“Judicial Independence of Dependant Judiciary.”
By
R.K.Abichandani (c).
Senior Advocate; Supreme Court of India.
1. Judicial independence and impartiality
In the primitive era family Head would be dispensing justice by resolving conflicts within the family. However, there would be possibilities of element of bias in the Head who may show favour to one member because of his personal liking, or personal interest resulting from proximity. As the time progressed and social relations became complex, the need for independent i.e. unrelated adjudicator of disputes arose. Independence of judges should therefore be viewed not as a privilege of an individual judge but as a social arrangement, which ensures that there is no likelihood of bias due to proximity, relationship, personal acquaintances and other influencing causes. Thus, the principle of natural justice that no one will be a judge in his own cause, (which means he should have no direct or indirect interest involved in the outcome of the proceedings) is a child of the necessity to render unbiased and fair decisions.
1.2 Independence of judiciary is therefore not a private right of judges but the very foundation of judicial impartiality – and a constitutional right of the people of India to be governed by the rule of law that shuns all arbitrariness. Judicial independence characterizes a state of mind, which is concerned with the judge’s impartiality in fact and reality, and a set of institutional and operational arrangements, which define the relationships between judiciary and others, particularly the other branches of the government so as to assure both, the reality and appearance of independence and impartiality. Individual independence of a judge is reflected in such matters as security of tenure, while; the institutional independence of the court over which the judge presides is reflected in its institutional or administrative relationships to the executive and legislative branches of the State. The Judges are undoubtedly servants of the public but they are not public servants whose essential obligation is, consistently with law, to give effect to the policy of the government of the day. The duty of a judge, on the other hand, is to administer justice according to law, without fear or favour, and without regard to the wishes or policy of the Executive. (The Hon’ble Gleeson Murray AC, Chief Justice of Australia in his speech – “The Role Of The Judge And Becoming A Judge”, National Judicial Orientation Programme, Sydney 16th August, 1998) .
1.3 Judicial independence, however, is not only a matter of appropriate external and operational arrangement, but it is also a matter of independent and impartial decision making by each and every judge. The judge’s duty is to apply the law as he or she understands it without fear or favour and without regard to whether the decision is popular or not. This is the cornerstone of the rule of law. Judges individually and collectively should protect, encourage and defend judicial independence. (See Ethical Principles for Judges, adopted by the Canadian Judicial Council).
1.4 The right to be tried by an independent and impartial tribunal is an integral part of the principles of fundamental justice. The test of impartiality is whether an informed person, viewing the matter realistically and practically – and having thought the matter through, would apprehend a lack of impartiality in the decision maker. A reasonable perception that a judge lacks impartiality is damaging to the judge, the judiciary as a whole, and the good administration of justice. Judges should, therefore, avoid deliberate use of words or conduct, in and out of court, that could reasonably give rise to a perception of an absence of impartiality. (See, Commentary to Canon 3B, ABA, Model Code of Judicial Conduct (1990)). The judges should not deal with case concerning which the judge actually has a conflict of interest. The judge should avoid circumstances in which a reasonable, fair minded and informed person would have a reasonable suspicion that the judge is not impartial. However, the judge should not recuse unnecessarily, because, to do so will add to the burden of his or her colleagues and contribute to delay in the courts.
1.5 In a constitutional democracy independence of judiciary facilitates maintenance of rule of law, ensures that unconstitutional statues are declared void and ineffective, and valid laws are duly implemented. Such judicial independence will have the effect of disciplining the holders of economic or political power for collective good. The Judiciaries should never be allowed to be used as instruments to advance the interests of the ruling elite, rather than as mechanisms to protect individual rights and freedoms and promote access to justice. (ABA Judicial Reform; Overview).
1.6 The integrity and independence of judges depend in turn upon their acting without fear or favour. Although judges should be independent, they should comply with the law, as well as provisions of the accepted code of conduct. Public confidence in the impartiality of judiciary is maintained by the adherence of each judge to this responsibility. Conversely, violation of the code diminishes public confidence in the judiciary and thereby does injury to the system of government under law.
