A code of conduct for judges

By K. G. Kannabiran

``LIKE THE robe of the pastor, it is designed to transform the wearer into the instrument of a higher power. The risk is that the judge will start thinking that he is the higher power. The likelihood increases when he proclaims from the bench to people who cannot differ with him and acquires a complacent confidence in his own view of things.'' - Judge Robert Satter.

IT IS recorded in the ``Mirror of Justices'' that the Saxon King, Alfred the Great, hanged 44 judges in one year for violating the code of conduct prescribed for them. Long before one heard of constitutions, Alexis de Tocquoville, separation of powers and principles of natural justice, Alfred the Great laid down some rules of conduct for his judges. If the judges acknowledged they had given a judgment because they knew no better, he discreetly and moderately reproved their inexperience and folly in terms such as these:

``I wonder truly at your insolence, but whereas by God's favour and mine, you have occupied rank and office of the wise, you have neglected the studies and labours of the wise.'' He firmly told them ``Either therefore give up the discharge of the temporal duties which you hold, or endeavour more zealously to study the lessons of wisdom.'' He was obviously aware that learning was not a prophylactic against corruption. So he commanded: ``Judge them very fairly. Do not judge one judgment for the rich and another for the poor; nor one for the one more dear and another for the one more hateful.'' One can safely presume that the 44 were intractable and therefore sent to the gibbet for violating these norms. The maladies which King Alfred found among his judges continued down the ages.

Whereas there have been attempts at limiting the powers of the Legislature and the Executive by popular pressure, no such systematic attempt has been made to contain the absolute powers of the courts without impairing their independence. Any attempt at reforming the judiciary leads to its being painted as aimed at erosion of judicial independence. Judicial independence is not a value in itself. It is expected to subserve the social values which have been incorporated in the Constitution. But, courts have neither promoted democracy nor personal liberty nor social, economic and political justice in the fifty-year period of the Constitution. This independence coupled with the contempt power has made the institution absolutist. Such an institution can never be the bulwark of democracy. A transgression of moral sanction comes easily for absolute power.

The Judiciary appropriated the contempt power the king had as an aspect of justice. It was an emanation of royal authority and any contempt of court was really contempt of the sovereign. If, under the Constitution, the people are the sovereign no legitimate inference can be drawn that the Constitution delegated to the courts the sovereign power to punish the people or any one among them. Just as the Indian Parliament inherited the privileges of the House of Commons, the Indian courts inherited the contempt power from the king of England.

This power was transformed into a power which inheres in a court of record and the offence has become sui generis and transcends the limits of reasonable restraint judicially defined with impunity. The myth of the original court of records in which the power of punishing for contempt inheres has become part of the occult jurisprudence which the law abounds in. Such anachronisms and obscurantism coupled with irremovable tenure leads to misconduct among the judges. To the principle that untrammelled power, whether de jure or de facto, would encourage impunity the Judiciary is no exception. These powers are absolute and one cannot even plead justification in the public interest when accused of contempt. The elected representatives do not have such absolute powers.

An authoritative statement of the character and magnitude of the contempt power would demonstrate why a code of conduct for any judges may not really be effective. ``It is an offence purely sui generis and that its punishment involves in most cases an exceptional interference with the liberty of the subject, and that, too, by a method or process which would in no other case be permissible, or even tolerated. The jurisdiction should be exercised the more carefully in view of the fact that the defendant is usually reduced, or pretends to be reduced, to such a state of humility, in fear of more severe consequences if he shows any recalcitrancy, that he is unable or unwilling to defend himself as he otherwise might have done,' (Oswald ``On Contempt of Court'').

Having been fed on hope and illusions all of us applauded the judges for prescribing for themselves a code containing principles which are merely Polonius-style pious homilies. These cannot be enforced and can be breached at will. The conduct the code addresses are old habits and they hardly die. The Chief Justice is only first among equals, he has no authority to command his colleagues to commence their sittings at the prescribed timings.

In the life of a constitutional appointee, the private and public divide or dichotomy does not exist. One cannot be unjust, unequal and arbitrary in personal life and claim to adjudicate constitutional principles competently and fairly in courts. If they are merely moral precepts do the judges require a code of conduct like the clerical cadre? Does not the Constitution imply a code of conduct? The objectives enumerated in the Preamble to the Constitution, the fundamental rights, the fundamental obligations enumerated in Part IV and the Constitutional oath prescribed for these appointees regulate their working in courts and the same values give rise to moral principles on which to regulate one's conduct in life. A whole lifetime is spent in career seeking and career promotion and that has brought about a debasement of public morality. The colonial mind-set and the iniquitous feudal and caste practices, which every one of us has internalised, are still the predominant culture of these institutions. This compounded by the adversarial system, a legacy of laissez faire to the profession, has brought about a legal culture which is unredeemingly competitive and is therefore impervious to social mores and social purposes.

The pharisaical righteousness, the aggressive, authoritarian and pompous demeanor and other feudal habits, and the discourse in courts highlight and inform any casual observer that this institution is arbitrary and no code of conduct can ever improve its performance unless we invoke against the members of the Judiciary the same principles of deterrence which they so generously expound in criminal cases.

The first step towards reforming the Judiciary is to democratise the structure, the mode of discourse and dispense with the professional robes, a symbol of power. The simulated obsequiousness which one is witness to in courts is quite disgusting and it goes with the colonial-feudal structure. The obsequious mode of address gets transformed into a title and we find a judge being addressed as ``your Lordship'' outside the court and in seminars or on any such occasion where a judge is participating or is merely present! The expression ``Justice'' is similarly used to a judge who has demitted office as if it is a title. Though we abolished titles the habit continues. The whole scene appears quite pompous. The institution should be exposed to public criticism by confining the contempt power to a very narrow field of administration of justice. That will discipline the institution. Everything about the courts requires a radical transformation and the first step should be to discard the colonial and feudal vestiges which alone would give it the democratic visage it so badly needs. Not the least is the liberation of a profession from self-imposed servitude which is seen as a part of a lawyer's professional competence.

(The writer is a senior advocate.)

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