By K. G. Kannabiran
the robe of the pastor, it is designed to transform the wearer in to the instrument
of a higher power. The risk is that the judge will start thinking that he is
the higher power. The likelihood increases when he proclaims from the bench
to people who cannot differ with him and acquires a complacent confidence in
his own view of things,
Judge Robert Satter.
It is recorded in the "Mirror of Justices" that King Alfred the Great, the Saxon King hanged forty four judges in one year foe reasons of violating the cod of conduct prescribed for the judges. One can be sure that the code prescribed him may not be any different from the code prescribed by the Chief Justices for themselves and their learned brothers and sister judges in the High Courts in the recently held conference of the Chief Justices. Long before the heard of constitutions, Alexis de Tocquoville, separation of powers and principles of natural justice, Alfred the Great laid down some rules of conduct for his judges. He had a right to, for he appointed them .. "if the judges acknowledged they had given a judgement because they new no better, he discreetly and moderately reproved their in experience and folly in terms such as these:
"I wonder truly at your insolence, but where as by God's favor and mine, you have occupied rank and office of the wise, you have neglected the studies and labors of the wise." He firmly told them "Either there fore give up the discharge of the temporal duties which you told, or endeavour more zealously to study the lessons of the wisdom." He was obviously aware that learning is not a prophylactic against corruption. So he commanded: Judge them very fairly. Do not judge one judgement for the rich and another for the poor; nor one for the one more dear and another for the one more hateful." One can safety presume that the 44 were intractable and there fore sent to the gibbet for violating these norms. The maladies which King Alfred found among his judges continued to plague societies down to the end of the present century.
People's struggles against slavery, arbitrariness in governance degenerating in to tyranny leading to revolts rebellions and revolutions yielded these institutions of governance and justice, as also the law and procedure which should regulate the working of these institutions. These found their definition in their present form during the period which struggled against and successfully defeated Stuart absolutism culminating the English Revolution. This marks the beginning of Role of Law. There has never been any visible severance with the past. It was by a patient theoretical re formulation and re definition during the course of long periods in history that the severance with the arbitrary past was effected. But long side with these developments absolutist trends against which people struggled, were dexterously woven in to jurisprudence and theories of law. The power of the King stood transferred to parliament and the courts. The privileges which parliament claimed against the King, were by, by an in comprehensible legerdemain, transformed in to privileges against the people who elected them. Similarly the courts were given independence against transference by the king and the executive mainly to protect the people and realm against arbitrariness. But very often they worked in tandem with the parliament and the executive in perpetuating and justifying arbitrary governance , whenever they felt that people are in a state with a insurrection against the institutions and the state. Ironically it was in the process of securing rights for the people and establishment of Rule and Law that parliament clamed contempt powers against citizens and the absolute powers of legislation. The limits of its legislative power are exposed by the example given. Theorists were of the view that parliamentary power is so absolute that it can legislatively order drowning of all blue eyed babies in river Tames - a power which no absolute monarch ever claimed Theorists of parliamentary democracy defined thus the expansiveness of the power of parliament very proudly. As at present this adoration of absolute powers of the parliament is the view point which is questioned by those who have started a movement for the inclusion of the entrenched rights in the English Constitution Historically there was an appropriation of the power of the absolute monarch by the legislature and the courts. Where as there have been attempts in limiting the power of the legislature and the executive by popular pressure, periodic elections which act as a check on authoritarian trends and principally judicial review by Courts of executive actions and legislative measurers, no such systematic attempts has been made to contain the absolute powers of the courts without impairing the independence. Any attempt at reforming judiciary leads to paint these attempts as attempted erosions of judicial independence. Judicial independence is not a value in itself. It is expected so subserve the social values, which have been incorporated in to the constitution. Despite this assurance e of independence Courts have neither promoted democracy nor personnel liberty or social economic and political justice in the fifty year period of the constitution. This independence coupled with contempt power has made the institution absolutist and such an institution can never be the bulwark of democracy. A transgression of moral sanction come easily for absolute power.
