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Notes Submitted by Audhinarayana Vavili, Addl. Junior Civil
Judge, Kadiri for workshop on 26-9-2015 on “Canons of Judicial
Ethics, conduct, Character and Integrity of a Judicial Officer”.
******
Abstract: The greatest strength of the judiciary is the faith of the
people in it. Faith, confidence and acceptability cannot be
commanded; they have to be earned. And that can be done only by
developing the inner strength of morality and ethics. This note
contains the meaning and scope of Judicial ethics, conduct, character
and Integrity of a judicial officer and various instruments wherein a
judicial officer is obligated in complying the same without any
deviation from the standards set out therein. Further it is also
discussed with authorities of Hon‟ble Supreme Court from time to
time with regarding the ethos mandated by virtue of office of judicial
officer. This note insists the need of judicial accountability and finally
concludes with an observation that presses for independence of
judiciary with check and balances within its system.
Introduction:
Meaning of Canons:
Canons are the first verse of the first chapter of a book whose pages
are infinite. Observance of Canons of Judicial Ethics enables the judiciary to
struggle with confidence; to chasten oneself and be wise and to learn by
themselves the true values of judicial life. The discharge of judicial function
is an act of divinity. Perfection in performance of judicial functions is not
achieved solely by logic or reason. There is a mystic power which drives
the Earth and the Sun, every breeze on a flower and every smile on a child
and every breath which we take. It is this endurance and consciousness
which enables the participation of the infinite forces which command us in
our thought and action, which, expressed in simple terms and concisely
put, is called the „Canons of Judicial Ethics‟1.
1 Hon’ble Shri R.C. Lahoti, Former Chief Justice of India at lecture on Canons of Judicial Ethics dated 22nd
February, 2005 at pp 12.
2
Cannons Vs Principles
'Principles' are fundamental truth, the axioms, the code of right
conduct. Much of these remain confined to theory or hidden in books.
Canons are the type or the rules perfected by the principles put to practice.
Principles may be a faculty of the mind, a source of action which are a
pleasure to preach or read. 'Canons' are principles put into practice so as to
be recognized as rules of conduct commanding acceptability akin to
religion or firm faith, the departure wherefrom would be not a pardonable
mistake but an unpardonable sin.
Meaning of Ethics:
Morality or ethics is the science of conduct. Ethics is the study of
what is right or good in conduct. Ethical science shows the way in which
human beings should behave towards one another, as well as towards
other creatures. It contains systematized principles on which a man should
act. Ethics is right conduct or Sadachara. Ethics and morality cannot be
founded on authority thrust upon from outside. They are the matters of
conscience which sprout from within.
Judicial Ethics:
Canons of judicial ethics have been attempted, time and again, to be
drafted as a Code. Several documents of authority and authenticity are
available as drafted or crafted by several fora at the national and
international level. The fact remains that such a code is difficult to be
framed and certainly cannot be consigned to a straitjacket. Mostly these
canons have originated in and have been handed down by generation after
generation of judges by tradition and conventions.
Socrates advocated judges to hear courteously, answer wisely,
consider soberly and decide impartially. Alexander Hamilton once said
___ "The judiciary . . . has no influence over either the sword or the purse;
no direction either of the strength or of the wealth of the society, and can
take no active resolution whatever. It may truly be said to have neither
Force nor Will but merely judgment? ".
Justice J.B. Thomas of Australia said as2
2 [Judicial Ethics in Australia, 2d ed. Sydney: LBC Information Services,
1997]
3
“Some standards can be prescribed by law, but the spirit of, and the quality
of the service rendered by; a profession depends far more on its observance
of ethical standards. These are far more rigorous than legal standards....
They are learnt not by precept but by the example and influence of
respected peers. Judicial standards are acquired, so to speak, by
professional osmosis. They are enforced immediately by conscience.”
They are three important documents which mandates the ethic of
judges in the all levels right from Supreme Court to Sub-ordinate Courts.
They are:
(i) Restatement of Values of Judicial Life adopted by the Chief Justices'
Conference of India, 1999
(ii) The Bangalore Principles of Judicial Conduct, 2002
(iii) The Oath of a Judge at the time of taking over the judicial offices.
(i) Restatement of Values of Judicial Life adopted by the Chief Justices'
Conference of India, 1999
Restatement of Values of Judicial Life (1999) On May 7, 1997, the
Supreme Court of India in its Full Court adopted a Charter called the "
Restatement of Values of Judicial Life" to serve as a guide to be observed
by Judges, essential for independent, strong and respected judiciary,
indispensable in the impartial administration of justice. This Resolution
was preceded by a draft statement circulated to all the High Courts of the
country and suitably redrafted in the light of the suggestions received. It
has been described as the 'restatement of the preexisting and universally
accepted norms, guidelines and conventions' observed by Judges. It is a
complete code of the canons of judicial ethics. It reads as under:
(1) Justice must not merely be done but it must also be seen to be done. The
behavior and conduct of members of the higher judiciary must reaffirm
the people' s faith in the impartiality of the judiciary. Accordingly, 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.
4
(2) A Judge should not contest the election to any office of a Club, society
or other association; further he shall not hold such elective office except
in a society or association connected with the law.
(3) Close association with individual members of the Bar, particularly
those who practice in the same court, shall be eschewed.
(4) A Judge should not permit any member of his immediate family, such
as spouse, son, daughter, son-in-law or daughter15 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.
(5) No member of his family, who is a member of the Bar, shall be
permitted to use the residence in which the Judge actually resides or
other facilities for professional work.
(6) A Judge should practice a degree of aloofness consistent with the
dignity of his office.
(7) A Judge shall not hear and decide a matter in which a member of his
family, a close relation or a friend is concerned.
(8) A Judge shall not enter into public debate or express his views in public
on political matters or on matters that are pending or are likely to
arise for judicial determination.
(9) A Judge is expected to let his judgments speak for themselves. He shall
not give interviews to the media.
(10) A Judge shall not accept gifts or hospitality except from his family,
close relations and friends.
(11) A Judge shall not hear and decide a matter in which a company in
which he holds shares is concerned unless he has disclosed his
interest and no objection to his hearing and deciding the matter is
raised.
(12) A Judge shall not speculate in shares, stocks or the like.
(13) A Judge should not engage directly or indirectly in trade or business,
either by himself or in association with any other person. (Publication
of a legal treatise or any activity in the nature of a hobby shall not be
construed as trade or business).
5
(14) A Judge should not ask for, accept contributions or otherwise actively
associate himself with the raising of any fund for any purpose.
(15) A Judge should not seek any financial benefit in the form of a
perquisite or privilege attached to his office unless it is clearly
available. Any doubt in this behalf must be got resolved and clarified
through the Chief Justice.
(16) Every Judge must at all times be conscious that he is under the public
gaze and there should be no act or omission by him which is
unbecoming of the high office he occupies and the public esteem in
which that office is held.
These are only the "Restatement of the Values of Judicial Life" and
are not meant to be exhaustive but illustrative of what is expected of a
Judge. The above "restatement" was ratified and adopted by Indian
Judiciary in the Chief Justices' Conference 1999. All the High Courts in the
country have also adopted the same in their respective Full Court Meetings
(ii) The Bangalore Principles of Judicial Conduct, 2002.
The Bangalore Draft Principles The values of judicial ethics which the
Bangalore Principles crystallises are : (i) independence (ii) impartiality , (iii)
integrity, (iv) propriety (v) equality and (vi) competence & diligence.
(iii) The Oath of a Judge at the time of taking over the judicial offices:
The oath taken by the Judges at the time of taking over the judicial
offices reminds them of their responsibilities and sums up the subject at
hand truly, fully and effectually. It obliges them to be faithful to the
Constitution of India. They undertake that they shall uphold the
sovereignty & integrity of India and to truly and faithfully perform the
duties of their offices without fear or favour, affection or ill-will and in
doing so shall render judgment to the best of their ability and knowledge.
This in a way summarizes the code of ethics for those holding judicial
offices.
Meaning of Conduct and Character:
People would refer to words character, conduct, nature or disposition
and reputation of a person. It is said that “character‟ is what you are and
“conduct” is what other see. As Lord denning observed „ A Man‟s
character, it is sometimes said, is what he in fact is, where as his reputation
is what others think he is.” Thus, nature and disposition is what you are
6
and reputation is what others think of you. In other words, character and
nature are inherent and internal to a person and unseen by others, whereas
conduct is manifest3. It is therefore, conduct is external behavior and
character is the aggregate of peculiar qualities which constitute personal
individuality.
Integrity:
“Integrity according to Oxford dictionary is moral uprightness. The
word integrity depicts sterling character with firm adherence to a code of
moral values. „Judiciary is an integrity institution‟. Therefore, Judicial
Officers should possess the sterling quality of integrity. Integrity is the
hallmark of judicial discipline apart from others as reminded by the
Hon‟ble Apex Court in Tarak Singh vs. Jyoti Basu4, To quote:
“ Integrity is the hallmark of judicial discipline, apart from others. It
is high time the judiciary took utmost care to see that the temple of justice
does not crack from inside, which will lead to a catastrophe in the judicial-
delivery system resulting in the failure of public confidence in the system.
It must be remembered that woodpeckers inside pose a larger threat than
the storm outside.”
In High Court of Judicature for Rajasthan vs. Ramesh Chand
Paliwal5, Judges have been described as „hermits‟, further reminding that,
“they have to live and behave like hermits, who have no desire or
aspiration, having shed it through penance. Their mission is to supply light
and not heat”.
In High Court of Judicature at Bombay vs. Uday Singh6, in the
matter of maintenance of discipline, the Hon‟ble Apex Court stated as
follows:
………..“Maintenance of discipline in the judicial service is a paramount
matter. Acceptability of the judgment depends upon the credibility of the
conduct, honesty, integrity and character of the officer. The confidence of
the litigating public gets affected or shaken by lack of integrity and
character of Judicial Officer.”……
3 The Indian Evidence Act: A Critical Commentary Covering Emerging Issues and International Developments by Dr.
V Nageswara Rao, First Edition,2012 at page 334. 4 (2005)1 SCC 201
5 (1998) 2 SCC 72
6 (2000) 1 SCC 416
7
In Daya Shankar vs. High Court of Allahabad7, the Hon‟ble Supreme
Court set the following standard:
“Judicial officers cannot have two standards, one in the court and another
outside the court. They must have only one standard of rectitude, honesty
and integrity. They cannot act even remotely unworthy of the office they
occupy.”
Any power in absence of accountability would turn into a tyranny. It
is the cardinal pre-requisite of democracy and rule of law that power is
accompanied by accountability. Judges can be accountable only by
demonstrating exemplary conduct and behavior and showing a cultured
image. Some critics have accused judges to be prone to developing “a god
complex” George Mikes in his article “Professional Deformities” writes as
under:
“It was not that Judges were, or are, Sadists. Very few of them are.
But sooner or later most of them develop a „God complex.‟ When everyone
keeps kowtowing to you; when people laugh at your silliest jokes and
listen to your most, trivial utterances though they were the Sermons on the
Mount; when the outcome of quarrels and arguments, and often the fates
of men, and women and their children rest in your hands; when you
cannot be sacked from your job, however, incompetent or senile you
become ..… when, in other words you are treated like God, then it is
difficult not to believe in your own divinity. You are addressed as “My
Lord”, almost like Him, so naturally you are inclined to believe. He is your
colleague. ”
Concluding Remarks:
I conclude this note by reiterating the words of former Chief Justice
Hon‟ble Justice Y.V Sabharwar as under:
Much has been said about the need for a Code of Ethics for the
judiciary at various points of time. Question arises as to what is the
necessity of reiterating the principles which are known to all of us. I would
answer it this way. The principles may be known to us. But with all
democratic institutions facing the crisis of credibility in the fast changing
socio-economic norms, there is always a need to keep reminding ourselves
of the Code of Conduct the judiciary is expected to follow. These
principles, if reiterated time and again, would hopefully get ingrained in
7 (1987) 3 SCC 1.
8
the minds of young judges so that what is expected of them becomes their
second nature. The reiteration is also required so that the public at large, in
general, and the legal fraternity, in particular, are also wary and do not
allow, or lead, those on the Bench into going astray8.
8Lecture by Hon’ble Justice Y.V Sabharwar, Former Chief Justice of Inida on Canons of Judicial Ethics.
1
JUDICIAL ETHICS
1. After attaining independence, the people of India adopted and chose
for themselves a democratic form of Government. Like any other modern
democratic polity, the system in our country is also divided into three
organs, viz. Legislature, Executive and Judiciary. The Constitution divides
the powers amongst these three organs and makes them independent of
each other, yet creating a system of checks and balances. The role assigned
to the judiciary is of utmost importance. This organ is vested with the duty
to uphold the Constitution and guarantee that the rule of law envisaged in
our Constitution will always prevail. In order to ensure that the judiciary is
able to discharge this onerous responsibility, the concept of independence of
the judiciary was planted into the Constitution as one of its basic structures,
tinkering with which is taboo.
2. The concept of independence of Judiciary was the cause of concern of
the Supreme Court in the case of S.P. Gupta Vs. Union of India [1981
(Suppl.) SCC 87], and the Court observed thus: “The concept of
independence of the judiciary is a noble concept which inspires the
constitutional scheme and constitutes the foundation on which rests the
edifice of our democratic polity. If there is one principle which runs through
the entire fabric of the Constitution, it is the principle of the Rule of Law and
under the Constitution, it is the judiciary which is entrusted with the task of
keeping every organ of the State within the limits of the law and thereby
making the Rule of Law meaningful and effective. It is to aid the judiciary in
this task that the power of judicial review has been conferred upon the
judiciary and it is by exercising this power which constitutes one of the most
potent weapons in armory of the law, that the judiciary seeks to protect the
citizen against violation of his constitutional or legal rights or misuse or
abuse of power by the State or its officers.” The Judges thus are a privileged
class and vested with duties of great responsibility, holding offices of public
trust. It has been often said that the duty of a Judge is a divine duty. The
concept of rule of law is dependent on an independent, fair and competent
judiciary since Judges are, to borrow words from the Preamble of Model
Code of Judicial Conduct adopted by American Bar Association in 1990
“arbiters of facts and law for the resolution of disputes and a highly
visible symbol of Government under the rule of law”. When we talk of
ethics, we mean moral principles that have evolved to keep us on the path
2
of virtue or, to put it simply, morally correct. When we use the word
“canon”, it refers to principles of morality that are regarded as very lofty.
3. Almost every public servant is governed by certain basic Code of
Conduct which includes expectation that he shall maintain absolute integrity;
devotion to duty; do nothing which is unbecoming of a public office held by
him; render his best judgment in the performance of his official duties; be
prompt and courteous; not involve himself in acts of moral turpitude; not
take part in party politics; not be associated with activities that are pre-
judicial to the interests of the sovereignty and integrity of India or public
order; not to engage himself in interviews with media, except with the lawful
authority of his superiors; not divulge official information which has been
entrusted to him in confidence; not accept pecuniary advantage, in
particular, from those with whom he is involved in official duties; not to
engage himself in private trade or business while holding public office; not to
indulge in alcoholism or gambling; to manage his financial affairs in such a
manner that he is always free from indebtedness and not to involve himself
in transactions relating to property with persons having official dealings with
him. But then, these are general principles governing the Code of Conduct
for all public servants. The office of a Judge requires much more. The Code
of Ethics expected of those in the judiciary goes beyond the call of duty of an
ordinary public servant.
4. Much has been said down the ages about the code of ethics for the
judiciary. In more recent times, Indian judiciary ratified and adopted a
charter called “Re-statement of Values of Judicial Life” in the Chief Justices’
Conference in 1999. At the International level, Principles of Judicial Conduct
were approved and adopted in November 2002 in the Round-Table Meeting
of the Chief Justices from several law systems held in Peace Palace in
Hague, Netherlands. I do not intend this to be a compendium of all rules of
ethics for judges. I would be highlighting only those, which to my mind are
of prime importance. The people of India look up to the judiciary to
administer justice; justice that is fair; justice that is equal & even-handed;
and justice that is unpolluted. This expectation is of eternal value. The
principles of ethics that is the conduct of an ideal Judge arise out of what is
a legitimate well-entrenched right of the people for whom the judicial
institution has been created. It is the right of the people of India that the
courts will give them their due in the form of justice. The rules of ethics are
3
nothing but a corresponding sacred duty on the part of the Judges to live up
to those expectations. There are certain cardinal principles of judicial ethics
that apply to any person holding a judicial office whether at the level of
subordinate judiciary or in the highest court of the land. I would broadly
categorize these principles into three: one, concerning the acts attributable
to his official functions as a Judge; second, concerning his conduct while in
public glare; and third, the expectations of him during his private life.
Necessarily, most of these principles will overlap the three spheres of life of
a Judge.
5. The oath taken by the Judges at the time of taking over the judicial
offices reminds them of their responsibilities and sums up the subject at
hand truly, fully and effectually. It obliges them to be faithful to the
Constitution of India. They undertake that they shall uphold the
sovereignty & integrity of India and to truly and faithfully perform the
duties of their offices without fear or favour, affection or ill-will and in
doing so shall render judgment to the best of their ability and knowledge.
This in a way summarizes the code of ethics for those holding judicial offices.
The oath to uphold and be faithful to the Constitution binds the Judge to the
ethos and philosophy enshrined in the Constitution, the supreme law of the
land. Since the concept of equality before the law is one of the salient
features of the Constitution, it naturally implies that a Judge is expected to
always be fair and impartial in his judgment. It is an age-old adage, oft-
quoted in legal circles, that ”Justice is not only to be done but must be seen
to have been done”. The obligations arising from the above principle are
myriad. The Judge must be even-handed. His approach must be
consistent, irrespective of the fact as to who is before him in the dock. He
is to sit with open mind. This also means that he cannot act on pre-
conceived notions. He may have his own independent views and approach to
a given subject. But, in his judgment there can be no room for personal
idiosyncrasies. He is in the judgment seat in a fiduciary character. He has
to apply law as has been established and evolved. He can give a definite
direction to the law by adding his views to the debate on a particular issue,
keeping himself within the four corners of judicial propriety. His personal
whims or caprice can have no role to play in the discharge of his official
duties. It is his duty to apply the law as it exists rather than develop the law
anew every time a new person appears before him. There are certain well-
4
entrenched rules founded on principles of public policy which reflect as to
what is expected in the conduct of a Judge. These rules include the
following: -
i) Regard for the public welfare is the highest law (SALUS POPULI EST
SUPREMA LEX).
ii) No man shall be condemned unheard (AUDI ALTERAM PARTEM).
iii) No man can be judge in his own cause (NEMO DEBET ESSE JUDEX IN
PROPRIA SUA CAUSA).
iv) An act of the Court shall prejudice no man (ACTUS CURIAE NEMINEM
GRAVABIT).
6. These principles are fundamental rules in the administration of justice
and are based on rules of good sense and fair play. Some of these are
clubbed together to be categorized as rules of natural justice. A Judge
administers justice. In order to do justice, the first and foremost expectation
of him is to be just. In my view, this expectation itself is the fountain source
of all that can be put in the realm of canons of judicial ethics. His life must
be one open to probity. As a person, in order to be just, has to be morally
right, a Judge has also to be fair & impartial to all concerned. He cannot
have any pre-disposed state of mind. It is wrong to say that a person has
the power to be a Judge. It is rather his duty to judge and, seen in this light,
it is expected that his judgment would not be actuated by concerns of
private interests or considerations. He must hold the scales of justice evenly.
He has to be exact. He has to be merciful. He has to be decisive. He has
to be upright and resolute.
7. The above straight away takes us to the concerns about consistency.
A fair Judge will always be consistent in his approach to the appreciation of
facts and application of law to the facts found proved before him.
Inconsistencies in the judgment of an individual bring bad name to the
institution. They invite criticisms worded such as “Show me the face and I
will show you the law”. A Judge will always execute the duties of his office
diligently & faithfully. This broad proposition can be further divided into
several sub-mores. The notions of fairness and impartiality give rise to
certain special norms for Judges. These norms are designed so that he
remains independent and uninfluenced. His job is to hear the parties in the
open court. It is thus taboo for him to give a private audience to the
litigants or their lawyers. He has to shun social interactions with such
5
category of persons at all costs. The concept of courts functioning under the
public glare generally called “open court” is not an idle one. It is based on
the principle of transparency because that reinforces faith and confidence
of the public in the system. It is, therefore, a sacred duty of every Judge to
function in the open in discharge of his official duties. The judicial
procedure and practice are regulated by pre-set rules and norms. It is true
that procedural law is hand-maid of justice. But, at the same time, it is also
true that procedural law has been evolved on the basis of experience of last
several centuries. Each step of the procedure prescribed by the law has a
definite purpose and philosophy behind it. In order to do complete justice,
sometimes the Judge may have to shed the straitjacket of the procedure but
this cannot become a norm. Compliance with the procedure established
by law ensures that the litigants remain aware of the progress of the case in
the Court and would not be taken by surprise at any step of the way. The
judicial system in India faces the challenge of huge arrears. The figures of
pendency at all levels are staggering. It may sound clichéd to say that
“delayed justice” is “denied justice”. But, every litigant legitimately expects
quick justice. With the courts crushed under the weight of sheer numbers, it
is not easy to render quick justice. Need to expedite the wheels of justice in
each case continues to be of great relevance and importance. In order to
meet the lawful expectations of the people at large, it is imperative that
each Judge must be in full control & command of his court. This brings us
to another area of judicial ethics.
