The conduct of a Judge, his judicial integrity and immunity “Justice must be rooted in confidence and the confidence is destroyed when right- minded persons go away thinking that the Judge was biased”. - Lord Denning, Metropolitan Properties Ltd. v. Lannan. (1969) 1 QB 577. A court of law is a non-living, immortal, tangible and perpetual human institution. Its features and the functions are always changing and developing but the basic features and the functions are always the same and eternal and always motivated towards its ends i.e to discharge or to impart justice to the deprived, aggreived and suppressed. The law and the society is also dynamic and not the static and the society also changes with the changing dimensions of the approaches of the court of law and vice versa. For the changing dimensions of the role and functions of a court of law in a civil society there are some important factors which play a vital role and also moulds its course of actions. Furthermore, though a court of law is a non-living, humanly created social institution but similarly same is always governed, run and carried out by some factors/agents ( I hold such opinion) and these are in fact the agents/units of a court of law which collectively play their active role as a means whose end is merely to impart the justice by administering the municipal laws or the laws of the land. In fact at the active initiation and participation of the each of a separate agent/factor the actual laws of the land is administered before a court of law and the harmony and the consistency is established in a civil society and which is and have been proved as a changing factor for the restoration of peace, democracy and the rule of law. In my own initiation and assumptions I have humbly tried here to categorize some important agents/factors of a court of law which I hereby present before my readers as the organs of a law court without of which it is not possible to administer the justice in any civil society and among them one is most important, that is a presiding officer of a court of law. I hereby discuss in details with my dear facebook friends about the definitions, his judicial integrity and immunity of a presiding officer or a judge. A presiding officer of a court of law is an integrial part of a court of law who plays a pivotal role for the administration of justice or dispensation of justice. I hereby give the nomenclature as the “ presiding officer” who is in my purpose of presentation/writing here is in its extensive and inclusive meanings and indications and denotes and includes the presiding officer of the whole of the Indian judicial system and includes from the top of the Honble Supreme Court of India to the bottom of that of a court of a Munsif/ Civil Judge (Jr. Division). Now for the conveniance of discussions and for the clearity of expositions and also for the details elaborations, I again hereby categorize the presiding officer of a court of law as status quo as existing at present in the Indian Judicial System including the judicial system of the modern civilized nations of the world which is in two division viz. (i) The Judges; and (ii) The Magistrates; A judge of a court of law is the presiding officer of a court of law who runs, functions and controls his court according to the procedures established by law. Before proceeding to writing about the functions, roles and morality of a judge I would like to give some definitions of the term “judge” in its legal parlance. The definitions of the Judge:- The Oxford Dictionary defines the term judge as a public officer appointed to decide cases in a law court: According to the Macmillan Dictionary the word “judge” means someone whose job is to make decisions in a court of law. According to the Blacks Law Dictionary a judge means “a public oflicer, appointed to preside and to administer the law in a court of justice; the chief member of a court, and charged with the control of proceedings and the decision of questions of law or discretion. (Todd v. U. S).”( Featuring Blacks Law Dictionary Free Online Legal Dictionary 2nd Edn.) According to the sec. 19 of the Indian Penal Code the term judge is defined as the word Judge denotes not only every person who is officially designated as a Judge, but also every person, who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive, or who is one of a body of persons , which body of persons is empowered by law to give such a judgement. [ The sec. 19 of the Indian Penal Code (Act No. 45 of 1860)] The definition of the word Judge as provided in sec. 19 of the Indian Penal Code is wider in its scope then that of sec. 2 (8) of the Code of Civil Procedure as because the definition as given in the penal code includs the judge of both the civil and criminal court. Accordingly sec. 2 (8) of the Code of Civil Procedure defines the term judge as “Judge” means the presiding officer of a Civil Court. [The sec. 2 (8) of the Code of Civil Procedure, 1908 (Act No. 5 of 1908)] The Supreme Court Rules 1966 ( Published in the Gazette of India, Extra., dated 15th January, 1966.) in Rule 2 sub-rule (1) (j) also breifly defines the term judge as ‘Judge’ means a Judge of the Court. Again in the case of S.D Joshi v. High Court of Judicature at Bombay AIR 2011 SC 848, (2011) 1 SCC 252; the Honble Supreme Court has defined the term judge as the Judge is a generic term. A Judge, primarily determines all matters of disputes and pronounces what is law now, as well as what will be the law for the future. He is not a mere administrative officers of State but represents the State in the administration of justice. In the case of C.S Raja Gopala Ayyar v State 1956 Cr. LJ 1330 the Honble Court defined and enlarged the meaninig of the word Judge and laid down as the definition of the word Judge includes not only a person officially designated as such but includes and means every person who is empowered by the law to pronounce a definitive judgment in a legal proceeding either civil, criminal or matter relating to revenue. The Legal Legend Sir Dinshaw Fardunji Mulla, also has drawn the lineal distinction in between the word court and the judge and has emphasized the importance of a judge in a court of law and also in a civil society as “the words court and judge are frequently used interchangeably because a judge is an essential constituent of the court since there can be no dispensation of justice without a judge.” He furhtermore said “however, that does not mean that, when a judge demits office, the court ceases to exist. The words court and judge are not stricto sensus synonyms for the simple reason that a judge by himself does not constitute a court, being only an essential part of the court. An arbitrator is neither a judge nor a court.” (Mulla, Code of Civil Procedure Abridged .p 19 ) The integrity of the Judge:- It is both the ethics and law that a judge must be impartial and free from any corruptions. To that effect the ancient Indian legal literature presents five causes which a propria vigore give rise to the charge of partiality against a judge, as the perceptions conveyed by those causes are incompatibal with the concept of judicial independence, viz. (i) Raga (affection in faviour of party), (ii) Lobha (greed), (iii) Bhaya (fear), (iv) Dvesha (ill-will against a party), and (v) Vadinoscha rahashrutthi (the meeting and hearing a party to a case secretly). An independent judiciary is indeed the repository of the confidence of the people of India.(”Judicial independence and judicial appointment: Independence from external and internal control” Prof. K.L Bhatia, AIR Journal 2000 p. 33.) Another most important feature of a judge is that he must be fearless or must be free from any fearness. In this regards Lord Denning has rightly pointed out as “ Judicial immunity from actions for damages exists not because the Judge has any privilege to make mistakes or to do wrong, it is so that he should be able to do his duty with complete independence and free from fear”. Another most importnat feature and quality of a judge is that he must be free from any type of suspecion of nepotism, favouritism and biasness. The Judiciary considered to be the last resort of the common man, should not be subjected to allegations of favouritism, nepotism and bias. As rightly remarked by Bowen L.J. (Lessan v. General Council of Medical Education. (1889) 43 Ch. D.366) “ Judges like Caesars wife, should be above suspicion”. In order to achieve, the object of having a check on the Judges and to remind them that they must be above suspicion, the need for a system that ensures accountability is felt pressing. The Judges who are supposed to uphold the rule of law are bound to know what is forbidden to them. In the holy Bhagavad Gita it is said (The Bhagavad Gita, Chapter XVI – Verse 24.) “ One ought to understand what is duty and what is forbidden in the regulations laid down by the Scriptures, knowing such rules and regulations one should act accordingly”.(Judicial Ombudsman -Need of the hour, R. Lakshminarayan & G. Krishna Kumar, AIR Journal 2002, p. 109.) The credibility of the judiciary is erected on its popularity base and on the high expectation and trust of the people. As stated by Lord Denning “Justice must be rooted in confidence and the confidence is destroyed when right- minded persons go away thinking that the Judge was biased”.(Metropolitan Properties Ltd. v. Lannan. (1969) 1 QB 577.) The Judge must remember that he himself is subject to law and must abide by it. The Apex Court once said: “Wise Judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, fearless, fairness and objectivity of their approach and by the restraint, dignity and decision which they observe in their judicial conduct”.(In re Under Art. 143 of Constitution of India, AIR 1965). The popular statement of Lord Denning is: “Be you ever so high law is above you”.(Lord Denning, Family Story, p. 179.). “A Judge is determinant part of the dynamic process of legal evolution” says the Apex Court.( Baradakanta v. Registrar, Orissa H.C., AIR 1974 SC 710.) The Supreme Court again reiterated that: “The Court itself is not above the law”,(Narmada Bachao Andolan v. Union of India, AIR 2000 SC 3751 Para 259.) Here one must not forget what has been pointed out by Ehrlich: “ There is no guarantee of justice except the personality of the Judge”. (Cardozo, The Nature of Judicial Process, p. 16.) According ro Socrates, the great Philosopher, “To hear courteously, to answer wisely, to consider soberly, and to decide impartially” are the four things that a Judge is expected to confirm.