1.7 Judges also must keep up the appearance of the impartiality of the judicial process. For example, a judge should not be friendly, shake hands, and have an intimate conversation with one of the lawyers in front of the adversary party just before the trial begins, even if the judge and the lawyer used to be classmates. The opposing party who has seen such gesture of personal acquaintance will not accept an unfavourable decision, suspecting that the judge was biased. These things are evident, and the violations of these rules diminish the prestige and authority of the court. One rule, said Alfred the Great, applied everywhere: “Judge not one judgment for the rich, and another for the poor”.
2. Selection.
In his response to the nomination of Justice Janice Rogers Brown, US Senator Barack Obama remarked on June 8, 2005:
“ Now, the test for a qualified judicial nominee is not simply whether they are intelligent. Some of us who attended law schools or are in business know there are a lot of smart people out there whom you would not put in charge of stuff. The test of whether a judge is qualified to be a judge is not their intelligence. It is their judgment. The test of a qualified judicial nominee is also not whether that person has their own political views. Every jurist surely does. The test is whether he or she can effectively subordinate their views in order to decide each case on the facts and the merits alone. That is what keeps our judiciary independent in America. That is what our Founders intended.”
2.1 Picking a crony for a high judicial appointment for which formal tests of selection are considered to be below the dignity of the high office and which may shy away even the deserving meritorious lot, is a very haphazard way of finding good judicial appointments, and a bad way to find an outstanding candidate. Unless mediocrity is to be the bench mark serious and transparent efforts are required to attract outstanding talent for the high judicial office. In his essay, ““How to select a Justice for the U.S.Supreme Court”, Ronald B.Standler, who examined the history of the U.S.Supreme Court during 1900-1940, concluded that, “ most of the justices were mediocre…”(This document is at www.rbsO.com/sctjustices.pdf )
2.2 There is no parallel to the power of being a judge of the Supreme Court, so, prior experience as a Judge in an inferior court, or in the law profession, does not reliably indicate what one would do after being a justice of the Apex Court. Care at the selection stage can save a lot of embarrassment to the judiciary. No judge shall enjoy any benefits under the supervision of her or his relative and therefore judges should not be employed at courts where their relatives function as Chief Justices.
3. Public Confidence
The rule of law and the independence of the judiciary depend primarily on public confidence. Lapses and questionable conduct by judges tend to erode that confidence. Judicial independence and judicial ethics have a symbiotic relationship. Public acceptance of and support for court decisions depends upon public confidence in the integrity and independence of the bench, which in turn, depends upon the judiciary upholding high standards of conduct. (See: B. Nolan, “The Role of Judicial Ethics in the Discipline and Removal of Federal Judges”, in the Research Papers of the National Commission on Judicial Discipline and Removal, Volume I, (1993), pp.867-912, at 874).
The ability of the judicial system to function effectively and deliver justice depends in large part on ethical standards of our judges. While it may be proper to identify the ethical rules for judges, a judge should always remain free to decide honestly and impartially on the basis of the law and evidence, without external pressure or influence and without fear of interference from anyone. Judges have the duty to uphold and defend judicial independence, not as a privilege of judicial office but as the constitutional right of the people to have their disputes heard and decided by impartial judges.
3.1 Judges should strive to conduct themselves in a way that will sustain and contribute to public respect and confidence in their integrity, impartiality and good judgment. A judge’s conduct both in and out of court is likely to be subject to public’s scrutiny and comment and they should therefore, accept some restrictions even on activities that would not elicit adverse notice if carried out by other members of the community. Judges should endeavor to strike a delicate balance, between the requirements of the judicial office and the legitimate demands of the judge’s personal life, development and family. Even unfair or uninformed criticism or a simple misunderstanding of the judicial role, can adversely influence public confidence in and respect for the judiciary.
3.2 Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. The prohibition against behaving with impropriety or the appearance of impropriety applies to both the professional and personal conduct of a judge. The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.
4. Constitutional Position.
The allegations that the court exceeds its constitutional limits by extending its jurisdiction to the legislative and executive fields is levelled mainly due to the ignorance or misconception regarding the courts constitutional powers to declare laws lacking legislative competence or violating fundamental rights as ultra vires and void and its power to issue high prerogative writs, particularly the writ of mandamus, and the constitutional mandate of Article 144, that, the civil and judicial authorities should function in the aid of the apex court. The nature of mandamus itself requires examination of breaches of duties by the Executive and issuance of rectifying commands on the Executive, to do something, which the law required them to do, and, not to do an illegal act.