8. A Judge cannot be in command of his court unless he is fully
committed to the task assigned to him. It is expected from him that he
would not adopt the mentality of a menial clerk who works for certain fixed
hours of the day to earn his living. The office of Judge is not a service or
employment in the ordinary sense of the term. It is an office of public
service. A Judge remains a Judge hours a day, 7 days a week and 365 days
a year. He thinks about the cases on board even while he is asleep. In order
to show such commitment, a Judge must first cherish the solemn duty
he has undertaken. It naturally flows from the above that the Judge must
be studious, thorough, prepared and well conversant with the factual
or legal nuances of the litigation he is handling. This requires preparation
before the hearing so that the hearing is properly controlled. This also
requires calm & dispassionate disposition & study after the hearing. A
6
Judge who is alive to the contours of the case before him would never
permit unending cross-examination or infinite arguments. He would
always be in charge and full command of the proceedings in the Court and
keep the counsel on either side focused on the issues to be addressed. This
achieves several positive results. A Judge answering to these traits will have
a Cause List that utilizes his judicial time to the optimum. Such a Judge
would not like to sit idle and, therefore, shall ensure that he has requisite
number of cases lined up before him so as to remain pre-occupied
throughout the normal working hours. Speaking in the context of trial
Judges, a conscious Judge would always ensure that only relevant and
crucial witnesses in such number are called on each working day before him
as can be examined and thereafter discharged without being burdened with
the obligation to be called again and again. He would studiously protect
harassment of the litigants in general and witnesses in particular, by
unscrupulous elements. His proceedings will always ensure that the
procedure is strictly followed and each case makes the requisite progress, at
least to the extent of the step for which it was listed on any given date. All
this care & caution shown by a vigilant Judge would not only underscore
that he is a resolute man firmly in control, earning him good respect and
reputation in the public and the Bar but also facilitate expeditious
disposal of cases in his Court.
9. It naturally flows from the above that a Judge can never be
unjustifiably absent from duty. He has to be available & accessible to
the people at large who are expected to invoke his jurisdiction for redressal
of their grievances. In nutshell, a Judge has to be punctual & regular in
adhering to the court hours. The need for punctuality and regularity is not
only to have full control over the work but also to have a moral authority to
check indiscipline amongst those who are expected to play a role in the
functioning of the Court, including the court staff, members of the Bar, the
litigants, witnesses etc. Conversely put, and as a natural corollary, he would
not abdicate his duties or unconscionably refuse to use his jurisdiction to
do justice.
10. A Judge cannot create discipline in his Court unless he leads by
example. In this view, restraint and discipline are most important
attributes of an ideal Judge. Such a Judge would maintain dignity and
decorum in his Court; would not indulge in loose talk; would refrain from
7
unnecessary utterances and would keep his temper in check. Since he
would not himself indulge in intemperate language, he would not allow
anyone else to do so. It naturally inheres in this trait that such a Judge
would always be polite & considerate and imbued with a sense of
humility. He would not disturb the submissions of the lawyers midway only
to project a “know-all” image for himself. This also means that he would be
sitting with an open mind, eager to be advised by the counsel of the parties.
Any power in absence of accountability would turn into a tyranny. It is the
cardinal pre-requisite of democracy and rule of law that power is
accompanied by accountability. Judges can be accountable only by
demonstrating exemplary conduct and behaviour and showing a cultured
image. It is necessary, and it is my firm view, that judges must remain
humane and considerate. They have been vested with divine duties but
they would never attain divinity. They are mere agents of the superior power
that controls us to do justice between man and man. They have to bear in
mind the maxim “Do not do unto others what you would not have others do
unto you”. A humane Judge will always be just and merciful. He would
always remember that “mercy seasons justice”.
11. A just and humane Judge will always be non-partisan. He
would be above narrow considerations and not prone to external
influences. His judgment would be dispassionate. He would not identify
with the cause of a particular section of society. It naturally follows from this
that a Judge would always be aboveboard and demonstrate absolute
integrity not only in his Court but also in his private life outside the Court.
He would refrain from socializing unnecessarily not only with the persons
having official work in his Court but also generally with the society at large,
since there is no guarantee as to who could have a case coming in his Court
in the future. If his commitment to the job is sincere, he would virtually be
left with no time for social life beyond a point. A Judge need not be unsocial
as his personal life would involve his near and dear ones. Yet, he is expected
to be asocial, since his movement in any particular section of the society
might give rise to reasonable apprehensions in the minds of the litigants
about his independence. I now come to a touchy subject. The tendency to
invite judges for different seminars has increased over the last few years. If
the intentions were purely academic, this should be a welcome trend. But,
unfortunately the tribe of certain sections organizing seminars only to create
8
a pretext to invite certain judges for a small session of lectures or
discussions, followed by lavish hospitality, gives rise to anxiety as to
whether the motives were holy or otherwise. Personally speaking, I have
nothing against judges participating in academic seminars, workshops etc.
But this cannot become a regular routine. Judges cannot afford to make
themselves so accessible that they loose the aura of authority around them.
The position in the office of a Judge puts him on a high pedestal in the
temple of justice. Too much familiarity with those who frequently visit their
courts on official business slackens the authority and has the possibility of
breeding contempt.
12. Further, speaking from public platforms, may be on legal issues,
generates the possibility that the judges might end up publicly discussing
cases pending before them. This would not be healthy. This would create an
impression in the mind of the litigants involved in such a case that the Judge
is sitting with a pre-disposed mind. Even further, the issues of law that are
generally debated in the workshops, seminars or conferences are closely
interlinked with the political issues of the day. A Judge, in order to be
impartial, has to be apolitical. In his personal life, he may have certain
leanings towards a particular political philosophy. But those leanings cannot
reflect in his official exertion. A Judge must never get himself bracketed with
a particular political philosophy.
13. The concept of “due application of mind” involves a mental disposition
where the Judge is not only open to listen, comprehend and weigh in
balance the arguments advanced before him but is also open to
correction. Judges are also human beings, prone to frailties as any other
human would be. They also sometimes err. It is their bounden duty to be
always eager to review, if allowed in law, so that they could undo injustice, if
any, done at their hand or at least revise their view so that same mistake
would not recur; this, because repetition of error would be suspect as
intentional or motivated and therefore, unpardonable.
14. I talked of external influences. Every Judge in the course of his career
is subjected to tests by external influences. They could be in the form of
pressure tactics, threats, allurement etc. It is the times when such external
influences come into play that the true strength of the character of the
Judge comes to the fore. The duties of the Judge render him a person in
public service. He is thus a public property. There cannot, therefore, be
9
anything about his life which should remain hidden from public glare. His life
must be an open book. It flows from this that the assets and liabilities of
the Judge are known to one and all.
15. His financial or property transactions should have no nexus with
his official dealings. He must declare the same scrupulously and at no cost
should engage himself with anyone connected with his official duties.
Judges also deal with public money in the management of the Court. All
transactions involving public money by the Judges must necessarily be
strictly adhering to the financial rules so that he can be accountable. Any
deviation from the norms invites criticism putting a question mark on his
credibility and integrity which a Judge, in the larger interest of the public
confidence, can ill-afford.
16. Coming to the allurements, a Judge must train himself in the
beginning of his judicial career not to fall prey to offers of valuable gifts in
cash, kind or service from members of the general public. Hon’ble Mr.
Justice Krishna Iyer in his book “Law and the People” went to the extent of
observing thus:
“It must be said that the independence of judiciary which plays the
useful role in democratic societies in checking a class biased
Government is being undermined in our country, by such devices as
making judges, after retirement or on the eve of retirement,
governors, ambassadors, vice chancellors etc. These plums have a
seductive influence on superannuating gentlemen and should be
avoided, if we are purists regarding the independence of the
judiciary.”
17. A judge cannot afford to be accused of acts of moral turpitude. He
cannot indulge, in or outside his court, in such behavior as can create doubts
about the credibility of his character. His behavior has to be a model one.
Only then he would be able to command respect. Like it has been said:
“Caesar’s wife has also to be above suspicion”. The duty to remain within the
bounds of morality is not restricted to the Judge himself. He is to see to it
that members of his family, at least those who live with him also subscribe
to this philosophy. A scandalous behavior on the part of a Judge, even in his
private affairs, is bound to affect his image and prestige in the office of the
Judge.
(B.DEVENDRA REDDY)
Junior Civil Judge,
Madakasira,
Anantapuramu District.
NOTES ON
"CANNONS OF JUDICIAL ETHICS, CONDUCT,CHARACTER AND
INTEGRITY OF A JUDICIAL OFFICER”
Submitted by
Y.Nagaraja,
Junior Civil Judge,
Kalyandurg.
Indian Constitution is based on Rule of Law and the system of parliamentary
democracy. The essential requisite of political system is based on Rule of Law and
there should be Impartial Judiciary i.e. an independent body must be there to
decide whether the rule of law is being observed or not. That independent body is
the judiciary. Judicial officers perform duties without fear or favour; affection or ill-
will, in short judge must decide impartially. In order to render justice impartially
there should be certain principles for the judicial officer i.e. Judicial Ethics,
Conduct, Character and Integrity.
To perform duties impartially by a judicial officer must have “5-C's
and 4-P's”
i.Courtesy :- Patience, dignity and courtesy are essential attributes in court and
in chambers, a judge should always act courteously and respect the dignity of all
who have business there. A judge should also require similar courtesy from those
who appear before him or her, and from court staff and others subject to the
judge’s direction or control. Judge has to be courteous towards advocates who
appeared before court, be Polite with advocates while getting clarifications from
them, shall not force the advocates to give reply. A judge must not make improper
and insulting remarks about litigants, advocates.
//2//
ii. Character :- A judge should be above personal animosities, and must not
have favourites at the Bar. Unjustified reprimands of counsel, offensive remarks
about litigants or witnesses and intemperate behaviour by a judge undermines both
order and decorum in the court. When a judge intervenes, he or she should ensure
that impartiality, and the perception of impartiality, are not adversely affected by
the manner of the intervention. A judge has practice of aloofness, should not
accept costly Gifts and Hospitality from others.
iii.Commitment:- Dedicatation towards duties
iv.Courge :- The confidence to act according to law and rendering justice without
fear.
v. Conviction:- Firmly held belief or opinion
4-P's
i.Punctuality:- Adhering to Judicial time
ii.Probity:- Moral integrity and honesty, The inappropriate use of court
staff is an abuse of judicial authority that places the
employee in an extremely difficult situation. Court staff
should not be directed to perform inappropriate and
excessive personal services for a judge beyond minor matters
iii. Promptness:- Judgments should be delivered within time. Justice delayed
justice denied. If fails to deliver judgment intime it amounts
to great misconduct.
iv.Patience :- Anger management , be patient but not be too patience.
//3//
As per SUKRANEETHI:- A judge should be beyond
“Raga, Dwesha,Lobha and Bhyaya”
Raga: Favourisim to party
Dwesha: Doing unfavourism to hartred or haten party
Lobha: Greed, Which is root cause for all evils in the world.
It is mother of all evils.
Bhaya: Afraid, it is a great weakness of a person.
DECISIONS ON JUDICIAL ETHICS, CONDUCT,CHARACTER AND
INTEGRITY OF A JUDICIAL OFFICER
“JUDICIAL OFFICER CAN NOT HAVE TWO STANDARDS”
HELD in case of DAYA SHANKAR V/S HIGH COURT OF ALLAHABAD, Reported in AIR 1987 SC 1469 “Judicial Officers cannot have two standards, one in the Court and another outside the Court.
They must have only one standard of rectitude and integrity. They cannot act even remotely
unworthy of the office they occupy.”
“Self intraspection”
HIGH COURT OF JUDICATURE AT BOMBAY V/S SHIRISH KUMAR
RANGRAO PATIL Reported in 1997(6)SCC 339
“....The lymph-nodes (cancerous cells) of corruption constantly keep creeping into the
vital veins of judiciary and the need to stem it out by judicial surgery lies on judiciary
itself by its self-imposed or corrective measures or disciplinary action under the doctrine
of control enshrined in Articles 235, 124(6) of the Constitution...”
//4//
Bangalore Principles of Judcial Ethics,2002
The Bangalore Principles of Judicial Conduct are a comprehensive statement of ethical
principles. By resolution 2006/23, the United Nations Economic and Social Council emphasized
that the Bangalore Principles of Judicial Conduct “represent a further development and are
complementary to the Basic Principles on the Independence of the Judiciary”, and invited
Member States, “consistent with their domestic legal systems, to encourage their judiciaries to
take into account the Bangalore Principles of Judicial Conduct when reviewing or developing
rules with respect to the professional and ethical conduct of members of the judiciary”.
WHEREAS the Universal Declaration of Human Rights recognizes as fundamental the principle
that everyone is entitled in full equality to a fair and public hearing by an independent and
impartial tribunal, in the determination of rights and obligations and of any criminal charge.
WHEREAS the International Covenant on Civil and Political Rights guarantees that all persons
shall be equal before the courts, and that in the determination of any criminal charge or of rights
and obligations in a suit at law, everyone shall be entitled, without undue delay, to a fair and
public hearing by a competent, independent and impartial tribunal established by law.
WHEREAS the foregoing fundamental principles and rights are also recognized or reflected in
regional human rights instruments, in domestic constitutional, statutory and common law, and in
judicial conventions and traditions.
WHEREAS the importance of a competent, independent and impartial judiciary to the protection
of human rights is given emphasis by the fact that the implementation of all the other rights
ultimately depends upon the proper administration of justice.
//5//
WHEREAS a competent, independent and impartial judiciary is likewise essential if the courts
are to fulfil their role in upholding constitutionalism and the rule of law.
WHEREAS public confidence in the judicial system and in the moral authority and integrity of
the judiciary is of the utmost importance in a modern democratic society.
WHEREAS it is essential that judges, individually and collectively, respect and honour judicial
office as a public trust and strive to enhance and maintain confidence in the judicial system.
WHEREAS the primary responsibility for the promotion and maintenance of high standards of
judicial conduct lies with the judiciary in each country.
AND WHEREAS the United Nations Basic Principles on the Independence of the Judiciary are
designed to secure and promote the independence of the judiciary, and are addressed primarily
to States.
LEGAL PROVISIONS ON JUDICIAL ETHICS, CONDUCT,CHARACTER
AND INTEGRITY OF A JUDICIAL OFFICER:-
As per Article 39A of Indian constitution :-
The State shall secure that the operation of the legal system promotes justice, on a basis
of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or
schemes or in any other way, to ensure that opportunities for securing justice are not denied to
any citizen by reason of economic or other disabilities.
A.P.SERVICES CONDUCT SERVICE RULES 1964: applies for all Government
Servants including Judicial Officers:
As per Rule 3(1) :- Every Government employee shall be devoted to his duty and
shall maintain absolute integrity, discipline, impartiality and a sense of propriety.
//6//
As Per Rule 3(2):-No Government employee shall behave in a manner which is
unbecoming of such employee or derogatory to the prestige of Government.
Section 27 of A.P.CIVIL Courts Act: No Judicial Officer shall try suit if he is
interested or tried:
Section 27 Judicial officers not to try suits in which they are interested nor to try
appeals from decrees or orders passed by them in other capacities
(1) No judicial officer shall try any suit to which he is a party or in which he is
personally interested, nor he shall adjudicate upon any proceeding connected with,
or arising out of, such suit.
(2) No such officer shall try any appeal against a judgment, decree or order passed
by him in another capacity.
(3) Where any such suit, proceeding or appeal comes before any such officer, he
shall report the circumstances to the court to which he is immediately subordinate.
(4) The superior court shall thereupon dispose of the case in the manner provided
by Section 24 of the Code of Civil Procedure 1908.
(5) Nothing in sub-section (4) shall be deemed to affect the extraordinary original
civil Jurisdiction of the High Court.
Explanation :- In this section the expression 'Judicial Officer', includes any Judge
of the City Civil Court, any District Judge, any Senior Civil Judge and any Junior
Civil Judge .
//7//
Section 479 Cr.P.C :
479.Case in which Judge or Magistrate is personally interested.
No Judge or Magistrate shall, except with the permission of the Court to which an
appeal lies from his Court, try or commit for trial any case to or in which he is a
party, or personally interested, and no Judge or Magistrate shall hear an appeal
from any judgment or order passed or made by himself.
Explanation.-A Judge or Magistrate shall not be deemed to be a party to, or
personally interested in, any case by reason only that he is concerned therein in a
public capacity, or by reason only that he has viewed the place in which an offence
is alleged to have been committed or any
Section 352 Cr.P.C :
352. Certain Judges and Magistrates not to try certain offences when committed
before themselves. Except as provided in sections 344, 345, 349 and 350, no
Judge of a Criminal Court (other than a Judge of a High Court) or Magistrate shall
try any person for any offence referred to in section 195, when such offence is
committed before himself or in contempt of his authority, or is brought under his
notice as such Judge or Magistrate in the course of a judicial proceeding.
Conclusion:- In my opinion Judicial officers must be free from “Raga,
Dwesha,Lobha and Bhyaya”.
From To
Sri.Y.Nagaraja, The Hon’ble Principal District Judge,
Junior Civil Judge, A n a n t a p u r a m u.
Kalyandurg.
Dis.No. Dated:-01/09/2015
Honoured Sir,
Sub:- Workshops – Workshops to be conducted once in three months
to the Judicial Officers Notes on the topic of “ Cannons of Judicial
Ethics , Conduct, Character and Integrity of a Judicial Officer”-
Submitted – Regarding.
Ref:- 1. Letter of the Hon’ble High Court in ROC.No.5-WS/2015-RR,
dated:- 15-7-2015
2. Circular of Hon'ble District Court, Anantapuramu in Dis.No.4794,
Dated:-24-7-2015
3. Circular of Hon’ble District Court , Anantapuramu in
Dis.No.5082/2015/Admn./Genl. Dated:-5-8-2015.
=O=
In obedience to the subject and reference cited I am herewith submitting the Notes
on the topic of “ Cannons of Judicial Ethics , Conduct, Character and Integrity of a Judicial Officer”
for kind consideration.
Yours faithfully,
Junior Civil Judge,
Kalyandurg.
1
JUDGMENT WRITING IN GENERAL
1. Judgment is the process by which decisions are made on a dispute by the
competent organs having the power to entertain the case. That is to say a court
or judicial institutions having a jurisdiction will be able to see the case and
finally to make rulings to the matter and this decision is called judgment.
2. Judgment does not include only the action of pronouncing or orally
passing of decision but also the recording or writing down of that judgment is
also included. Therefore, judgment has two basic parts the process of giving or
making the judgment and also the step of writing the judgment. So, the matter
of judgment explores the issues including the basic task of making and writing
judgment.
3. Judgment writing having its own general view and relation with the
process of making judgment it is a wide concept which encompasses different
kinds of steps and rules.
4. The term judgment is defined by different scholars almost invariably, but
with the slight deviation. Judgment, as provided in P.H Collins Law Dictionary, is
simply defined as” the official decision given by a court of law” emphasis being
given to the body making it.
5. The term judgment is broadly defined in the Black's Law Dictionary as
"the official and authentic decision of a court of justice upon the respective
rights and claims of the parties to an action or suit therein litigated and
submitted to its determination. It is the final decision of the court resolving the
dispute and determining the rights and obligations of the parties. It can also be
defined as a decision or sentence of the law given by court of justice or other
competent tribunal as a result of proceedings instituted therein".
6. As such, according to the above definition, it is a determination of a court
of competent jurisdiction upon matters submitted to it, deciding the respective
rights and duties of the parties involved in the dispute.
7. On the basis of the above definitions, it can be safely concluded that
judgment has the following basic features:-
a) It should be a decision given on the basis of the law and pronounced publicly
(officially). Here, it should be remembered that a mere decision of a judicial
organ , after appreciating the case , can not be termed as judgment unless it is
officially declared in front of the parties litigating to each other and possibly the
larger public (court audience.)
