Raju Ramachandran’s plea against Hurrying the law at the time of retirement (The Hindu Op-Ed, 26.7.2013) is relevant and debatable. It is relevant in the context of Justice A.R. Dave’s disclosure regarding the constraints of time and lack of discussion among the judges in the National Eligibility Test (NEET) case. The author however, tries to view the issue as a mere official matter that remains in isolation. As a result, the article ignores two fundamental systemic issues: 1) relevance of judicial management and 2) the need for a code of conduct for the judges, including those in the Supreme Court and the High Courts.
Any institution or establishment, whether private or public, needs to have a system of management. One should pose the question whether the higher judiciary in India has ever realized and implemented managerial imperatives in running and effectuating the system.
The significance of judicial administration by internal reforms is seldom recognized. The Indian Constitution clearly indicates that the Chief Justice is not a judge with any higher judicial power than his/her fellow judges. But in the administrative line, the Chief Justice is placed in the key position. This predominance of the Chief Justice, which is writ large even in the process of appointment of judges, should be transplanted to the facets of institutional management as well.
But even good Chief Justices need not be good administrators. In 2002, India had as many as four Chief Justices. The brevity of tenure imposes a limitation on the “judicial head” to initiate reforms in terms of management and administration.
Therefore, it is imperative to have a clear long term policy regarding the manner in which the judgments should be prepared and delivered. The method of drafting, way of circulation, timing of consultations etc., should be clearly spelt out preferably by way of separate rules or by way of amendment to the Supreme Court/High Court Rules. Raju Ramachandran has rightly indicated even when there was no retirement looming large, proper conference was dispensed with, as it happened in the Second Judges Case (1993). This in turn indicates that the question is not of retirement but lack of permanent policy and guiding principles in the matter. Delay in hearing and disposal of cases needs forensic treatment at the managerial level. This is an issue concerning the High Courts in the country as well.
The second and probably the more important question is one related to judicial discipline and code of ethics.
“The Bangalore draft code of judicial conduct” is an important document in this regard. It was followed by “extensive consultations with Chief Justices and senior judges of many jurisdictions” and was “placed before a round table meeting of Chief Justices from civil law and other legal systems” held in the Peace Palace at The Hague on November 25-26, 2002. (See, Judges and Judicial Accountability, Universal, 2004). The Code is the result of serious deliberations among judges and lawyers from modern constitutional democracies especially the common wealth countries including India. According to the Code, judicial values are categorized as:- (1) Independence, (2) Impartiality (3) Integrity, (4) Propriety, (5) Equality and (6) Competence and diligence. Clause 3.1 of the Code says that, “a judge shall ensure that his or her conduct is above reproach in the view of a reasonable observer”. Clause 3.2 states that “the behavior and conduct of a judge must reaffirm the people’s faith in the integrity of the judiciary”. According to clause 4.1 of the Code, a judge “shall avoid impropriety and the appearance of impropriety in all the judge’s activities”.
Clause 4.2 of the Code also is equally important: “As a subject of constant public scrutiny, a judge must accept personal restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. In particular, a judge shall conduct himself or herself in a way that I consistent with the dignity of the judicial office”.
I broadly agree with Raju Ramachandran’s views. However, the question of “hurrying the law” is no more a technical issue requiring a mere technical solution. The article itself is written in the context of revelations referred in the article and other statements made by the judges in public. The tendency among the judges ,both sitting and retired, to make complaints related to judicial process should be seriously addressed and handled at a more fundamental level. Justice should neither be hurried nor buried.
Kaleeswaram Raj is a lawyer in the Kerala High Court. Email: firstname.lastname@example.org