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Judges must avoid being super legislature

Last updated on: April 21, 2011 15:16 IST

Excerpts from the fifth M C Setalvad memorial lecture in Delhi delivered by Chief Justice of India S H Kapadia.

Judicial ethics: From just words to deeds

Conduct of the judge

Change happens through example and not through just talking about it.

Greg Olsen

Leading an exemplary life is the highest form of ethical conduct. This is the keystone of our modern codes of judicial conduct. We need a clean man in the black robe to uphold the independence and the integrity of the judiciary. Action is an extension of values. Intellect is void of affection, and it sees an object as it stands in the light of law, cool and disengaged. Intellect demands integrity in every work.

Deeds that we perform in life echoes in eternity. Character is nature in the highest form. Judicial ethics is the application of ethical reasoning to judicial decision-making. It is all about ascertaining principles that lend certainty and objectivity to the decision-making process. Ethical thinking is universalism. Ethical principles apply to everyone. This is not to say that it must be a principle everyone in the world agrees with, but it is a principle which is not based on one's own personal likes or dislikes.

Judicial thinking needs a philosophical approach. The man who is only interested in himself is not admissible. The habit of thinking impersonally, without regard for the worldly advantage or disadvantage of an opinion or an action is ethical thinking. This is the pre-requisite of judicial ethics.

A judge's obligation must start and end with his analysis of law, not with personal beliefs or preferences. The judge should not accept patronage through which he acquires office, preferential treatment or pre-retirement assignment. These can give rise to corruption if and when quid pro quo makes a demand on such judges. Similarly, when a family member regularly appears before a judge, adverse public perception can affect the working of the integrity institution like the judiciary. The active involvement of judges in community organisations has also evoked a similar response when their civil society associates appear as litigants before them.

Frequent socialising with particular members of the legal profession or with the litigants, including potential litigants, is certain to raise, in the minds of others, the suspicion that the judge is susceptible to undue influence in the discharge of his duties. In such a situation, judges must keep the part of impartial, objective, fearless and independent justice alive. A judge must inevitably choose to be a little aloof and isolated from the community at large. He should not be in contact with lawyers, individuals or political parties, their leaders or ministers unless it be on purely social occasions.

When one enters the judges' world, one inevitably has to impose upon himself certain obvious restrictions. Judges owe a solemn duty to the community at large and from day-to-day they must ask themselves whether they have done or said anything which is inconsistent with the oath of office they have taken and which otherwise are consistent with their obligations as a judge.

One more aspect needs to be highlighted. Internal interference from a high ranking judge which, if resisted, could lead the lower ranking judge being transferred or being denied promotion also needs to be deprecated. Similarly, political protection should not be given to corrupt judges.

One must remember the statement of Benjamin Franklin which equally applies to the judiciary: "Only a virtuous person is capable of freedom. As nations become corrupt and vicious, they have more need of such masters".

What I have said hereinabove may appear pedantic but I thought I ought to put on record my thoughts on the subject of ethos and ethics of the legal fraternity and the judiciary.

Structuring of judgments:

In drafting, "know what to omit rather than what to include".

Judgments are not to be written as simplified newspaper pieces for public consumption. The process of reasoning in a judgment should reflect its integrity and explain its conclusions. Judges must eschew any suggestion that duties of the judiciary are owed to the electorate; they are owed to the law which is there for peace, order and good governance.

Judges should account for exercise of judicial power, especially when pronouncing judgments of significance. Judges must remember the dictum laid down by court of appeal in Locabail (UK) Limited v. Bayfield Properties Limited (2000) QB 451 which reads as follows:

"Justice is portrayed as blind not because she ignores the facts and circumstances of individual cases, but because she shuts her eyes to all considerations extraneous to the particular case".

The judges of the Supreme Court of India should revisit the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to enact laws. We are not concerned with the wisdom, need or appropriateness of the legislation. We must refuse to sit as a super-legislature to weigh the wisdom of legislation. We must remember that our Constitution recognises separation of powers and that the legislatures and government can be made accountable for their legislation and actions by the electorate if they err.

In many PILs, the courts freely decrees rule of conduct for government and public authorities which are akin to legislation. Such exercises have little judicial function in them. Its justification is that the other branches of government have failed or are indifferent to the solution of the problem. In such matters, I am of the opinion that the courts should be circumspect in understanding the thin line between law and governance.

In such matters, the courts must try to ascertain whether the issue has a legal content or a political content. In the latter case, the courts should invoke the doctrine of deference. The function of the courts is to review the acts of the legislature and not to substitute its own policies or values on the society or the legislature. We do not have the competence to make policy choices and run the administration.

Judicial activism which is not grounded on textual commitment to the Constitution or the statute, unlike activism in cases of human rights and life and personal liberty raises questions of accountability of judiciary whose members are not chosen by any democratic process and whose members are not answerable to the electorate or to the legislature or to the executive.

We, judges, should remember that the validity of our decisions cannot rest on popularity.

Resisting the pressure to please the majority is the strength of the judiciary, not its weakness. Judges who invoke the Constitution to protect the rights of people and who declare a statute unconstitutional are not legislating from the bench, nor are they thwarting the will of the majority. They are merely carrying out their oath of office and following the rule of law.

In the context of the developing world wherein litigation impinges on the economy or commerce, many judges are cowed into submission rather than walk the tight rope of balancing the public interest and be tarred with the epitaph of 'usurping the legislative function'. Lawyers and the public, apart from criticising, must engage in constructively empowering the judiciary.

It is the discipline of circumstances that makes us more worthy. The task of forming and giving opinion, in the course of judging, is based on many activities; resolving disputes, setting precedents, following precedents, deliberating with colleagues, displaying compassion and so on. However, each of these activities raises questions of judicial ethics. This is where the oath which we take binds us.

