This article has been written by Abhira Shukla pursuing the Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho. This article has been edited by Aatima Bhatia (Associate, Lawsikho) and Dipshi Swara (Senior Associate, Lawsikho).
Table of Contents
Introduction
We often come across judgments wherein judges remark on the notion of ethics and moral conduct of parties. Time and again, it has been reiterated that law cannot be completely separated from ethics. Food for thought arises here. Do the judges who comment on the ethics of politicians, officers and government agencies are also bound by a code of ethics? The term ‘Ethics’ comes from the Ancient Greek word ethos, which is derived from the word ethos meaning habit, belief or custom. According to Rushworth Kidder ‘the science of the ideal human character’ or “the science of moral duty” is called ethics. This article will throw light on the important documents that serve as a guide for the observance of judicial ethics in India.
What is judicial ethics?
Judicial ethics consists of the standards and norms that bear on judges and covers such matters as how to maintain independence, impartiality and avoid impropriety.
Justice S.H. Kapadia said; “When we talk of ethics, the judges normally comment upon ethics among politicians, students, professors and others. But I would say that for a judge, ethics, not only constitutional morality but even ethical morality, should be the base.”
According to Mr. Justice Thomas of the Supreme Court of Queensland, there are two key issues that must be addressed: (1) the identification of standards to which members of the judiciary must be held; and (2) a mechanism, formal or informal, to ensure that these standards are adhered to. A reference to various dictionaries would be unable to frame the definition, if one must be framed. Judicial ethics are the basic principles of right action of the judges. It consists of or relates to moral action, conduct, motive or character of judges; what is right or befitting for them. In the High court of Judicature at Bombay v. Udaysingh, it was observed by the Supreme Court that;
“Maintenance of discipline in the judicial service is a paramount matter and since the acceptability of the judgement depends upon the credibility of the conduct, honesty, integrity and character of the office and since the confidence of the litigant public gets affected or shaken by the lack of integrity and character of the judicial officer”.
Canons vs. Principles
‘Principles’ are fundamental truth, the axioms, the code of right conduct. Much of these remain confined to theory or hidden books. Canons are the rules perfected by the principles, put to practice. Principles may be a faculty of the mind, a source of action which are a pleasure to preach or read. ‘Canons’ are principles put into practice so as to be recognized as rules of conduct commanding acceptability akin to a religion or firm faith, the departure wherefrom would be not a pardonable mistake but an unpardonable sin. The intention of the Principles is to establish standards of ethical conduct for judges, to provide guidance for individual judges and the judiciary in regulating judicial conduct, and also to assist members of the executive and legislature, lawyers and the public, better to understand and support the judiciary.
The principles are stated as “values”:
- Judicial independence is a prerequisite 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.
- 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.
- Integrity is essential to the proper discharge of the judicial office.
- Propriety, and the appearance of propriety, are essential to the performance of all of the activities of a judge.
- Equality to all before the courts is essential to the due performance of the judicial office.
- Competence and Diligence are prerequisite to the due performance of judicial office.
There is no code for judicial ethics in India but there are three important documents which serve as a guide to be observed by Judges.
The three documents
- Restatement of Values of Judicial Life; 1999 (adopted by the Chief Justices’ Conference of India).
- The Oath of a Judge (as contained in the Third Schedule of the constitution of India).
Restatement of values of judicial life (1999)
The Supreme Court of India adopted a Charter called the Restatement of Values of Judicial Life on 7th May, 1997. It is the restatement of the pre-existing and universally accepted norms, guidelines and conventions observed by Judges. The restatement was ratified and adopted by the Indian Judiciary in the Chief Justices’ Conference, 1999. All the High Courts of the country have also adopted the same. It reads as under:
(1) Justice must not merely be done but it must also be seen to be done. The behaviour and conduct of members of the higher judiciary must reaffirm the -people’s faith in the impartiality of the judiciary. Accordingly, any act of a Judge of the Supreme Court or a High Court, whether in official or personal capacity, which erodes the credibility of this perception has to be avoided.
(2) A Judge should not contest the election to any office of a Club, society or other association; further, he shall not hold such elective office except in a society or association connected with the law.
(3) Close association with individual members of the Bar, particularly those who practice in the same court, shall be eschewed.
(4) A Judge should not permit any member of his immediate family, such as spouse, son, daughter, son-in-law or daughter-in-law or any other close relative, if a member of the Bar, to appear before him or even be associated in any manner with a cause to be dealt with by him.
