March 14, 2005
CJI R C Lahoti
How ‘Functional Felony’ Creeps Into Judiciary : CJI
By Mukesh Jhangiani
United News of India
New Delhi (UNI) – Personal visits to Judges’ residences, dinner invitations from lawyers and political pressures are some of ways in which ”functional felony creeps into the judiciary,” India’s Chief Justice has cautioned.
As a counter, Justice Ramesh Chandra Lahoti has stressed such time-tested judicial ethics as independence, impartiality, integrity and propriety.
Justice Lahoti was delivering the Inaugural M C Setalvad Memorial Lecture on Canons of Judicial Ethics organised by the Bar Association of India recently.
It was an evening given to remembering one of India’s finest lawyers– a ‘grand’ practioner, who charged ‘reasonable’ fees irrespective of stakes and respected Judges, but declined Judgeship.
The hall packed mostly with judges and lawyers heard a message from former Supreme Court Judge V R Krishna Iyer: ”Today, when the decline and fall have become deleteriously visible in the two sister professions, the memory of Setalvad will be a necessary admonition.”
The ethics topic sat well with 2005 dubbed the Year of Excellence in Judiciary. Judicial misconduct in India has no legal remedy.
Codes of ethics have been tried time and again, Justice Lahoti said, adding that if required to make a reference to such documents, he would ”confine myself… to three”:
— The Restatement of Values of Judicial Life adopted by the Chief Justices’ Conference of India, 1999
— The Bangalore Principles of Judicial Conduct, 2002
— The Oath of a Judge as contained in the Third Schedule of the Constitution of India.
As Justice Lahoti spelt out the documents it became clear that a number of Judges are already in violation of one or another of the canons of ethics.
Take Canon 4 of the Restatement: A Judge should not permit any member of his immediate family, such as spouse, son, daughter, son-in-law or daughter-in-law or any other close relative, if a member of the Bar, to appear before him or even be associated in any manner with a cause to be dealt with by him.
Over a year ago, the Bar Council of India (BCI) asked the government to transfer 130 High Court Judges who have relatives practising in courts in which they function. That meant almost one in four HC Judges. India’s 21 HCs between them had close to 500 Judges in place, the remaining positions being vacant. No action ensued.
The BCI is the apex statutory grouping of India’s 800,000 or so lawyers.
The trouble, experts say, is that a code of ethics cannot be enforced.
Indeed, as Law and Justice Minister Hans Raj Bhardwaj reminded audience, ethics cannot be foisted on anyone and should be left to the institution to evolve or embrace.
Nor does law in India make a proper provision to discipline Judges.
One option provided is impeachment, which, experts say, is more a political remedy than legal. It failed the only time it was invoked in 1992 against a Supreme Court Judge accused of corruption.
With Congress Members of Parliament under a whip to abstain in the vote to impeach Justice V Ramaswamy, Parliament virtually abdicated its duty to ensure accountability in Judiciary.
That was not perhaps the first time an Indian Judge had misbehaved. It certainly was not the last.
A spate of allegations has surfaced over the years involving HC Judges– in Karnataka, Rajasthan, Bombay, Delhi, Chennai, Calcutta and Punjab and Haryana– in bribery, sex and abuse of office, resulting in a few cases to transfer, removal, even arrest.
In one bizarre episode, dozens of HC Judges took leave en masse because two of them were asked by their Chief Justice to explain why they took complimentary membership from a club, which was a litigant.
One of Justice Lahoti’s predecessors, Justice Sam Piroj Bharucha told a lawyers’ meet in Kollam, Kerala three years ago that ”more than 80 per cent of the Judges in this country, across the board, are honest and incorruptible.
”It is that smaller percentage that brings the entire judiciary into disrepute. To make it known that the judiciary does not tolerate corruption in its ranks, it is requisite that corrupt Judges should be investigated and dismissed from service.”
A year later, Justice Bhupinder Nath Kirpal told a judicial colloquium that Judges ”are also Indian citizens who come from the same aggregate as those in the legislature and the administration.”
”Therefore,” Justice Kirpal said, ”there are also instances where corruption and incompetence have also pervaded the judicial establishment that cannot be denied.”
But as Justice Lahoti pointed out, ”The Judge can ill-afford to seek shelter from the fallen standard in the society.”
The trouble, experts say, is that in absence of a clearly laid down law, opacity takes over where will to cover up asserts itself.
Former Chief Justice Jagdish Sharan Verma, during whose tenure the Supreme Court Judges adopted the resolutions on Values of Judicial Life in May 1997, has called for a clear law to discipline errant Judges.
In a radio talk show aired two months ago, Justice Verma said: ”Time has come for enforcing judicial accountability.”
Asked to explain his insistence that the process be conducted by the judiciary itself, he said any external effort would be dangerous for judiciary’s independence.