( Shrager and frost, The Ouotable Lawyer, 68,18 p. 142.). Lord Lolan on “The Standards in Public Life, has laid down seven principles of public life: they are “selflessness, integrity, objectivity, accountability, openness, honesty and leadership”( Lord Nolans report 1995 Volume 1.). The Apex Court in the case of Vineet Narain v. Union of India AIR 1998 SC 889 re-emphasised these Principles and held that: “ All public bodies should draw up codes of conduct incorporating these principles” and “The internal system for maintaining standards should be supported by independent scrutiny”. There is no doubt that in the recent years judiciary has been playing avital role in formation of destiny of society as well as the nation by leading from the forefront. So, the Judges must set an example to others. As dictated in the holy Gita “ Whatever and whichever action is performed by a leader and public officials, the public follows and whatever standards he sets by examples, others so behave”. (The Bhagavad Gita- Chapter III Verse 21.) If we analyse the present scenario of the judicial hierarchy and its function, especially in the era of judicial activism we will be able to convince ourselves that in order to keep the prestige and credibility of the judiciary intact some mechanism should be invented. The Judges are supposed to behave and conduct themselves in an expected pattern befitting their high office. Invariably Judges conduct themselves as expected. But there are some instances where the expected line of behaviour is found missing. It is risky to give full authority to them to decide their own behaviour pattern. As rightly pointed out by Williams Douglas, “Absolute discretion is ruthless master. It is more destructive of freedom than any of mans other inventions”. (United States v. Winderlich, (1951) 342 US 98, 101.). Taking into consideration the socio-economic and political life of the country, the necessity of a qualitative judiciary gains importance. If the quality of Judges diminishes, if they act recklessly, or negligently, the very system will crumble down. As stated by Bhishma in the Mahabharatha: “ The foundation of a kingdom is righteousness, Ministers and State employees who have accepted responsible offices, act unjustly, guided by self-interest, all will go to hell along with the king”.( The Mahabharatha, Santhiparva*, Chapter LXXX, Verse 16-17.) Courts according to the Indian concept is not merely a citadel of brick and mortar, but it is a temple of justice, a seat of the Divine. It should therefore be as perfect as it can and as ideal as it is humanly possible. The function of a judge is to dispense justice without fear or faviour and in fear of God only and in the case of those who have no faith in God, in fear of a Divine retribution. Every act carries with it, its own reaction. Judges should dispense justice not only according to law but also in confirmity with Truth and Dharma or the Eternal Justice. He should therefore be God fearing and doing justice in his name, praying all the while for Divine assistance. But if his robes are coloured with the tinge of politics or any such extraneous influences, including his own predilictions, knowingly or unknowingly, he should be deemed to have fallen low from the high standards that are set for him by the Divine. Judges are public officers and therefore they serve not the Governments or even the; politicians who might have pushed them into that high office, but the public whose cause must always be dear to them, and whose estimation and good wishes they must attempt to earn, not by pampering to the gallery, but being honest, upright, truthful and God-fearing. Judges should always remember that there is yet another Judge, who is the judge of judges. The judge remains confined within the precincts of the temple and carry home everyday the weight of his good deeds he had done and also the burden of his sins he had knowingly or unknowingly committed. (The Legal profession its present status, J. R Kamath, AIR Journal 1996 p. 155) Furthermore it is well said that the judicial process must remain unpolluted by personal pride or an erroneous sense of dignity. (Justice S. C. Pratap, Relationship Between the Bar and the Bench, AIR Journal 1980 p.10,). As very rightly said, the best guarantee of justice is the personality of the judge. It is the judge who must bring honour to the seat of justice rather than he claims that the seat of justice brings honour to him. ( “Areas of conflict between the Bar and the Bench.......”, Indranath Bishnu, AIR Journal 2004 p. 249.) Furthermore in the case of Union of India Vs. R. Gandhi, Madras Bar Association (2010 SCC) the Honble Supreme Court has held the importance of the independence of a judge from other external factors and also suggested some norms to a judge and has held that the independence is not the freedom of