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b) It should be given after the litigating parties submit their case for
determination at the disposal of the body giving judgment. Here a note needs to
be taken that the judicial body should make sure that it is provided with a case
in its hand in order to render a judgment. In other words, the judicial body (or
its members) can not make judgments based on their personal knowledge,
unless the dispute is brought before them by either of the parties to the conflict
for disposition.
c) Judgment should also be given by the competent tribunal to dispose the
particular case before hand. Hence, a decision made by a body which lacks the
required legal authority to adjudicate the case can not be regarded as
judgment. As a result there will be no room for such kind of decisions to be
enforced. In simpler terms, decision given by an incompetent body can not have
binding nature at all over the subjects of the decision.
d) It should contain a determination as to the respective rights and duties of the
disputing parties. By having so, judgment is expected to bring an end to the
litigation of the parties at hand. In other words, it should reveal the winning and
the loosing party in the case. Unless a judgment manifests the favored and
disfavored party, then it is not a judgment at all.
e) Judgment is the final adjudication of a case. Once a judicial body gives
judgment over a certain case, it can not review the same case for the second
time. Thus, judgment should mark the final judicial act in terms of the body
which reviews the case unless the law authorizes the same body to review its
judgment for reason provided in the law.
8. Legal Research must include both the fact and the law. A list of the
material facts should be made. This can be done by underlining the notes taken
of the trial or the argument. The research should determine how the law is to be
applied to those facts. At this stage the preliminary conclusion made under the
prewriting stage may be changed .The issues, factual or legal, should be
concisely identified. The point of the discussion must be known before the writer
can attempt to answer it .The possible alternative solutions can then be listed.
This provides the working guide for the writing process.
Drafting can begin now .The judge should start by making a choice of the legal
precept to be followed. Then, an outline should be drawn organizing the
materials into a logical sequence. Some items that were considered necessary
to the pre-writing phase can be eliminated. Other items may be added .At this
3
stage, the goal is to articulate why the reasoning is correct, and how it supports
the conclusion being advanced. The writer’s main objective is to persuade the
reader that the result reached is the only logical way to dispose of this
particular case.
9. During the drafting phase, while focusing up on the facts and then the
law, new solution and ideas become readily available. Justification for one
conclusion may disappear while justification for another may be discovered.
Progressive reasoning may require several changes in the direction of the
writing. Drafting is peculiarly suitable for the exploration of ideas. It is the
vehicle used to examine alternatives in reasoning while offering a means for
testing that reasoning. Thus, flawed reasoning becomes immediately
discernible. When this happens, it may alter the entire course of the writing.
Such changes can be made easily during the drafting phase and are an
indication of a healthy approach to the judicial task of decision making. Drafting
gives the judge flexibility and permits changes before the actual writing beings.
The draft is now ready for revision and the actual writing may begin. Once the
draft is satisfactory, the sequence may be changed for an easier understanding.
An item that adds nothing to the discussion may be eliminated. Repetitions of
words, phrases, or ideas may be removed to shorten the writing as long as the
meaning remains clear. The original materials may be completely reorganized or
rewritten. Additionally, materials presented in one way may be more efficiently
presented in another. Any change that will aid understanding or readability
should be made.
10. Editing follows next. Once the revised draft has been produced, the
sentences may be restructured with a view to adding strength or more precise
meaning. Grammar, spelling and punctuation should be corrected. Form should
be checked for consistency in the use of capitalization, spellings, and
hyphenation. Missing letters words or phrases should be added. Redundant
information should be deleted. Over use of a word or phrase should be strike
out. An unintentional emphasis or deemphasize should be eliminated. The
logical development of the discussion and the flow of the reasoning should be
examined. Transitional sentences should be added to improve the reader’s
understanding. There should be consistency in the use of the same word to
refer to the same thing. Thus, editing produces the final draft, i.e., the
judgment. Once retyped, it should be proof read carefully. It should represent a
cohesive dialogue with a logical progression of ideas starting from the
4
beginning, proceeding through the reasoning process and concluding in the
disposition. In case of hand written judgments, which are prevalent especially in
countries like ours, the judge’s hand writing is also an important concern in
judgment writing.
11. Essential Elements of a written Judgment
Mention, as regards the possible content of written judgments has been made
at different levels in previous discussions in this material. It is also seen that
judgments to be written by a court could have different forms based on the
nature of the case, magnitude/seriousness of the case, the nature of the
litigation, the nature of the parties involved and so on. Consequently, it is true
that one may come across varying kinds of judgments in our legal systems.
However, it should be underlined that all written judgments exhibit some
common and essential features despite the fact that the nature of the
case/Litigation is different.
12. It is possible to sort out the following elements as an essential and
common feature to almost all kinds of written judgments. For the purpose of
convenience, let’s see written judgments by categorizing them broadly in to civil
judgments and criminal judgments.
Essential elements of civil written judgments:-
1. The name of the court giving the judgment and its bench.
2. Date and file number of the case.
3. Name of the judge(s) presiding over the bench.
4. Name of the parties involved in the case and their attorneys, if any
5. The judgment, Which should necessarily include:- − Summary of the case
− The issue(s) framed for determination.
− Mention as to the hearing of the parties and their evidences
− Mention as to analysis of facts, evidences and the relevant laws
− Application of the pertinent legal provision to the case.
− Decision of the court along with the reasons for making the decision.
13. The Decree which among other things should necessarily make mention
of the respective rights and duties of the parties involved in the case.
Essential elements of criminal written judgments:-
1. Name of the court giving the judgment and its bench.
5
2. Date and file number of the case
3. Name of the judge(s) presiding over the bench
4. Name of the parties, involved in the case usually the prosecution and the
person alleged to have committed an offence.
5. The judgment of the court – which should incorporate − The offence said to
have been committed
− Mention as to preliminary objections and plea of guilt on the part of the
accused.
− Hearing of evidences of the parties.
− Mention as to analysis of facts, evidences and relevant laws
− Decision of the court with respect to the guiltiness of the accused.
6. Comment of the parties as to penalty, provided that the accused is found
guilty of the crime he/she is charged with.
7. The penalty
8. The decree, usually as to how and by whom the judgment should be
executed
However, the reader should take heart that the above presented features of a
written judgment are only the basic and essential elements that even written
judgment, under normal circumstances, need to incorporate and not the only
elements that could be enshrined in all written judgments.
14. In the above discussion, an attempt has been made to deal with the basic
constitutional principles, substantive and procedural rules that need to be taken
in to account while writing a judgment. Moreover, the essential elements in
almost all written judgments are discovered. In connection to these, the
forthcoming section will try to investigate the judgments to be written by trial
courts, appellate courts and cassation division of supreme courts as a distinct
venue of adjudication.
15. As has been repeatedly said, the task of judgment writing is not only a
purposeful undertaking but also is a task requiring some rules to be followed in
conducting it. Judgment writing has its own rules. The rules that should be
observed while writing judgments may govern the nature, purpose, content,
and structure of the overall judgment to be written.
6
16. FEATURES OF GOOD AND BAD WRITTREN JUDGMENTS
The main features and attributes of good and bad judgments, among others,
can be expressed in terms of the following standards:-
1. Clarity: - judgments need to be written in clear and precise manner so that
one who reads them can easily understand. In order for a judgment to be taken
as a good one, it ought to be written in a clear and precise language. As such,
as far as possible technical/professional terms should be avoided or substituted
by other simple and clear equivalent terms in meaning the message is likely to
be clear, In other words, good judgments are expected to avoid the usage of
jargons and long sentences. In line with this, it avoids sarcasm, proverbs,
colloquialism or slang (informal) language as it may affect the court decorum.
2. Comprehensiveness: - if written judgments are to convey the fullest
message in connection to the case, to the judgment audience, they should be
comprehensive in the sense that they included all necessary things/parts in
relations to the over all nature of the case, the court proceeding conducted, the
decision of the court along with its reasoning and the decree as to how the
judgment should be executed.
3. Relevancy and Irrelevancy of Facts; Evidence and Law :- all good
judgments should not include all material facts, evidences and related laws in
the written form for the sake of comprehensiveness or should not leave out
necessary facts and evidences from mentioning them for the sake of
conciseness and preciseness. But, should employ the standard of relevancy to
these and identify and incorporate in the written judgment only those relevant
to the determination of the case/dispute before hand. Hence, good written
judgments usually manage to avoid citing irrelevant law to the case or
explaining writing irrelevant facts and evidences.
4. Logical progression coherence: - good written judgments can also be
characterized by the coherence and consistency of ideas it provides to the
readers. If the written judgment is presented in a manner which lacks some
kind of flow impeding the reader from grasping the correct story of the case,
then it can not be categorized as good written judgment.
5. Organizational structure: - judgments when reduced in to writing should
be structurally organized in a manner that they could be easily understood on
the part of the judgment audience. Good judgments usually begin with
introducing the overall court proceedings and then it comes to an end by
7
providing the decision of the court and its reasoning. Thus, written judgments
which failed to present the judgment audience with the appropriate structural
organization of the overall disposition of the case can not be categorized as
good written judgment.
6. Citing documents evidences and laws:-if documents which have
evidentiary value needed to be embodied in the written judgment, the
document should be accurately cited including the date it was written, the
person(s) or authority who wrote it and the number, if any, and the type of the
document. If there arises a need also to incorporate any written work, the rules
pertaining to citation should be used in the written judgment. As such, it is only
when judgments accurately make reference to the materials or documents or
laws that the written judgment can be categorized as good one (in case of
making reference to laws too, this written judgment should clearly cite the
specific legal provision used along with the family of law the provision is found).
7. Missing Issue framing: - if judgments fail to incorporate the issue in the
written form it amounts to rendering decision without the existence of any
dispute between the parties to the case when in fact there is, no court case
without a dispute or issue.
Hence, good written judgments usually embody the issue in clear manner
and decide upon same at the end of the court proceeding.
8. Writing names of parties, witnesses & their titles: - It is also found to
be important for a written judgments to write the names of parties litigating,
the witnesses along with their titles properly and uniformly so that the decision
to be give on the bases of same could be relied on or to avoid confusion/
vagueness as to these names refer to. Good written judgments normally cite
the names of parties and witnesses clearly and uniformly in the body of
judgment by using formal and objective language.
9. Judgment on the basis of evidence/authority:- good written judgments
incorporate the decision of a court which is given only on the basis of a material
evidence as presented by the parties and in accordance with the letter and spirit
of the law, thereby avoiding the use of personal knowledge of the judge(s).
10. Hypothetical cases:- using hypothetical cases while writing judgments are
characteristic features of bad written judgments. Hence it is advisable not to
use hypothetical examples or discussions in writing judgments as it may open
8
doubts in interpretation, usually judges use hypothetical cases or examples for
the purpose of explanation.
11. Balance: - good written judgments are expected to be objective and not
subjective. It should not reflect internal display of sentiments and emotions of
the writing judge. The judge neither rewards virtues nor chastises vice. Hence,
the judge should administer even-handed justice being impartial whether the
parties may be private vs. government, rich vs. poor literate vs., illiterate,
official vs., ordinary person etc. A judge gives judgment using only facts,
evidences and the law.
12. Laconic Judgments: - these are judgments written in a short manner to
the effect that the judgments lack important facts so as to understand the case.
Such kind of judgments may need to refer other materials to have a clear
picture of the case. It may lack also clarity to all judgment audiences including
to the parties as well as to the appellate courts .Good judgments usually avoid
such kind of problems while writing the judgments
13. Lopsidedness: - Good judgments are always those which manifest that
equivalent attention and place to both or all party's argument in discussing their
points in decision making and judgment writing is given by the court/judge(s).
Normally, the judge is not expected to unnecessarily emphasize or deemphasize
either of the parties' facts, evidences and arguments .However, this should not
be construed to mean that the court may not finally favor the argument of one
of the parties in disposing the case or determining the out come of the case.
14. Language to be sober and temperate: - It is important also to use sober
and temperate words while writing judgments so that the written judgment can
be categorized as a good one. The language used in writing judgments should
not be hard that emphasized or deemphasized or should not be discriminating,
defamatory or that could affect feeling of the parties involved in the case in
particular and the larger public in general.
15. Judgment is not substitute of the file:- in principle written judgments
should be short and provided in clear manner. A judgment is not expected
normally to incorporate every proceedings conducted in side the court room.
Rather, it should be short, precise presenting summary of the file, written in the
judge's own words. As such, good written judgments are usually short but
comprehensive in the sense that it has the capacity to convey the reader the
whole matter embodied in the case.
9
16. Acronyms or abbreviations: - a good written judgment usually never
uses abbreviations. Judgment when reduced to writing, it becomes a public as
well as a historical document that will serve the future generation besides being
a mere document which brings an amicable solution to the parties in the
dispute. Abbreviations normally create ambiguity, hence the writing judge
should avoid the usage of abbreviations, however, if there is a need to use
abbreviations, the proper and full meaning of the abbreviation used must be
provided in the written judgment.
17. Remarks to be based on evidences: - good written judgment usually
manifest the fact that the court has taken cognizance of some important
remarks to be used in the proceedings of a case as well as in the judicial writing
in connection to evidences. For example in criminal cases the judge should give
concern to what is called the principle of "presumption of innocence unless
proved guilty". Thus, the judge should avoid the usage of words that reflect the
guiltiness of the accused/suspect before rendition of judgment/. The same is
true in civil cases with respect to words imposing liability on parties before
decision is reached at by the court to that effect.
18. Excitability:-beyond and above all things written judgments can be
categorized as good or bad in relation to the problem they could pose by the
time of execution. Good judgments are those having a conclusion provided in
clear and concise terms leaving a fertile ground for an easy execution.
On the part of the reader, however, it should be noted that the
parameters listed above, which are used to differentiate good written judgments
from bad written judgments are not exhaustive. Other standards which may be
helpful in making the distinction could exist though they are not included in the
above list.
(B.DEVENDRA REDDY)
Junior Civil Judge,
Madakasira. Anantapuramu District.
NOTES ON THE TOPIC OF CANNONS OF JUDICIAL ETHICS, CONDUCT, CHARACTER
AND INTEGRITY OF JUDICIAL OFFICER
A model code of judicial conduct:-
Canon:-1
A Judge shall of hold and promote the Independence, integrity and impartiality of the Judiciary,
and shall avoid impropriety the appearance of impropriety,
(a) compliance with the law,
(b) promoting confidence in the Judiciary,
(c) Avoiding abuse of prestige of Judicial office,
Canon-2:-
A Judge shall perform the duties of Judicial office impartially, competently, and diligently.
(a) A Judge shall act at all times in a manner that promote public confidence in the independence,
integrity, and impartiality of the Judiciary and shall avoid impropriety and the appearance of impropriety,
(b) A Judge shall comply with law including Judicial conduct (c) A Judge shall not abuse the
prestige of the judicial office to advance the personal or economic interests of the Judge or others, or
allow others to do so.
Canon-3:-
A Judge shall conduct judge's personal and extra Judicial activities to minimize the risk of
conflict with obligation of judicial office.
Canon:-4
A Judge or candidate for Judicial office shall not engage in political or campaign activity that is
inconsistent with the, integrity, or impartiality of the judiciary .
Code of Judicial Conduct:- (for the state of Florida)
1) A Judge shall uphold the integrity and Independence of Judiciary
2) A judge shall Avoid Impropriety and the Appearance of impropriety in all
of the Judge's Activities
3) A Judge shall Perform the Duties of Judicial office Impartially and diligently.
4) A Judge is Encouraged to Engage in Activities to prove the law, the legal
system and the Administration of Justice.
5) A Judge shall Regulate Extra judicial activities to Minimize the risk of
conflict in Judicial duties.
//2//
6) Fiscal Matters of Judge shall be conducted in a manner that does not give
the appearance of the influence or impropriety, etc.,
7) A Judge or candidate for judicial office shall refrain from inappropriate
political activity.
Code of Judicial conduct
Our legal system is based on the principle that an independent, fair and competent Judiciary will
interpret and apply the laws that govern us. The role of the judiciary is central to American concepts of
justice and the rule of law. Intrinsic to all sections of this Code of Judicial Conduct are the precepts that
Judges, individually and collectively, must respect and Honor the judicial office as a public trust and
strive to enhance and maintain confidence in our legal system. The judge is an arbiter of facts and law for
the resolution of disputes and a highly visible symbol of Government under the rule of law.
The Code of Judicial conduct is not intended as an exhaustive guide for the conduct of judges.
They should also be governed in their judicial and personal conduct by general ethical standards. The
code is intended, however, to state basic standards which should govern the conduct of all judges and to
provide guidance to assist judges in establishing and maintaining high standards of judicial and personal
conduct.
1. Upholding the integrity and Independence of the Judiciary:-
An independent and Honorable Judiciary is indispensable to justice in our society. A Judge
should participated in establishing, maintaining and enforcing high standards of conduct , and should
personally observe those standards so that the integrity and independence of the judiciary is preserved.
The provisions of this code are to be construed and applied to further the objective.
2: Avoiding Impropriety and the Appearance of impropriety in all of the Judge's Activities:-
A. A Judge shall comply with the law and should act at all times in a manner that promotes public
confidence in the integrity and impartiality of the Judiciary.
B. A Judge shall not allow any relationship to influence judicial conduct or judgment. A judge shall
not lend the prestige of Judicial office to advance the private interest of the judge or others; nor shall a
judge convey or permit others to convey the impression that they are in a special position to influence the
judge. A Judge shall not testify Voluntarily as a character witness.
C. A Judge shall not knowingly hold membership in any organization that practices discrimination
prohibited by law.
//3//
Canon.3:- Performing the Duties of Judicial office impartially and diligently:-
A. Judicial duties in General:- The Judicial duties of a Judge take precedence over all the Judge's
other activities. Judicial duties include all the duties of the Judge's office prescribed by law. In the
performance of these duties, the following standards apply;
B. Adjudicative Responsibilities.
(1) A Judge shall hear and decide matters assigned to the Judge except those in which
disqualification is required or refusal is appropriate.
(2) A Judge should be faithful to the law and shall maintain professional competence in it. A judge
shall not be swayed by partisan interests, public clamor, or fear of criticism.
(3) A Judge shall require order and decorum in proceedings before the Judge.
(4) A Judge shall be pa0tient, dignified and courteous to litigants, jurors, Witnesses, lawyers and
others with whom the Judge deals in an official capacity, and should require similar conduct of lawyers,
and of staff, court officials and others subject to the Judge's direction and control.
(5) A Judge shall perform Judicial duties without bias or prejudice.
(6) A Judge shall not, in the performance of judicial duties , by words or conduct manifest bias or
prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin,
disability, age, sexual orientation or socioeconomic status, and shall not knowingly permit staff, court
officials and others subject to the Judge's direction and control to do so.
(7) A Judge shall require lawyers in proceedings before the court to refrain from manifesting, by
words or conduct, bias or prejudice based on race, sex, religion, national origin, disability, age, sexual
orientation or socioeconomic status against parties, Witnesses, counsel or others. This requirement does
not preclude legitimate advocacy when any of these factors is an issue in the proceeding.
(8) A Judge shall accord to every person who has a legal interest in a proceeding, or that person's
lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte
communications or other communications made to the Judge outside the presence of the parties between
the Judge and a party, an attorney, a guardian or attorney ad item, an alternative dispute resolution neutral,
or any other court appointee concerning the merits of a pending or impending judicial proceeding. A
Judge shall require compliance with
//4//
this subsection by court personnel subject to the Judge's direction and control. This subsection does not
prohibit.
(a) Communications concerning uncontested administrative or uncontested procedural matters;
(b) Conferring separately with the parties and or their lawyers in an effort to mediate or settle
matters, provided, however, that the Judge shall first give notice to all parties and not thereafter hear any
contested matters between the parties except with the consent of all parties;
(c) Obtaining the advice of a disinterested expart on the law applicable to a proceeding before the
judge if the Judge gives notice to the parties of the person consulted and the substance of the advice, and
affords the parties reasonable opportunity to respond;
(d) consulting with other judges or with court personnel;
(e) Considering an ex parte communication expressly authorized by law.
(9) A Judge should dispose of all Judicial matters promptly, efficiently and fairly.
(10) A Judge shall abstain from public comment about a pending or impending proceeding which may
come before the Judge's court in a manner which suggests to a reasonable person the Judge probable
decision on any particular case. This prohibition applies to any candidate for judicial office. With respect
to judicial proceedings pending or impending in the court on which the candidate would serve if elected.
A Judge shall require similar abstention on the part of Court personnel subject to the Judge's direction
and control. This section does not prohibit Judges from making public statement in the course of their
official duties or from explaining for public information the procedures of the court. This section does not
apply to proceedings in which the judge or judicial candidate is a litigant in a personal capacity.
