Judging the Judges: Debating Judicial Conduct

by Kaleeswaram Raj

The Supreme Court Bar Association had proposed a resolution demanding “fair treatment of lawyers†by judges. The notice issued recently by the Association, which consists of members from almost all the States in the country, says that the lawyers must receive respect “irres-pective of their standing and seniority†. It also protests against the “hurried and selected manner†in which some Supreme Court Benches hear the cases. (The Hindu, March 3, 2015) The subsequent circular issued by the Association on March 10, however, says that “the emergent general body meeting (scheduled for March 10) is deferred†on the basis of the assurance given by the Chief Justice to consider the grievances of the bar†.

The unusual motion by the body of lawyers at the Apex Court level poses significant questions which transcend the legal profession. The internal democracy within the Court is a condition precedent for democracy outside. Without justice within, no institution of justice could meaningfully exist. The status quo doctrine is bound to be reactionary when reformation is an imperative. True, that Kafka in The Trial was pessimistic when he said: “(I)t never occurred to the advocates that they should suggest or insist on any improvements in the system, while ...almost every accused man, even quite ordinary people among them, discovered from the earliest stages a passion for suggesting reforms.“

Exposure is the first step towards any radical reformation, for sunlight is the best disinfectant. Max Boot, the former Associate Editor of Wall Street Journal, authored a classic work on “the injudicious judiciary†in the US with a striking title—“Out of Order—Arrogance, Corruption and Incompetence on the Bench†(Basic Books, 1998). Boot was supported by a confessional foreword written by Robert Bork, a former Federal Appeals Court Judge, who said: “Our courts are behaving badly and the public, to the degree it can be brought to understand that, will exert force for reform, a reform that must be structural as well as intellectual and moral.â€

The judicial misbehaviour and misconduct are not generally discussed in the Indian media, though there is nothing improper or illegal in dealing with them. Again, in the words of Max Boot, “Anyone who wants decent democratic Government ought to be concerned about judges who misbehave or exceed their authority or issue unjust decision.†Therefore, there is a need for “unlimited discussions†on the topic.

The conduct of the judges in India is not guided by any statute or even the Constitution. However, move for the best practice within the judiciary at a global level has been on full swing over the years and India continues to be a party to it. After the Bangalore declarations on judicial conduct (1998-99) and the international round table meeting of the Chief Justices from various jurisdictions at The Hague (2002), judicial morality is no more uncertain or abstract. The resolution “Restatement of values of judicial life†(1998-1999) was adopted and ratified by the Indian judiciary as well.

Article III Section 1 of the US Constitution, says that the judges shall hold their offices “during good behaviour†. The US has a highly politicised judiciary. Justice Frankfurter was active in President Roosevelt’s election campaign (1940). Justice Brandeis was the designer of President Woodrow Wilson’s ‘New Freedom Platform’ which thrived for economic and political development. Justice Joseph Story sought active support from Congressman Daniel Webster for a few Bills connected with the judiciary. (See: Drew E. Edwards: California Law Review, Vol. 75, Issue 3, Article 18)

In India, even during the pre-collegium phase, the judicial appointments were not as political as in the US. After the invention of the collegium system in 1993, the process was relatively more ‘apolitical’, though it always remained opaque and even undemocratic. Paradoxically, the country was fortunate enough to have a system which was not akin to that in the US.

But that does not erase the need for evolving a more egalitarian judicial culture within and outside the courts in India. In Tarak Singh ( 2004) the Supreme Court held that the “integrity (of the Judges) is the hallmark of judicial discipline†and cautioned that “wood peckers inside pose a larger threat (to the system) than the storm outside†. In Remesh Chand Paliwal (1998) the Court wanted the judges to be “hermits†, who have “no desire or aspiration, having shed it through penance†. In Daya Shankar (1987), the Apex Court clarified that judicial officers cannot have two standards, one in the court and another outside the court. Anil Rai (2001) was an introspective verdict on delay in pronouncing judgments.

