Code of Conduct Judges Need to Follow

Context: The recent comments made by Allahabad High Court judge, Justice Shekhar Kumar Yadav, against the Muslim community at an event organised by the legal cell of the Vishwa Hindu Parishad in the High Court premises, has drawn public flak. In this context, let us discuss the code of conduct for the judiciary.

Relevance of the Topic Mains: Issues related to judicial accountability, reforms, and ethical governance.

Constitutional position of Judges in the context of Judicial Independence and Discipline:

• Security of Tenure: The only way to remove a judge is through the impeachment by Parliament, as stated in Article 124(4) of the Constitution.
• Article 215 declares the High Court to be a court of record with contempt power which the judges could invoke.
• Paragraph VIII of the Third Schedule of the Constitution mandates a judge-designate to swear to perform duties without fear or favor, affection, or ill-will.
• Judges are expected to conduct themselves in a manner consistent with the dignity of the judicial office.
• Further, the courtroom reflects the image of the presiding judge, thus judicial demeanor becomes important to uphold the stature of office.

Source of Powers of Judiciary: 

• Judiciary draws its power from two fountains, public acceptance of the authority of the judiciary and the integrity of the judiciary. 
• Over the time, the judiciary has codified the best conventions of judicial conduct in and out of court. The ‘Restatement of Values of Judicial Life’ is the primary code of ethics governing judicial behaviour adopted by the Supreme Court on May 7, 1997.

Need for Integrity and Code of Conduct in Judiciary:

• Rule of Law: To uphold the rule of law which is part of basic structure doctrine.
• Institutional integrity: To dispel the notion of favoritism, bias or interference and increased institutional responsibility.
• Independence and accountability walk hand in hand in a democratic setup.
• Increase public confidence: Necessary to increase public confidence in the public institutions.
• Increase Trust: Upholding trust in the institution of judiciary, independence must not become an alibi for arbitrariness.

Concerns related to Judicial Transparency and Accountability:

• Collegium system: Appointment, promotion, and transfer of judges of higher judiciary is carried out by the collegium system with lack of transparency.
• Allocation of cases: Chief Justice allocates cases to different benches of the Court and picks judges to form Constitution Benches, which decide substantial questions of law. Since CJI has the full control over this, there are apprehensions that judges with similar school of thought are appointed in a bench to get a favourable judgement.
• Power to list: The Chief also enjoys the power to list cases. It means that if CJI wish to do so, they may never list a Constitution Bench case at all in their tenure.
• Corruption: Many cases in recent times have come to the notice regarding corruption in the Judiciary.
• Passing remarks prejudicial to certain communities: Present case of Justice Shekhar Yadav.

These issues have led to overall decline in the trust with respect to the judiciary.

Steps taken so far to arrest the decline of Judicial Standards:

• RTI: Office of CJI has been brought under the ambit of Right To Information Act. 
• Live streaming: Live streaming of Cases has been proactively taken up by Supreme Court and High Courts.
• National Judicial Data Grid: Disclosure of pending cases with help of National Judicial Data Grid.
• Declaration of Assets: Supreme Court judges declare their property to the CJI.
• The Restatement of Values of Judicial Life which lays down certain judicial standards and principles to be observed and followed by the Judges of the Supreme Court and High Courts.
• In-house procedure: An in-house procedure for taking suitable remedial action against judges who do not follow universally accepted values of Judicial life including those included in the Restatement of Values of Judicial life.
• Bangalore principle of Judicial Conduct: A judge must “reaffirm the people’s faith in the impartiality of the judiciary”. Principles underscore that “any act of a judge of the Supreme Court or a High Court, whether in official or personal capacity, which erodes the credibility of this perception has to be avoided”.
  • Furthermore, a judge must always conduct himself or herself in such a manner as to preserve the dignity of the judicial office and the impartiality and independence of the judiciary”. More importantly, the charter requires a judge to be “aware of and understand” the diversity in society and treat all equally.

Further measures to be taken for Increased Accountability:

• Code of Conduct for Judges: As recommended by 2^nd ARC, there should be a formal and comprehensive code of conduct for judiciary which is legally enforceable.
• Amendment of the Contempt of Court Act with specific provisions:
  • Contempt cases to be tried by an independent commission instead of courts.
  • Removal of the words 'scandalizing the court or lowering the authority of the court' from the definition of criminal contempt.
• Imposition of stringent punishment for the misuse of contempt laws, especially in cases involving false and malicious allegations against honest judges.
• Establishment of a two-level judicial discipline model:
  • First level: Disciplinary system capable of reprimanding, fining, or suspending judges for misdemeanors, along with limited immunity measures.
  • Second level: Removal system for judges engaged in serious misconduct, including corruption.
• Enhanced transparency in court proceedings: Live streaming of cases argued in High courts and Supreme Courts.
• Some administrative mechanism to keep check on the probity of higher judiciary as the removal process is stringent under Judges (Inquiry) Act 1968.
• Establishment of an independent judicial Lokpal with the authority to:
  • Receive complaints against judges.
  • Initiate action to ensure accountability.
  • Operate independently from both the judiciary and the government.
• Greater Internal Regulation: Establishing a National Judicial Oversight Committee.
  • To implement prompt disciplinary actions at the first instance of misconduct.
  • Establish a National Judicial Oversight Committee through parliamentary intervention.
  • The committee should develop independent procedures to scrutinize complaints and conduct investigations.
  • Ensure that the committee's composition should not compromise judicial independence.
• Enacting a Revised Judicial Standards and Accountability Bill:
  • Introduce a new Judicial Standards and Accountability bill inspired by the lapsed Judicial Standards and Accountability Bill 2010.