Limits of judicial conduct V.R. Krishna Iyer
A Performance Commission to investigate delinquent judges is essential if
egregious judicial blunders are to be minimised.
Judges have powers to guillotine people, to rob them of their entire riches, to grant divorces and
disinherit children as being illegitimate. Such enormous powers they have, yet there is no
authority to punish them if they exercise these powers in an authoritarian and arbitrary fashion.
Harlan F. Stone wrote in United States v. Butler: “… [W]hile unconstitutional exercise of power by
the executive and legislative branches of the government is subject to judicial restraint, the only
check upon our own exercise of power is our own sense of self-restraint.” (297 U.S. 1, 78-79,
The great Felix Frankfurter justified the criticism of judges thus: “Judges as persons, or courts as
institutions, are entitled to no greater immunity from criticism than other persons or institutions.
Just because the holders of judicial office are identified with the interests of justice they may
forget their common human frailties and fallibilities. There have sometimes been martinets upon
the bench as there have also been pompous wielders of authority who have used the
paraphernalia of power in support of what they called their dignity. Therefore judges must be kept
mindful of their limitations and of their ultimate public responsibility by a vigorous stream of
criticism expressed with candour, however blunt.” (Bridges v. California, 314 U.S. 252, 289)
The judges of India’s highest court consider themselves to be gifted with infallibility because of
the finality of their judgments. This shall not be. Like other institutions they too must suffer when
they go wrong or are negligent. A powerful Performance Commission to investigate the
delinquencies of judges is essential if the number of instances of egregious judicial blunders is to
be minimised. Rules of good conduct that were voluntarily created do exist. But they carry neither
sanction nor penalty and are often violated, though yet rarely. If Parliament has enough vitality
and sense of duty it must forthwith create a comprehensive code of judicial conduct for higher
judges when state power is exercised by constitutional instrumentalities.
Transparency in functioning and accountability with respect to duties are fundamental in a
democracy. Parliament is the ultimate inquest of the nation, and judges are no exception to this. If
robes rob by corruption they must be subject and answerable to, like other constitutional
agencies, the people through Parliament. They are no Niagara but great power canalised and
controlled in their furious flow, ultimately to be beneficial to the nation. This process of social
engineering is part of social philosophy which is structurally basic to legal engineering, so that
justice, social, economic and political; human rights and fundamental duties laid down by the
Founding Fathers (vide Parts III, IV and IV A) do not remain an illusion.
Corruption among judges, even sexual misconduct, is escalating. And there is no punitive therapy
save the political futility of the impeachment pharmacopoeia. One method to arrest the evil of
corruption, communalism and other dangerous deviances is to insist on transparency and
accountability. Probity and integrity could thus be invigilated by a high-level committee comprising
the nation’s most respected souls acceptable to the President, the Cabinet and others. They
should be free from politics, communalism and any dark shades in public life.
One controversial question concerns the common man’s desire to know, in a socialist secular
democratic Republic like India, about the assets, accumulations and the methodology of
acquisition of wealth by judges. Judges have to declare their assets before the President, the
Chief Justice of India, the Comptroller and Auditor General of India… This information should be
available to any responsible citizen or institution on reasonable grounds when it is demanded for
legitimate purposes. This information should not be a secret that is hidden among the judges, for
that could provoke suspicion. Suspicion is the upas tree under whose shade reason fails and
justice dies. Judges, great in status and mighty in their majesty, should be, like Caesar’s wife,
Yes, judges are the salt of the earth. If the salt loses its savour, wherewith shall they be salted?
You have assumed office by an oath to uphold the socialist, secular, democratic Republic. If you
breach this oath, the Performance Commission shall disrobe you and forfeit the Bench. Be you
ever so high, the oath binds you.
A Performance Commission to investigate delinquent judges is essential if egregious judicial blunders are to be minimised.
Limits of judicial conduct V.R. Krishna Iyer