4.1 All the norms of good behaviour as contradistinguished from misbehaviour are ingrained in the Constitutional Oath that the Chief Justice and Judges of Supreme Court and High Courts take under Article 124 (6) and 219 read with the Second Schedule to the Constitution. The judge swears in the name of God or solemnly affirms that he/she will:
(i) Bear true faith and allegiance to the Constitution of India;
(ii) Will uphold the sovereignty and integrity of India;
(iii) Will duly and faithfully and to the best of his/her ability, knowledge and judgment perform the duties of office without fear or favour, affection or ill will and will uphold the constitution and the laws.
The Oath postulates fidelity and service to the people of India, and to do right to all manner of people accessing to law, without fear or favour, affection or ill will. This promise requires that Judges determine cases according to law and not by their subjective notions of fairness or policy. Justice must not only be done but be manifestly seen when it is done. As a consequence of this principle, a judge is disqualified from hearing a matter if in all the circumstances the party or the public has a reasonable belief that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question involved.
5. Judicial Accountability.
Judicial accountability of a Judge is twofold: (i) Accountability, which arises as a result of the requirement for every judicial officer to give reasons for his/her decision. Valid reasons bestow transparency on the decisions.
(ii) The second kind of judicial accountability relates to tenure and, in particular, to circumstances which give rise to disciplinary measures, including removal from office.
5.1 “The duties of the Judge render him a person in public service. He is thus a public property. There cannot, therefore, be anything about his life, which should remain hidden from public glare. His life must be an open book. It flows from this that the assets and the liabilities of the Judge are known to one and all. His financial or property transactions should have no nexus with his official dealings. He must declare the same scrupulously and at no cost should engage himself with anyone connected with his official duty”. (Former Chief Justice of India, Mr. Y.K. Sabharwal in his speech “Canons of Judicial Ethics”, M.C. Setalwad Memorial Lecture Series). Judicial Independence is, however, not a mere slogan to ward off legitimate inquiry and criticism, nor is it a curtain behind which the judiciary should hide. (The New Guide for Judges: Some Ethical Issues, Paper by J.B. Thomas, IIPE Conference 5-7 October 2002)
5.2 The steps taken to help foster the notion of the integrity of judges would become meaningless, when private interests are allowed to wine and dine judges at fancy resorts under the pretext of ‘educating’ them about complicated issues. Perception of dishonesty may arise when judges attend seminars and study sessions sponsored by corporations and foundations that have a special interest in the interpretation given to environmental laws. Hon’ble Abner J. Mikva, former Chief Judge, U.S. Court of Appeals for the D.C. circuit, Visiting Professor of law, University of Chicago, recalls in his foreword to “Trips for Judges”:
“ One of judges on the court on which I sat has attended some 12 trips sponsored by the three most prominent special interest seminar groups. I remember at least two occasions where co-panellist judges took positions that had heard advocated at seminars sponsored by groups with more than a passing interest in the litigation under consideration”.
5.3 When judges are on private visits which are wrongly projected as official to illegitimately avail concessions / exemptions for their stay in official guest houses, it betrays the inner dishonest attitude which needs to be exposed. The relevant data can be gathered from the records / registers of the circuit/guest houses visited.
5.4 Dr. Zolton Lomnici, President of Hungarian Supreme Court in response to an interview by Robert Almosd tersely stated that, “It would shed bad light on judiciary if a judge was constantly partying at night, socializing with criminals, or leading a libertine promiscuous sex life.” Judges are obliged to exercise unimpeachable conduct that is worthy of their office at all times and must refrain from any behaviour which would detract from the confidence invested in the judicial process and the dignity of the courts. Thus, judges must display proper and respectable conduct not only at the courts but also in private life. A judge exhibiting scandalous behaviour, such as appearing in public drunk, thus embarrassing the entire judiciary, would be an example of judicial misconduct.
5.5 It is difficult to discover the indirect interest generated by the possibility of favours or post-retirement prospects after the judicial tenures. The political leanings of individual judges may yield plum assignments of high status assuring continuance of perks, emoluments hitherto drawn. No systematic study is undertaken to find nexus between those betraying in their decisions political or other leanings and the dangling carrots of post retirement assignments. It will not be difficult to ascertain particulars showing the nexus between those who render decisions smacking of bias and the rewards intended to be quid pro quo for favourable decisions. Serious academicians can institutionally collect relevant data on the basis of appropriate questionnaire that may ask the persons who are acquainted with the judicial system to disclose any such known cases with the reasons for their opinion.
