Legal perspective

Legal perspective
Krishan Mahajan

No ethics in this code
The twentieth century ends for the judiciary with a Chief Justice of India who has been publicly affirming the need for transparency and accountability. But it also marks the limits of the powers of a Chief Justice of India. His public affirmation cannot go beyond what the chief justices of high courts will agree. The All India Conference of Chief Justices of High Courts, presided over by Chief Justice of India A. S. Anand, unveiled this months a four-year old Code of Ethics and agreed to be bound by it. This came after Prime Minister Vajpayee announced on the November 26 golden jubilee celebrations of the Supreme Court his intention to bring in such a code as part of judicial reforms. It marks a big consensual leap for the judiciary. The problem is that the code's provisions make it meaningless.

The code does not analyse what ethically ails the Indian judiciary today. It does not state why after 50 years of its functioning, the Supreme Court and the high courts feel a needfor such a code. It does not even attempt to answer whether secrecy backed by the power of contempt has brought about a situation that a prime minister had to give a historic call for a code on behalf of the people.

The chief justices' conference has nowhere indicated the need to review the apex court decision in the Perspective Publications case which held that truth about the judges is not defence to contempt action. Can a code which continues to stifle the truth about judges inspire public confidence?

The code says what a judge must not do after he becomes a judge. The question it fails to answer is as to why a person needs to be told that, especially after his selection as a judge by a totally judge-controlled body. Hence the problems that the code seeks to address lie in the selection process itself. But the co-de chooses to deal only with the post-selection symptoms.

This judicial approach to a Code of Ethics makes it understandable as to why it does not debar a high court or Supreme Court judgefrom holding elective offices in a society or association connected with law. Today, those who control legal business in the courts find it necessary to float such societies or associations. The code permits judges to fight elections for posts in such bodies and overlooks the reality of how advocates become a hyphen between a judge and an elective office.

Accordingly, the code contradicts itself: it permits judges to hold such elective offices but states that judges must eschew close association with individual members of the bar, particularly those who practice in the same court. Worse, what happens if such elective offices are in societies or associations connected with law but which have been floated by a government, a political party or foreign lawyers? The code has no answers.

The code does not prohibit gifts or hospitality from ``friends.'' But then what about such gifts or hospitality, especially from abroad, from friends in societies or associations connected with law? Doesn't the holding of anelective office in such societies or associations make the judge all the more entitled to gifts or hospitality?

The code is not statutory. The highest judiciary has in several judgments recognised that the threat to judicial independence comes more often than not from within.

This is more so because of the complete absence of sunlight provisions in the code. The Prime Minister's announcement of a code has forced the judges to make it public. But it has not resulted in making its working transparent. Accordingly, no one can know which judge is observing the code and which one is not. The in-house committee set up to take suitable action against recalcitrant judges vis-a-vis the code is a secret. In the absence of any authority conferred by a parliamentary enactment, how can there be such a committee in the first place?

No lessons seem to have been learnt as to how the transfer of high court judges without any transparency subverted the laudable goals of transfer national integration and judicialintegrity. The lack of transparency in judge-run legal aid has also produced the same results. The directives of the Chief Justice of India to all high courts and district courts remain unenforced and citizens remain uninformed of such beneficial directions. For the citizen an unenforced judgment, an unenforced statute, an unenforced legal aid or an unenforced Code of Ethics mean the same thing -- a permanent sense of injustice. The co-de raises a millennium problem by keeping silent on the post-retirement activities of the apex court judges.