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Case for a code of constitutional conduct

The Constitution of India is the suprema lex and it is broadly based on the Montesquian tracheotomy of the executive, legislative and the judicative distribution of powers. The judiciary enjoys seemingly final and infallible jurisdiction to correct the other two instruments and was apparently expected to be infallible. The highest court also is under the Constitution and not over it. It has the power to issue writs, directions and orders but not to make law or to execute it. Its orders are binding and lasting and cannot be orally made but have to be made out in writing.

In a mood that is authoritarian and arbitrary, some judges who are not properly disciplined often make oral observations that are critical and obnoxious. These may be aberrations that are beyond their scope. Many jurists raised their eyebrows, frowning upon this excessive direction that violated constitutional limitations. These days, with the Parkinson’s Law of redundant appointment and the Peter Principle of selecting incompetent incumbents, arrears of long-pending cases mount, stagnate and multiply. In the Godhra cases, luckily the judges of the Supreme Court had not created new posts but had only directed serving judges to exercise fast track processes for the purpose of finalising old cases which had to be tried and disposed of as quickly as possible in the interest of justice.

Even so, there are many instances these days of more and more judges being appointed by a collegium. This wizardly phenomenon by a body of robed brethren that is untrained in the art of selection without guidelines, investigation of antecedents or study of the social philosophy of candidates and may have class biases, ends up in disappointment, favouritism, nepotism and other ills. These judges and their performance aggravate the arrears and make for forensic disappointments. Therefore, an appointments commission and a performance commission with punitive powers for indiscipline and delinquency are necessary. This could be ensured by a code of conduct that is secured by a constitutional amendment.

Freedom of information, accountability and transparency must be part of the law of the land. Frequent travels and avoidable long vacations should be curtailed, having regard for parsimonious public finance and the debate in Parliament on judicial conduct. After all, judges are human and if they make wilful mistakes they are liable like other public servants. Such a malady must be nipped in the bud. The conscience of the Constitution and its total subjection to truth are divine. But in our days of moral depression and materialist domination, an honest god is the noblest work of man and an honest man is the rarest creation of god.

Parliament and the Executive must wake up and, after a public debate, enact a constitutional code of judicial conduct on the lines of what was laid down unanimously by the higher court judges during the tenure of Chief Justice J.S. Verma.

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