The judiciary appropriated the contempt power the king had as an aspect of justice. It was an emanation of Royal authority and any contempt of court was really contempt of the Sovereign. If under the constitution the people are the sovereign no legitimate inference can be drawn that constitution delegated the court the sovereign power to punish the people or any one among them. Just as the Indian parliament inherited the privileges of the House of commons, The Indian Courts inherited the contempt power from the king of England. The Courts in India trace their genealogy of power to the Royal power of punishing people for contempt and its subsequent metamorphoses . This power was transformed in to a power which inheres in a court of record and the offence has become sui generis and transcends the limits of reasonable restraint judicially defined with impunity The myth of original court of records in which the power of punishing for contempt inheres has become part of the occult jurisprudence which law abounds in. Such anachronisms and obscurantism coupled with irremovable tenure leads to misconduct among the judges. To the principle that untrammeled power whether de jure or de facto would encourage impunity the judiciary is no exception. These powers are absolute and one cannot even plead justification in public interest when accused of contempt. The elected representatives do not have such absolute powers.
An authoritative statement of the character and magnitude of contempt power would demonstrate why a code of conduct for any judges may not really be effective:" It is an offence purely sui generis, and that its punishment involves in most cases an exceptional interference with liberty of the subject, and that, too, by a method or process which would in no other case be permissible, or even tolerated The jurisdiction should be exercised in more carefully in view of the fact that the defendant is usually reduced, or pretends to be reduced, to such a state of humility, in fear of more severe consequences if he shows any recalcitrancy, that he is unable or unwilling to defend himself as he otherwise might have done"(Oswald "On Contempt of Court")
Having been fed on hope and illusions all of us applauded the Judges for prescribing for themselves a code containing principles, which are merely Polonius style pious homilies. These cannot be enforced and can be breached at will. The conduct the code addresses to are old habits and they hard die. The Chief Justice who is only first among equals he has no authority to command his colleges. to commence their sittings strictly according to the prescribed timings
In the life of a constitutional appointee the private and public divide or dichotomy does not exist One cannot be unjust unequal and arbitrary in personnel life and claim to adjudicate constitutional principles completely and fairly in courts. Talking about professional ethics. Durkheim raises issues, which appear to be quite relevant in today's context " A way of behaviour, no matter what it be, is set out on a steady course through habit and exercise. If we live a morally for a good part of the day, how can we keep the springs of the morality from going slack in us?. We are not naturally inclined to put ourselves out or use self restraint; if we are not encouraged at every step to exercise restraint upon which all morals depend, how should we get the habit of it? If we follow no rule except that of clear self interest, in occupations that take up nearly the whole of our time, how should we acquire a taste for any disinterestedness, or selflessness or sacrifice?" If they are merely moral precepts do the judges require a code of conduct like the clerical cadre? Does not the constitution imply a Code of Conduct? The objectives enumerated in the Preamble to the constitution, the fundamental rights, the fundamental obligations enumerated in part IV and the Constitutional oath prescribed for these appointees regulate their working in courts and the same values give rise to moral principles on a which to regulate ones conduct in life. A whole life time is spent in career seeking and career promotion and that has brought about a debasement of public morality. The colonial mind-set and the iniquitous feudal and caste practices, which every one of us has internalized, still is the predominant culture of these institutions. This is compounded by the adversarial system a legacy of laissez faire to the profession, has brought about a legal culture, which is unredeemingly competitive impervious to social mores and social purposes.
pharisaical righteousness, the aggressive, authoritarian and pompous demeanor
and other feudal habits, and the discourse in courts high light and inform any
causal observer that this institution is arbitrary and no code of conduct can
ever improve their performance unless we invoke against the members of the judiciary
the same principles of deterrence which they so generously expound in criminal
cases. The first step towards reforming the judiciary is to democratise the
structure, the mode of discourse and dispense with the professional robes, a
symbol of power. The simulated obsequiousness which one is a witness to in courts
is quite disgusting and it goes with the colonial-feudal structure. The obsequious
mode of address gets transformed into a title and we find a judge being addressed
as "your Lordship" outside the court and in seminars or on any such
occasion where a judge is participating or is merely present!
The expression "Justice" is similarly used to a judge who has demitted his office as if it is a title. Though we abolished titles the habit continues. The whole scene appears quite pompous The institution should be exposed to public criticism by confining contempt power a very narrow field of administration of justice and that will discipline the institution. Everything about the Court requires a radical transformation and the first step should be to discard the colonial and feudal vestiges which alone would give a democratic visage it so badly needs. Not the least is the liberation of a profession from self imposed servitude as a part of a lawyer's professional competence.