"Independence and Impartiality" 

Speech Sub-titles:

INTRODUCT ION
       
MOTILAL  SETALVAD      
TODAY’S TOPIC      
CANONS
Versus PRINCIPLES  

   "JUDICIAL ETHICS A definition"    
"
ATTEMPTED CODIFICATION OF CANONS OF JUDICIAL ETHICS"

   "Things necessary to be continually had in remembrance"     
"
THE CONCEPT OF JUDGESHIP IN GITA"

 

               
Hon’ble Shri R.C. Lahoti,
 
Chief Justice of India  
First M.C. Setalvad Memorial Lecture
 
Tuesday, 22nd Februa ry, 2005.     
at The Gulmohar Hall, India Habitat Centre, Lodhi Road,  New Delhi . India.

[ for exact contents of Lecture visit official web site of Supreme Court of India http://www.supremecourtofindia.nic.in/judges_speech]

Speech Sub-titles:

 "THREE DOCUMENTS :     
(i) Restatement of Values of Judicial Life (1999)     
                                                                       (ii) The Bangalore Draft Principles  
 
(iii) The oath or affirmation by Judge
"

    "Oath of a Judge _  analysed "     "Independence and Impartiality"         
"
Four Qualities in a Judge" 

 "Conduct of Judge in private"     "Patience and Tolerance" 
"Rational Utilisation of  Time"       "EPILOGUE"

Independence and Impartiality  " 

A judicial scandal has always been regarded as far more deplorable than a scandal involving either the executive or a member of the legislature

‘Independence’ and ‘impartiality’ are most crucial concepts.  The two concepts are separate and distinct.  ‘Impartiality’ refers to a state of mind and attitude of the court or tribunal in relation to the issues and the parties in a particular case,  while ‘independence’  refers not only to the state of mind or attitude, but also to a status or relationship to others ­__ particularly to the executive branch of Government __   that rests on objective conditions or guarantees.[20]    

According to Chief Justice Lamer : “The overall objective of guaranteeing judicial independence is to ensure a reasonable perception of impartiality; judicial independence is but a “means”  to an end. If judges could be perceived as “impartial”  without judicial “independence”, the requirement of independence would be unnecessary. However,  judicial independence is critical to the public’s perception of impartiality. Independence is the cornerstone,  a necessary prerequisite for judicial impartiality.”  

The concept of judicial independence has been described in golden letters in one of the judgments of the Supreme Court of India.   “To keep the stream of justice clean and pure,  the Judge must be endowed with sterling character, impeccable integrity and upright behaviour.  Erosion thereof would undermine the efficacy of the rule of law and the working of the Constitution itself.  The Judges of higher echelons,  therefore,  should not be mere men of clay with all the frailties and foibles,  human failings and weak character which may be found in those in other walks of life.   They should be men of fighting faith with tough fibre not susceptible to any pressure, economic, political or of any sort.   The actual as well as the apparent independence of judiciary would be transparent only when the office-holders endow those qualities which would operate as impregnable fortress against surreptitious attempts to undermine the independence of the judiciary.  In short,  the behaviour of the Judge is the bastion for the people to reap the fruits of the democracy, liberty and justice and the antithesis rocks the bottom of the rule of law.”[21] Unless the judges function without fear and favour, the question of their being impartial or independent does not arise.  “Judges owe their appointment to the Constitution and hold a position of privilege under it.   They are required to ‘uphold the Constitution and the laws’, ‘without fear’ that is without fear of the executive;  and ‘without favour’ that is without expecting a favour from the executive.  There is thus a fundamental distinction between the master and servant relationship between the government and the Judges of High Courts and the Supreme Court.” [22]  

Independence and impartiality and objectivity would be tall claims hollow from within, unless the judges be honest __   honest to their Office, honest to the society and honest to themselves.  “…the society’s demand for honesty in a judge is exacting and absolute.  The standards of judicial behaviour, both on and off the Bench, are normally extremely high.  For a judge, to deviate from such standards of honesty and impartiality is to betray the trust reposed in him. No excuse or no legal relativity can condone such betrayal. From the standpoint of justice, the size of the bribe or scope of corruption cannot be the scale for measuring a Judge’s dishonour.  A single dishonest Judge not only dishonours himself and disgraces his office but jeopardizes the integrity of the entire judicial system.  A judicial scandal has always been regarded as far more deplorable than a scandal involving either the executive or a member of the legislature.  The slightest hint of irregularity or impropriety in the court is a cause for great anxiety and alarm. ‘A legislator or an administrator may be found guilty of corruption without apparently endangering the foundation of the State.  But a Judge must keep himself absolutely above suspicion; to preserve the impartiality and independence of the judiciary and to have the public confidence thereof.” [23]    