6. Code of Conduct.
It is essential that the judges, individually and collectively respect and honour judicial office as a public trust and strive to enhance and maintain confidence in the judicial system. The principles designed to provide guidance to judges and to afford a structure for regulating judicial conduct are spelt over in the Code of Conduct (Bangalore Draft) upholding the values of propriety, independence, integrity, impartiality, equality, competence and diligence, and accountability.
6.1 Judges of superior courts should certainly be expected to set and follow standards of conduct to be emulated by the judges of inferior courts in the judicial hierarchy. When the code of conduct for judges of superior and the subordinate courts is prescribed or approved by the Apex Court, it automatically follows that the standards which are set up and applied are considered by the highest court as standards endorsed for itself also. A Judge should participate in establishing, maintaining and enforcing high standards of conduct, and should personally observe those standards, so that integrity and independence of judiciary may be preserved. Violation of the norms accepted for good judicial conduct would diminish public confidence in the judiciary. Essential independence of judges in making decisions does not require immunity from applicability of the norms of good conduct.
6.2 The canons of good judicial conduct are rules of reason. They should be applied consistent with constitutional requirements, statues, other court rules, and decisional law, and in the context of all relevant circumstances. The code of judicial conduct is to be construed so as not to impinge on the essential independence of judges in making judicial decisions.
6.3 Many of the proscriptions in the Bangalore Code are necessarily cast in general terms, and it is not suggested that disciplinary action is appropriate where reasonable judges might be uncertain as to whether or not the conduct is proscribed. Furthermore, the Code is not designed or intended as a basis for civil liability or criminal prosecution. Finally, the purpose of the Code would be subverted if lawyers for mere tactical advantage in a proceeding invoked the Code.
6.4 Remaining independent while deciding disputes without fear or favour is normal conduct expected of a judge and any wilful deviation, therefore, will be misconduct. How to deal with such misconduct is a procedural matter and the manner or method of disciplinary action would differ depending upon the level of the erring Judge. To be independent and impartial in the decision making process is primary responsibility of a judge, even of the highest forum, and the concept of justice will not admit insulation from punitive action against the erring judge on the ground that the high judicial power has sovereign attributes.
7. Impeachment.
The Constitutional provisions of Section 124 (4) (5) of removal of a judge of the Supreme Court empower the President, to remove a judge whose misbehaviour or incapacity is proved. The procedure of removal of a judge of the Supreme Court can be adopted by an address by the requisite majority to the President for such removal on the ground of, “proved misbehaviour or incapacity”, as provided in Article 124 (4). The President will make order of removal after such address is presented. The procedure for presentation of an address, and for the investigation and proof of misbehaviour or incapacity of a judge may be regulated by the Parliament by law, as provided by Art.124 (4)(5). This provision is vastly different from the procedure for impeachment of the President under Article 61 which lays down elaborate provisions for preferring the charge of “violation of the constitution”, investigation, right of hearing at the investigation, and making of the resolution with requisite majority which itself will have the effect of removing the President from his office. Since, the judge of the Supreme Court for whom the address is presented to the President was appointed by the President under Article 124(2), the appointing authority is empowered to pass the removal order under Article 124 (4) on the basis of such address. The ground for impeachment of the President, namely, “violation of the Constitution” is much narrower than the wide range of deviant behaviour that can fall under the category of “misbehaviour”, which obviously would include “violating the Constitution”. For impeachment of the President, Article 61 is a complete code in itself, unlike the procedure for removal of a judge of the Supreme Court under Article 124 (4) (5) which empowers the parliament to regulate such procedure for (i) presentation of an address; and (ii) proof of the misbehaviour or incapacity. There is no requirement of charge being preferred by one House and the investigation by the other, laid down under Article 124 (4), for removal of a judge of the Supreme Court, nor does the address by the two Houses of Parliament presented to the President under Article 124 (4), has the effect of an automatic removal, unlike the resolution declaring that the charge against the President is sustained, which automatically results in the removal of the President from his office, under Article 61 (4).