Accountability and judicial independence in the context of judicial activism
Introduction

Constitutional law is the law prescribing the exercise of power by the organs of a State. It explains which organs can exercise legislative power, executive power and judicial power and what the limitations on those powers are? In a federal state, the allocation of governmental powers (legislative, executive and judicial) among central and state authorities is a basic concern. A constitution has been described as 'a mirror reflecting the national soul': It must recognise and protect the values of a nation. The word 'constitutionalism' is sometimes used to convey the idea of a government that is limited by law.

The phrase 'rule of law' is used to convey the same idea. These terms describe a society in which government officials must act in accordance with the law. This in turn requires an independent judiciary and an independent legal profession. Under the doctrine of separation of powers each of the above organs must stay within the powers allocated by the Constitution. Supremacy of the constitution is the philosophy of the constitution.

New questions of accountability

According to the traditional rules of interpretation of the Constitution, a court of law must gather the spirit of the Constitution from the language used, and what one may believe to be the spirit of the Constitution cannot prevail if not supported by the language, which therefore must be construed according to well established rules of interpretation uninfluenced by assumed spirit of the Constitution (See: Keshavan Madhava Menon vs. State of Bombay 1951 SCR 228 at 232).

Where the Constitution has not limited, either in terms or by necessary implication, the general powers conferred upon the legislature, the court cannot limit such powers upon any notion of the spirit of the Constitution.

Well established rules of interpretation require that the meaning and intention of the constitution framers must be ascertained from the language of the Constitution itself; with the motives of those who framed it, the Court has no concern. At the same time the Constitution is not to be construed in a narrow pedantic sense and a broad liberal spirit should inspire those whose duty it is to interpret it.

Constitution must be treated as a living organic thing. Hence, it should be interpreted on the principle that 'it is better for a thing to have effect then to be made void'. This principle is the basis of the presumption of constitutionality.

After 1980 the court has changed its direction to securing the rights of citizens from arbitrary actions of the executive and creating a human rights jurisdiction by an enlarged meaning of Article 14 (The Right to Equality) and Article 21 (The Right to Life and Personal Freedom). Between them the court has for all practical purposes introduced the 'due process provision' in the Indian Constitution in such matters.

In the so called public interest litigations, the court freely decrees rules of conduct for government and public authorities which are akin to legislation and oversees their working. To give a few examples: the court in the interest of clean environment has ordered and supervised the use of clean fuel for vehicles in New Delhi; it has framed schemes of admission in educational institutions throughout India, and made the right to education into a fundamental right from a directive of State policy, and made guidelines to be adopted by public institutions for controlling sexual harassment of women in work places.

The jurisdictional peg on which it is done is that such matters affect 'the life' of the citizen under Article 21 of the Constitution. Its justification is that the other branches of government have failed or are indifferent to the solution of the problems. In such matters, the court is acting in advance of the political branches of the government.

By and large such orders have been considered necessary and welcomed by the public, but the question which arises is -- can judges ignore the separation of powers in the Constitution and become administrators, and do they have the competence to make policy choices and run administration?

Legislatures and government can be made accountable for their legislation and actions by the electorate if they err. Judicial activism of this type which is not grounded on any textual commitment to the Constitution, unlike activism in cases of human rights and life and personal liberty raises questions of accountability of a judiciary.

Value based judicial accountability and independence

Value system takes precedence over personality. Honesty is a tendency.

Judicial accountability is a facet of judicial independence. It must be developed consistent with the principles of judicial independence. Constitutionalism is not enhanced by hostility directed against the judiciary which plays such a pivotal role in maintaining the rule of law.

Coming to judicial accountability, there is no difficulty in accepting the principle that in a society based on the rule of law and democratic principles of governance, every power holder is, in the final analysis, accountable to the people.

The legislature is accountable to the electorate. The executive is indirectly accountable to the people through the elected legislature. There is no reason why the judiciary should not be accountable to the community for its due performance of the functions vested in it.

Power is given on trust and judicial power is no exception. The challenge, however, is to determine how the judiciary can be held to account, consistent with the principle of judicial independence. How does one achieve the right balance between autonomy in decision making and independence from external forces on the one hand and accountability to the community on the other hand?

While not recommending the regular election of judges or their recall by popular vote I would venture to suggest that judges, unlike legislators, ministers or public servants, should be accountable to the jurisdiction they serve through their absolute adherence to a set core of judicial values.

Through inheritance of British constitutional principles, judges in many commonwealth countries are accountable to either the legislature or the executive, in the sense that one or the other of these two branches of government is vested by the constitution with the power to remove judges for proved misbehaviour or incapacity. At times this power has been grossly abused in some of the countries.

Judges inevitably end up in the political arena in deciding controversial cases -- whichever side they rule. In resolving disputes between citizens and the State or evaluating a constitutional issue, judges are forced to make decisions which are at times termed political. Judges are, however, not in a position to defend their judgments as they are bound by a code of silence. As stated above, judges should account for exercise of judicial power, especially when pronouncing judgments of significance.

Public and media criticism of judges and judgments is a common feature today throughout the common law world. Like other public institutions, the judiciary must be subject to a fair criticism. But, what I am concerned with is response to criticism, particularly, criticism, that is illegitimate and irresponsible. In the context of such illegitimate and irresponsible criticism, it must be borne in mind that love for justice is rare -- what most people desire is justice which favours them.

Our code of judicial conduct will meet its goal if a talented, hopeful young person looks in the mirror and sees in the reflection the desire to exemplify the standards of justice and the possibility of doing so.

S H Kapadia