(11) A Judge shall not disclose or use, for any purpose unrelated to judicial duties, nonpublic
information acquired in a Judicial capacity. The discussions, votes, positions taken, and Writing of
appellate judges and court personnel about causes are confidences of the court and shall be revealed only
through a Court's Judgment, a written opinion or in accordance with Supreme Court guidelines for a court
approved history project.
C. Administrative Responsibilities:-
(1) A Judge should diligently and promptly discharge the Judge's administrative responsibilities
without bias or prejudice and maintain professional competence in Judicial administration and should
cooperate with other Judges and court officials in the administration of Court business.
//5//
(2) A Judge should require staff court officials and others subject to the Judge's direction and control
to observe the standards of fidelity and diligence that apply to the Judge and to refrain from manifesting
bias or prejudice in the performance of their official duties.
(3) A Judge with supervisory authority for the Judicial performance of other judges should take
reasonable measure to assure the prompt disposition of matters before them and the proper performance
of their other judicial responsibilities.
(4) A Judge shall not make unnecessary appointments. A Judge shall exercise the power of
appointment impartially and on the basis of merit. A Judge shall avoid nepotism and favoritism. A Judge
shall not approve compensation of appointees beyond the fair value of services rendered.
(5) A Judge shall not fail to comply with Rule 12 of the Rules of Judicial Administration knowing
that the failure to comply is in violation of the rule.
D. Disciplinary Responsibilities:-
(1) A Judge who receives information clearly establishing that another judge has committed a
violation of this code should take appropriate action. A Judge having knowledge that another judge has
committed a violation of this code that raises a substantial question as to the other judge's fitness for
office shall inform the State Commission on judicial Conduct or take other appropriate action.
(2) A Judge who receives information clearly establishing that a lawyer has committed a violation of
the Taxes Disciplinary Rules of Professional conduct should take appropriate action. A Judge having
knowledge that a lawyer has committed a violation of the Taxes Disciplinary Rules of Professional
conduct that that raise a substantial question as to the lawyer's honesty, trustworthiness or fitness as a
lawyer in other respects shall inform the office of the general Counsel of the state bar of Texas or take
other appropriate action.
Cannon 4:- Conducting the Judge's Extra -Judicial Activities to Minimize the Risk of Conflict with
Judicial Obligations:-
A Judge shall conduct all of the Judge's extra-Judicial activities so that they do not:
(1) Cast reasonable doubt on the Judge's capacity to act impartially as a Judge;
or
(2) Interfere with the proper performance of Judicial duties.
B. Activities to Improve the Law:- A Judge may;
(1) Speak. Write. Lecture, teach and participate in extra -Judicial activities concerning the law, the
legal system, the administration of justice and non-legal subjects. Subject to the requirements of this
code; and
//6//
(2) Serve as a member, officer, or director of an organization or Governmental agency devoted to the
improvement of the law, the legal system, or the administration of justice. A Judge may assist such an
organization in raising funds and may participate in their management and investment, but should not
personally participate in public fund raising activities. He or she may make recommendations, to public
and private fund-granting agencies on projects and programs considering the law, the legal system and the
administration of justice.
C. Civic or Charitable Activities:- A Judge may participate in civic and charitable activities that do
not reflect adversely upon the Judge's impartiality or interfere with the performance of Judicial duties. A
Judge may serve as an officer, director, trustee or non-legal advisor of an educational, religious,
charitable, fraternal, or civic organization not conducted for the profit of its members, subject to the
following limitations:
(1) A Judge should not serve if it is likely that the organization will be engaged in proceedings that
would ordinarily come before the Judge or will be regularly or frequently engaged in adversary
proceedings in any Court.
(2) A Judge shall not solicit funds for any educational, religious, charitable, fraternal or civic
organization, but may be listed as an officer, director, delegate, or trustee of such an organization, and
may be a speaker or a guest of Honor at an organization's fund raising events.
(3) A Judge should not give investment advise to such an organization, but may serve on its board of
directors or trustees even though it has the responsibility for approving investment decisions.
D. Financial Activities.
(1) A Judge shall refrain from financial and business dealings that end to reflect adversely on the
Judge's impartiality, interfere with the proper performance of the judicial duties, exploit his or her judicial
position, or involve the judge in frequent transactions with lawyers or persons likely to come before the
court on which the Judge serves. This limitation does no prohibit either a Judge or candidate from
soliciting funds for appropriate campaign or officeholder expenses as permitted by state law.
(2) Subject to the requirements of subsection (1), a Judge may hold and manage investments,
including real estate, and engage in other remunerative activity including the operation of a business. A
Judge shall not be an officer, director or manager of a publicly owner business. For purposes of this
Canon, a “Publicly owned business” is a business having more than ten owners who are not related to the
Judge by consanguinity or affinity within the third degree of relationship.
//7//
(3) A Judge should manage any investments and other economic interest to minimize the number of
cases in which the Judge is disqualified. As soon as the Judge can do so without serious financial
detriment, the judge should divest himself or herself of investments and other economic interests that
might require frequent disqualification. A Judge shall be informed about the Judge's personal and
fiduciary economic interests, ad make a reasonable effort to be informed about the personal economic
interests of any family member residing in the Judge's household.
(4) Neither a Judge nor a family member residing n the Judge's household shall accept a gift,
bequest, favor, or loan from anyone except as follows:
(a) A Judge may accept a gift incident to a public testimonial to the judge; books and other resource
materials supplied by publishers on a complimentary basis for official use; or an invitation to the Judge
and spouse to attend a Bar-related function or activity devoted to the improvement of the law, the legal
system , or the administration of Justice;
(b) A Judge or a family member residing in the Judge's household may accept ordinary social
hospitality; a gift, bequest, favour or loan from a relative; a gift from a friend for a special occasion such
as a wedding, engagement, anniversary, or birthday, if the gift is fairly commensurate with the occasions
and the relationship; a loan from a lending institution in its regular course of business on the same terms
generally available to persons who are not judges; or a scholarship or fellowship awarded on the same
terms applied to other applicants;
(c) A Judge or a family members residing n the Judge's household may accept any other gift, bequest,
favor or loan only if the donor is not a party or person whose interest have come or are likely to come
before the Judge;
(d) A gift , award or benefit incident to the business, profession or other separate activity of a spouse
or other family member residing in the Judge's household, including gifts, awards and benefits for the use
of both the spouse or other family member and the judge (as spouse or family member). Provided the
gift, award or benefit could not reasonably be perceived as intended to influence the Judge in the
performances of Judicial duties.
E. Fiduciary Activities.
(1) A Judge shall not serve as executor, administrator or other personal Representative, trustee,
guardian, attorney in fact or other fiduciary, except for the estate, trust or person of a member of the
judge's family , and then only if such service will not interfere with the proper performance of judicial
duties.
//8//
(2) A Judge shall not serve as a fiduciary if it is likely that the judge as a fiduciary will be engaged in
proceedings that would ordinary come before the Judge, or if the estate, truest, or ward becomes involved
in adversary proceedings in the court on which the Judge serve or one under its appellate jurisdiction.
(3) The same restrictions on financial activities that apply to a Judge personally also apply to the
judge while acting in a fiduciary capacity.
F. Service as Arbitrator or Mediator:- An active full-time judge shall not act as an arbitrator or
mediator for compensation outside the judicial system, but a Judge may encourage settlement n the
performance of officials duties.
G. Practice of Law:- A Judge shall not practice law except as permitted by statue or this code.
Notwithstanding this prohibition, a Judge may act prose and may, without compensation, give legal
advice to and draft or review documents for a member of the Judge's family.
H. Extra-Judicial Appointments: Except as otherwise provided by constitution and statue, a Judge
should not accept appointment to a Governmental committee, commission, or other position that is
concerned with issues of fact or policy on matters other than the improvement of the law, the legal
system, or the administration of justice. A Judge, however, may represent his or her country, state, or
locality on ceremonial occasions or in connection with historical, educational , and cultural activities.
Character and integrity of Judicial officer:-
The late chief Justice Bora Laskin listed a number of qualities which he felt were essential to being a
good judge - character; integrity; honesty; industry; life experience, which can include politics; flexibility
of mind; knowledge of the law; willingness to lister - but indicated that not all were easily ascertainable
in advance, and some “must be taken on expectancy”. (6)
An empirical study of Alberta Judges conducted by P.McCormick and I. Greene shows that
knowledge of the law was not at the top of the list of desirable qualities identified by the judges
themselves. McCormick and Greene asked judges, from the Provincial Court to the Court of Appeal,
what characteristics they though made good judges. The top seven must mentioned qualities in order of
frequency were as follows.
1. Industry , diligence
2. Courtesy
3. empathy
4. Patience
5. Knowledge of the law
6. Intelligence
7. Sense of fair play
//9//
These judges esteemed humanity, patience and courtesy at roughly the same level as knowledge
of the law or intelligence, Equally interesting were some of the qualities that were mentioned only once
or twice; independence and objectivity. It is ironic to note that text writers and judicial councils tell us
this is the very essence of being a Judge. This clashes with the Judicial self-assessment of the qualities
required for good judging. Yet the traditional version of the judge continues to dominate the republic's
perception. It is necessary to expose these myths if express code of conduct are to be accepted.
One of the burdens of being a Judge is that one is expected to rise above mere mortal status and
dispense justice with an objectivity that borders on the divine. Independent from the pressures of
everyday life and free of political influences, the Judge is to resolve difficult legal disputes with the
wisdom of a Solomon. This is the ideali9zed version of the Judge and is at best something to aspire to. It
tends to obscure the human dimensions of the practical task of Judging.
I conclude by reminding you that the law has two faces. It is, firstly, a practical craft and one
whose texture is highly technical and precise. It is, secondly, a human process whose polar star is the
protection and development of human dignity.
Given the high expectations that we have for judges, it is little wonder that we forget that they are
human beings with the attendant strengths and weaknesses. Judges should aspire to objectivity but they
cannot avoid being shaped by their background and life experiences.
The element of objectivity clearly distinguishes the judiciary from the other branches of
Government and makes its members the logical choice to chair a Government commission Judges are
prized for their impartiality and willingness to listen to all sides of an argument with an open mind,.
Allegations of bias or partiality would be fatal to public confidence in the Judiciary, so cautious restraint
was seen as the best road to neutrality. Judges were also expected to stay away from the legislative or
police role or engage in it in a very limited way:
In spite of the judge's role as legislator, justice must be administered according to law, not according to
the Judge's individual sense of justice. The Judge's legislative competence is narrower than that of the
legislator, His/her role is to legislate between the gaps, to fill the open space in the law. Thus the rule of
law is maintained.
NOTES ON “CANNONS OF JUDICIAL ETHICS, CONDUCT, CHARACTER AND INTEGRITY
OF A JUDICIAL OFFICER”
POEM
HE IS INDEPENDENT Like his Institution and Country.
His family ranges in ranks from Countryside to Countrywide.
He takes support only from his Lord and his family.
Condemnation and Commendation are unknown to him.
Partiality, prejudices, hatred, favorisam, greed, influence, conspiracy
and instigation are his enemies.
Honesty, modesty, fearlessness, impartiality, mercy, equality are his
friends and ornaments.
He lives under the shadow of self-inflicted morales and legacy left by
his predecessors in life and on paper.
His mind thinks rationally and logically, eyes always search equality,
tongue always speaks truth and deals with emotions, and his hand always writes
„reasonably‟ and he walks on the path called „Procedure‟.
His personality is sober, he is gentle. He follows his own scripture
and apart “Constitution”, and he is a secular man like his country and
constitution and he prefers no religion, caste or sex.
He is restless, and works round the clock at his work place and
residence and he cries when the declerant dying cries, and smiles when the
victim smiles.
He is, as stubborn as a rock, on the crown chair, and he is a friend to
the victims and enemy to the wrongdoers. He smiles from the crown chair on the
arrogance of the representatives of the parties before him.
He and his institution still hold the ground, when the other two wings
lost confidence of the countrymen.
He is the only hope of the Nation.
He borrows Law from the Legislatures, interprets and corrects it and
commands for implementation, and always strives for the welfare of his
countrymen.
That is why the stanza of a poem of Rabindranath Tagore “where the
mind is without fear and the head is held high …………. where the words come
out from the depth of truth; where tireless striving stretches its arms towards
perfection; where the clear stream of reason has not lost its way” quit frankly
suits him.
Oh! Countrymen, Do you know, who is he? He is not the God, nor a
Savior of yours lives, but he is Guardian of your rights – human, fundamental,
civil, religious, without which the life is not real, and he is none other than a
Judge of your country.
(SYED KALEEMULLA), Junior Civil Judge,
Tadipatri.
1
Canons of Judicial Ethics, Conduct, Character
&
Integrity of a Judicial Officer
My lord Sri Justice Naveen Rao garu,
I deem it a sacred duty to submit paper on Ethics being entrusted by the
Hon‟ble High Court in the work shop being held on 26-09-2015 in the District
Court, Ananthapuramu. The topic on Ethics is at the outset un codified, infinitive
and an ocean. As a matter of fact, it is a Hercules task to define and understand the
term “Ethics”. However I would like to venture to deal with this topic with the
permission of the Hon‟ble Administrative Judge in the capacity of Presiding
Officer of work shop.
One day, during the morning walk in my Bungalow it has struck in my mind
why can‟t the word “Ethics” as in the case of word „police‟ be dissected which
stands for Politeness, Obedience, Loyalty, Industrious and Courteous, instead of
borrowing the meaning of Ethics as defined by great scholars/Stall warts.
Immediately I put it in action in the following manner:
ETHICS
E Etiquette
T Trust
H Honesty
I Impartiality
C Courtesy
S Sagacity
2
2
Now, is apt to deal with these inbuilt qualities one after the other, in
nutshell:
Etiquette: Etiquette is a code of behavior that delineates expectations for social
behavior according to contemporary conventional norms within a society, social
class or group. One should maintain at any cost professional etiquette.
Trust: The dictionary meaning of the word Trust is firm belief in someone. The
Judicial Officers should gain Trust from the litigant public.
Honesty: A man free of deceit, “Truthful and sincere”. Thus all human beings
on this earth should have honest living. In the case of Judicial Officers, they must
not only be honest to the core, but should not create even a room of doubt in the
minds of litigant public from the temple of Justice.
Integrity: The ordinary meaning of the term Integrity is the quality of having
strong moral principles, so also internal consistency and free from corruption.
Every person more so the Judicial Officer should promote integrity.
Courteous: One should be polite, respectful and considerate. Coming to the
Judiciary, the Judge must treat litigant public, advocates and staff in a Courteous
manner.
Sagacity: One should be sagacious by showing good Judgment.
These Ethical approaches can be inferred from the insights of Mahabharatha.
1. Utilitarian: The whole moral of Mahabharatha States that “Victory of good
over evil” against which heavy cost was paid in form of loss of great lives
this is relating to Utilitarian.
2. Under Rights and Duties the famous quote by lord Krishna “Mafaleshu
Kadachana” (do your duty and do not think about its rewards).
3. Justice and fairness: The intent of lord Krishna was to defeat the forces of
evil and to establish the Rule of Law or „Dharma‟. Where the righteous
would not only defend themselves but also triumph over evil.
4. Virtue : Earthly achievements such as wealth and power, mean nothing
without a strong moral compass to guide you.
5. Common Good: Concept of „Bahujan Hitaya Buhajan Sukhaya‟ as remind
the touch stone of decision making in righteous public policy in India since
the time of the Mahabharatha.
Ethics means the moral principles that govern a person's behaviour or the
conduct of an activity. The basic concepts and fundamental principles of decent
human conduct. It includes study of universal values such as the essential equality
of all men and women, human or natural rights, obedience to the law of land,
concern for health and safety and, increasingly, also for the natural environment.
3
3
Defining the Terms
We often use words like ethics and values, but for all the talk of ethics in law
enforcement, it's important to establish what ethics and ethical behavior are, and
what they aren't. Such a strong push exists within the law enforcement community
to uphold ethical standards, but without a clear definition of terms, such talk is
futile. To start the discussion, then, some key definitions are in order.
Values
Values is the term given to those ideas, behaviors and actions that are
important to us. Values are those things worth fighting for, and those things worth
sacrificing for. They're what we hold most dear. Our values strongly influence our
decision making and help determine where we place our emphasis in our personal
and professional lives. Values form the basis for our understanding of ethics.
Within society, we have personal values and societal values. Our personal
values are ours alone and are informed by our upbringing, cultural and ethnic
background, religious beliefs and personal experiences. Because personal values
are unique to each individual, they are generally not a proper platform on which to
base professional ethics, though they may inform how we view, appreciate and
approach ethical behavior.
There are some values, though, that are essentially universally held by a
society. These societal values are those ideals that are held most dear by a culture
or group, and these are the values from which we derive our understanding and
expectation of ethics and ethical behavior. Such ideals include:
Integrity
Honesty
Hard work
Kindness
Compassion
Empathy
Sympathy
Justice
Bravery
These ideals, these so-called universal values, help guide us toward ethical
behavior and ethical decision making. They help inform us of what is expected of
us and what actions we should take.
Ethics
Ethics is, in essence, doing the right thing, whatever that may be. The "right
thing" is based on those values society holds dear. Ethical principles are premised
on the notion that right is always right and wrong is always wrong.
When officers fail to do what is right, and especially when they do what is clearly
and blatantly wrong, they erode the public trust just a little more and further
degrade law enforcement's ability to work within the community and carry out it's
mission. Adherence to high ethical standards, then, is as vital to achieving the
overall goal of modern policing as any other tactic, technique or practice.
4
4
Promoting Ethics and Ethical Behavior
The importance of a high ethical standard in police work is impressed upon
aspiring officers from the very first days of the police academy. Agencies have
several ways to promote ethics among their ranks. First and foremost is the oath of
office that officers take.
Oath of Office
Of course the oath contains provisions about protecting, upholding and
defending the Constitution of the United States. Also contained in the oath, though,
are promises to conduct oneself soberly, honestly and honorably, to avoid
offensive behavior and to obey superior officers within the individual departments.
In essence, officers swear to be honest, upstanding citizens. They promise to
be part of the solution, not part of the problem, and above all else, they promise to
follow the rules, whether they like or agree with them or not.
Understood within the concept of acting honorably is the idea that officers
should own up to their mistakes. Far more respect is reserved for those who screw
up and admit it than those who try to hide their misdeeds or blame others for their
own shortcomings. In fact, it is an oft-repeated mantra that, in law enforcement
careers, lying will get one fired faster than anything else.
Code of Ethics
The oath of office lays the groundwork for instilling ethical behavior, but it
doesn't stop there. To help guide officers toward ethical decision making, most
agencies codify those practices that they hope to promote and those they expect
officers to avoid.
Within an agency's code of ethics are specific provisions promoting the
safeguarding of lives and property, the importance of avoiding bias and the
understanding that the badge is a symbol of the public trust.
In short, the code of ethics requires that officers are not only prepared to
enforce the law, but to follow it. They are called to be examples to the public and
to demonstrate the right way to behave, rather than the entitlement mentality they
are so often accused of exhibiting.
Representing the Badge
An important thing for officers to remember is that what they do in uniform
affects not only themselves as individuals, but their entire agency and, perhaps, the
entire profession.
All of this is well and good, but how do officers apply this code to their every day
professional lives? The short and easy answer is "do the right thing." Because
ethics are based upon societal values, it is not difficult to discern the difference
between right and wrong in nearly any situation.
As quoted by part of Potter Steawalk “Ethic is knowing the difference
between what you have a right to do and what is right to do”. In law a man guilty
when he violates the rights of others. In Ethics is guilty if he only thinks of doing
so.
5
5
Before parting with the discussion on Ethics, I would like to place before the
participants of the work shop that all the Judicial Officers, one way or the other,
enters into arena of Ethics by means of „Employees service conduct rules‟ …….
and in addition, the Hon‟ble Supreme Court of India under E-courts project by
dumping huge funds is giving top priority for transformation of technology into the
Judiciary by which means gradually eliminating the element of corruption from
judiciary, increasing transparency and quick dispensation of justice in a most
efficacious and effective manner .
Ethics is nothing but an inbuilt operational mechanism in the human body,
where one should keep it alive by observation and perception around the world by
himself. In this regard one of the great author observed as follows:
“Ethics is not definable, is not implementable, because it is not conscious; it
involves not only our thinking but also our feeling”.
I am immensely happy on account of the outstanding response from my
brother and sister Judges in the Ananthapuramu District having submitted papers
on the subjects assigned for today‟s workshop as cited supra, which could not be
fructified without the able guidance and encouragement of our Hon‟ble
Administrative Judge Sri Justice Naveen Rao garu at all times.