(5) No member of his family, who is a member of the Bar, shall be permitted to use the residence in which the Judge actually resides or other facilities for professional work.
(6) A Judge should practice a degree of aloofness consistent with the dignity of his office.
(7) A Judge shall not hear and decide a matter in which a member of his family, a close relation or a friend is concerned.
(8) A Judge shall not enter into public debate or express his views in public on political matters or on matters that are pending or are likely to arise for judicial determination.
(9) A Judge is expected to let his judgments speak for themselves. He shall not give interviews to the media.
(10) A Judge shall not accept gifts or hospitality except from his family, close relations and friends.
(11) A Judge shall not hear and decide a matter in which a company in which he holds shares is concerned unless he has disclosed his interest and no objection to his hearing and deciding the matter is raised.
(12) A Judge shall not speculate in shares, stocks or the like.
(13) A Judge should not engage directly or indirectly in trade or business, either by himself or in association with any other person. (Publication of a legal treatise or any activity in the nature of a hobby shall not be construed as trade or business).
(14) A Judge should not ask for, accept contributions or otherwise actively associate himself with the raising of any fund for any purpose.
(15) A Judge should not seek any financial benefit in the form of a prerequisite or privilege attached to his office unless it is clearly available. Any doubt on this behalf must be resolved and clarified through the Chief Justice.
(16) Every Judge must at all times be conscious that he is under the public gaze and there should be no act or omission by him which is unbecoming of the high office he occupies and the public esteem in which that office is held.
The Bangalore principles of judicial conduct
The Preamble of the Bangalore Principles of Judicial Conduct, 2002, states that the principles are intended to establish standards for the ethical conduct of judges. They are designed to provide guidance to judges and to afford the judiciary a framework for regulating judicial conduct. They are also intended to assist members of the executive and the legislature, and lawyers and the public in general, to better understand and support the judiciary. These principles presuppose that judges are accountable for their conduct to appropriate institutions established to maintain judicial standards, which are themselves independent and impartial, and are intended to supplement and not to derogate from existing rules of law and conduct which bind the judge. The values of judicial ethics which the Bangalore Principles define are, independence, impartiality, integrity, propriety, equality, competence and diligence, and implementation. These values have been defined on the following principles, as under: –
(i) Judicial independence is a prerequisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects.
(ii) Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made.
(iii) Integrity is essential to the proper discharge of the judicial office.
(iv) Propriety, and the appearance of propriety are essential to the performance of all of the activities of a judge.
(v) Ensuring equality of treatment to all before the courts are essential to the due performance of the judicial office.
(vi) Competence and diligence are prerequisites to the due performance of the judicial office.
(vii) Implementation – By reason of the nature of the judicial office, effective measures shall be adopted by national judiciaries to provide mechanisms to implement these principles if such mechanisms are not already in existence in their jurisdictions.
The oath by a judge
Once a Judge has sworn to uphold the Constitution of India and the laws, he has to discharge his duties by guarding the constitutional values. By swearing in the name of God or making a solemn affirmation, a Judge invests in himself certain sacrosanct principles: –
(i) that I will bear true faith and allegiance to the Constitution of India as by law established;
(ii) that I will uphold the sovereignty and integrity of India;
(iii) that I will truly and faithfully, and to the best of my ability, knowledge and judgment perform the duties of office without fear or favor, affection or ill-will; and
(iv) that I will uphold the Constitution and the laws.
Conclusion
The Canons state overarching principles of judicial ethics that all judges must observe. Although a judge may be disciplined only for violating a rule, the Canons provide important guidance in interpreting the rules. An eminent jurist Justice G.P. Singh believes that canons of ethics cannot be learnt simply by listening or be taught only by being told. One must live by values to preach and emulating is the best way to learn. Sir Stephen Sedley, a former Judge of the Court of Appeal of England and Wales, has stated that independence and impartiality are the twin pillars without which justice cannot stand.
Therefore a judge needs to deal with not only the changes in the law but also constantly keep abreast with judicial ethics. A judge must appreciate that it is a process of continuous education and must periodically remind himself of the high ethical standards that he is expected to maintain. ‘Canons of Judicial Ethics’ is a shield to protect legal decorum of law and keep the faith in judiciary. When we talk about Judicial ethics people utterly think of only bookish laws not social and moral science. Jurisprudence taught us how we can enhance our laws and judges must keep the faith of law in society.
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