misbehavior of corruption.
There is no escape from the conclusion that the gross misbehavior of
corruption of a Judge must undoubtedly fall within the ambit of Article
124(5) justifying his removal in the manner provided in Article 124(4).
Article 124(5) contemplates a special law enacted by the Parliament even
for investigation into any allegation of misbehavior which must include an
allegation of corruption. Can it, therefore, be said that while
investigation into the allegation of corruption for the purpose of removal
under Article 124(4) needs a special law made by the Parliament under
Article 124(5), it is not so for his prosecution which can be made under
the provisions of the existing Prevention of Corruption Act? It appears
that the framers of the Constitution did not contemplate the need for
prosecution of a Judge at that level and expected that a superior Judge
would resign if faced with credible material in support of allegations of
misbehavior, and in case he did not resign, his removal under Article
124(5) would be sufficient to deal with the situation.
The need for his prosecution was not visualized and, therefore, not
provided for in the existing law. The Act had already been made when the
Constitution was framed and the amendment made in the Act in 1964 was
after the experience for some time of the functioning of the judiciary
under the Constitution. It is significant that even the Judges (Inquiry)
Act, 1968, was enacted under Article 124(5) of the Constitution much later
and after the 1964 amendment of the Act.
The fact that the Parliament did not enact any other law even then for the
investigation into allegations of corruption against a superior Judge and
for his trial and punishment for that offence and rest content merely with
enacting the Judges (Inquiry) Act, 1968, to provide for the procedure for
removal of a Judge under Article 124(4) is a clear pointer in the
direction that the Parliament has not as yet considered it expedient to
enact any such law for the trial and punishment on the charge of
corruption of a superior Judge, except by his removal from office in the
manner prescribed. It may also be noticed that the provisions of the
Judges (Inquiry) Act, 1968, provide the procedure for investigation and
proof of an allegation of corruption against a superior Judge and if the
Prevention of Corruption Act is held applicable to them, then there would
be two separate procedures under these two enactments providing for
investigation into the same charge. Can this anomaly and incongruity be
attributed to a conscious act of the Parliament while enacting the Judges
(Inquiry) Act, 1968, after the 1964 amendment in the Act?”
In the case K.Veeraswami Vs. Union of India, in the para 128. it
was held that “It is a sad commentary on the working of the appointment
process and the behavior of some of the appointees which has led to this
situation. The confidence reposed in them by the framers of the
Constitution has been betrayed to this extent. It was expected that the
superior Judges who were constituted into a different class and treated as
superior morally not needing the deterrence of such a law to punish them
would be alive to the need of a higher code of conduct regulating their
behavior justifying the absence of such a law for them. It was reasonable
to further expect that the aberrations, if any, in their rank would be
subject to the moral and social sanction of their community ensuring that
they tread the right path. The social sanction of their own community was
visualized as sufficient safeguard with impeachment and removal from
office under Article 124(4) being the extreme step needed, if at all.
It appears that the social sanction of the community has been waning and
inadequate of late. If so, the time for legal sanction being provided may
have been reached. No doubt for the judicial community in general it would
be a sad day to become suspect needing such a legislation to keep it on
the right track. However, that is the price the entire community has to
pay if its internal checks in the form of moral and social sanction are
found deficient and inadequate to meet the situation which legal sanction
alone can prevent. It is for the Parliament to decide whether that stage
has reached in the superior judiciary when legal sanction alone can be the
remedy for maintenance of public confidence in the integrity of the
superior judiciary without which independence of the judiciary would
itself be in jeopardy.”
Thus by having a look at various judgments it is extremely evident that we
must have a separate setup and procedure whereby an action can be
initiated against those Judges whose actions are derogatory and do not
match the standards expected out of them but for which being impeached is
an excessive punishment. Though it can be rightly expected out of people
who hold high positions in the judiciary to be conscious about their
conduct and behavior yet there arises a need for such statute which has a
mandatory effect through which we can get rid of the lacuna which has been
created. As already being impeached creates an atmosphere which is not
just and right, specially in a democratic state. Such amount of power must
be conferred on the Bar councils or such agencies which without any bias,
on the basis of principles of natural justice take such actions whereby
other members of judiciary can have an example as to what actions will
amount to lowering down the esteem and integrity of the judiciary in the
eyes of the citizens of the country. For this purpose some instrument has
to be devised which can keep a check on all the members serving not only
in the high cadre but even for other judges and can have some measures to
help prevent any sort of misbehavior on their part.
Conclusion
A Judge reaches such a position in judiciary and society after serving for
years at the bench. Over such a long duration a lawyer and a Judge learn
the art to conduct themselves in such manner which wont lead to erosion of
public trust and faith. In fact such experience helps them to understand
the way they have to behave and communicate in a court room and in private
life.
As quoted by Y.K. Sabharwal .C.J. in a speech that Judge remains a judge
24 hours a day, 7 days a week and 12 months in a year. He is always looked
up with the hope and faith that he will always help in bringing about
justice and equality in our liberal and democratic nation in such a manner
that the honor and prestige is always restored.
Now-a-days Judges are not just present in court rooms but are also a part
of various seminars and public oriented programmes where they are under
the scrutiny of media and a common man. The way a Judge conducts himself,
they way he utters every word and the manner in which he conducts himself
leaves a mark which leads to accountability on the part of the Judge.
In the last few centuries it was expected out of the Judges to lead a life
in seclusion, not to become a public figure; but over the last few years
this notion has undergone a drastic change wherein it is accepted that the
members of judiciary, specially Judges are under microscopic scrutiny and
people look up to them therefore it cannot be said that they are not a
public figure. Since the field of Law and Judiciary has expanded its scope
it has lead to presence of eminent jurist in such lectures, seminars or
other ceremonies where the ‘seclusion', they are expected to lead there
lives in, has to vanish.
Commenting upon the issue a senior lawyer has been reported as saying ,”A
hermit is not necessarily clean and vice-versa.” The view was supported by
senior advocate Mr. KTS Tulsi, who said,” A conservative judge may believe
that the code forbids him to party. But a judge who is more gregarious in
his personal life may have the confidence that he can go to parties
without compromising his impartiality.”
A Judge is an individual, is a human at the end who has a private life
where there are his friends, relatives and colleagues with whom he
interacts on daily basis. Therefore it becomes inevitable for him to lead
his life in such a manner that never should a day come when it can be said
that the conduct of the Judge was influenced by external factors. It even
makes it important for the family members of a Judge to pay attention that
none of their acts should make it difficult for the Judge to keep up the
public faith.
Over the years there has been an uncodified field where examples have been
set by which jurist and members of judiciary can understand the standards
of conduct and communication expected out of them. Being a Judge doesn't
refrain one from leading a life which any individual is expected to live
but he has to keep in mind that he reposes the trust and faith which the
people of the country have in them. He has to make a balance, an
equilibrium, by which he sets an example for others to follow.
Judges are the bulwark of the people's liberties for which Somerset's case
is a perfect example, where Lord Mansfield C.J.'s decision that a slave
brought to England from the plantations, should be restored to freedom;
was not given under the influence of Parliament but it was the great Judge
who decided the same.
Hence at the end it can be concluded by saying that a Judge should
practice a degree of aloofness consistent with the dignity of his office.
A Judge should not hear and decide a matter in which a member of his
family, a close relation or a friend is concerned. A judge is expected to
let his judgments speak for themselves. He should not give interviews to
the media. There is a fine line of similarity between a ‘Judge' and a
‘Hermit'; which shall inspire and encourage a judge in every field; which
will help them overcome any sort of distraction or confusion and thus
cannot be left unnoticed.
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