Submitted by
N. Ganesh Babu,
Prl. District Judge,
Ananthapuramu.
1
WRITING REASONED ORDERS
The litigant public approach the Court to get their grievances resolved. More
often than not the disputes result in Judicial Orders and Judgments (Except in cases
where the parties settle their disputes outside of the Court or in Lok-Adalath by filing
the compromise terms). If the Judge passes one sentence orders such as “Petition
Allowed” or “Petition Dismissed”, the litigant public and their respective counsels would
be virtually in dark as to on what grounds their petition is allowed and as to why their
petition is dismissed. So, there should be some reasons in allowing or dismissing such
petitions or applications.
Every Order of the Judge should be supported by reasons. Reason means to
draw or come to conclusion. Reasons means thinking logically. By giving reasons in his
orders the Judge would convince the parties that he has come to a certain conclusion
basing on the facts. The reasons shall be based on the material produced by the
parties.
When Judge employ good reasons, it is called cogent Order. The reasons to
reach the conclusions shall be on the accepted principles, norms and should be
believable. The reasons to reach such conclusions which make the litigant public accept
the order shall be strategically valid. The reasons shall avoid fallacies. The Judge
should place all the relevant information, which made him to reach conclusion, in his
Orders. His reasoning should be logically valid.
The Judge should employ the words such as “Therefore”, “Thus”, “Hence” and
“so” to reach conclusion. These words would help the litigant public and the respective
counsels to know the pattern in which the Judge arrived at conclusion.
The doctrine of AUDI ALTERM PARTAM has three main ingredients. The first one
is the “person who is going to be affected by the Orders should be heard” second one
is “both parties should given fair amount of opportunity to put-forth their case” and
last one is “the Judge shall apply his mind and decide the dispute by providing
reasons”.
2
The Supreme Court in the case of S.N. Mukherjee v. Union of
India [(1990) 4 SCC 594], while referring to the practice adopted and
insistence placed by the Courts in United States, emphasized the
importance of recording of reasons for decisions by the administrative
authorities and tribunals. It said “administrative process will best be
vindicated by clarity in its exercise”. To enable the Courts to exercise the
power of review in consonance with settled principles, the authorities are
advised of the considerations underlining the action under review. This
Court with approval stated:- “the orderly functioning of the process of
review requires that the grounds upon which the administrative agency
acted be clearly disclosed and adequately sustained.”
In the case of Mc Dermott International Inc. v. Burn Standard Co. Ltd. and Ors.
(2006) SLT 345, the Supreme Court clarified the rationality behind providing of
reasons and stated the principle as follows:- “. . . Reason is a ground or motive for a
belief or a course of action, a statement in justification or explanation of belief or
action. It is in this sense that the award must state reasons for the amount
awarded. The rationale of the requirement of reasons is that reasons assure that the
arbitrator has not acted capriciously. Reasons reveal the grounds on which
the Arbitrator reached the conclusion which adversely affects the interests of a party.
The contractual stipulation of reasons means, as held in Poyser and Mills’ Arbitration
in Re, `proper adequate reasons’. Such reasons shall not only be intelligible but shall
be a reason connected with the case which the Court can see is proper. Contradictory
reasons are equal to lack of reasons. . . .”
Reasons are heart beat, arteries and the brain of any Order or Judgment.
Without heart beat, blood circulation in the veins and brain, the orders are dead
letters. Such orders do not stand to the scrutiny of legal fraternity. “Reasons” are the
links between the materials on which certain conclusions are based and the
actual conclusions.
Failure to give reasons amounts to denial of justice. Reasons are live links
between the decision maker i.e. Judge and the controversy in question. If there are
no reasons it would be virtually impossible for the appeal Courts to perform their
appellate functions or exercise the power of Judicial review in adjudging the validity
of decision. Giving valid reasons is an indispensable part of sound judicial system.
3
The Supreme Court in a judgment delivered on 22nd February, 2008, in the case
of State of Rajasthan v. Rajendra Prasad Jain Criminal Appeal No. 360/2008 (Arising
out of SLP (Crl.) No. 904/2007) stated that "reason is the heartbeat of every
conclusion, and without the same it becomes lifeless."
Providing of reasons in orders is of essence in judicial proceedings. Every
litigant who approaches the Court with a prayer is entitled to know the reasons
for acceptance or rejection of such request. Either of the parties to the lis has a right
of appeal and, therefore, it is essential for them to know the considered opinion
of the Court to make the remedy of appeal meaningful. It is the reasoning which
ultimately culminates into final decision which may be subject to examination of
the appellate or other higher Courts. It is not only desirable but, in view of the
consistent position of law, mandatory for the Court to pass orders while
recording reasons in support thereof, however, brief they may be. Brevity in
reasoning cannot be understood in legal parlance as absence of reasons. While no
reasoning in support of judicial orders is impermissible, the brief reasoning would
suffice to meet the ends of justice at least at the interlocutory stages and would
render the remedy of appeal purposeful and meaningful.
The Court cannot lose sight of the fact that a losing litigant has a cause to
plead and a right to challenge the order if it is adverse to him. Opinion of the Court
alone can explain the cause which led to passing of the final order. Whether an
argument was rejected validly or otherwise, reasoning of the order alone can show.
To evaluate the submissions is obligation of the Court and to know the reasons for
rejection of its contention is a legitimate expectation on the part of the
litigant. Another facet of providing reasoning is to give it a value of precedent which
can help in reduction of frivolous litigation. Paul D. Carrington, Daniel J Meador and
Maurice Rosenburg, Justice on Appeal 10 (West 1976), observed as under:-
“When reasons are announced and can be weighed, the public can have
assurance that the correcting process is working. Announcing reasons can also
provide public understanding of how the numerous decisions of the system are
integrated. In a busy Court, the reasons are an essential demonstration that
4
the Court did in fact fix its mind on the case at hand. An unreasoned decision has
very little claim to acceptance by the defeated party, and is difficult or impossible
to accept as an act reflecting systematic application of legal principles. Moreover, the
necessity of stating reasons not infrequently changes the results by forcing the
judges to come to grips with nettlesome facts or issues which their normal instincts
would otherwise cause them to avoid.”
It will be useful to refer words of Justice Roslyn Atkinson, Supreme Court of
Queensland, at AIJA Conference at Brisbane on September 13, 2002 in relation to
Judgment Writing. Describing that some judgment could be complex, in distinction to
routine judgments, where one requires deeper thoughts, and the other could be
disposed of easily but in either cases, reasons they must have. While speaking about
purpose of the judgment, he said,
“The first matter to consider is the purpose of
the judgment. To my mind there are four purposes for
any judgment that is written: - (1) to clarify your own
thoughts; (2) to explain your decision to the parties; (3)
to communicate the reasons for the decision to
the public; and (4) to provide reasons for an appeal
Court to consider.” Clarity of thought leads to proper
reasoning and proper reasoning is the foundation of a
just and fair decision.
Similar view was expressed in State of U.P. v. Battan. About two decades
back in State of Maharashtra v. Vithal Rao Pritirao Chawan the desirability of a
speaking order was highlighted. The requirement of indicating reasons has been
judicially recognised as imperative. The view was reiterated in Jawahar Lal Singh v.
Naresh Singh. In Raj Kishore Jha v. State of Bihar this Court has held that reason is
the heartbeat of every conclusion and without the same, it becomes lifeless. Right to
reason is an indispensable part of a sound judicial system; reasons at least sufficient
to indicate an application of mind to the matter before court. Another rationale is
that the affected party can know why the decision has gone against him. One of the
salutary requirements of natural justice is spelling out reasons for the order
made;.…” As observed in State of Orissa vs. Dhaniram Lunar (2004) 5 SCC 568 In
5
the light of the factual details particularly with reference to the stand taken by the
Horticulture Department at length in the writ petition and in the light of the principles
enunciated by this Court, namely, right to reason is an indispensable part of sound
judicial system and reflect the application of mind on the part of the court, we are
satisfied that the impugned order of the High Court cannot be sustained.”
Giving reasons furthers the cause of justice as well as avoids uncertainty. As a
matter of fact it helps in the observance of law of precedent. Absence of reasons on
the contrary essentially introduces an element of uncertainty, dissatisfaction and give
entirely different dimensions to the questions of law raised before the
higher/appellate courts. In our view, the court should provide its own grounds and
reasons for rejecting claim/prayer of a party whether at the very threshold i.e. at
admission stage or after regular hearing, howsoever precise they may be.
Giving reasons is a mandatory requirement of procedural law. There should be
clarity of thoughts. The Judge should explain the decision to the parties, should
communicate the reasons for his decision to the public and he should provide
reasons that an appeal Court would consider. Absence of reasons frustrate very
object of the existing judicial system. It would lead to an archaism. The orders shall
not be cryptic. The language should be simple and easily understandable. The Judge
should avoid using complex and compound sentences. If the sentences exceed more
than two lines, there is every possibility to lose the sight of idea intended to be
presented by the Judge.
The reasons in the Order need not be lengthy or in detailed way. It is suffice if
the order is precise, to the point, covering all the necessary aspects. The purpose of
giving reasons is to make the litigant public understand the mind of the Judge so also
to make the appellate Court to sit over the matter and adjudicate it.
Giving reasons in an order in a presentable manner is an art. Every Judge
should acquire these skills. Reasons are fundamental and basic principle in writing
orders. Without reasons if an Order is passed it would be vague and cryptic.
6
Even the Docket Orders are the Orders of the orders of the Court. They shall
be clear, legible and the litigant public so also their respective counsels should
understand why the matter is adjourned to the next date. The Docket Order should
also speak by itself as to what had transpired on that particular date in connection
with that case.
I believe that all the Judicial Officers are following the above principles in the
letter and spirit. This article is to enhance the skills and deepen the intelligence of
the judicial officers present here. I thank one and all for giving me this opportunity. I
particularly thank Hon’ble Administrative Judge garu for giving me this opportunity.
Thanking you,
Yours faithfully,
S.KAMALAKAR REDDY,
PRL.JUNIOR CIVIL JUDGE, ANANTAPURAMU
1
JUDICIAL ETHICS
The Phrase “Judicial Ethics” is a very wide one. This phrase
cannot be defined or confined to a specific set of words. There is no
straight jacket formula to give an exact definition of Ethics. The
meaning of Word “Ethics” changes from time to time, place to place
and country to country.
Basically the meaning of Ethics can be said “a body of rules
followed by a group of people”. The Ethics are rules of practice. The
words morality and consciousness are intertwined with the word
“Ethics”. When it comes to “Judicial Ethics”, it is the duty or the duties
and moral of the Judge to find out what is Ethicalal meaning good and
what is unethical meaning bad. The behaviour of Judge, his conduct,
his outlook, his persona, his morality should always be ethical to the
established norms, principles in society in general and under the
Constitution in particular. What the Judge should observe during his
tenure as a Judge matters most.
The integrity, honesty, morality are attached to the Judgeship.
He should uphold the independency of the Judiciary. His behaviour,
attitude, conduct, both outside and inside the Court of law should
always be above the board and unquestionable. There is only one
standard every Judge should follow so far as the propriety and
integrity concerned.
It is said that every organ of the society has failed to live up to
the expectations of common man. As a last resort people knock the
doors of justice to get their problems solved. In the eyes of common
man the judiciary is the only organ functioning with full throttle. When
the Judge is unethical, does not live up to the standards attached to
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the Judgeship and fail to live up to the expectations of the common
man, it is a curse not only to the general public but also to the society
at large.
There is no room for impropriety. Judge should avoid favouritism
of any kind. He should strictly go by principles of law and standards of
law fixed under Constitution of India. These principles and standards
are dynamic, changes from time to time to cater to the needs of the
general public at large which is Hallmark of every progressive society.
Judge should not be member of any organisation either non-
profit or non-governmental etc, because the general public may look at
the organisation in respect and may consider such organisations holy.
If something goes wrong in such organisations, without there being
any role or say of the Judge, people may suspect that the Judge did
something wrong. To avoid such notions or speculation the better path
the Judge should tread, is not to involve himself in any of such
organisations.
Now a days social media deeply involved in changing the
consciousness of public. Most of the Judges are the members of any
one of the prominent social media apps such as Face book, twitter and
Whats-up etc. If the Judge is a member of such social media apps, it is
better for the Judge not to express his opinion on any matter of
importance or on any matters pending before any Court. It is also
advisable to remove himself from such social apps. The reason is that
even the litigant public will have access to all such social media apps
and there is every possibility to misuse the presence of Judge in such
social media apps. The examples are galore. But a Judge may be a
member of groups of Judges to exchange views and to update himself
with the changing trends in the field of law.
3
The Judge in his day to day life has to carefully choose his
activities to avoid criticism from the public and Bar. He should avoid
engaging himself in any business, as there is a possibility that the
public may think that the Judge is abusing his position. He shall not
involve in any kind of business activities by using his position either
directly or indirectly. He shall not be member of any political
organisation even after his retirement. If a Judge is offered any such
public and politically prominent post after his retirement, it would
certainly give an impression to the general public that the Judge
showed favouritism during his tenure.
A Judge must be above the publicity. Media publicity is a
dangerous virus. Once affected by it there is no coming back. I know
some of the Judges who get every news item in which he appeared cut
them and neatly bound into a book.
Publicity mania will take Judges nowhere. There will be no
improvement so far as the subject, intelligence and intuitiveness
concerned. Once affected by publicity every Judge expects his name or
photograph appear in Newspaper. After some time if no name of the
Judge appear it would certainly sap his spirits. Publicity will not help
Judge in any manner to improve his skills required for his Judgeship.
Judges should also avoid involving themselves in such situations
and circumstances which would tend to give suspicion to the general
public. Some time without his involvement Judge may appear in
certain public functions, where either accused or complainant, plaintiff
or defendant may also participate in there and who knows, they might
have organised such public functions only to see that the Judge
appear. They give an impressions to the opposite party that the Judge
knows him well. At times without the knowledge of the Judge certainly
4
people would closely move and sit by his side or take photograph
standing alongside. Though, the Judge is honest and sincere to the
core, such unpleasant situations and circumstances would give
negative impression and impulses to the general public. What are such
public functions which would create such unpleasant situations and
circumstances cannot be put into a particular formula. It is the
consciousness of the Judge which tells him either to proceed to attend
such public functions or withhold or withdraw himself from attending
such functions.
It is stated that if you want to test a person give him power and
see his behaviour. At times even normal people, given power, would
behave abnormally. One of the nicest principle in administrative law is
“Absolute power corrupts absolutely”. So, if a person, all of a sudden
given Judgeship, there is possibility, at least remotely that such
person try to exhibit his supremacy over others. It is where the
Constitution, established norms and the provisions of law come to the
fore to put the Judge in a right track. The Judge whether given power
or not, Judge whether in service or retired should conduct himself in
such a way which is accepted by the society, established by the rule of
law. No person should take the power into head and behave
abnormally or else the very system of democratic governance would
go awry. Of course there are checks and balances in the very
democratic system enshrined in the Constitution to control such erring
persons.
The Judge should be above the board of impartiality, caste,
creed, community, place etc. He should deliver his Orders and
Judgments in accordance with the law but not considering extraneous
things, pressures or benefits. Judge should also not to pass Judgments
5
basing on his personal beliefs and ideas. His Judgment should be
tempered with grace and unbiasedness.
The language the Judge uses should be simple, understandable
to the general public. He should not use any high sounding language
and his prose should be to the point, analytical and avoiding verbosity.
The Judge would get name and fame and also bring laurels to the
system only when he delivers Judgments within a reasonable time. He
shall not sit over the file for a longer period. At the same time he shall
not rush to the case file and deliver a haphazard Judgment. He should
also give reasonable time to the respective parties and their respective
counsels to put-forth their case before him. Particularly, in Indian
context it is very difficult for the litigant public to secure documents
from the public Offices and secure witnesses who can depose truth.
Therefore, the Judge should not hasten unduly to pass Judgments
unless the case require him to do so.
The Judge shall not undertake any Academic career outside his
Judgeship. If he undertakes such career after his retirement it is OK.
While, he is in service if he undertake such a career it is nothing but
doing un-justice to the post he is holding. He is permitted to receive
fee or remuneration for the classes he undertakes and for the book he
has produced. However all these activities are subjected to rules
framed by the Hon’ble High Court and subject to CCA rules.
Judge can attend functions of the Bar Association and functions
of Advocates. Nevertheless, care must be taken in attending such
functions. It is the consciousness of the Judge as told earlier which
would guide him either to attend such functions or withdrawn himself.
As long as no obligation entertained from any members of the Bar and
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Judge maintains uniformity in attending such functions there will not
be any objection from any quarters.
The Judge should discharge his duties with high degree of
competence. He should strive hard to deepen his knowledge in the
field of law. He should also work hard to enhance his skills in the field
of law and jurisprudence. Only when the Bar finds that the Judge is a
competent one, they can come forward, liberally, to dispose of the
cases. The Bar should also feel that they get dispassionate Judgments
from the Judge. The Judge shall not entertain any matters in which he
or his relatives remotely connected. If such situations present
themselves before a Judge he should recues himself from such matters
or better get such cases transferred.
My lord Administrative Judge, High Court of Judicature at
Hyderabad for the States of Telangana and Andhra Pradesh, Hon’ble
District Judge garu, Hon’ble District Judges, other Junior, Senior and
Colleague Judges, the above article on “Judicial Ethics” is not
exhaustive one. Things which are Ethical to some of the people may be
unethical to the other people and vice-versa. I attempted to high light
few of the cannons of judicial Ethics. I hope and believe the above
cannons would highlight the Ethics to be followed by Judges.
Thanking you,
Yours faithfully, S.KAMALAKAR REDDY,
PRL.JUNIOR CIVIL JUDGE, ANANTAPURAMU
1
Notes Submitted By G.Vani, Principal Junior Civil Judge for workshop on
26.09.2015 on “Canons of Judicial Ethics, conduct, Character and Integrity
of a Judicial Officer”.
******
Introduction:
One of the primary functions of state is administration of justice. The
judges are the pivotal in administration of justice entrusted upon them. It is
therefore judges require some basic code of conduct in discharging the
administration of justice. Those conducts are practiced over a period of
time and thereby perfected. It is therefore they are the canons to judicial
officers. The deviation of the above canons is not excusable and
unpardonable. Observance of Canons of Judicial Ethics enables the
judiciary to struggle with confidence; to chasten oneself and be wise and to
learn by themselves the true values of judicial life. The discharge of judicial
function is an act of divinity. Perfection in performance of judicial
functions is not achieved solely by logic or reason. There is a mystic power
which drives the Earth and the Sun, every breeze on a flower and every
smile on a child and every breath which we take. It is this endurance and
consciousness which enables the participation of the infinite forces which
command us in our thought and action, which, expressed in simple terms
and concisely put, is called the 'Canons of Judicial Ethics'
There are certain cardinal principles of judicial ethics that apply to
any person holding a judicial office whether at the level of subordinate
judiciary or in the highest court of the land.
Henry George said- "Generations, succeeding to the gain of their
predecessors, gradually elevate the status of mankind as coral polyps,
building one generation upon the work of the other, gradually elevate
themselves from the bottom of the sea."
Alexander Hamilton once said ___ "The judiciary . . . has no influence over
either the sword or the purse; no direction either of the strength or of the
wealth of the society, and can take no active resolution whatever. It may
truly be said to have neither Force nor Will but merely judgment? ". The
greatest strength of the judiciary is the faith of the people in it. Faith,
confidence and acceptability cannot be commanded; they have to be
earned. And that can be done only by developing the inner strength of
morality and ethics.
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Hon‟ble Bernard L. Shientag, while giving the Third Annual Benjamin
N. Cardozo Lecture, has observed :-
“Naturally, it is in cases where the creative faculty of the judicial
process operates, where there is a choice of competing analogies, that the
personality of the judge, the individual tone of his mind, the color of his
experience, the character and variety of his interests and his
prepossessions, all play an important role. For the judge, in effect, to detach
himself from his whole personality, is a difficult, if not an impossible, task.
We make progress, therefore, when we recognize this condition as part of
the weakness of human nature.”
Judicial Ethics in India:
They are three important documents which mandates the ethic of judges in
the all levels right from Supreme Court to Sub-ordinate Courts. They are:
( i) Restatement of Values of Judicial Life adopted by the Chief Justices'
Conference of India, 1999
(ii) The Bangalore Principles of Judicial Conduct, 2002
(iii) The Oath of a Judge as contained in the Third Schedule of the
Constitution of India.