7.1 It is clear from the provisions of Art.124 (4)(5) that it only empowers the Parliament to provide for the procedure for presentation of address and for investigation and proof of misbehavior and incapacity. It does not at all confer power on the Parliament to impose any punishment under the regulatory procedural provisions contemplated there under. Nothing short of removal order by the President is contemplated by the substantive provision of Art.124 (4) on proof of misbehaviour or incapacity of a judge. The constitutional guarantee is of not being removed from office except as per the provision of Art.124 (4). This provision does not deal with punishment lesser than removal from office. Moreover, the expression, regulate procedure for the presentation of an address and for investigation and proof of misbehaviour and incapacity, does not authorize creation of a body for imposing lesser punishment on judges found guilty of misbehaviour by any authority alien to Art.124 (4). The provisions of the Judges (Inquiry) Act 1968 squarely fall under Art.124 (5) as they regulate the procedure only as contemplated there under. The Committee was required to investigate as per the procedure spelt out in section 3 and report the outcome of investigation to the Speaker or the Chairman as the case may be for being laid before the House of the People and the Council of States. Consideration of the report and procedure for presentation of an address for removal of a judge was provided for in Section 6.
7.2 There is an opinion in context of the provision in Sec.72 of the Australian Constitution {similar to Art.124 (4)} that two Houses of the Parliament would be the sole judges of what constituted misbehaviour or incapacity and when or how such misbehaviour or incapacity was proved. (W. Harrison Moore, The Constitution of the Commonwealth of Australia, 1902, page 279.). However, in Nixon vs. US 1993 508 US 927, the US Supreme Court held that the removal of a judge by impeachment is not judicially reviewable. The position under the Indian law will be beyond debate if the specific provisions in Sec. 30 of the Judges (Inquiry) Bill 2006 making the removal appealable before the Supreme Court, see the light of the day.
7.3 Impeachments are arduous processes depending upon the politicians’ ability and inclination to achieve the requisite co-ordination on the floor by mustering the required votes. The likely consequence of a judiciary that was made too independent can be a concerted partisan attack exposing political vulnerability of judiciary. The low frequency of impeachment is no reassurance of constitutional protection, which may be due to judges’ reluctance to take controversial decisions.
8. Minor Measures.
The word ‘misbehaviour’ is defined under section 2 (j) of the Judges(Inquiry )Bill 2006 so as to mean:
(i) Wilful or persistent conduct which brings dishonour or disrepute to the judiciary;
(ii) Wilful or persistent failure to perform the duties of a judge;
(iii) Wilful abuse of judicial office;
(iv) Corruption;
(v) Lack of integrity;
(vi) Committing an offence involving moral turpitude;
(vii) Violation of code of conduct being the guidelines issued by the NJC under section 36 (1) and till they are issued, “The reinstatement of values of judicial life adopted by the Chief Justice’s Conference of India, 1999,” as provided under section 36 (3).
“Incapacity” means physical or moral incapacity, which is or is likely to be of a permanent character.
8.1 The definition of misbehaviour is very wide and single ‘wilful’ objectionable behaviour is good enough to establish the misbehaviour. Violation of any of the guidelines will also be misbehaviour. The N.J.C. is required to forward its inquiry report to the Speaker/Chairman under section 21 (1) and if charge of ‘misbehaviour’ or incapacity is proved and a recommendation that they warrant removal is made the motion and the report will be taken up for consideration.
8.2 Section 20 of the Judges (Inquiry) Bill, 2006 contemplates a situation not governed by Article 124 (4) (5) namely of imposition of punishment lesser than ‘removal’ by way of imposing so called “minor measures” which include withdrawal of judicial work (which is akin to suspension), request the judge to voluntarily retire, or to admonish / censure the judge publicly or privately. Even where charges of misbehaviour or incapacity are proved the Council may not recommend removal if it chose to impose ‘minor measure’ on the ground of proved misbehaviour or incapacity. The proposed Act thus interpolates one more authority in the constitutional scheme of Article 124 (4) (5) not at all contemplated by the constitutional text or spirit. As per its preamble, the Act is to be enacted, inter alia, for imposing minor measures, which authority does not flow from Article 124 (5) to which the rest of the preamble appropriately relates. If legislative competence of imposing punishment of removal flows only from Article 124 (4), the provisions of imposing ‘minor measures’ on Supreme Court/High Court Judges will have to search their legitimacy elsewhere under the constitution, which does not contemplate any other disciplinary authority for imposition of lesser punishments. It would be better and more in consonance with the constitutional provisions, to refer all cases of proved misbehaviour / incapacity arising from the complaint procedure to the Houses leaving it to their wisdom the question of imposition of lesser penalty on the basis of recommendation in the inquiry report by examining the ambit of the power to do so under Art.124 (4).