In-house Procedure

Regulating judicial conduct by legislative measures is a difficult task. It also runs the risk of impairing judicial independence, which again is a basic feature of the Constitution. However, the Supreme Court has evolved an ‘in-house procedure’ to deal with the complaints related to misbehaviour of the judges of the Supreme Court and High Courts. A five-judge committee, appointed by the Supreme Court, formulated a mechanism for suitable remedial actions when there are “proved instances of misconduct or misbehaviour†against the judges in the higher judiciary. The report on this ‘in-house procedure’ was submitted by the committee on September 31, 1997 and was adopted with minor changes by the full court meeting of the Supreme Court on December 15, 1999.

As per the in-house procedure, the complaints which are “not frivolous†and are “unconnected with the decision in a matter of adjudication†, could be enquired into by a fact-finding commission consisting of judges only. On finding that there is serious misconduct, the Chief Justice of India (CJI) can even ask the judge concerned to resign or seek voluntary retirement. Also there could be “advice†to the concerned judge which would form part of the records.

But the in-house arrangement has become dysfunctional by lapse of time. Even while it functioned, the activities were in oblivion and as such no instances of institutional corrections were known outside. I would plead for a regular mechanism that organically tries to avert even the possibilities for genuine complaints or allegations from the Members of the Bar or from the public. A permanent committee, consisting of the representatives of the Bench and the Bar at the Supreme Court and High Court level, would go a long way in tackling the issues.

Bar Associations cannot pass resolutions against the conduct of the judges for the same would amount to contempt, as indicated by the Supreme Court in Ravichandra Iyer (1995). Therefore, the corrective mechanism should be one that is able to meaningfully avert a situation in which the Associations go for such resolution. A preventive strategy is more useful and contempt action is no solution. A fault-free system for judicial appointment marked by openness, fairness, objectivity and transparency may lead to fundamental changes. There is a further need for continuing education in legal, social and moral facets.

Publicity, the Soul of Justice

There are better scientific devices to ensure egalitarian behaviour on the Bench. An open court system needs to be truly open in the digital age. Even in the sixties, the Supreme Court has extracted the decision in Scott vs Scott that quoted Bentham on administration of justice:

“In the darkness of secrecy sinister interest and evil in every shape have full swing. Only in proportion as publicity has place, can any of the checks applicable to judicial injustice operate. Where there is no publicity, there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying, under trial.†(Naresh Sridhar, 1966)

A live recording of the Court proceedings may go a long way in ensuring proper judicial conduct in an open adversarial judiciary. By ensuring visibility, accountability is ensured. While John Leo complains that “(the court) remains invisible to most Americans†, in the UK live telecast of proceedings in important constitu-tional cases is quite common. There is a need to emulate and expand the UK model in our country.

Senior Syndrome

The demand in the Bar Association’s notice for accommodation in court “irrespective of standing and seniority†and the protest against “selective hearing†call for more serious debates. Marc Galanter and Nick Robinson in a Harvard Law school paper demonstrate that a few senior lawyers in India constitute “a legal elite flourishing in the era of globalisation†. The Galanter-Robinson study inter alia says that “Grand Advocates in India are known for securing hearing for their clients†. According to them, in India “seniority works differently for Judges than lawyers†and “the Grant Advocates enjoy esteem of the Judges who give them more face time†. The study adds that a few advocates in India “enjoy incomes that rival the most highly remunerated lawyers anywhere in the world†. They are also “notoriously inaccessible†, according to the paper. The authors also quote a lawyer saying that “the face value matters†in admission matters before the Supreme Court.

The judicial system is too serious a matter to be left to lawyers or judges alone. It is high time to have an institutional introspection on the question of seniority and right to pre-audience or any other privileges for any category for that matter. The conventionally perceived equality among the Bar members has to be revived for maintaining institutional fairness. Not the face, but the submissions should matter. Not the person, but the content should deter-mine the outcome of litigation. The admixture of feudalist and capitalist traits imposed upon the system should wither away. The equality clauses in the Constitution should begin with constitutional courts and the legal profession. The notice issued by the Supreme Court Bar Association is therefore an eye-opener to those who run the show, since we need at least the shows for the sake of democracy and also for its future.

Kaleeswaram Raj is an Advocate of the Supreme Court. He is also practising in the Kerala High Court. He authored The Spirit of Law. He can be contacted at e-mail: kaleeswaramraj@ gmail.com