THE recent resolution of the chief justices of the countrys high courts to evolve a code of conduct is a step in the right direction. But the very fact that it is needed only brings into sharp relief the question mark that exists over ethical standards in the judiciary. The move to make the judiciary more effective and accountable is certainly welcome. Naturally, many are asking why this pillar of society at all needed to remind itself of the desirability of such a code, given the "hallowed status" it enjoys. Called the "Restatement of Values of Judicial Life", this code, many legal eagles believe, is a pre-emptive strike by Chief Justice A.S. Anand against norms that may be stipulated by the government through the proposed National Judicial Commission.
Prime Minister Atal Behari Vajpayee had told a gathering of judges and lawyers late last month that his government was keen on setting up a commission which would recommend judicial appointments as well as draw up a code of ethics. The mild face off between Vajpayee and Justice Anand during the Supreme Court anniversary celebrations seems to have hastened the process.
Notwithstanding the politics necessitating the code of conduct, the moot point is: will it work? Who will enforce it? However, the fact that reform has begun from within is cause for cheer.
Constitutional lawyer Rajeev Dhawan maintains that disturbing trends have been witnessed in the functioning of the judiciary over the years. He cited the case of Justice V. Ramaswamy who, during his tenure as chief justice of the Punjab and Haryana High Court, used public funds to meet personal expenses and misused official facilities. "He may have escaped impeachment but that was a stark example of how a judge shouldnt behave," says Dhawan.
He reckons that for the code to be effective, and not a mere moral exhortation, judges must know their limits of propriety. "Like Caesars wife, they have got to be above it all. Punitive transfers or starving them of work are no remedies. The in house committee will have to take action against violators," observes Dhawan. Then again, Justice M.M. Punchhi of the Supreme Court was alleged to have disposed of matters and taken certain decisions which drew flak from certain quarters.
"Even a representation was made to the President and former Chief Justice J.S. Verma was put in an awkward situation," says a lawyer.
The 15-point code of ethics is fairly comprehensive, including within its scope both personal and professional behaviour. It will now be incumbent on judges to declare their assets as well as those of their families. Besides, they will not be permitted to preside over a hearing where their relatives are arguing or where they have vested interests. Barring a judge from hearing or deciding on a matter in which he has financial interests is a necessary deterrent as motives wouldnt be imputed. "Even without this code, its assumed the judiciary would conduct itself according to the standards set," says Supreme Court lawyer P.N. Lekhi. Obliquely, he emphasises that the ethical standards expected from courts do not exist. But the whole judicial apparatus exists cocooned from public eyes, behind layers of ceremonial norms and decorum .
LEKHI contends that a more stringent code was published by the Punjab and Haryana High Court in 53 and it was adopted by 18 more high courts. "That a reminder has to be given after so many years is really a reflection of what should not be but is," he says.
Drawing comparisons with the West, legal pundits point out that the code for judges there is inflexible and drawn up by lawyers. "The best judge of a judge is a lawyer, but here if he criticises the judge, the noose of contempt hangs around his neck," says Lekhi. In addition, the investigative machinery in the US, for example, acts fast. "I remember once that 12,000 complaints were filed against various judges. None of them stood up for scrutiny but the fact that they were processed is telling," observes Dhawan.
Here, the justices have decided to adopt an "in-house procedure " under which a panel would take action against defaulters. Again, a senior advocate contends that a similar in-house committee was set up during the tenure of former Chief Justice M.N. Venkatachalliah.
"How many complaints did the committee receive? And what action was taken?" asks a lawyer. It would be interesting to find out what role the committee played and the action it took, if any. While many in the legal fraternity agree that a code is desirable, they maintain that the in-house regulatory body would have to be armed with sufficient teeth. "Only then will there be meaning to the content. Needless to add, it should not be justiciable and reviewable," argues advocate Abishek Singhvi.
The in-house mechanism may also have another problem in that the judicial fraternity would sit in judgment over peers and fellow colleagues accused of wrong doing. "The responsibility is high and I feel it is important that the people have the right to know why a particular judge know why a particular judge went wrong," says R. Venkatramani, Supreme Court lawyer. He,however, adds that the "response has to be honest and adequate".
One major ill affecting the judiciary s functioning is the presence of judges presiding over cases where their relatives appear before them. "Four years ago, sons, sons-in-law and daughters argued before judges in the Patna High Court for favourable judgments. It was incredible," adds a senior jurist. Similarly, a Delhi High Court judge who passed favourable judgments whenever his son appeared, prompted the bar council to pass a resolution against him. Moreover, it also warranted the intervention of the then Chief Justice Venkatachalliah. " Without a careful process of selection and human material, the code will not be adequate in the ultimate analysis," adds Singhvi.
Its for this reason that many like Justice Anand argue a fine balance has to be struck between judicial independence on the one hand and the behaviour and conduct of judges who operate the justice delivery system on the other. In this connection, therefore, it might be imperative to fill up vacancies in the high courts as this contributes to the delay in disposal of cases and thus itself becomes a "serious cause of suspicion". Referring to the pendency of cases in subordinate courts, Justice Anand observed that the recommendations made by high courts for creation of about 5,000 courts had been pending with state governments for long. Non-filling of vacancies in high courts compounded the problem. Of a total number of 618 judges on November 1, 1999, there were 154 vacancies that had not yet been filled up. Kapil Sibal, former president of the Supreme Court Bar Association, says the step in favour of "judicial accountability" was in recognition of a need and a self-disciplinary exercise. "Its a good move. I hope it does well," he says. The acceptance of this code by all judges itself is salutary. Only time will tell, though, how ethical it will be.