8.3 The Council contemplated by the said Bill comprises of the CJI and all the four members nominated by the CJI. The CJI is therefore the centre of all power in the outcome of the complaint procedure and keeping in view that the proposed Act reposes trust in the high status of the members composing the Council, judicial independence of judges is expected to be safeguarded while taking action against the erring judges. How much courage members waiting to be elevated to the supreme court will muster up to disagree with the Chief Justice of India when necessary will normally, not be known.
8.4 Section 29 of the said Bill provides for stoppage of assigning judicial work during the pendency of preliminary investigation or inquiry or address by the Houses to the President, on the recommendation of the Council which virtually amounts to suspension of the judge pending inquiry, not contemplated by the wordings of Article 124(4)(5). Ultimately, it is the privilege of the Chief Justice to decide an allotment of judicial business and mercifully, that power is not tampered with, as this power of the Council is recommendatory in nature.
9. Role of The Bar.
The Bar Council of India recently prepared a questionnaire, “to conduct an empirical study of legal profession in the country to ascertain its strength and weakness and also the status of Indian lawyer”. Out of 36 questions, four questions (Nos. 24 to 27) seek views of advocates about the quality and performance of judiciary particularly in the High Courts, on the mode of appointment to higher judiciary, whether it is fair and impartial and if not, suggestions how can it be made transparent and fair; views on, “ the judges sitting in the same court centre where their near relatives, like children, nephew, in-laws etc. are practicing”; “views on judicial corruption – whether it is rampant and if so, the remedies or solutions to be suggested”.
9.1 The points hinted would have been put in sharp focus if the Bar Council had solicited information as to whether any relative of the advocate is a Judge; whether the advocate ever appeared at the centre where his relative was judge; whether he had any personal experience to narrate disclosing corrupt practice adopted or overtures made by the judge by himself or through another lawyer or the court staff; nature of corrupt practices or breaches of the code of conduct which came to his knowledge and whether they were reported before the appropriate authority; Is the advocate willing to join judiciary? ; Has he ever offered himself for a higher judicial post; what is the annual income disclosed in the returns by the member advocate in the last three years of practice.
9.2 There need not have been such apologetic induction of four questions hidden in the questionnaire which purported to conduct an empirical study of legal profession in the country and the state of Indian lawyers. One may recall the comprehensive nationwide survey on the U.S. Justice system among the general population sponsored by the American Bar Association. The findings were discussed at Symposium II: Public Understanding and Perceptions of the American Justice System (February 1999) among key educators, members of the Judiciary and the organized bar, members of the media and representatives of the key community leaders. Respondents were asked in the questionnaire to: (1) self rate their perceived knowledge; (2) answer a series of factual questions about the justice system; (3) define their confidence in a variety of institutions and professions; (4) rate 50 attitude statements; (5) identify current and preferred information sources; (6) discuss past experience with the justice system; and (7) provide suggestions for improving the administration of justice.
9.3 Some of the key findings of this study include the following:
· People strongly believe in the justice system, though they also identify areas that warrant improvement.
· People have confidence in the overall justice system, though the amount of that confidence varies for specific components of the system. Further, that confidence can be influenced over time and by level of knowledge, positive court experience, and personal demographic traits.
· People’s knowledge of the justice system is uneven. They recognize some obscure tenets but still lack knowledge about more basic ones.
· Certain attitudes can influence people’s confidence in the justice system. There are some confidence drivers that already show quite positive public attitudes. These attitudes should be maintained and strengthened. There are other areas that also influence confidence, but currently show more negative attitudes. These negative attitudes that work against confidence need to be addressed as areas for improvement.
9.4 Canon 3 of the code of conduct for U.S. Judges (which is similar to the American Bar Association’s Model Conduct (1990), prohibits a judge from making any public statement that might give the impression of lack of impartiality on a matter pending before the court, or which is expected to come before the court.