Justice Verma said he sent the resolutions in December 1997 to then caretaker Prime Minister Inder Kumar Gujral, requesting enactment of such a law. ”It has not happened so far.”
Some two months ago, Bhardwaj announced a Group of Ministers set up to suggest steps to strengthen the Judges Inquiry Act 1968 as part of an effort to ensure accountability in governance.
Asked after the Lecture as to when the group will give its findings, the Minister told UNI it would probably be after the Budget session.
Corruption in their ranks is not the only issue Judges must reckon with: they have a huge workload– 24 million pendencies– and inadequate strength– 14,000 judicial officers from district level upwards, as against an estimated need of 50,000, topped by a large many vacancies.
Experts question lingering HC vacancies considering that the five member apex court collegium expected to select appointees knows well in advance when a vacancy is due to arise.
Law Ministry officials say 222 HC positions were vacant against an approved strength of 719 last year when the United Progressive Alliance took over from the National Democratic Alliance.
Bhardwaj has said all vacancies will be filled by the end of this year.
”It is futile to think of excellence,” Justice Lahoti said in his lecture, unless judges– howsoever highly or howsoever lowly placed– ”were to follow the canons of judicial ethics.”
He recounted how veteran Judges handled ethical issues. One instance involved a dinner for Judges given by a lawyer– paid for by a client whose matter was to come up in the court a day later while another was about a Vacation Judge approached for ‘interim’ stay by an advocate who happened to be the son of the then Chief Justice.
The dinner story in former Chief Justice Pralhad Balacharya Gajendragadkar’s words: ”So far as I know, I and K C Das Gupta did not attend. Most of others did. The dinner was held on a Saturday at a hotel. On Monday next, before the Bench over which B P Sinha presided and I and K C Das Gupta were his colleagues, we found that there was a matter pending admission between the management of the hotel chain and its workmen.
”I turned to Sinha and said: ‘Sinha, how can we take this case? The whole lot of supervisors and workmen in the hotel is sitting in front and they know that we have been fed in the hotel ostensibly by the lawyer but in truth at the cost of the hotel, because the very lawyer who invited the judges to the dinner is arguing in the hotel’s appeal.’
”Sinha, the great gentleman that he was, immediately saw the point and said: ‘This case would go before another Bench’.”
Justice Iyer’s tale of the Vacation Judge: ”Naturally, since the caller was an advocate, and on top of it, the son of the Chief Justice, the vacation judge allowed him to call on him. The ‘gentleman’ turned up with another person and unblushingly told the vacation judge that his companion had a case that day on the list of the vacation judge. He wanted a ‘small’ favour of an ‘Interim stay’.
”The judge was stunned and politely told the two men to leave the house. Later, when the Chief Justice came back to Delhi after the vacation, the victim judge reported to him about the visit of his son with a client and his ‘prayer’ for a stay in a pending case made at the home of the Judge.
”The Chief Justice was not disturbed but dismissed the matter as of little consequence. ‘After all, he only wanted an interim stay’, said the Chief justice, ‘and not a final decision’.”
The incident, Justice Lahoti went on, ”reveals the grave dangers of personal visits to judges’ residences under innocent pretexts.
”This is the way functional felony creeps into the judiciary. A swallow does not make a summer maybe, but deviances once condoned become inundations resulting in credibility collapse of the institution.”
”A little isolation and aloofness are the price which one has to pay for being a judge, because a judge can never know which case will come before him and who may be concerned in it. No hard and fast rule can be laid down in this matter, but some discretion must be exercised.”
Audience were told of a lawyer who actually observed ethics.
Setalvad remained ever a lawyer and never agreed to become a judge. His fees ”were reasonable and did not vary depending upon the stakes involved in a case.”
He seemed to have instinctively grasped the true function of a Law Officer stressed in English Courts– Counsel for the Crown neither wins nor loses. He is there to state the law and facts to the Court.
Setalvad joined the Bombay Bar in 1911 and rose to occupy such high offices as Advocate General of Bombay 1937-42, Attorney General of India 1950-63, Chairman of the Law Commission 1955-58 and Member of Rajya Sabha 1966-72.
He also represented India before the Radcliffe Commission and the United Nations 1947-50.
”In those days,” Bhardwaj said, recalling the post independence era, ”there were no sharp practices at the bar at all. There was no need for such concerns. Such an occasion never arose.”
These are ”difficult times,” he acknowledged. Standards have ”gone down.”
He said the BCI had not performed its duty. The Bar has been ”left behind by many decades… So much adulteration has come into this institution.”
Many lawyers may not even know who Setalvad was, he remarked.
Organisers thanked Chennai-based Senior Advocate G Vasantha Pai, a former BAI General Secretary, who contributed Rs 15 lakh to conduct the lecture annually, for ”giving us back” Setalvad.
UNI MJ MM CS1100