By Biswaraj Patnaik in Puri, January 19, 2018: 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 ensure Judges were guided to keep the judiciary independent, impartial, strong and respectable. It is a code of the canons of judicial ethics:

• Justice must not only be done; it must also be seen to have been done. The behaviour 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.
• Judges 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.
• Close association with individual members of the Bar, particularly those who practice in the same court, shall be eschewed.
• Judges should not permit any member of their immediate family, such as spouse, son, daughter, son-in-law or daughter-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.
• No member of their family, who is a member of the Bar, shall be permitted to use the residence in which the Judges actually reside or other facilities for professional work.
• Judges should practice a degree of aloofness consistent with the dignity of their office.
• Judges shall not hear and decide a matter in which a member of their family, a close relation or a friend is concerned.
• Judges shall not enter into public debate or express their views in public on political matters or on matters that are pending or are likely to arise for judicial determination.
• Judges are expected to let their judgments speak for themselves. They shall not give interviews to the media.
• They shall not accept gifts or hospitality except from their family, close relations and friends.
• They shall not hear and decide a matter in which a company in which they hold shares is concerned unless they have disclosed their interest and no objection to their hearing and deciding the matter is raised.
• Judges shall not speculate in shares, stocks or the like.
• They 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).
• They should not ask for, accept contributions or otherwise actively associate themselves with the raising of any fund for any purpose.
• They should not seek any financial benefit in the form of a perquisite or privilege attached to their office unless it is clearly available. Any doubt in this behalf must be got resolved and clarified through the Chief Justice.
• 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.

The above “restatement” was ratified and adopted by the Indian Judiciary in 1999.

Most shockingly, four big judges of the Supreme Court went bizarrely public to malign their own administrative boss, the Chief Justice. It looks extremely odd that, to express some internal dissent and displeasure, responsible jurists in the highest court of the country hold a press conference. They believe strongly that the CJI is being wickedly selective in assigning cases with the intention of having a desired judicial ruling or verdict. The judiciary of India has let itself down in the eyes of the masses.

A general fear of being deprived of justice has set in. The conduct of the four rebelling judges has brought shame to the nation. Even if the chief was wicked or wrong, they could have exhausted the whole court by provoking all the judges of the temple of justice into sitting together and resolving the issue right at home. It is of course in the best interest of the general public that all his colleagues adore and trust him on all his administrative conduct and decisions. Then only each judge feels great at work place and is able to think clearly while deciding a case.

The people also know too well that, no matter how senior a judge is by entry or age, all judges are equal in their judicial role and status. Sometimes it is marked that the youngest of the lot by entry or age has a far superior brain. That is precisely why the Chief is called only the first among equals- merely for the fact that constitutionally, he has the prerogative right to call all administrative shots but has no right to imagine that a younger judge is less skilled.

So the proposition that sensitive cases be handled by the seniors only is an illogical one. So it is evident that the four super high priests of the Supreme temple of justice committed an ethical error by spilling out in public ordinary dissent and displaying clothes not really soiled. They forgot the restatement of values of 1999. Legendary Justice JS Verma must be suffering in heaven now.

The story is not to deify Justice Dipak Mishra or demonize the four who rebelled in public. The point being driven home is that there is never any case which is technically or otherwise considered extra or less sensitive in nature. The Constitution however gives the CJI unbridled authority to choose judges for cases as he thinks fit. He is not to be challenged on that score. Time will prove if the rule is good enough or the convention of giving seemingly more sensitive cases to the seniors is a better arrangement. All the same, the CJI has to earn the highest respect and trust of all the colleague judges to ensure the high status of the Supreme Court does not take a public beating.

According to a ruling by a Constitution Bench headed by CJI Dipak Misra in last November, the CJI made clear that he has the exclusive discretion to decide where to send a case, even in cases where a conflict of interest situation is likely to show up.

It is also true that Justice Chelameswar had rightly felt belittled when his order for the constitution of a bench comprising five senior most judges was overruled by a hurriedly constituted five-judge Constitution Bench which said it is only for the CJI to decide how and which bench will hear a case because he is the sole master of the roster.

Although agreeing that the rebelling judges’ intention was to ‘bring the muck out of the system, former Supreme Court judge Justice Hegde disapproved of the approach as it has set an unpleasant precedent. From now on, judges of High Courts and the Supreme Court will not hesitate to bring their differences into the public domain. He says it has diminished the reputation of the institution and may amount to contempt of court as internal matters of the judiciary should not have been brought to the public for discussion, because neither the public, nor the government or the executive can give any relief to them.

“I wholly condemn the press meet held by the four judges of the Supreme Court. The unprecedented episode will be recorded as a tainted chapter in the country’s judicial history. Justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph have wronged the people badly by holding the press conference and mounting a virtual revolt against the Chief Justice of India Dipak Misra, questioning him on the ‘selective’ allocation of cases and certain judicial orders passed by him. Institutions like the judiciary survive on the confidence of the people.

“Once the confidence of the people is lost, the institution will be useless,” Justice Hegde said ruefully to the PTI. On whether their action was liable for impeachment, he said he does not want to go to that extent, though he felt it is possible, given the fact that a Calcutta High Court judge was impeached for contempt of court for a similar act. He feels that any act of rebellion by judges may amount to contempt of court.

Very strangely, no one talks of the other twenty-one brilliant jurists who have not expressed any support to the rebelling Judges. That means the action of the four rebels has no democratic sanctity meaning it is not the common voice of all the super jurists.

The BCI has done it’s job to the best of ability and knowledge, though not technically well. But the attorney general playing an active role looked ridiculous and technically offending. It is constitutionally violative to accept the member of a particular government as ‘negotiator-leveller’ to bring about harmony among jurists.

Lastly, the family members of late CBI judge Shri Loya have turned upside down in their view. The judge was deciding Amit Shah’s criminal case. All of a sudden he died at a party. The next judge granted great relief to Shah. So, the family screamed, “foul play” saying it was murder not natural death. But now they say Loya died of cardiac arrest and the issue should not be politicised anymore. This development indicates all is not well in the judiciary which has to become more alert and cautious to prove the ‘temple of justice’ has not crumbled yet.