A farewell party for the former chief justice of the Kerala High Court—recently arranged by Chief Minister Pinarayi Vijayan and a few selected ministers in the cabinet at a hotel—has ignited controversy.
Former Kerala chief justice S Manikumar retired on april 23, and the party was held a few days before his retirement. In another episode, the Lok Ayukta and the Upa Lok Ayukta in Kerala attended an Iftar feast organised by the chief minister which, too, has witnessed a row, particularly for the reason that the consideration for a case alleging misuse of the chief minister’s relief fund was pending before the Lok Ayukta.
Justice is imperative. The Preamble of the Constitution talks about social, economic and political justice. Though not as such stated in the Preamble, judicial justice rendered through the courts across the country is at the core of democracy.
The preambular promises also very much depend upon the quality of judicial justice. again, the quality of judicial justice is determined by the quality of judges who run the court or the institution. Therefore, the conduct of the judges, both on and off the bench, matters. The judges in India are not political appointees as happens in the US courts. a judge must make a lot of sacrifices. He may not be a hermit, yet ideally should be somewhat closer to a hermit.
The Supreme Court in the case of Ravichandran Iyer (1995) said: “To keep the stream of justice clean and pure, the judge must be endowed with sterling character, impeccable integrity and upright behaviour” and that the “erosion thereof would undermine the efficacy of the rule of law and the working of the Constitution itself”.
In the All India Judges’ Association Case (1991), the court said that “the conduct of every judicial officer should be above reproach”. The question, however, is not doctrinal or propositional. In practice, how do we ensure that our judges behave properly? what is the mode of checks and balances against judicial misbehaviour? How can there be a safeguard against misconduct or other aberrations by the robed umpires?
Judging the judges is not easy. an independent mechanism to oversee the functioning of the judges might invite criticism that it could meddle with the independence of the judiciary, which again is a basic feature of the country’s Constitution.
Curiously, the in-house efforts to discipline the errant judges have their roots in India. The Bangalore Principles of Judicial Conduct were adopted by the round Table Meeting of Chief Justices held in 2002 at the Peace Palace,
The Hague. according to the Bangalore Principles, the judges are supposed to “exhibit and promote high standards of judicial conduct in order to reinforce public confidence in the judiciary” and “avoid impropriety and the appearance of impropriety” and “accept personal restrictions”. a full court meeting of the Indian Supreme Court approved a “restatement of values of judicial life” in 1997.
It is wrong to say that one can only criticise the judgments and not the judges. when a judge misbehaves in such a way that he causes erosion of the public’s faith in the judiciary, it is the duty of the Bar, the media, and the society at large to raise their voices. Judges carry out a public function. as lord atkin famously remarked, “Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”
The problem, however, is that many of the lawyers’ bodies are not willing to take up this task. franz Kafka, in his celebrated novel The Trial, shared a note of pessimism when he said that the lawyers behaved as if the betterment of the court system is none of their concern. The lawyers do have a critical role in preserving and maintaining the quality of judicial justice. as regarding the media, only a small section is able to carry out their oppositional function in relation to the judiciary. The episodes indicated in this write-up were exposed by an alert media, which of course, is commendable.
But, by and large, Indian courts need greater scrutiny. Max Boot, a famous US journalist, has revealed the fault lines in the US judiciary from the bottom to the top, in his remarkable work Out of Order: Arrogance, Corruption, and Incompetence on the Bench (Basic Books, 1998). He said that “anyone who wants decent, democratic government ought to be concerned about judges who misbehave, or exceed their authority, or issue unjust decisions”. In another episode, Reuters exposed the glaring inequalities prevailing in the US Supreme Court in The Echo Chamber (December 8, 2014).
The Kerala High Court and all the other high courts in the country have a great legacy. In Chandrakumar v. Union of India (1997), the Supreme Court itself acknowledged the importance of the high courts. Many of them are older than the Supreme Court. They are closer to the people. The court is not an extension of the government secretariat and an indication to the contrary should never be conveyed to the public. Therefore, it is essential to maintain the quintessential relation between the court as an institution and the public.
The government is the single largest litigant in every state and Kerala is no exception. The controversial conduct of the chief justice of the Kerala High Court, now retired, in attending the party held by the chief minister, was unbecoming of the high office held by him. Same is the case with the Lok Ayukta judges, too, who committed the same wrong. when the judges go wrong, the system suffers a credibility crisis. Credibility is earned, not commanded.
Kaleeswaram Raj
Lawyer, Supreme Court of India
(kaleeswaramraj@gmail.com) (Tweets @KaleeswaramR)