I. Restatement of Values of Judicial Life:
In India on 7th May 1997 a 16 point code of conduct, for ensuring
proper conduct among members of the higher judiciary was adopted by
the Judges of the Supreme Court and the High Courts with the Gujarat
High Court as the sole dissenter, reportedly. The 16 point code which the
Judges prefer to describe as “The Restatement of Values of Judicial Life” is
believed to have become effective since then. It was drafted by a
Committee of five Judges, headed by Justice Dr.A.S.Anand, as he then was.
The other members were Justice S.P.Barucha, Justice K.S.Paripoornan,
Justice M.Srinivasan and Justice D.P.Mohapatra. The 16 point code
stipulates1:
(1) Justice must not merely be done but it must also be seen as done. The
behaviour and conduct of members of the higher judiciary must
reaffirm the people‟s faith in the impartiality of the judiciary.
1 [22] Restatement of values of Judicial life available at
http://judicialreforms.org/files/restatement_of_values_jud_life.pdf (Last Visted on June 14, 2010)
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Accordingly, any act of a Judge of the Supreme Court or a High
Court, weather in official or personal capacity, which erodes the
credibility of the perception has to be avoided.
(2) A Judge should not contest the election of any office of a Club, society
or other association; further he shall not hold such elective office
except in a society or association connected with the law.
(3) Close association with individual members of the Bar, particularly those
who practice in the same court shall be eschewed.
(4)A Judge shall not permit any member of his immediate family to, such
as spouse, son, or daughter, son-in-law, or daughter-in-law, or any
other close relative, if as member of the Bar, to appear before him or
even be associated in any manner with a case to be dealt with by him.
(5)No member of his family, who is a member of the Bar, shall be
permitted to use the residence in which the judge actually resides or
other facilities for professional work.
(6)A Judge should practise a degree of aloofness consistent with the
dignity of his office.
(7) A Judge shall not hear and decide a matter in which a member of his
family, a close relation or a friend is concerned.
(8) A Judge shall not enter into a public debate or express his views in
public on political matters or on matters that are pending or are likely
to arise for judicial determination.
(9) A Judge is expected to let his judgment speak for themselves. He shall
not give interview to the media.
(10) A Judge shall not accept gifts or hospitality except from his family,
close relations and friends.
(11) A Judge shall not hear and decide a matter in which a company in
which he holds shares is concerned unless he has disclosed his
interest and no objection to his hearing and deciding the matter is
raised.
(12) A Judge shall not speculate in shares, stocks or the like.
(13) A Judge should not engage directly or indirectly in trade or business,
either by himself or in association with any other person. (publication
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of a legal treaties or any activity in the mature of a hobby shall not be
constructed as trade business).
(14) A Judge should not ask for accept contribute or otherwise actively
associate himself with the raising of any fund for any purpose.
(15) A Judge should not seek any financial benefit in the form of a
perquisite or privilege attached to his office unless it is clearly
available. Any doubt in this behalf must be got resolved and clarified
through the Chief Justice.
(16) Every Judge must at all times be conscious that he is under the public
gaze and there should be no act or omission by him which is
unbecoming of the high office he occupies and the public esteem in
which the office is held.
These are only the “Restatement of the Values of Judicial Life” and
are not meant to be exhaustive but illustrative of what is expected of a
Judge.
II. BANGALORE PRINCIPLES:
Although the Bangalore Draft Principles of Judicial Conduct were
created in 2001 by the judges of the common law and was revised and
adopted at the Round Table meeting of Chief Justices held at The Hague in
2002. These principles draw from the „Restatement of Judicial Values 1999.
The Bangalore principles embody the essential principles of independence;
impartiality; integrity; integrity; propriety; equality; and competence and
diligence.
(iii) The Oath of a Judge as contained in the Third Schedule of the
Constitution of India.
The oath taken by the Judges at the time of taking over the judicial
offices reminds them of their responsibilities and sums up the subject at
hand truly, fully and effectually. It obliges them to be faithful to the
Constitution of India. They undertake that they shall uphold the
sovereignty & integrity of India and to truly and faithfully perform the
duties of their offices without fear or favour, affection or ill-will and in
doing so shall render judgment to the best of their ability and knowledge.
This in a way summarizes the code of ethics for those holding judicial
offices.
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In addition to the above documents, they are some provisions which
mandates the judicial ethics for judges in UDHR(Universal Declaration of
Human Rights) and ICCPR(International Covenant on Civil and Political
Rights)
The Universal Declaration of Human Rights that recognizes as
fundamental the principle that everyone is entitled in full equality to a fair
and public hearing by an independent and impartial tribunal, in the
determination of rights and obligations and of any criminal charge; as well
as the
International Covenant on Civil and Political Rights that guarantees
that all persons shall be equal before the courts, and that in the
determination of any criminal charge or of rights and obligations in a suit
at law, everyone shall be entitled, without delay, to fair and public hearing
by a competent, independent and impartial tribunal established by law.
Judicial Ethics in Across The Globe:
USA(United States of America)
The American Bar Association formulated its Canons of Judicial Ethics for
the first time in 1924. However, these canons were intended more as
guidelines than statutory restrictions and therefore their applicability was
limited as they did not address complex ethical issues. Consequently, the
Model Code of Judicial Conduct was introduced by the ABA inn 1972 to
meet these challenges. This Code applies to all officers of the judicial
system and non lawyer judges such as town justices and justices of the
peace with the exception for part-time judges, judges pro tempore, and
retired judges. This Code provides that judges should uphold judicial
independence and integrity, avoid impropriety and the appearance of
impropriety, and be impartial and diligent in performing their duties. The
District of Columbia, the Federal Judicial Conference and as many as 47
states have adopted this code with minor changes.
CANADA
The Canadian Judicial Council which consists of all the chief justices
and associate chief justices in Canada was instrumental in the creation of
the Canadian Judicial ethical Principles in 1971 to deal with the issue of
discipline and education of judges. Interestingly, after extensive debate and
consideration including inputs from the Bertha Wilson Committee and the
Working Committee of the Canadian Judicial Council, the Judicial Council
6
decided against a elaborate code of ethics based on the American model
and in its place adopted the Ethical Principles in 1998. These principles
draw inspiration from the Magna Carta which set out that that judges well-
versed in the law be appointed and from the Act of Settlement, of 1701 that
prohibited the arbitrary removal of judges by the crown; thus paving the
way for the establishment of an independent judiciary.
AUSTRALIA
It may also be noted that the Australian „Guide to Judicial conduct‟
draws heavily from the Canadian Ethical Judicial Principles as well as from
the writings of Justice J. B. Thomas of Australia and Prof. Wood of the
University of Melbourne. The Australian guide aspires for high standards
of conduct for the community to have confidence in its judiciary. It
provides members of the judiciary with practical guidance about conduct
expected of them as holders of judicial office and also takes into account
the changes that have occurred in community standards over the years. It
assumes a high level of common understanding on the part of judges of
basic principles of judicial conduct. It also addressed issues upon which
there is greater likelihood of uncertainty.
Conduct and Character:
Man wills to obtain his objects of desires. Willing results in action.
The will that is expressed becomes conduct. Man has various sorts of
desires. Sometimes, there is conflict of desires. That desire which obtains
victory is termed „will‟. The inner disposition which makes the will
possible is called character. Character is the aggregate of peculiar qualities
which constitute personal individuality. People would refer to words
character, conduct, nature or disposition and reputation of a person. It is
said that “character‟ is what you are and “conduct” is what other see. As
Lord denning observed „ A Man‟s character, it is sometimes said, is what he
in fact is, where as his reputation is what others think he is.” Thus, nature
and disposition is what you are and reputation is what others think of you.
In other words, character and nature are inherent and internal to a person
and unseen by others, whereas conduct is manifest.
7
Integrity:
“Integrity according to Oxford dictionary is moral uprightness; honesty. It
takes in its sweep, probity, innocence, trustfulness, openness, sincerity,
blamelessness, immaculacy, rectitude, uprightness, virtuousness,
righteousness, goodness, cleanness, decency, honour, reputation, nobility,
irreproachability, purity, respectability, genuineness, moral excellence etc.
In short it depicts sterling character with firm adherence to a code of moral
values. „Judiciary is an integrity institution‟. Therefore, Judicial Officers
should possess the sterling quality of integrity. Integrity is the hallmark of
judicial discipline apart from others as reminded by the Hon‟ble Apex
Court in Tarak Singh vs. Jyoti Basu2, To quote:
“ Integrity is the hallmark of judicial discipline, apart from others. It
is high time the judiciary took utmost care to see that the temple of justice
does not crack from inside, which will lead to a catastrophe in the judicial-
delivery system resulting in the failure of public confidence in the system.
It must be remembered that woodpeckers inside pose a larger threat than
the storm outside.”
Judicial office is essentially a public trust. Society is, therefore,
entitled to expect that a Judge must be a man of high integrity, honesty and
required to have moral vigour, ethical firmness and impervious to corrupt
or venial influences. He is required to keep most exacting standards of
propriety in judicial conduct. Any conduct which tends to undermine
public confidence in the integrity and impartiality of the court would be
deleterious to the efficacy of judicial process. Society, therefore, expects
higher standards of conduct and rectitude from a Judge. Unwritten code of
conduct is writ large for judicial officers to emulate and imbibe high moral
or ethical standards expected of a higher judicial functionary, as
wholesome standard of conduct which would generate public confidence,
accord dignity to the judicial office and enhance public image, not only of
the Judge but the court itself. It is, therefore, a basic requirement that a
Judge‟s official and personal conduct be free from impropriety; the same
must be in tune with the highest standard of propriety and probity. The
standard of conduct is higher than that expected of a layman and also
higher than that expected of an advocate. In fact, even his private life must
adhere to high standards of probity and propriety, higher than those
2 (2005)1 SCC 201
8
deemed acceptable for others. Therefore, the Judge can ill-afford to seek
shelter from the fallen standard in the society.3”
Conclusion:
Socrates said, four things belong to a Judge; to hear courteously, to answer
wisely, to consider soberly and to decide impartially. Hon'ble Mr. Justice
S.H. Kapadia , Chief Justice of India said: “When we talk of ethics, the
judges normally comment upon ethics among politicians, students and
professors and others. But I would say that for a judge too, ethics, not only
constitutional morality but even ethical morality, should be the base…[4]”
3 C. Ravichandran Iyer v. Justice A.M. Bhattacharjee & Ors., (1995) 5 SCC 457, para 21, per K.
4 “Kapadia cautions judges against judicial activism”, NEW DELHI, May 3, 2010 available at
http://beta.thehindu.com/news/national/article420137.ece (Last Visited on June 14, 2010).
1 S.C.J., Kadiri
Paper presented by Dr. S.Md.Fazulullah, Senior Civil Judge, Kadiri
for workshop on 26.9.2015 on “Canons of Judicial Ethics, Conduct, Character
and Integrity of a Judicial Officer”
******
Introduction
The constitution is the fundamental document. The entire
administration carried out by the State in tune with the Constitution. The
constitution divided the powers among the three organs, viz., the
Legislature, the Executive and the Judiciary.
The rule of law is the foundation of a democratic society. The
Judiciary is the guardian of the rule of law. Hence judiciary is not only the
third pillar, but the central pillar of the democratic State.¹
Thus the role assigned to the Judiciary i.e., Judges has got a
paramount importance. The Judiciary in India consists of the Judges of the
Supreme Court, the High Courts and the Subordinate Courts.
Administration of justice is stream which has to be kept pure and
clean. It has to be kept unpolluted.²
To keep the stream of justice clean and pure, the Judge must be
endowed with sterling character, impeccable integrity and upright behaviour.
Erosion thereof would undermine the efficacy of the rule of law and the
working of the Constitution itself.³
In short, the behaviour of the Judge is the bastion for the people to
reap the fruits of the democracy, liberty and justice and the antithesis rocks
the bottom of the rule of law. 4
The Judges play important role in the maintenance of rule of law
which is essential for the existence of the orderly society. It has rightly been
said that there is no office in the State of such power as that of the Judge.
Judges hold power which is immensely greater than that of any other
2 S.C.J., Kadiri
functionary. The citizen's life and liberty, reputation and property, personal
and domestic happiness are all subject to the wisdom of Judges and hang on
their decisions. Where judicial power becomes corrupt, liberty expires, no
security is left of life, reputation and property and no guarantee is left of
personal or domestic happiness. A strong impartial and capable judiciary is
the greatest need of a State.5
Complex role of Judge
The Supreme Court while pointing out the complex role of Judge in
a recent times has observed that “the extraordinary complexity of modern
litigation requires him not merely to declare the rights to citizens but also to
mould the relief warranted under given facts and circumstances and often
command the executive and other agencies to enforce and give effect to the
order, writ or direction or prohibit them to do unconstitutional acts. In this
ongoing complex of adjudicatory process, the role of the Judge is not merely
to interpret the law but also to lay new norms of law and to mould the law to
suit the changing social and economic scenario to make the ideals enshrined
in the Constitution meaningful and a reality. Therefore, the Judge is required
to take judicial notice of the social and economic ramification, consistent with
the theory of law. Thereby, the society demands active judicial roles which
formerly were considered exceptional but now a routine. The Judge must act
independently, if he is to perform the functions as expected of him and he
must feel secure that such action of his will not lead to his own downfall. The
independence is not assured for the Judge but to the judged. Independence
to the Judge, therefore, would be both essential and proper. Considered
judgment of the Court would guarantee the constitutional liberties which
would thrive only in an atmosphere of judicial independence. Every
endeavour should be made to preserve independent judiciary as a citadel of
public justice and public security to fulfil the constitutional role assigned to
3 S.C.J., Kadiri
the Judges.”6
Etymology
Amidst the above backdrop the discussion on “Canons of Judicial
Ethics, Conduct, Character and Integrity of a Judicial Officer” has got
immense say in the day-to-day administration of justice. Though the word
“Canon“ is not associated with Judiciary, judicial acts etc., directly, yet in the
usage from the times of yore, the word 'Canon' is used to project the
standards of the Judges. We do not find anywhere the etymology like the
Canons of Executive or the canons of Legislative. Almost the word Canons
find place, wherever there is discussion on Judiciary or Judges. To trace out
the etymological background of the word, Canon means, here in the context,
a general rule, standard or principle by which something is judged. Canon
means a principle or a standard for which there is no exception. For an
example, if it is said that the Judge shall be honest, for this principle there is
no exception that on such and such occasion a Judge can be dishonest. That
is the reason the word Canon is used instead of principle. It is needless to
state that for every principle there will be an exception, but for Canon there
is no exception.
Character, conduct and integrity
In an attempt to judge, the embodiment of the Judge the trio viz.,
the conduct, character and integrity form a pivotal role.
In so far as conduct and character are concerned, the Supreme
Court observed in Krishna Swami v. Union of India7 that the holder of office
of the Judge of the Supreme court or the High court should, therefore, be
above the conduct of ordinary mortals in the society. The standards of
judicial behaviour, both on and off the bench, are normally high. There
cannot, however, be any fixed or set principles, but an unwritten code of
4 S.C.J., Kadiri
conduct of well-established traditions is the guidelines for judicial conduct.
The conduct that tends to undermine the public confidence in the character,
integrity or impartiality of the Judge must be eschewed. It is expected of him
to voluntarily set forth wholesome standards of conduct reaffirming fitness to
higher responsibilities.
“Judicial office is essentially a public trust. Society is, therefore,
entitled to expect that a Judge must be a man of high integrity, honesty and
required to have moral vigour, ethical firmness and impervious to corrupt or
venial influences. He is required to keep most exacting standards of propriety
in judicial conduct. Any conduct which tends to undermine public confidence
in the integrity and impartiality of the court would be deleterious to the
efficacy of judicial process. Society, therefore, expects higher standards of
conduct and rectitude from a Judge. Unwritten code of conduct is writ large
for judicial officers to emulate and imbibe high moral or ethical standards
expected of a higher judicial functionary, as wholesome standard of conduct
which would generate public confidence, accord dignity to the judicial office
and enhance public image, not only of the Judge but the court itself. It is,
therefore, a basic requirement that a Judge's official and personal conduct be
free from impropriety; the same must be in tune with the highest standard of
propriety and probity. The standard of conduct is higher than that expected
of a layman and also higher than that expected of an advocate. In fact, even
his private life must adhere to high standards of probity and propriety, higher
than those deemed acceptable for others. Therefore, the Judge can ill-afford
to seek shelter from the fallen standard in the society.”8
In so far as the integrity of a judicial officer, the constitutional
Courts had various occasions to delve into the aspect, whereby the Division
Bench of the Hon'ble High Court of Himachal Pradesh discussed the word
integrity by holding that “integrity according to Oxford dictionary is moral
5 S.C.J., Kadiri
uprightness; honesty. It takes in its sweep, probity, innocence, trustfulness,
openness, sincerity, blamelessness, immaculacy, rectitude, uprightness,
virtuousness, righteousness, goodness, cleanness, decency, honour,
reputation, nobility, irreproachability, purity, respectability, genuineness,
moral excellence etc. In short it depicts sterling character with firm
adherence to a code of moral values. 'Judiciary is an integrity institution'.
Therefore, Judicial Officers should possess the sterling quality of integrity.“9
In Tarak Singh v. Jyoti Basu10, the Supreme Court observed that
“integrity is the hallmark of judicial discipline, apart from others. It is high
time the judiciary took utmost care to see that temple of justice does not
crack from inside, which will lead to a catastrophe in the judicial-delivery
system resulting in the failure of public confidence in the system. It must be
remembered that woodpeckers inside pose a larger threat than the storm
outside.”
The apex Court in Daya Shankar vs. High Court of Allahabad11 has
held that “judicial officers cannot have two standards, one in the Court and
another outside the Court. They must have only one standard of rectitude,
honesty and integrity. They cannot act even remotely unworthy of the office
they occupy.”
The Supreme Court has cautioned against the plague of dishonesty
by observing that “dishonesty is the stark antithesis of judicial probity. Any
instance of a High Court condoning or compromising with a dishonest deed of
one of its officers would only be contributing to erosion of the judicial
foundation. Every hour we must remind ourselves that the judicial floats
only over the confidence of the people in its probity. Such confidence is the
foundation on which the pillars of the judiciary are built.”12
The confabulation on the topic of “Canons of Judicial Ethics,
6 S.C.J., Kadiri
Conduct, Character and Integrity of a Judicial Officer” cannot be concluded
without discussing the relationship between the bench and bar. In this
regard, the Supreme Court observed that “Administration of justice is not
something which concerns the Bench only. It concerns the Bar as well. Bar is
the principal ground for recruiting Judges. No one should be able to raise a
finger about the conduct of a lawyer.”13
The members of the Judiciary are drawn primarily and invariably
from the bar at different levels. The high moral, ethical and professional
standards among the members of the bar are preconditions even for high
ethical standards of the bench. Degeneration thereof inevitably has its
eruption and tends to reflect the other side of the coin.14
In the same thread, the High Court of Gujarath had an occasion to
discuss about the relations of bench and bar and held that “The Bar and
Bench play important role in the administration of justice. The Judges
administer the law with the assistance of the lawyers. The lawyers are
officers of the Court. Since the lawyers are officers of the Court, they are
required to maintain towards the Court respectful attitude bearing in mind
that the dignity of the judicial office is essential for the survival of the
society. During the presentation of the case and while acting otherwise
before the Court an advocate is required to conduct himself with dignity and
self−respect. He should not influence the decision of the Court by any illegal
or improper means. Besides, he is prohibited the private communication with
a Judge relating to a pending case. He should use his best effort to restrain
and prevent his client from resorting to unfair practices in relation to the
Court. An advocate should not consider himself a mere mouthpiece of the
client and should exercise his own judgment in the use of restrained
language in dealing with the Court. He should not use intemperate language
during arguments in the Court. He should avoid scurrilous attacks in
7 S.C.J., Kadiri
pleadings.”15
For the Judges of Subordinate Judiciary, it is imperative to adhere
to the above glaring lines of the Hon'ble Supreme Court and the High Courts
for their day-to-day work in the career.
References
1. In re: Vinay Chandra Mishra AIR 1995 SC 2348
2. P.D.Gupta vs. Ram Murti AIR 1998 SC 283
3. Ravichandran Iyer vs. Justice A.M.Bhattachargee (1995) 5 SCC 457
4. Ibid at 3.
5. See Special Criminal Application vs. State of Gujarat, High Court of
Gujarat at Ahmedabad (date of disposal 10.12.2014)
6. Ibid at 3.
7. 1992 (5) JT 92
8. Ibid at 3.
9. K.P.Singh vs. High Court of H.P. & others in LPA No. 163 of 2009,
decided on 21.4.2011, by Division Bench of Hon'ble H.P. High Court. (per
Justice Kurian Joseph, C.J.)