9.5 Critical working flaws and attainments can be better known by the section of public, that has used lawyers and experienced court proceedings. Opinion of knowledgeable section alone is relevant. It would be interesting to ascertain how many judges had experienced that lawyers had abused their trust and position by posing pre-decisional contacts with the judges and how many lawyers had experienced the knowledge of litigant’s pre-decisional approach to the judge yielding predicted result, and attempts/overtures by a judge seized of the case for illicit gains or favours by litigants/lawyers staff. Instances of contacts between judges/lawyers/litigants concerned with matters likely to come up or are pending before the judge concerned including particulars of telephonic contacts, personal meetings, club rendezvousing, should get exposed.
9.6 Attitude statement ratings amongst the respondents showed in the survey and report sponsored by the ABA that 50% strongly disagreed that the best lawyers are selected to serve as judges, while 22% neither agreed nor disagreed. It cannot be disputed that appointments to the apex court and high courts should be made from amongst best available talent in the field with an established reputation of high integrity. Whatever system is devised for such selection the Constitutional trust of appointing persons who can live up to their oath cannot be betrayed. This calls for a total transparency of the method and manner of selection and all the relevant disclosures about the candidates.
10. Political Threats to Judiciary.
Judicial system of a country reflects its cultural ethos and ethical norms adopted for its governance. The outcome of judicial proceedings, be it between private individuals or involving governmental or State interests, cannot be affected by political, economic or other social forces. Judicial independence is, therefore, constitutionally assured by two important protections contained in Article 51 and Article 124 of the Constitution.
10.1 Need for judges to keep out of politics and to avoid socially divisive issues is obvious. Guarded cynicism is at times observed in the media, which has a legitimate judge-watching function to perform. The editorial: “Judges need more than guidelines” (The Australian, 16th October 2001 p.12) aptly remarked that guidelines alone would not win back trust in judicial independence; a cultural change would be necessary in the way judges view their relationship with the public. Politicians have a good nose for other politicians even when they are disguised in judge’s robes. Politicians face elections while the judges do not. They will, therefore, not brook opposition, which is not accountable to the public, while they themselves remain accountable. Judicial reticence is, therefore, a small price to pay for judicial independence.
10.2 Potential political threat to judicial independence can be warded off by consistently independent approaches of deciding cases as per the constitutional and legal provisions that would lend credibility to legislation. Judicial independence flourishes with the constitutional restrictions on legislative authority. In normal political atmosphere the dependence of judiciary on legislature or executive does not acutely surface. The politicians will exhibit responsibility by showing deference to the decisions of the highest courts more as a strategy to maintain their electoral popularity, rather than striking constitutional balance of independence of the three wings of State machinery. The executive in normal circumstances would execute judicial orders and show respect for judicial processes. The executive government is the major litigant and therefore independence of judiciary from the executive is indispensable if there is to be public confidence in the administration of justice. However, in the times of crisis, political or economic powers can show how vulnerable the constitutionally independent judiciary can become to the collective whims of powerful political forces controlling the other constitutional entities. For example, Parliament can lower the hurdle for removal of judges by widening the meaning of the word ‘misbehaviour’. [John Forejhon of Stanford University in his article “Dynamics of Judicial Independence, Dependent Judiciary” (Nov. 1998)]. During political crisis the tensions become visible in form of complaints against particular judges and their decisions. Institutional retaliations can take place by denial of necessary benefits and perquisites or even basic amenities. Appointments can be delayed till the desired candidate is picked up by suitable procedural arrangements. The independence of judiciary, as opposed to that of the individual judges, is dependent on the willingness of the popular branches to refrain from using their ample constitutional powers to impinge on judicial authority. Such willingness is usually preserved because of the success of the appellate and review structure to keep independent judges within acceptable bounds to avoid strange popular reactions against judges. But sometimes, often for reasons that are external to judicial action, there are moments of party unity and contrived temporary discipline that bring trying times for the court system. Independent judges making unpopular rulings will be easy targets for demagoguery, and politicians, or interest groups, or political parties may ignore their rulings. It is only to be hoped that political arm-twisting of judiciary will not be resorted, in the larger interest of the nation. Culture concedes obedience to the adjudication and the adjudicator functioning within the ambit of the powers conferred by the people collectively, and there need be no tug of war between the politicians and the judges. Judges, unfortunately, make wrong decisions all over the world, but questioning the judge’s integrity without valid reasons would undermine the entire judicial process, and deprive judges from the freedom of making conscientious decisions.
S/d. 11/6/08
( R.K.Abichandani )
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