ATTEMPTED
CODIFICATION OF CANONS OF JUDICIAL ETHICS
ATTEMPTED
CODIFICATION OF CANONS OF JUDICIAL ETHICS
People
are responsible for their opinions, but providence is responsible for their
morals (W.B. Yeats in Christopher Hassall).
The Constitution of India provides for an
independent judiciary. It is
insulated against any influence of any other wing of governance or any other
agency or authority. Speaking in
the Constituent Assembly of India, its President Dr. Rajendra Prasad emphasized
the need for the Indian Judiciary to be independent of the Executive and
competent in itself. There was a
long discussion as to how the twin objects could be achieved.
It
has been unanimously accepted in all the civilized countries of the world that
an independent judiciary is the backbone of civilized governance.
It needs to be constantly guarded against external influences.
Over the time, the framers of different constitutions have realized that
independence of the judiciary and the protection of its constitutional position
is the result of a continuous struggle - an ongoing and dynamic process.
The constitutional safeguards provide external protection for
independence and strength of the judiciary.
At the same time, the judiciary itself and socio-legal forces should
believe in the independence of the judiciary.
It is of paramount importance,
that the judiciary to remain protected must be strong and independent from
within, which can be achieved only by inculcating and imbibing canons of
judicial ethics inseparably into the personality of the judges.
Ethics and morality cannot be founded on authority thrust upon from
outside. They are the matters of
conscience which sprout from within.
Sukra Neeti (IV-5-14-15) enumerates five vices which every judge
should guard against to be impartial. They
are: (i) raga (leaning in favour of a party), (ii) lobha (greed),
(iii) bhaye (fear), (iv) dvesha (ill-will against anyone) and (v) vadinoscha
rahashruthi (the judge meeting and hearing a party to a case secretly, i.e.
in the absence of the other party).
Socrates counselled judges to hear courteously,
answer wisely, consider soberly and decide impartially.
Someone has commented that these four virtues are all aspects of judicial
diligence. It is suggested that
Socrates’ list needs to be supplemented by adding the virtue of acting
expeditiously. But diligence is not
primarily concerned with expedition.
Diligence, in the broad sense, is concerned with carrying out judicial
duties with skill, care and attention, as well as with reasonable promptness.
I
read a poem (the name of the poet unfortunately I will not be able to
quote, as it was not there, where I read it) which
describes the qualities of a judge. It
reads,
“God
give us men, a time like this demands;
Strong
minds, great hearts, true faith and ready hands;
Men
whom the lust of office does not kill;
Men
whom the spoils of office cannot buy;
Men
who possess opinions and a will;
Men
who have honour; men who will not lie;
Men
who can stand before a demagogue
and
damn lies treacherous flatteries without talking;
Tall
men, sun-crowned, who live without the fog;
In
public duty and in private thinking.
However,
they may be trained to strengthen
those
who are weak and wronged.”
Late
Justice Shiv Dayal during his tenure as Chief Justice of the High Court of
Madhya Pradesh brought out Judges’ Diary as an official publication of the
High Court. It
included Judge’s Prayer running into three stanzas.
Invoking the mercy of the Supreme Lord, he described the Judges as “Thy
servants whom Thou sufferest to sit in earthly seats of judgement to administer
Thy justice to Thy people”. He
begs from the infinite mercy of the Supreme Lord, so as “to direct and dispose
my heart that I may this day fulfil all my duty in Thy fear and fall into no
error of judgment.” In the third
stanza, he says ___ “Give me grace to hear patiently, to consider
diligently, to understand rightly, and to decide justly!
Grant me due sense or humility, that I may not be misled by my
willfulness, vanity or egotism”.
Rightly, the Judges are
something special in the democratic form of government governed by a
Constitution and, therefore, the most exacting standards can be none too high.
Speaking
of Felix Frankfurter as a judge, New York Times called him great “not because
of the results he reached but because of his attitude towards the process of
decision. His guiding lights were
detachment, rigorous integrity in dealing with the facts of a case, refusal to
resort to unworthy means, no matter how noble the end, and dedication to the
Court as an institution”.
Long back, in 1852, Bacon wrote in one of his essays, “Judges ought to
be more learned than witty, more reverend than plausible, and more advised than
confident. Above all things,
integrity is their portion and proper virtue.”
The
book ‘Lives of the Chief Justices of England’ (published, in 1858),
reproduced the qualities of a Judge written in his own handwriting by Lord Hale
which he had laid down for his own conduct as a Judge.
He wrote,
___
“Things necessary to be continually had in remembrance.
“1.
That in the administration of justice I am intrusted for God, the King,
and country; and therefore,
“2.
That it be done, 1. uprightly; 2. deliberately; 3. resolutely.
“3.
That I rest not upon my own understanding or strength, but implore and
rest upon the direction and strength of God.
“4.
That in the execution of justice I carefully lay aside my own passions,
and not give way to them, however provoked.
“5.
That I be wholly intent upon the business I am about, remitting all other
cares and thoughts as unseasonable and interruptions.
“And, while on the Bench, not writing letters or reading newspapers.”
“6.
That I suffer not myself to be prepossessed with any judgment at all,
till the whole business and both parties be heard.
“7.
That I never engage myself in the beginning of any cause, but reserve
myself unprejudiced till the whole be heard.
“8.
That in business capital, though my nature prompt me to pity, yet to
consider there is a pity also due to the country.
“9.
That I be not too rigid in matters purely conscientious, where all the
harm is diversity of judgment.
“10.
(Not reproduced)
“11.
That popular or court applause or distaste have no influence in anything
I do, in point of distribution of justice.
“12.
Not to be solicitous what men will say or think, so long as I keep myself
exactly according to the rule of justice.
“13.
(Not reproduced)
“14.
(Not reproduced)
“15.
(Not reproduced)
“16.
To abhor all private solicitations, of what kind soever, and by
whomsoever, in matters depending.
“17.
(Not reproduced)
“18.
To be short and sparing at meals, that I may be the fitter for
business.”
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