Should a Judge be a hermit?

A judge is a judge inside the court and outside, and his private life does not stretch beyond the gates of his residence. He cannot afford to be publicly ‘gregarious' though he might be so in his private life because so long as he is in public it is not his ‘private life' that he is living but is simply an extension of his judicial life, says Hem Raj Singh

The law has maintained since time immemorial that the judge should be above suspicion and should keep himself as isolated from the society as possible so that every case that he hears is decided purely on merit, and the decisions are not even mildly influenced by anything other than the facts in question and the law applicable. That explains why juries were kept in closed rooms and were allowed no social interaction till they delivered their verdict. Judges, however, have never been subjected to such strict isolation, as they are trained to keep their minds clear of all influences.

As per the code of conduct that the Supreme Court adopted some 10 years ago, the judges are supposed to avoid close association with the lawyers, especially those that practice in the same courts. They are also supposed to keep a certain degree of aloofness in keeping with the dignity of their office and are not to accept gifts from anyone except family, close relations and friends.

Therefore, judges, for the most part, do not go out partying like the commoners; neither do they attend parties thrown by the lawyers practicing in their courts. But this trend seems to be changing fast and judges are seen socializing more often now – in fact, more often than ever before. And so the question of ethics has come up again.

Commenting upon the issue a senior lawyer has been reported as saying, “A hermit is not necessarily clean and vice versa.” The view was supported by senior advocate Mr. K T S Tulsi, who said, “A conservative judge may believe that the code forbids him to party. But a judge who is more gregarious in his personal life may have the confidence that he can go to parties without compromising his impartiality.”

Both of the above mentioned views presuppose that it is the ‘impartiality' that is being protected and the code is actually a defence against corrupt practices. That may be just one of the minor objectives of the code but the basic objective is to ensure that the dignity of the judge and the public perception of fairness is preserved, and the judge remains above suspicion at all times. Suspicion, as we know, is not always about facts. Mostly, it is just about a negative possibility. So long as partiality is possible, the suspicion remains. It is this possibility of suspicion that the code seeks to remove by introducing limited insulation between the bench and the bar. It does not aim at bringing the two at loggerheads or keeping them completely untouched by each other, but simply to keep a calculated, healthy distance between the two.

Besides, when we talk of partiality, it is not necessarily in terms of a decision going one way or the other. When a judge is seen partying or is reported to have partied with the lawyer practicing in his court, the general impression is that he is on ‘good terms' with the lawyer. There is a likelihood of an increased inflow of cases to such a lawyer. It would happen not because the judge is actually more likely to rule in favour of the side represented by such a lawyer but because the general public feels that the judge would listen to him more patiently and allow him a greater degree of latitude in arguing his case. And if it is just a borderline case he might as well rule for the side represented by the lawyer. The principle of fairness is compromised right there when this impression – right or wrong – takes a seat in the minds of the people. Worse, if the ruling comes in favour of the lawyer's side, the impression is strongly reinforced even if the case could not have been decided in any other manner. The presence of this impression makes a fair judicial decision end up doing injustice to the merits of the case, to the lawyer presenting the case and, of course, to the judge himself. It is an established principle that justice should be done both actually and visibly. It is this impression of fairness and impartiality that the code seeks to preserve. So far as actual fairness and impartiality is concerned, the judges themselves are quite capable of ensuring it.

The mystique

The government has a face – from Jawaharlal Nehru through Indira ‘Madam' Gandhi to Manmohan Singh it has had many. The same goes for Parliament, too, because the parliamentarians are in news everyday making remarks, fair and absurd and crying hoarse over judicial interference. The judiciary, on the other hand, works quietly, responsibly and facelessly like a unified institution. Doubtlessly, the legislature and the executive are no less important than the judiciary but it is the judiciary that is seen to be delivering justice. This makes it very important that it does not have a face because having a human face means being as fallible as a common man is. True, even the Supreme Court does not consider itself infallible, but, at the same time, it cannot afford to ‘appear' fallible. The dignity of the court lies in the fact that it is not identified with a judge or judges. The Chief Justice of India is not the leader or the head of the judiciary in the sense the Prime Minister is of the government. He is just one of the judges of the Supreme Court with additional powers and responsibilities. In other words, the seat of justice is separable from the personality of the judges that man it. And it is this curtain of separation – and the consequent mystique – that is at the core of the respect that the judiciary commands. The mystique is, thus, an important aspect of the administration of justice. And when a judge goes out to public functions, he is supposed to maintain a solemn expression and must conduct himself with the courtroom dignity. He cannot afford to be publicly ‘gregarious' though he might be so in his private life because so long as he is in public it is not his ‘private life' that he is living but is simply an extension of his judicial life. Therefore, a judge might be fond of swimming and sunbathing in his private life and may even have a swimming pool in his private compound but he still cannot sunbathe in knickers on a Goa beach.

The acceptable

Not that a judge has to be a hermit in the sense of a yogi immersed in deep meditation at the foot of the Himalayas. Attending seminars, speaking at public gatherings or addressing a body of lawyers, releasing law books and even books on other subjects is very much acceptable. But what needs to be avoided is attending a party thrown by a lawyer in honour of the judge, especially when the lawyer practices in the same court. Similarly, appearing at public places for purposes other than academic may also be avoided. For instance, any normal person, any CEO of any company may go to a nightclub and set the dance floor afire. But the same is not expected of a judge because that would lower the dignity of his office in the eyes of even the most liberal and outgoing of people. This is not about morality of the nightclubs or dancing per se , but is about the impression that people carry of a judge in their minds. The one who mans the seat of justice by day is not expected to be prancing around in the nightclubs by night. In short, a judge is a judge inside the court and outside, and his private life does not stretch beyond the gates of his residence.