To perform the duties of judicial office without fear or favour, affection or ill-will is the same thing as performing the duties with independence, impartiality and objectivity.  In order to achieve this a certain degree of aloofness is required to be maintained by the judges.  According to Justice P.B. Gajendragadkar – “Judges ordinarily must observe certain rules of decorum in their social behaviour. A little isolation and aloofness are the price which one has to pay for being a judge, because  a judge can never know which case will come before him and who may be concerned in it. No hard and fast rule can be laid down in this matter, but some discretion must be exercised.”[24]  The concept is best demonstrated in a real life anecdote which I would like to reproduce in the words of Justice Gajendragadkar himself.  He records –

“Another feature which I did not very much appreciate was that judges used to accept invitations for dinners from lawyers far too frequently. I consistently refused to join such dinners.  When S.R. Das was due to retire,  there were a number of dinners and S.K. Das found that I was not accepting any one of these invitations. He came to me and said: “Brother, accept at least one so that the Chief may not misunderstand you.”  So I did accept one and, when we met to dine in a hotel, I was amazed to see that we were not dining in an exclusive room but in the general hotel itself, which was otherwise crowded by other diners and it was a lawyer who was entertaining us as a host to the large number of visitors present in the hotel. With my Bombay background, I did not relish this prospect at all;  and not feeling happy about such dinners I conveyed my views to S.R. Das. With his characteristic tact, he said, “Yes, I see your point.” [25] 

However, it is interesting to note that R.A. Jahagirdar (who has contributed a beautiful preface to the autobiography and, in fact, he is the one who was successful in persuading Justice Gajendragadkar to write his memoirs) has put an asterisk on the words ‘Bombay background’ and inserted a footnote which reads – “The Bombay background has considerably changed.  Cases of judges being entertained in luxury hotels are not infrequent and have been discussed in the Press”.        

Justice Gajendragadkar goes on to record –

“The undesirable and perhaps intended motivation for such invitation for dinners became patent in another case. That was a dinner arranged ostensibly by a lawyer who was a benamidar of the proprietor of a hotel chain. So far as I know, I and K.C. Das Gupta did not attend. Most of others did. The dinner was held on a Saturday at a hotel. On Monday next, before the Bench over which B.P. Sinha presided and I and K.C. Das Gupta were his colleagues,  we found that there was a matter pending admission between the management of the hotel chain and its workmen. I turned to Sinha and said:  “Sinha, how can we take this case?  The whole lot of supervisors and workmen in the hotel is sitting in front and they know that we have been fed in the hotel ostensibly by the lawyer but in truth at the cost of the hotel, because the very lawyer who invited the judges to the dinner is arguing in the hotel’s appeal.” Sinha, the great gentleman that he was, immediately saw the point and said: “This case would go before another Bench.”    [26]

A sad incident is quoted by Justice V.R. Krishna Iyer while describing how he refused to budge an inch though tremendous pressure was sought to be built upon him, by none else than the then Law Minister Late Shri Gokhale who himself has had a brief stint as a judge in Bombay, to pass an absolute order of stay on the judgment of Allahabad High Court in the case of Indira Gandhi  vs.  Raj Narain.  The narrated incident has a lesson to learn.  I may quote –

“By way of a distressing deviation, I may mention an anecdote of a few years ago. A vacation judge was telephoned by an advocate from a five star hotel in Delhi.  He mentioned that he was the son of the then Chief Justice and wished to call on the vacation judge.  Naturally, since the caller was an advocate, and on top of it, the son of the Chief Justice, the vacation judge allowed him to call on him.  The ‘gentleman’  turned up with another person and unblushingly told the vacation judge that his companion had a case that day on the list of the vacation judge. He wanted a ‘small’ favour of an ‘Interim stay’.  The judge was stunned and politely told the two men to leave the house. Later, when the Chief justice came back to Delhi after the vacation, the victim judge reported to him about the visit of his son with a client and his ‘prayer’ for a stay in a pending case made at the home of the Judge.  The Chief Justice was not disturbed but dismissed the matter as of little consequence. ‘After all, he only wanted an interim stay’, said the Chief justice, ‘and not a final decision’. This incident reveals the grave dangers of personal visits to judges’ residences  under innocent pretexts.  This is the way functional felony creeps into the judiciary.  A swallow does not make a summer may be, but deviances once condoned become inundations resulting in credibility collapse of the institution[27]

       He says – “Judgeship has diamond-hard parameters”.        

A complete seclusion from society might  result in judges becoming too removed from society and the realities of social life.  Common knowledge of events and robust commonsense need knowledge of human behaviour but for which the judge may be incapacitated from doing complete justice or exercising discretion in the given facts of a case before him.  An isolated judge runs the risk of  viewing facts in a vacuum which in its turn may lead to an unjust decision.  

To strike an equitous balance between the need for maintaining certain degree of aloofness and the necessity for moving in society to understand it so as to be a practical judge, he shall have to conscientiously keep a vigil of his own movements and decide thoughtfully where to go and where not to go.  Experience and caution would be the best guide of a judge in this regard.  He ought to remember that what he thinks of himself is not so material as how people would perceive and interpret his movements and presence at a given place.