10. (2005) 1 SCC 201
11. (1987) 3 SCC 1
12. High Court of Judicature vs. Shashikant Patel (2000) 1 SCC 416.
13. Ibid at 2
14. Ibid at 3
15. Ibid at 4
Sd/- Dr. S.Md.Fazululla,
Senior Civil Judge, Kadiri.
1
JUDGMENT WRITING IN GENERAL
The term “judgment” means the decision of a court giving finality to
the litigation or charge, on a question or questions on facts and law in
controversy between the parties. Judgment is an end product of judicial
exercise. “Judgment is the culmination of the action, declares the
existence of the right, recognises the commission of an injury or negatives
the allegation of one or the other” as observed in Gurdit Singh Vs. State
of Punjab (1974) 2 SCC 260. The court has to “right a Judgment which
must be inconformity with the provisions of Law and set out the reasoning
by which the controversy is resolved” as observed in Balarj Taneja Vs
Sunil Madan (1999) 8 SCC 396. The capacity, attitude and approach of
a Judicial Officer are seen through the judgment. The quality of judgment
is reflected in the proper perception of legal principles, method of analysis,
clarity and coherence of thought and use of fault-less language. There
must be constant endeavour on the part of the judicial officers‟, whose
judgment easily finds their way to the public and to the prosecuting
agencies, to right good judgments and subject themselves to a process of
self assessment on the basis of the judgment rendered by them.
2. The writing of a judgment is one of the most important tasks
performed by a Judge. The making and the writing of a judgment and the
style in which it is written, varies from Judge to Judge and reflects the
characteristic of a Judge. Every Judge, of every rank has his own distinct
style of writing. A judgment is distinct from a formal order as it gives
reasons for arriving at a conclusion. It is an „opinion‟ with the explanation,
given by a Judge for the order finally proposed or made.
3. RELAVANT PROVISIONS:- For civil cases, Judgment is
defined under Sec.2 (9) CPC 1908 as “The statement given by the judge
on the ground of a decree or order”. The “decree” in section 2 (2) means
formal expression of an adjudication, which, so far as regards the Court
2
expressing it, conclusively determination the rights of the parties with
regard to all or any of the matters in controversy in the suit and may be
either preliminary or final. In K.M. Krishnaiah Vs Tirumala Tirupathi
Devasthanam, 1997 (5) ALT 258 = 1997 (2) L.S. 362, it is held that
requirements of decree or an order to be satisfied to form a decision in civil
cases and mere caption of an order or decree and drawn up in the form of
decree is not sufficient. The “decree” under Section 2(14) is defined as
formal expression of any decision of a Civil Court, which is not a decree.
Section 33 of CPC says that 'the court, after the case has been heard, shall
pronounce Judgment, and on such Judgment a decree shall fallow. Order
XX of the Code, deals with “Judgment and Decree”. Rule 143 and Form
24 of Civil Rules of Practice prescribed the form of judgment.
4. For criminal matters, Chapter XXVII of the Code of Criminal
Procedure, 1973 provides for „the Judgment‟. Section 353 requires the
judgment in every trial to be pronounced in open Court immediately after
the termination of the trial, or at some subsequent time of which notice
shall be given to the parties or their pleaders. Section 355 provides for a
summary method of writing judgment by Metropolitan Magistrate, giving
only particulars regarding the case, name, parentage and residence of the
accused and complainant, the offence complained of or proved; plea of the
accused and his examination (if any); the final order and the date of order,
and where appeal lies, a brief statement of the reasons for the decision.
5. The Code of Civil Procedure, 1908 and Code of Criminal
Procedure, 1973 have provided sufficient guidelines for writing judgment.
These, however, are not exhaustive. For better Judgment, Judicial Officers
must keep in mind the aspects (i) Pleadings (ii) Admitted and disputed
facts (iii) Issues /Charges (iv) Evidence both oral and documentary (v)
Arguments submitted by the counsel for both the parties (vi) Applicable
3
Law and (vii) Relevant case laws. A judgment in general contains 10
heads called 1.Heading 2.Introduction 3.Facts 4.Issues/Charges
5.Evidence 6.Arguments 7.Reasoning 8.Result/operative part 9.Appendix
10.Signature and date.
1. HEADING:- Every judgment whether it is Civil or Criminal
judgment contains the heading. The first line of the heading relates to the
actual nomenclature of the court deciding the issue. After the heading the
name of presiding Officer, who delivered the judgment, together with the
designation of the officer. After the name of the presiding officer, date of
the judgment in words as per English calendar should be mentioned.
After mentioning the dates of judgment mention the case number.
For example original suit as O.S, Sessions Case as S.C, Calendar case as
C.C. etc. Then the short cause title i.e., the names of all the parties. There
may not contain the father‟s name and the descriptive particulars of the
parties in short cause title unless two or three parties bear the same name
including surname. Then the names of the counsel appearing for both
parties and also mention the date of final hearing of the arguments, more
particularly the last date on which the arguments heard. It is purely
ministerial function and the stenographer attached to the court, types
these details.
2. INTRODUCTORY: The opening words of the judgment in civil
cases should show in a few lines the nature of the dispute, provision of law
and the relief sought. In criminal cases nature of offence and relevant
section of Law. The purpose is to tell anybody reading it, the outset what
the case is. The opening para thus should state in the briefest possible way
the theme and nature of the dispute that one is called upon to decide.
It is imperative that the presiding officer tells the reader or listener
right at the beginning what the case is all about; who the parties are; how
the case came before the officer and what are required to decide. If it is an
4
appeal against main case or I.A, an opposed aggrieved portion must be
mentioned be simple, crisp and succinct, but sufficiently inform the
reader/listener, introduction must always what the case is all about.
3. FACTS: A judgment must begin with clear recitals of facts of the
case basing on pleadings. The facts must come from the record and not
from the abstract and briefs. Narration must be without any colour to its
pleadings. Ordinarily a brief statement of fact is sufficient if it indicates the
context of the dispute/offence so that legal principle chosen for decision
can be understood. It is necessary to record substance of factual context
and the details of evidence placed before the Court. The Judge must prefer
to narrate the facts in greater detail distinguishing 1. What are facts?
2.What are relevant facts? 3.What are facts in issue? and 4.What are the
facts proved?
Traditionally facts constitute the most important part of the trial.
More often than not, cases are decided on the facts. In the trial court, the
facts are gleaned from the pleadings/complaints, oral and documentary
evidence. The facts may either be common cause or disputed. Where the
facts are disputed, can be determined while discussing the facts or may
leave them for later stage, to deal with the issues.
A reference to the pleadings is required only to the extent it is
necessary. The judge should, on a perusal of the pleadings, make out an
analytical summary of the respective cases setup by the parties. In
criminal cases the case of the prosecution mainly basing on the complaint
filed by defacto complaint and charge sheet must be narrated. It is a
settled law that pleadings are the foundation of the case on which the
entire judgment depends and one should not travel beyond the pleadings.
4. FORMATION OF ISSUES / CHARGES: . Issues arise when
material prepositions of facts or law is affirmed by the one party and
5
denied by the other. Issues/charges would play an important role as heart
to the judgment. The court must confine it‟s judgment, to the
pleadings/complaint and issues/ charges framed and should not enter
into the factual controversy beyond the pleadings and issues. In criminal
cases, charges framed by the Court lead to the trial. The judgment must
quote the issues/ charges, as the case may be immediately after the
narration of facts. Order XIV of CPC and Rule 106 of the A.P. Civil Rules
of practice deals with framing of issues. Section 228 and 240 of Cr,P.C
deal with framing of charges.
The formulation of issues/charges, should be initiated as early in
the proceedings as possible. Once the parties are clear in their mind about
the essential questions, they may shorten the proceedings. It also helps to
focus the mind of the judge on the precise matters to be determined. In a
civil matter it is merely a reproduction of the issues already framed. In Sri
Nanjundachari Vs Thee chairman , 1999 (2) ALT 14.1 (DNOHC), it is
held that it is mandatory on the part of the trial court to frame all
necessary issues arising from pleadings i.e. material proposition of fact
and law as affirmed by one party and denied by the other. The court shall
ordinarily pronounce judgment on all issues. But where any issue relates
to the jurisdiction of the court or a bar created by any Law for the time
being in force, the court may postpone main issues in controversy and
decide the pertaining issues first.
In criminal matters the court will frame the 'points for determination'
while dictating Judgment. In Velayudhan Vs. State of Kerala 1994 (1)
ALT (Crl.) 112, it is held that the Judgment shall contain points for
determination and reasons for decision on each point and each point
must be considered separately as far as possible. Care should be taken
that no material point on fact or law has been over- looked. The entire case
6
depends on the issues/charges. Our appreciation of evidence must always
be on issues/charges.
5. EVIDENCE:- Before deciding an issue or recording finding on a
charge, the relevant evidence must be discussed. Every Judge has his own
style of discussing the evidence. It is, however, always better to discuss the
evidence before giving an opinion to rely upon it. The judge must give the
details of the evidence led before it. However, only the relevant evidence
must be narrated and that too very briefly giving the purpose for such
evidence was led. The documents admitted in evidence after they are
proved on record must find their mention along with oral evidence by
which they were proved. A brief narration, however, will suffice if it is
precise and is clearly stated. Evidence is classified as direct evidence,
circumstantial and hear say evidence, real, and personal evidence, original
and unoriginal evidence etc.,
Evidence as defined under Sec.3 of the Evidence Act is of two kinds
oral and documentary. Oral evidence comprises all statements which the
court permits or required to be made before it by witnesses, in relation to
matter of fact under enquiry. Documents produced for the inspection of
the court are called documentary evidence. Document is again defined in
Sec.3 of the Evidence Act as Document means “any matter expressed or
described upon any substance by means of letters, figures or marks or by
more than one of those means, intended to be used or which may be used,
for the purpose of recording that matter”.
6. ARGUMENTS:- While dictating Judgment we have to keep in
mind the arguments made by learned counsel for both the parties. It is
the duty of the judge to receive the every offer of evidence. A judge has a
duty of his own, independent of them and that duty is to investigate and
find out the truth. A Judgment must briefly state the contentions of the
7
counsels on the points of determination. So far as possible all the
contentions raised by the counsels except those, which are wholly frivolous
must be mentioned on the record. After the Judge has met with all the
contentions he must record, that no other point was pressed.
The arguments of the counsel need not be reproduced verbatim or
in-extenso in the judgment. It is the duty of the judge to consider the
written arguments if any as a whole while dictating the judgment. The
judge has also to consider the case law so submitted basically with
reference to questions of law and incidentally with reference to facts also.
Once again the decisions relied upon by both sides as well as the leading
decisions and sort out the relevancy and decide for.
7. REASONING:- The soul of a judgment is the reasoning for
arriving at the findings. Reasoning is also called „the opinion‟ of a Judge.
There is no rigid rule, as to how a finding may be recorded. The Judge,
however, should give his reasons. The judge must be able to eliminate
chaff from the grain so that relevant and disputed facts and contentious
issues are brought out in the judgment leaving out the reference to
unnecessary and irrelevant matters. It is not sufficient to say that he
believes the evidence or agrees with the argument. The Judge must give
his reasons for such belief. An elaborate argument does not always require
elaborate answer.
In civil cases, one should decide only those material facts which are
alleged by the plaintiff and then state in another para the facts denied by
the defendant including specific defence raised by him. A Judge must be
able to summarize or reduce the principle laid down in that case to the
extent necessary and comment whether that principle has any application
or relevancy. The discussion part of the judgment should not be dominated
by mere narration of deposition of each and every witness. A reference to
8
irrelevant or unnecessary evidence for determination of the point under
discussion should be avoided. The reasoning and appreciation of evidence
should always be in connection with findings and result.
Absence of reasons makes the judgment appreciates not proper. The
reasons should be stated clearly for proper understanding. The reasoning
should be based on the evidence. In Bachan Singh's case (1980) 2 SCC
683, and in Des Raj Vs. State of Punjab 2007 (8) SCJ 237,a
Constitutional Bench while upholding the constitutional validity indicated
broad criteria which should guide the courts in the matter of sentencing,
and held that “ for making choice of punishment or for ascertaining the
existence or absence of special reasons in that context, the court must pay
due regard both to crime and criminal. A judgment is not expected to be
verbatim narration of the entire evidence. Reasoning is not expected to be
complete reproduction of the evidence. The evidence which is necessary for
determination of questions in controversy between the parties should be
discussed. There is no necessity to discuss the minute details which are
not necessary. All efforts shall be made to see that causes are decided
justly and litigations are terminated by expression of definitive and precise
opinions on the issues involved.
In the words of Hon‟ble Sri Justice Mukharji “The Supreme
requirement of a good Judgment is Reason. Judgment is of value on the
strength of it's Reasons. The weight of a Judgment is binding character
depends on the presentation and articulation of Reason. Therefore it is the
soul and spirit of a good Judgment”. The parties if possible or at least the
counsel-may be able to understand the manner in which their cases are
dealt with. There must be sufficient indication of our advertence to the
relevant points which arise for consideration and the reasons why we
decided the suit in a particular manner. We have to apply our mind to the
relevant considerations and it shall be capable of being understood by an
9
ordinary prudent man. Before, making observations on legal aspects, we
should know preliminarily what the relevant law is.
The primary purpose of reasoning for a verdict is to dispose of the
matter in controversy between the parties before it. A judge, however, is
not expected to drift away from pronouncing upon a controversy. It leads
to criticism and commenting thereon. The most importance part of the
judgment is the discussion of the each issue/points for determination and
pronouncement of clear positive finding. The finding should be based on
the sound reasoning. Major portion of the judgment must be the reasoning
on the evidence produced by both parties. The relief to be granted is largely
determined by the findings of law and fact. It can at times prove to be the
most difficult aspect of the case. Order XX Rule 5 CPC mandates that in
suits, the court shall state it‟s findings or decision, with the reasons
therefore, upon each separate issue.
A lengthy judgment containing copious reference to pleadings and
arguments without reasoning has no value. The reasons should be clearly
given and discussed while appreciating evidence to say that the trial court
applied its mind in delivering its verdict. Appreciation of evidence while
pronouncing the judgment plays an important role. It is very necessary to
give the specific reasons for the findings. While appreciating evidence one
should keep in mind not only the pleadings and evidence but also the
other material available on records i.e. connected matters, commissioner‟s
report, opinion of experts, interlocutory orders, third party affidavits etc.
Reasons given by a judge will reflect the working of his mind, his
approach, his grasping capacity on questions of fact and Law involved and
the depth of his knowledge. It is also necessary to keep in mind that after
reasoning on each issue/charge at the end, we have to disclose in whose
favour the particular issue/point is answered.
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8. RESULT i.e., OPERATIVE PART:- The operative portion of the
judgment should be clear, specific and unambiguous. In civil cases, the
operative portion of the judgment shall contain recitals as to whether the
suit is decreed or dismissed and whether any cost is imposed or not. The
operative portion should contain the relief either given to the parties or not
given. It is not healthy practice to mention simply that the suit is decreed
as prayed for. It is very essential to mention clearly what is the relief given
to the parties and how it can be implemented. The period also be
mentioned for implementation of the decree if necessary in the operative
portion itself. For example in a suit for eviction if the suit is decreed we
have to mention the period within which the defendant has to deliver the
vacant possession to the plaintiff. In mortgage suits, the period of
redemption, there should be a finding with regards to costs also in the
operative portion. It should clearly be mentioned as to whether the suit is
decreed with costs or without costs.
In criminal matters, if the judgment is of acquittal it shall state the
offence of which the accused is acquitted and direct that he be set at
liberty. As provided in section 354 (3) Crpc in case of conviction for an
offence punishable with death or in the alternative with imprisonment for
life, the judgment has to state the reasons for sentence awarded and in the
case of sentence death special reasons for such sentence. In case of
conviction with imprisonment for a term of one year or more, a shorter
term of less than three months, also requires the Court to record reasons
for awarding such sentence, as stated in Section 354(4) Crpc.
The order to pay compensation where the Court imposes sentence or
fine; order of compensation for groundless arrest and the order to pay cost
in non-cognizable cases, may be made with the judgment under Sections
357, 358 and 359 of the Cr.P.C. Section 360 provides for order to release
on probation on recording, special reasons, in certain cases where the
11
Court applies with Probation of Offenders Act, 1958. When a court
imposes a sentence of fine, order the accused to pay such amount to the
person, who has suffered any loss or injury invoking section 357 (3) Crpc.
Operative part records the end result of the case. In a criminal case
it is the verdict. Care must be taken to ensure that the order is accurately
and correctly worded. The result must be clear and easy to understand. In
criminal matters after recording conviction, the Judge has an important
task of giving sentence, fine or compensation. The law requires the
accused to be heard before awarding sentence, which we call it as
Quantum of sentence or Question of sentence. The Judge must give
reasons for giving sentence, fine and apportion the compensation to the
victim for the sufferance, commensurate with severity of the offence. In
criminal matters where more than one offence is charged, the filing must
reveal as to whether the sentences run concurrently or consecutively. If
the accused under-gone any imprisonment, there should be an order for
set-off. In Shah Bahulal Khimji Vs. Hayben D. Kania (1981) 4 SCC 8,
it is held that the word Judgement has a concept of finality in a broader
sense and not in a narrower sense.
9. APPENDIX:- It is nothing but mentioning of the names of parties
and witnesses examined and their number. The appendix also contains
nomenclature of the documents and its number in detail. The portion
below signature of the judge in the judgment is known as appendix. The
appendix contains first, the names of the witnesses together with their
serial number as PW‟s (plaintiff‟s/prosecution witnesses), DW”s
(defendant‟s/defense witnesses) and CW”s (Court witnesses). There after
the documents seriatim relied upon by plaintiff‟s side as well as the
documents relied upon by the plaintiff‟s side as well as the documents
relied upon by the defendant‟s side are mentioned together with the
12
descriptive particulars including the dates of documents as Ex.A1, Ex.B.1
etc.
10. SIGNATURES & DATE :- Before noting the index Judge who
pronounces Judgement/order subscribe his/her signature. Each page of
the Judgement must also be signed by the judge. At the end of this list
contained in the appendix, the judge who pronounces judgment once again
makes his mark by either initialling the judgment or signing the same in
full. Order XX Rule 3 CPC mandates that cases the judgment shall be
dated and signed by the Judge in open court at the time of pronouncing it
and, when once signed shall not after words be allowed or added to, rare
as provided by sec.152 CPC or on relevancy. Judgment or the operative
part shall be signed and dated by presiding officer in open court and every
page of judgment shall be signed by him as prescribed under section
353(3) Cr.P.C. A copy shall be immediately made available for the perusal
of the parties or their pleaders on free of costs as per section 353(4) Cr.P.C.
In civil case copy of Judge and shall be made available for preferring an
appeal on payment of charges as provided Under Order XX Rule 6-B CPC.
This ends the usual contents of the judgment.
GENERAL OBSERVATIONS
1. LANGUAGE:- Plain and simple language has always been appreciated
in writing judgments. The language of the judgment is expected to be
easily understood. Brevity, simplicity and clarity are the hallmarks of the
good judgment. The greatest of these is clarity. Faulty language and wrong
construction of sentences should not occur in a judgment. If poor in power
of expression or in grammar, we should not hesitate to improve our
language. Section 354 of Crpc deal with the language and contents of
judgment. It is always advisable to select simple words and simple
sentences in drafting the judgment. It is the duty of the judge to see each
and every sentence of the judgment. If necessary to have a fresh copy. A
13
judgment full of typographical mistakes even if it is due to inefficiency or
negligence of the typist should not be allowed to remain as it is. It is the
duty of the judge to correct them on the draft copy and have a fresh copy
of the same.
It is always preferable to pronounce the judgment only after
dictation of entire judgment and after getting the fair copy of it. It is better
to avoid invidious examples, unnecessary quotations, and lecture. Short
sentences and para phrasing, head notes and subheading, wherever it is
necessary, is a recommended style of writing a judgment. The judgment
as provided in Section 354, is to be written in the language of the Court,
and shall contain the point or points for determination, the decision
thereon and the reasons for the decision. The judgment must be designed
and structured so that readers find their way through it, easily and
quickly. There is no such thing as good writing. It also ensures to avoid
silly mistakes. It is advisable to the Judges, to read their judgments after a
few years, to ensure that same mistakes are not repeated. There is always
a room for improvement. Even when it becomes necessary, try to express
in the language known to the reader.
The abbreviations should not be used in judgments. However, there
is an exception. Universally accepted abbreviations such as letters
indicating the degrees and the letters indicating the ranks of politicians
etc., are always permissible. However, the style of writing judgment namely
using simple language with clarity of mind both in writing legal principles
and conclusions, adds quality to the judgment. The language employed by
a Judge speaks of his character. A humble Judge with human personality
avoids using intemperate and unparliamentarily language.
