The code of conduct judges need to follow

For representative purposes.
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The comments made by Allahabad High Court judge, Justice Shekhar Kumar Yadav, against the Muslim community at an event organised by the legal cell of the Vishwa Hindu Parishad in the High Court premises on December 8, has drawn public flak.

Justice Yadav has said that the country would function as per the wishes of the majority living in Hindustan. He remarked that while children of one community are taught kindness and tolerance, it would be difficult to expect the same from children of “another community” especially when they witness animal slaughter. On the push for the Uniform Civil Code, Justice Yadav has said that Hindus revere women as goddesses even as members of the “other community” practice polygamy, Halala or triple talaq. The Supreme Court, in a statement, said it has taken note of the newspaper reports on Justice Yadav’s speech. It said details have been asked from the Allahabad High Court and that the “matter is under consideration”.

In light of Justice Yadav’s remarks, the All India Lawyers Union have written to the Chief Justice of India (CJI) Sanjiv Khanna, saying the judge’s comments lean away from democracy and towards a “Hindutva Rashtra”. The Campaign for Judicial Accountability and Reforms led by advocate Prashant Bhushan, in its letter to the CJI, has alleged that Justice Yadav’s participation in a “right-wing event” and his communally-charged statements were a brazen violation of his oath of office. Supreme Court Bar Association president, senior advocate Kapil Sibal, has reportedly called for the impeachment of the High Court judge.

On judicial ethics

Judiciary draws its power from two fountains, public acceptance of the authority of the judiciary and the integrity of the judiciary. Experience gained over time has led the judiciary to codify the best conventions of judicial conduct, both in and out of court. The ‘Restatement of Values of Judicial Life’ is the primary code of ethics governing judicial behaviour adopted by the Supreme Court on May 7, 1997.

The very first rule of the code is that the behaviour of a judge must “reaffirm the people’s faith in the impartiality of the judiciary”. It underscored that “any act of a judge of the Supreme Court or a High Court, whether in official or personal capacity, which erodes the credibility of this perception has to be avoided”. Justice Yadav seemed to have missed the last rule of the code which mandated that “a judge must at all times be conscious that he is under the public gaze”. The Bangalore Principles of Judicial Conduct 2002 presents a framework to regulate judicial conduct. It requires a judge to ensure that his or her conduct, both in and out of court, maintains and enhances the confidence of the public, the legal profession and litigants in the impartiality of the judge and of the judiciary. While the 2002 document recognises a judge’s entitlement to freedom of expression, it mandates that he or she “shall always conduct himself or herself in such a manner as to preserve the dignity of the judicial office and the impartiality and independence of the judiciary”. More importantly, the charter requires a judge to be “aware of and understand” the diversity in society and treat all equally.

How is a judge impeached?

The Constitution mandates that judges of the Supreme Court and High Courts can be removed by an order of the President after a successful process of impeachment on the grounds of “proved misbehaviour or incapacity”. The motion of removal of a constitutional court judge must be supported by a special majority of the total membership of the House and of at least two-thirds of the members of the House present and voting. Except on a removal motion, the Constitution prohibits the legislature from discussing allegations of misconduct of judges in any other context. However, the Supreme Court has also evolved an in-house procedure to give judges facing serious allegations a window to take voluntary retirement, sparing themselves and the judicial institution the public embarrassment of an impeachment.

The procedure was formally adopted in 1999, and was put out in the public domain by the Supreme Court in 2014. The procedure allows a complaint against a High Court judge to be addressed to the President, the CJI or the Chief Justice of the High Court concerned. If a complaint is received by the High Court Chief Justice, depending on the seriousness of the grievance, a response can be sought from the judge concerned. On receiving the response, and if a deeper probe is called for, the Chief Justice could forward the complaint and the statement of the judge to the CJI.

The President, on receiving a complaint, refers it to the CJI. The CJI, either on receiving a complaint directly or referred to by the President, can forward it to the Chief Justice of the High Court concerned, who would follow the same procedure of collecting a statement from the judge concerned and returning it to the CJI if the allegations were serious enough to require an investigation. The CJI can then appoint a fact-finding committee of two Chief Justices from other High Courts and a High Court judge to inquire into the allegations.

If the committee reports sufficient material to remove the judge, the CJI can ask the latter to retire. In case, the judge refuses to do so, the CJI can intimate the President and PM about the allegations along with the committee report, clearing the way for impeachment.