Since passing of an order by the Supreme Court on 28 April 2023 (in Special Leave Petition (Civil) Diary No. 15883/2023 i.e., Abhishek Banerjee vs Soumen Nandy and Kuntal Ghosh vs State of West Bengal) directing the then Acting Chief Justice of Calcutta High Court to reassign two cases Justice Abhijit Gangopadhyay was hearing to some other judge, an issue hinging on the contours of judicial conduct of sitting judges has emerged in the public domain.

The Supreme Court in its utter anguish passed the order openly expressing its displeasure after being apprised of the incident of Justice Gangopadhyay giving an interview to a TV channel in respect of the two cases. The anguish of the Supreme Court is understood to be a reflection of Apex Court’s outright disapproval of the conduct of a sitting judge.

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There is no law prohibiting a sitting judge from giving an interview to any print or electronic media. On the contrary, a sitting judge in India, like any other individual, has his freedom of speech and expression. The pertinent question in the context is: ‘Is his freedom of speech and expression truly at par with freedom of speech and expression of any other individual?’ It is however not so and the reasons are replete in the code of conduct applicable to and expected from sitting judges. Such code of conduct however has no legislative support. In India nobody including a sitting Judge has absolute freedom of speech and expression.

Freedom of speech and expression although constitutionally protected as a fundamental right in India (Article 19(1)(a)) nevertheless is not absolute as Article 19(2) expressly provides that freedom of speech and expression would not affect operation of any law imposing reasonable restrictions on exercise of the right in the interests of sovereignty, integrity and security of the state, friendly relations with foreign states, public order, decency or morality or in relation of contempt of court or defamation or incitement of an offence.

The issue of exercise of right of freedom of speech and expression by a sitting judge boils down to two questions: (i) is there any specific law imposing any restrictions on his freedom of speech and expression?, and, (ii) does an interview given to a print or electronic media by him in respect of cases which are being heard by him fall into any of those restrictions?

The Supreme Court while passing the said order has not reminded us of any such restrictions. The Supreme Court’s direction means and implies stripping Justice Gangopadhyay of his jurisdiction and power to hear and decide those two cases. It may not be that impertinent for anybody to ask what then clothed the Supreme Court with the power either to make those deprecating observations openly in court or to pass the said order directing the Acting Chief Justice of the High Court to reassign those two cases to some other judge?

The answers to both the questions lie not in law but in the sense of propriety of the Judge concerned and/or in ‘code of conduct’ applicable to him. How come then that a “code of conduct” which has no backing of any law anywhere and not at least in India comes into play to guide freedom of speech and expression of a sitting judge?

As opposed to a retired judge who is no more than an ordinary citizen, a sitting judge is more than an ordinary citizen because of his especially ordained current state in life and consequential demands of his occupation. He is especially selected by a legally approved process and placed in the position of an arbiter in the higher rung of his society as an adjudicating authority in respect of disputes brought before him by the people of his society for adjudication. What may be proper for an ordinary individual of that society may not be so for a sitting Judge and again what may be improper for an individual may be a virtue or a vice for a sitting Judge.

This situation leads us to the question of “sense of propriety” applicable to and expected from a sitting judge. Absence of a sense of propriety befitting a sitting Judge is sure to be damaging and at times disastrous from the point of view of his obligation to be careful and cautious in preserving dignity, impartiality and independence of his judicial office in particular and the judiciary as a whole. All resolutions historically and unequivocally adopted at United Nations level say that a judge, like any other citizen, is entitled to freedom of expression, belief, association and assembly, but in exercising such rights he shall always conduct himself or herself in such a manner as to preserve the dignity of his judicial office, and impartiality and independence of the judiciary.