2. APPLICATION OF THE LAW:- Referring the relevant provisions
of laws and reading of law journals would help, to improve quality of
14
Judgement writing. Once the issues have been delineated and identified,
one has to identify the law and legal principles that are applicable. It is not
necessary to quote the cases or material that, were researched. Only those
cases which are relevant and which support our decision needs to be
quoted and analysed. Remember that Judges are not writing a thesis or
displaying erudition. It is merely to support the decisions. The next step,
is how to apply the law to the facts. Whenever any question of law arises it
is the duty of the presiding officer to collect and follow the latest citations.
When the essential questions of law are clear, the way to decision becomes
easy. It is always helpful to quote the statute and the settled law, if it can
be found in authority, to proceed further with discussing the evidence.
In referring to case avoid practice of referring head note and foot
note, without reading full text. Read the entire case and make sure that it
is on point. Demonstrate to the reader/listener, how the case supports our
conclusion. In many cases, once the facts and the applicable law have
been decided, the answer becomes self-evident. Judgment must be fair,
reasonable and proper in line of the maxim “ubi jus, ibi referendum”.
The particular passages in the judgement which are relied upon
should be identified. If a judgement has been published in an authorised
report with consecutively numbered paragraphs, it should be referred to by
paragraph numbers rather than page numbers. Avoid citing authorities
which merely rephrase, illustrate or apply those principles or propositions
in a way which does not assist the court materially in resolving the real
matters in dispute. An unreported judgement should not usually be cited
unless it contains a statement of legal principle, or a material application
of principle, which is not found in reported authority. Reference of Head
Notes or Foot Notes from cited judgements in not healthy style. Simplicity
15
and clarity have always been the watch words for effective impressive
Judgment writing.
3. LINE AND LEGTH:- It is better to divide the judgment into
paragraphs of reasonable length. The judgement should not be too lengthy
containing big paragraphs. In civil matters, the judgements as the
requirement of law goes may be broadly classified into two categories,
namely, long and short judgements. In original suits, the final decision of a
case requires writing of a long and reasoned judgement. These includes
suits for permanent or prohibitory injunction; possession and manse
profit; specific performance of contract; cancellation of documents;
partition and possession; dissolution of firm and accounting; redemption
or foreclosure of mortgage etc. As compared to it, a Judge is required to
write short judgements, in the matter of interlocutory orders; summary
suits; preliminary issues; review; restoration; accepting compromise etc. It
is easier to write short judgment where legal issues are involved.
In sessions cases where more number of witnesses examined and
more number of documents & MO,s are marked, we can‟t escape from
dictating lengthy judgements. In such cases appreciation on each and
every aspect involved is necessary. Detailed reasoning to the finding is
preparable to avoid injustice. In State Vs. Nalini 1999 (2) ALT (Crl.) 1
SC, it is held that special reasons to be recorded to impose capital
punishment by explaining rarest of rare cases and by considering
aggravating as well as mitigating circumstances. Reputation should be
avoid and one should try to give the judgement as brief as possible. It is no
longer prudent to write a long and verbose judgement, with uncontrolled
expressions and citations.
4. PRECAUSIONS:- Take copious notes during the hearing the
arguments. At the end of the day‟s hearing, one must review the said notes
16
and familiarise with the case on an on-going basis as it is presented.
Study the documents involved in the case. Think about the
issues/charges involved keep the mind open and start formulating
provisional views on these issues/charges. Make notes of thinking about
the case as the trial progresses, including impressions of the witnesses.
Start writing with open mind. Clear thinking is the key to clear writing. If
there are legal points involved, devote as much time as to study the law.
Formulate in mind, the legal principles applicable to the case, citing
relevant authority. This formulation, modified from time to time as the
evidence unfolds the judgement is an end product of judicial exercise.
5. STYLE OF SCRIBING:--There is a wide discretion left with the Judges
to choose their style of writing, language, manner of statement of facts,
discussion of evidence and reasons for the decision. The backlog of cases
has put a great pressure on the Judges. The pressure of work and stress
on most of the Judges today, demands improving skills in writing
judgement, which are brief, simple, and clear without compromising with
the quality. Good editing ensures that a judgement is lucid, thorough,
coherent, concise and has a transparent reasoning.
The choice of style is very personal. We have to scribe the judgement in
a way, which is easy for the reader to understand. People, particularly
lawyers express themselves in different ways. The judgment writing
consumes the major part of Judge‟s work. The Judges by their experience,
find methods of style to reduce this burden, by writing brief opinions. The
judgment, however should serve the requirement of law without
compromising with the quality.
The lawyers who are thorough with the law and the lawyers who
are absolutely new to law will appear in our courts. The senior lawyer who
is well equipped and well-versed in law may guide properly and may not,
17
depending on the quality of the counsel. A lawyer who has been at the Bar
for a short period may not be equipped to provide sufficient guidance. We
have to adopt our own style of receiving the submissions, basing on our
own knowledge and experience. The style of judicial writing is constantly
changing. We must start scribing the Judgments only after reaching
decision to our mind first. Never attempt writing of judgment before that.
Style of writing judgment without knowing what we are going to say, is not
healthy practice.
6. PURPORT::-- Judgments are written mainly for the benefit of the
parties. It is also written for benefit of legal profession. The losing party is
the primary focus of concern. The winner is not much interested in the
reasons for success, as he is convinced of the righteousness of the cause.
The looser, however, in the expensive litigation is entitled to have a candid
explanation of the reasons for the decision. It is not only for exercise of
any appellate right but also to uphold the intellectual integrity of the
system of law, impartiality and logical reasoning. The lawyer is interested
in the judgment as he understands the analysis and expositions of legal
precedents and principles. The lawyers also examine the judgments for
learning they provide, and for the reassurance of the quality of judiciary.
They can easily find out errors in fact finding.
The judge is also aware that his decision may be reported and that
it may establish a legal principle, binding, until it is set aside by the
appellate Court. The best Judges perform their reasoning opinion honestly
to the best of their ability without undue concern that the appellate Court
may find error or reach a different conclusion.
The judgment is also a reflection of the conscience of a Judge, who
writes it, and evidences his Impartiality, Integrity and Intellectual honesty.
The judgment writing is an opportunity to judicial officers to demonstrate
18
their own ability and. The judge should be able to eliminate the chaff from
the grain. It is essential that the judgment shall be just and also appear to
be just.
JUDICIAL ETHICS
The word ethics is derived from the Greek word ethos, which means
"character," and from the Latin word mores, which means "customs."
Aristotle was one of the first great philosophers to study ethics. To him,
ethics was more than a moral, religious, or legal concept. He believed that
the most important element in ethical behavior is knowledge that actions
are accomplished for the betterment of the common good. He asked
whether actions performed by individuals or groups are good both for an
individual or a group and for society. To determine what is ethically good
for the individual and for society, Aristotle said, it is necessary to possess
three virtues of practical wisdom: temperance, courage, and justice.
2. Judges must comply with the Code of Judicial Conduct, which
was formulated by the ABA in 1972. This code is not considered law. The
restatement of values of judicial life was a charter adopted by Hon'ble S.C
in its full bench in 1997 with the objective of serving a guide of judicial
conduct for judges. This charter called “Restatement of Values of Judicial
Life” was also ratified and adopted by Indian Judiciary in the Chief
Justices Conference in 1999. At the international level, principles of
judicial conduct were approved and adopted in November, 2002 in Round-
Table Meeting of Chief Justices from several law systems held in Peace
Palace in Haque, Netherlands. Cannons of Judicial Ethics are unlimited. I
would like to present some of the important cannons of judicial ethics.
1. Integrity and Honesty,
2. A Judge should up hold independence of the judiciary
3. A Judge should perform the duties of the office fairly and diligently
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4. Divine duty to hold the office of public trust
5. Conduct and Character
6. Administration of Justice
7. A judge should be punctual and regular,
8. Restraint and Discipline,
9. Potentiality and Impropriety and
10. A judge should not engage in extra judicial activities.
3. Every judicial officer should possess sterling quality of
integrity. Integrity according to Oxford dictionary is moral uprightness;
honesty. Integrity is the hall mark of judicial discipline apart from others
as reminded by the Hon'ble Apex court in Tarak Shingh Vs Jvoti Basu
(2005) 1 SCC 201. Their honesty and integrity is expected to be beyond
doubt. In Daya Shankar Vs High Court of Allahabad, (1987) 3 SCC 1,
The Hon'ble Supreme Court set the following standard:
“Judicial officers cannot have two standards one in the court and
another outside the court. They must have only one standard of rectitude,
honesty and integrity. They cannot act even remotely unworthy of the office
they occupy”. In High Court of Judicature at Bombay Vs Shashikant
S. Patil (2000) 1 SCC 416, it is observed that dishonesty in the antithesis
of judicial probity and “a dishonest judicial personage is an Oxymon”.
In Registrar General Patna High Court Vs Pandev Gajendra
Prasad 2012 STPL (web) 305, it is observed that “there is no gainsaying
that while it is imperative for the High court to protect honest and upright
judicial officers against motivated and concocted allegations and it is
equally necessary for the High Court not to ignore or condone any
dishonest deed on the part of any judicial officer. It needs little emphasis
that the sub-ordinate judiciary is the king pin in the hierarchical system of
administration of justice.
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4. In Rajendra Singh Verma (Dead) through LRs VS
Leiutenant Governor (NCT of Delhi), 2011 10 SCC 1 it, held “when
integrity and honesty of Judicial officer is doubt full, the judicial review
should be made only with great care and circumspection and must be
confined strictly to the parameters set by the Supreme Court in several
reported decisions.
5. Judiciary should take utmost care to see that the Temple of
Justice does not crack from inside which will damage the justice delivery
system.. The integrity and independence of judges depend in turn on their
acting without fear or favor. Although judges should be independent, they
must comply with the law and should comply with this Code. This helps to
maintain public confidence in the impartiality of the judiciary. Violation of
this cannon diminishes public confidence in the judiciary and injures our
system of law. The courts are independent subject to the Constitution and
the law, which they must apply impartially and without fear, favour or
prejudice. No person or organ of state may interfere with the functioning of
the courts. Organs of state, through legislative and other measures, must
assist and protect the courts to ensure the independence, impartiality,
dignity, accessibility and effectiveness of the courts. The concept of
independence of Judiciary was the cause of concern of the Supreme Court
in the case of S.P. Gupta Vs. Union of India [1981 (Suppl.) SCC 87], and
the Court observed thus: -
“The concept of independence of the judiciary is a noble concept
which inspires the constitutional scheme and constitutes the foundation
on which rests the edifice of our democratic polity. If there is one principle
which runs through the entire fabric of the Constitution, it is the principle
of the Rule of Law and under the Constitution, it is the judiciary which is
entrusted with the task of keeping every organ of the State within the
21
limits of the law and thereby making the Rule of Law meaningful and
effective”.
6. The duties of judicial office take precedence over all other
activities. In performing the duties prescribed by law, the judge should
adhere to the following standards. A judge should be faithful to and
maintain professional competence in the law. A judge should hear and
decide matters assigned and should maintain order and decorum in all
judicial proceedings. A judge should be patient, dignified, respectful, and
courteous to litigants, jurors, witnesses, lawyers, and others with whom
the judge deals in an official capacity. A judge should require similar
conduct of those subject to the judge‟s control, including lawyers to the
extent consistent with their role in the adversary process. A judge should
accord to every person who has a legal interest in a proceeding. A judge
should not initiate, permit or consider ex- parte communications or
consider other communications concerning a pending or impending matter
that are made outside the presence of the parties or their lawyers.
7. The Judges thus are a privileged class and vested with
duties of great responsibility, holding offices of public trust. The duty of a
judge is a divine duty. The concept of rule of law is dependent on an
independent, fair and competent judiciary since judges are, to borrow
words from preamble of model code of judicial conduct adopted by
American Bar Association in 1990 “ arbiters of facts and law for the
resolution of disputes and a highly visible symbol of Government under
rule of law”.
8. There are certain cardinal principles of judicial ethics that
apply to any person holding a judicial office whether at the level of sub-
ordinate judiciary or in the High Court of the land, 1.Concerning to the
acts attributable to his official functions as a Judge, 2.Concerning his
22
conduct while in public glare, 3.The expectations of his during his private
life. His personal whims or caprice (action) can have no role to play in the
discharge of his official duties. His job is to here the parties in the open
court. Court's functioning under the public glare is based on “the principle
of transparency” to gain faith and confidence of the public in the system.
Therefore, it is a sacred duty of every judge to discharge his functions in
open court judicial service is not a service in the sense of an employment.
They are entrusted with divine duty in the office of public trust.
9. Judges are bestowed with the responsibility of judging the
conduct of fellow citizens. Therefore, it is natural that they be expected to
make truthful decisions in their own lives. If they succumb to making the
wrong choices, they lose the moral authority to judge the lives of others.
Judges are not only responsible for their own conduct but also for the
conduct of their own family. They have to sacrifice some of their freedoms
that they may have otherwise enjoyed.
10. A judge should maintain and enforce high standards of
conduct and should personally observe those standards, so that the
integrity and independence of the judiciary may be preserved. Self-
evidently, judicial officers have an obligation to perform their adjudicative
functions honestly, conscientiously and to the best of their abilities
without any undue influence, fear, prejudice or bias with the full
appreciation of the impact which their judgements have on society in
general. A judge needs to update himself with not only the changes in law
but also constantly keep abreast with judicial ethics. Judicial officers must
remember that they are the part of the institution and their individual
actions could have a bearing on the entire institution. In the public
perception a single wrongful act committed by a judge could often annul
much of the credibility upheld by the judiciary. The principles of ethics
23
that is the conduct of an ideal Judge arisen out of what is a legitimate well-
entrenched right of the people for whom the judicial institution has been
created. The rules of ethics are nothing but a corresponding sacred duty
on the part of judges to live up to those expectations.
11. A judge administers justice. In order to do justice, the first
and foremost expectation of him is to be just. In order to be just, he has to
be morally right, fair and impartial to all concerned. He cannot have any
predisposed state of mind. He has to be merciful and decisive. Judge has
to be upright and resolute. A fair judge will always be consistent in his
approach to the appreciation of facts and application of law to the facts
found proved before him. Inconsistencies in the judgment of an individual
bring bad name to the system.
12. It is age old principle “delayed justice is denied justice”.
Indian judicial system is facing the challenge of huge pendency. It is not so
easy to render quick justice. There is a need to expedite the wheels of
justice in every case and in each minute. A judge should not make public
comment on the merits of a matter pending or impending in any court. A
judge should require similar restraint by court personnel subject to the
judge‟s direction and control. The prohibition on public comment on the
merits does not extend to public statements made in the course of the
judge‟s official duties, to explanations of court procedures, or to scholarly
presentations made for purposes of legal education.
13. A judge should diligently discharge administrative
responsibilities, maintain professional competence in judicial
administration, and facilitate the performance of the administrative
responsibilities of other judges and court personnel. Excellence in Bench –
Bar relationship requires constant relation on both sides that both are the
institutions essential to the administration to the justice. Mutual respect
24
for and recognition of each other‟s role is essential for a healthy
harmonious relationship. A Judge cannot indulge, in or outside his court,
in such behaviour, which can create doubts about the credibility of his
character. Then only he would be able to command respect. The duty
remain within the bounds of morality is not only restricted to the Judge
himself but also to his family members. A scandalous behaviour on the
part of the Judge, even in his private affairs is bound to affect the image
and prestige of his office.
14. A Judge remains a judge 24 hours a day, 7 days a week and
365 days a year. A Judge thinks about the cases deeply, even while
sleeping. A judge should not sit idle and ensure that he/she has requisite
number of cases lined up before him/her so as to remain preoccupied
throughout the normal working hours. Be conscious while calling the
witnesses on a particular day to avoid overburden and to avoid calling the
witnesses again and again. A judge has to be available and accessible to
the people at large who are expected to invoke his jurisdiction for redressal
of their grievances. He has to be punctual and regular in adhering to the
court hours. It is the duty of a judge to check indiscipline amongst those
who are expected to play role in smooth functioning of court. The need for
punctuality and regularity of a judge is not only for better judicial work
but for the improvement in functioning of court, as a whole including
staff, members of the Bar, the litigant, witnesses etc,. Repeatedly our
Hon'ble High Court issuing circulars reminding the officers to hold the
bench from 10.30 am to 5.00 pm by posting sufficient matters to conduct
proceedings on Bench with a specific direction to have the lunch in
chambers carrying lunch boxes.
15. There are the most important attributes of an ideal judge and
such a judge would maintain dignity and decorum in his court, would not
25
indulge in loose talk, would refrain from unnecessary utterances and
would keep his temper in check. A judge would always be polite and
peaceful. We determine the rights of the parties to a lis. In the words of
SOCRATES four things the judge has to do, 1.To hear courteously, 2.To
proceed wisely, 3.To consider soberly, 4.To decide impartially. Judges are
mere agents of superior power that empowers us to do justice for the
people in need of help. His judgment would be dispassionate. He would not
be identified with cause of a particular section of society. He would refrain
from socializing unnecessarily, not only with the persons having official
work in his court but also generally with the society at large, since there is
no guarantee who will come before him. Coming to the allurements, a
judge must train himself in the beginning of his judicial career not to fall
prey to offers valuable gifts in cash, kind or service from members of
general public. A judge should not act as a leader or hold any office in a
political organization. He should not attend to make speeches for a
political organization or candidate, or publicly endorse or to oppose a
candidate for public office. He should not solicit funds as contribution to a
political organization or candidate, or attend or purchase a ticket for a
dinner or other event sponsored by a political organization or by candidate.
16. In order to assess potentiality obviously, the entire
record of service, character rolls, quality of judgments and other relevant
circumstances like general reputation, integrity, efficiency, performance,
conduct etc. do form the basis. Doubtful integrity and suspicious judicial
conduct are sufficient to deny a judicial officer to get benefit of
enhancement of superannuation age. It is in totality of the circumstances
available from the entire service record and all other relevant
circumstances that an opinion has to be formed whether or not the
Judicial Officer deserves to be given benefit of increase of superannuation
age.
26
17. A judge should respect and comply with the law and should
act at all times in a manner that promotes public confidence in
impartiality of the judiciary. A judge should not allow family, social,
political, financial, or other relationships to influence judicial conduct or
judgment. A judge should neither lend the prestige of the judicial office to
advance the private interests of the judge or others nor convey or permit
others to convey the impression that they are in a special position to
influence the judge. A judge should not testify voluntarily as a character
witness.
18. A judge may engage in extra judicial activities, including law-
related pursuits and civic, charitable, educational, religious, social,
financial, fiduciary, and governmental activities, and may speak, write,
lecture, and teach on both law-related and non legal subjects. However, a
judge should not participate in extra judicial activities that detract from
the dignity of the judge‟s office, interfere with the performance of the
judge‟s official duties, reflect adversely on the judge‟s impartiality, lead to
frequent disqualification, or violate the limitations set forth below. A
Judge should not engage in extra judicial activities, which are inconsistent
with the legal obligations and giving scope to doubt the judicial functions.
I conclude this presentation with the few valuable words of Hon‟ble
Dr.A.P.J. ABDUL KALAM former President of India spoken, at NJA Bhopal
as “The Judiciary in India has become the last refuge for the people and
the future of the country will depend upon the fulfilment of the high
expectations reposed by the people in it”.
I hope and trust that this presentation may serve the innovative
idea of conducting workshops to some extent to enable the judicial officers
to discharge their functions confidently and efficiently, maintaining high
degree of rectitude. I deem it a matter of pride, privilege and pleasure for
27
having been asked to submit the presentation on the precious topic, for
which my honoured thanks to the Hon‟ble High Court of Judicature at
Hyderabad for the States of Andhra Pradesh and Telangana.
Thank You.
By
Smt. Shammi Parvin Sulthana Begum, B.Sc.,B.L.,L.LM.,
Senior Civil Judge,
Dharmavaram.
References:-
1. Material supplied by NJA & APJA.
2. Lecture delivered by Hon'ble Sri J.T.S. Sivagnanam on on 11.4.2010 at Tamil Nadu state judicial Academy.
3. Speech delivered by Hon‟ble Sri Justice Sunil Ambwani, Judge, Allahabad, High Court
4. Observations in K.P.Singh Vs High Court of H.P & others.
5. Speech delivered by Hon‟ble Sri Justice Y.K.Sabharwal CJ I at 1st MC Setalvad Memorial Lectures Series.
6. Speech delivered by Hon'ble Sri Justice R.C.Lohoti C J I at First Nani A.Palkhivale memorial lecture on 16-1-2004.
7. Article of Hon‟ble Sri Justice Maniram Sharma, Chief Justice of India.