1 Nov 2009

Revisiting 'Principles of Judicial Conduct'

Certain past events in the judicial circles have drawn a lot of furore and criticism on the conduct of the judges. The situation is, however, not new. Given the enormity of stakes involved and the continuous media coverage of events, it is but obvious that issues can be raked up to the extent of requiring the judge to recuse himself of the case. But then one cannot decide the propriety of the conduct on a case to case to basis. Evolution of universal standards are required at a axiomatic level to test the veracity of the accusatory claims and vouch-safe the conduct of the judge. This is not only important for ensuring that parties continue to repose their faith in the judicial system but also to accentuate into reality the fundamental underlying principle of law that 'justice must only be done but also seem to be done'. The course of time has, indeed, witnessed the evolution of such standards and in this post we undertake a stock-taking of the various principles which have been evolved to test and improve the propriety of conduct of the judges. 

The then Chief Justice of India in 2007, delivering the M.C. Setalvad Memorial Lecture titled 'Canons of Judicial Ethics' discussed these principles and the need for them to be followed consistenly in his lecture. However the formal note on this accord had already been struck ten years back when on 7th of May in 1997, a full bench of the Supreme Court of India adopted the 'Restatement of Judicial Values' as the bench-mark conduct to be observed by the judges of the country which extends 16 principles as under; 
1. Justice must not merely be done but it must also be seen to be done. The behaviour and conduct of members of the higher judiciary must reaffirm the people’s faith in the impartiality of the judiciary. Accordingly any act of the judge of the Supreme Court or a High Court, whether in official or personal capacity, which erodes the credibility of this perception has to be avoided.
2. A judge should not contest the election to any office of a club, society or other association; further he shall not hold such elective office except in a society or association connected with the law.
3. Close association with individual members of the Bar, particularly those who practice in the same court, shall be eschewed.
4. A judge shall not permit any member of his immediate family, such as spouse, son, daughter, son-in-law or daughter-in-law or any other close relative, if a member of the Bar, to appear before him or even be associated in any manner with a cause to be dealt with by him.
5. No member of his family, who is a member of the Bar, shall be permitted to use the residence in which the Judge actually resides or other facilities for processional work.
6. A Judge should practise a degree of aloofness consistent with the dignity of his office.
7. A Judge shall not hear and decide a matter in which a member of his family, a close relation or a friend is concerned.
8. A Judge shall not enter into public debate or express his views in public on political matters that are pending or are likely to arise for judicial determination.
9. A Judge is expected to let his judgments speak for themselves. He shall not give interview to the media.
10. A Judge shall not accept gifts or hospitality except from his family, close relations and friends.
11. A Judge shall not hear and decide a matter in a company in which he holds shares is concerned unless he has disclosed his interest and no objection to his hearing and deciding the matter is raised.
12. A Judge shall not speculate in shares, stocks or the like.
13. A Judge shall not engage directly or indirectly in trade or business, either by himself or in association with any other person. (Publication of a legal treatise or any activity in the nature of a hobby shall not be construed as a trade or business).
14. A Judge should not ask for, accept contributions or otherwise actively associate himself with the raising of any fund for any purpose.
15. A Judge should not seek any financial benefit in the form of a perquisite or privilege attached to his office unless it is clearly available. Any doubt in this behalf must be got resolved and clarified through the Chief Justice.
16. Every Judge must at all times be conscious that he is under the public gauze and there should be no act or omission by him which is unbecoming of the high office he occupies and the public esteem in which that office is held.
There is no shortage of international institutions dedicated to the cause of promoting judicial accountability. Way back in 1982 itself the International Bar Association adopted its declaration on 'Minimum Standards of Judicial Independence'. This was followed by the adoption of the 'UN Basic Principles on the Independence of the Judiciary' by a United Nations organ in 1985.

The United Nations High Commissioner of Human Rights thereafter appointed in 1994 a seemingly permanent position of 'Rapporteur on the Independence of Judges and Lawyers' which has even since been continually monitoring and carrying out the mandate entrusted to it which inter alia includes the task "to identify and record not only attacks on the independence of the judiciary, lawyers and court officials but also progress achieved in protecting and enhancing their independence, and make concrete recommendations, including the provision of advisory services or technical assistance when they are requested by the State concerned" and also "To identify ways and means to improve the judicial system, and make concrete recommendations thereon". The appointment of the Rapporteur is based upon the firm conviction of the UN Human Rights Council to this effect that which notes the background of such appointment, being "convinced that an independent and impartial judiciary, an independent legal profession and the integrity of the judicial system are essential prerequisites for the protection of human rights and for ensuring that there is no discrimination in the administration of justice".

The Centre for International Crime Prevention of the UN Office for Drug Control and Crime Prevention organised a Judicial Group on Strengthening Judicial Integrity which in its report of 2000 suggested a number of measures to check judicial corruption. The Center for the Independence of Judges and Lawyers of the 'International Commission of Jurists' is another institution "established in 1978, works to promote and protect judicial and legal independence and impartiality through a variety of means. The CIJL bases its work on the UN Basic Principles on the Independence of the Judiciary and the UN Basic Principles on the Role of Lawyers, and was instrumental in their formulation."

Having so said and done, however, the undisputed international benchmark are the 'Bangalore Principles of Judicial Conduct' which were adopted by the Round Table Meeting of Chief Justices held at the Peace Palace at The Hague in Netherlands in November, 2002. The formal text adopting these principles extends the rationale for adopting of these principles as under;
THE FOLLOWING PRINCIPLES are intended to establish standards for ethical conduct of judges. They are designed to provide guidance to judges and to afford the judiciary a framework for regulating judicial conduct. They are also intended to assist members of the executive and the legislature, and lawyers and the public in general, to better understand and support the judiciary. These principles presuppose that judges are accountable for their conduct to appropriate institutions established to maintain judicial standards, which are themselves independent and impartial, and are intended to supplement and not to derogate from existing rules of law and conduct which bind the judge.
These principles are broadly based six 'values' which are explained in principle in the text and thereon with a further detail on their application which can broaded be restated as under;
Principle: Judicial independence is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects.
Principle: Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made.
Principle: Integrity is essential to the proper discharge of the judicial office. 
Principle: Propriety, and the appearance of propriety, are essential to the performance of all of the activities of a judge.
Principle: Ensuring equality of treatment to all before the courts is essential to the due performance of the judicial office.
Principle: Competence and diligence are prerequisites to the due performance of judicial office.
These Bangalore Principles of Judicial Conduct, in as much as they are based upon and a consolidating act of all earlier international codes and instruments on the the issue, can at best be described as the international norm holding the field. For example, these principles have been adopted by the UN Economic and Social Council and the American Bar Association whereas the UN Office on Drugs and Crime and Judicial Integrity Group have released their own version of elaborate Commentary of the Bangalore principles.

Thus, on a survey of codes and instruments issued to this effect, one finds that the arena seems to be fully occupied in as much as the characterization and precision with which the role of a judge has been defined. However what remains and the area which can be further worked upon is in the direction of the effective implementation of these standards to the justice dispensation system effectuated by the judges.

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