Therefore, contours of a sitting Judge’s right to freedom of speech and expression according to those resolutions have been outlined by those three words e.g. dignity, impartiality and independence of judiciary and in particular of his judicial office obliging the Judge to conduct himself (“he” embraces “she”) accordingly. The international judicial community have shown their concern in a Judge’s duty to uphold rule of law and constitutionalism with a view to ensure and also enhance public trust and confidence in the judicial system of a democracy. Existence of public trust and confidence in the judicial system is a sine qua non or prerequisite of a democratic society. In 2001, at the second meeting of the Judicial Group on Strengthening Judicial Integrity held in Bangalore, the Chief Justices were unanimous on the need for standards of judicial integrity and drafted the Bangalore Principles of Judicial Conduct endorsed by various judicial fora including the Round Table Meeting of Chief Justices held at The Hague on 25 and 26 November 2002. The Bangalore principles have set six values namely, (i)independence, (ii) impartiality, (iii) integrity, (iv) propriety, (v) equality and (vi) competence and diligence for a judicial officer.

These six values are prerequisites for good conduct of a Judge to uphold rule of law and a guarantee for fair trial. Under the heading of each value there are clusters of clauses providing guidelines for good conduct of a sitting Judge. As a constituent of the judiciary he is expected not only to uphold but also to exemplify judicial independence both at his personal level and also at institutional level. All these values however do not touch upon the limited issue this essay has embarked upon. It needs to be noted that said six values are prefaced with these words:

(a) The principles are intended to establish standards for ethical conduct of judges. They are designed to provide guidance to judges and to afford the judiciary a framework for regulating judicial conduct.

(b) These principles presuppose that judges are accountable for their conduct to appropriate institutions established to maintain judicial standards, which are themselves independent and impartial, and are intended to supplement and not to derogate from existing rules of law and conduct that bind the judge. There are however no known existing legislative rules and conduct that bind the Judge universally. A sitting judge is required to be absolutely impartial in performing his judicial duties without favour, bias or prejudice and his conduct, both in and out of court, must maintain and enhance the confidence of all who may come in or may be expected to come in the way and field of his occupation.

He must conduct himself, as far as reasonable, to minimise the occasions on which it may be necessary for him to be disqualified from hearing or deciding cases. A sitting Judge should not knowingly, while a proceeding is before or could come before him, make any comment that might reasonably be expected to affect the outcome of such proceeding or impair the manifest fairness of the process, nor should he make any comment in public or otherwise that might affect the fair trial or lead any member of the public to lose confidence in him, or disqualifying him from hearing the case.

There is however need for a proviso that his disqualification may not be required if no other tribunal can be constituted to deal with the case. In other words, his integrity should be above reproach in the view of reasonable observers. Propriety and also appearance of propriety are essential to the performance of all activities of a sitting Judge. As a subject of constant public scrutiny he must freely and willingly accept personal restrictions that might be viewed as burdensome by any ordinary citizen. He is also to conduct himself in a way consistent with the dignity of his judicial office giving no scope for variation in perception of impropriety. Therefore a sitting Judge: (i) shall avoid impropriety and the appearance of impropriety in all of the judge’s activities; (ii) shall not, in the performance of his judicial duties, by words or conduct, manifest bias or prejudice towards any person or group; (iii) shall maintain order and decorum in all proceedings before the court and be patient, dignified and courteous in relation to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity and correspondingly he also shall require and/or enforce similar conduct of legal representatives, court staff and others attending the court, and (iv) shall not engage in conduct incompatible with the diligent discharge of his judicial duties. It will not therefore be an over statement if it is said that before the said order and/or direction had been passed by the Supreme Court, Justice Gangopadhyay had disqualified himself from hearing and deciding those two cases by giving an interview to the TV channel. It is equally needless to say that the Supreme Court by its said order/ direction was only affirming the said disqualification expressing its instant displeasure.

Nonetheless the question remains if the Supreme Court was right in expressing its displeasure in the manner and language it did openly, apparently adversely affecting the fitness and image of Justice Gangopadhyay as a Judge in the eyes of the public at large, particularly when the issue of public confidence not only in a particular judicial officer but in the entire judiciary is of vital importance for judicial independence and a guarantee for a fair trial. Was it not also at the same time necessary for the Supreme Court to be more restrained in its language while reacting to the conduct of a sitting Judge of the High Court in the said Special Leave Petition?

(The writer is Barrister-at-Law, Senior Advocate and former Advocate General of the state of West Benga)