ATTEMPTED CODIFICATION OF CANONS OF JUDICIAL ETHICS

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"

 

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).[9] 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.[10]  

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”.[11]    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,[12] ___

  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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[8]  E.C. GERHART, Quote It,  p.300

[9]  M. Rama Jois, Trivarga Siddhanta, p.85. 

[10] Nyay Diary, 1976

[11] E.C. GERHART, Quote It, p.289

[12] E.C. GERHART, Quote It, pp 297-298