Judges to do what they like. It is the independence of judicial thought. It is the freedom from interference and pressures which provides the judicial atmosphere where he can work with absolute commitment to the cause of justice and constitutional values. It is also the discipline in life, habits and outlook that enables a Judge to be impartial.” Furthermore Thomas Fuller has also said about the integrity of a judge as “when a judge puts on his judicial robes, he puts off his relationship to everyone and becomes a person without a relation, friend, acquaintance, in short, a man who is impartial”. In the similar manner Justice Cardozo also said “the Judge, even when he is free, is still not wholly free. He is not innovate at pleasure. He is not a knight errant roaming at will in pursuit of his own ideal of fairness and justice. He has to draw his inspiration from well consecrated principle. He is not to yield to spasmatic sentiments, to vague and unregulated benevolence. He is to exercise discretion informed by tradition, methodised by analogy, disciplined by system, and subordinated in the primordial necessity of order in social life. Wide enough in all consciences is the field of discretion that remains.” The immunity of the Judge:- A judge of a court of law enjoys utmost protection and immunity during his course of office. There are several provisions provided in several civil and criminal statutes and judicial pronouncement providing the protections to a judge from any bonafide mistake while same is excersied by him during his ourse of public duty. A briefs descriptions are as:- The sec. 3 sub-sec. (1) of the Judges (Protection) Act, 1985 (59 OF 1985) provides as notwithstanding anything contained in any other law for the time being in force and subject to the provisions of sub-sec.(2), no Court shall entertain or continue any civil or criminal proceeding against any person who is or was a Judge for any act, thing or word committed, done or spoken by him when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function. But the sub-sec. (2) is the exception of sub-sec. (1) which reads as nothing in sub-sec.(1) shall debar or affect in any manner the power of the Central Government or the State Government or the Supreme Court of India or any High Court or any other authority under any law for the time being in force to take such action (whether by way of civil, criminal, or departmental proceedings or otherwise) against any person who is or was a Judge. The protection given in the Act 59 of 1985 is large and extensive and covers not only the judge of a court of law but also includes the other persons as provided in its definition clause i. e sec. 2 as in this Act, Judge means not only every person who is officially designated as a Judge, but also every person:- (a) Who is empowered by law to give in any legal proceeding a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive; or (b) who is one of a body of persons which body of persons is empowered by law to tive such a judgment as is referred to in CI. (a). Similarly another important substantial law i.e the Indian Penal Code 1860 ( Act No. 45 of 1860) in its sec. 77 as a general exception provides as nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law. In the same manner the sec. 165 of the Indian Evidence Act 1872 ( Act. No. 1 of 1872) also provides the enormous powers to a judge in the form of power to put questions or order production which he may use the same for the proper ends of justice and which lays down as the Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer give in reply to any such question: Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved. Provided also that this section shall not authorize any Judge to compel any witness to answer any question or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive , if the question were asked or the document were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases herein before excepted. Again in regards to the judicial fallicy of a judge the Honble Supreme Court in the case of State of West Bengal v. Shivananda Pathak 1998 (5) SCC 515 has laid down that the judges are not infallible and not the exceptional and, as human beings, they are capable of committing mistakes even in the best of their judgments, reflective of their hard labour, impartial thinking and objective assessment of the problems put before them, either in the matter of interpretation of statutory provisions while assessing evidence in particular case or deciding the question of law or facts and such mistakes committed by them are corrected at the appellate state by the appellate courts. Lastly I hereby conclude my writing with the word of John Marshal as “the power of Judiciary lies, not in deciding cases, not in imposing sentences, not in punishing for contempt, but in the trust, faith and confidence of the common man.” Jai Hind...................! Soliciting Yours kind suggestions........................! Sourav Subba, B.A (Law) LL.M, WBJS Dated: 10.12.14 Place: Diamond Harbour, Calcutta.
Posted on: Wed, 10 Dec 2014 02:25:10 +0000
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