There is no office in the State of such power as that of the judge. The judges hold power, which is immensely greater than that of any other functionary. The citizen’s life and liberty, reputation and property, personal and domestic happiness are all subject to the wisdom of the 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.
Thomas Jefferson says that, “The dignity and stability of government in all its branches, the morals of the people and every blessing of society depends so much upon an upright and skillful administration of justice, that the judicial power ought to be distinct from both the legislative and executive, and independent of both, so that it may be a check upon both, as both should be checks upon that. Judges, therefore, should always be men of learning and experience in the laws, of exemplary morals, great patience, calmness and attention; their mind should not be distracted with jarring interests; they should not be dependent upon any man or body of men. To these ends, they should hold estates for life in their offices, or, in other words, their commission should be during good behaviour and their salaries ascertained and established by law.”
The first duty, says Justice C.L. ANAND, of the judge towards the bar is of consideration and courtesy. When the advocate is upset by discourteous treatment, this will not prevent him from doing full justice to the client in arguing the case. No judge should desire that the bar should be servile. The next duty, which the judge owes towards the bar is to respect its privileges. It is the right of the counsel to insist that he shall be given a patient and courteous hearing so long as he is respectful and relevant in his arguments. It is the duty of the judge not to form the opinion as regards the merits of the case, unless and until he has heard the parties. There should not be any interruption of the counsel in their arguments except to prevent repetition or irrelevancy or to clear up some obscurity in counsel’s line of arguments or representation of facts or to indicate to the advocates, the court’s view regarding facts or law in the case.
It is the duty of a judge to remain impartial in delivering justice and conducting the judicial proceedings. He must make every effort to maintain the dignity of the court. A judge must not allow himself to be subjected to any influence other than the influence of the law and justice of the cause. He must discharge his duties without fear or favour, affection or ill-will. A judge should possess calm temper. He should repress irritability and passion.
The foundation of judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice. When the foundation is itself shaken by acts which create disaffection and disrespect for the authority of the court by creating distrust in its working, the edifice of the judicial system gets eroded.
Judicial restraint and discipline are as necessary to the orderly administration of justice as they are to the effectiveness of the army. The duty of restraint, this humility of function should be constant theme of our judges. This quality in decision-making is as much necessary for judges to command respect as to protect the independence of judiciary. There must be respect offered to those who come before the court as well as to the other coordinate branches of the State, the executive and the legislature. There must be mutual respect. When these qualities fail or when litigants and public believe that the judge has failed in these qualities, it will be neither good for the judge nor for the judicial process.
The judge’s bench is a seat of power. Not only do judges have power to make binding decision, their decisions legitimatize the use of power by other officials. The judges have the absolute and unchallengeable control of the court domain. But they cannot misuse their authority by intemperate comments, undignified banter or scathing criticism of counsel, parties or witnesses. The court has the inherent power to act freely upon its own conviction on any matter coming before it for adjudication, but it is a general principle of the highest importance to the proper administration of justice that derogatory remarks ought not to be made against persons or authorities whose conduct comes into consideration unless it is absolutely necessary for the decision of the case.
Benjamin Cordozo writes that, “The judge, even if he is free, is still not wholly free. He is not to innovate pleasure. He is not a knight-errant roaming at will in pursuant of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiments, to vague and unregulated benevolence. He is to exercise discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in the social life.”
Judges must be circumspect and self disciplined in the discharge of their judicial functions. The virtue of humility in the judges and a constant awareness that investment of power in them is meant for use in public interest and to uphold the majesty or rule of law, would to a large extent ensure self restraint in discharge of all judicial functions and preserve the independence of judiciary. It needs no emphasis to say that all actions of a judge must be judicious in character. Erosion of credibility of judiciary, in the public mind, for whatever reasons, is greatest threat to the independence of the judiciary. Eternal vigilance by the judges to guard against any such latent internal danger is, therefore, necessary lest we suffer from self-inflicted mortal wounds. We must remember that the Constitution does not give unlimited powers to anyone including the judge of all levels. The societal perception of judges as being detached and impartial referees is the greatest strength of the judiciary and every member of judiciary must ensure that this perception does not receive a setback consciously or unconsciously. Authenticity of the judicial process rests on public confidence and public confidence rests on legitimacy of judicial process. Sources of legitimacy are in the impersonal application by the judge of recognized objective principles which owe their existence to a system as distinguished from subjective moods, predilections, emotions and prejudices.
Sir Mathew Hale propounded certain rules for the guidance of judges, as under—
Adv. Sunil Sharma is a writer for about 25 years and has authored more than 40 books on Law.