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CHAPTER 6
DISCIPLINE OF JUDGES

6.1) Introduction:
Judicial discipline is an important instrument to make judges accountable for their conduct and
performance of legal duties. It is essential to check illegality and corruption in the administration
of justice and to maintain high standards of conduct and propriety in the judges. Judicial
discipline is a matter of proceeding against judges and is conducted in accordance with the
constitutional or statutory law of a country. Discipline of Judges involves performance appraisal
and other action necessary to ensure proper conduct and performance of judges. The actions may
be of different kinds, including ensure, reduction to a lower rank and salary, forced transfer,
compulsory retirement and removal. These disciplinary actions or penalties have a direct bearing
on the .condition or tenure of judicial office, which are closely related to the independence of
judges.
In every system of judicial discipline there are two basic elements, causes for discipline and
mechanism for discipline.

6.2) Judicial discipline:

The issues of judicial discipline are discussed under two sub-heading: the causes for discipline
and mechanisms for discipline.

6.2.1) Causes for Discipline:

The fundamental responsibility of judges is to perform the legal duties attached to their judicial
office. In discharging this responsibility, they are obliged to conduct themselves consistently
with the status and integrity of their office. In a democratic society, it is an expectation of the
public that their judges maintain standards of judicial conduct and exercise judicial function in
accordance with legal norms and principles. Therefore, a judge should be accountable for his or
her incapacity in exercising judicial functions and for any breach of judicial conduct, and this
accountability can be ensured by way of disciplining judges or by the threat of discipline.

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6.2.1.1) Incapacity:
The term 'incapacity' in synonymous with 'incapacity' The Court of Appeals of Indian defines
'incapacity' as 'a lack of physical or intellectual power, or of natural or of legal qualification' and
recognizes that it 'is synonymous with inability, incapacity, disqualification'.
Incapacity in exercising judicial function is an important cause for discipline of judges.
Incapacity or incompetence of a judge can be explained as a state of being unable or incompetent
to perform the duties of judicial office. It may arise from the lack of physical, intellectual or
mental ability. In this regard, the Federal Court of Australia held that incapacity 'relates primarily
and principally to physical or mental incapacity.

6.2.1.2) Misconduct:
Misconduct is a universally recognized cause for the discipline of judges. It is synonymous with
'misbehavior' which is used in some jurisdictions. The Supreme Court of India defines
'misconduct' as 'wrong conduct or improper conduct'. The Privy Council observed that
misconduct is a 'word of general effect, involving some act or omission which ;falls short of
what would be proper in the circumstance'. The Supreme Court of New South Wales observed
that misconduct includes 'a deliberate departure from accepted standards or such serious
negligence as, although not deliberate, to portray indifference and abuse of the privileges'.
Therefore, misconduct of judges means non-compliance with the standard of judicial conduct
that should be complied with by a person holding judicial office. It refers to gross negligence or
non-compliance with the standards that should be respected by judicial officers. If the standards
of judicial conduct are not effectively maintained or respected, public confidence in the judiciary
will be undetermined.

(a) Bias and Prejudice

Judges are under in obligation to maintain strict impartiality in making judicial decision. Each
party to a case has legal rights to present his or her claims, to produce evidence in support of the
claims and to argue his or her legal /positions. It is a fundamental duty of a judge to ensure that
no party is deprived of their right of attentive hearing. A judge who refuses this right of the
parties must be guilty of misconduct.
Judge should not be biased for or against a party in a particular case. Bias is 'an attitude of mind
which prevents' a judge 'from making an objective determination of the issues' which he or she

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has to determine. In fact, the rule against bias is a fundamental principle of natural justice which
signifies that a person should not be a judge in his or her own cause.
(b) Corruption
Corruption is official misconduct in which a judge uses judicial office for his or her personal
benefit. A judge may be guilty of corruption for (i) accepting bribes as rewards for judicial
favors, (ii) extorting by threats of unfavorable judicial decision and (iii) misappropriating funds
of court.
Judicial corruption has serious consequence for the administration of justice and public
confidence in the judicial system. The detrimental effects of judicial corruption destroy public
respect for law and the judiciary. Therefore, as the Supreme Court of India held, judge must be
individuals of 'high integrity' honesty and required to have moral vigor, ethical firmness and
impervious to corrupt influence.
In fact, corruption is gross misconduct which warrants disciplinary sanction, including removal
from office.
(c) Criminal Offence
Involvement in a criminal offence by a judge is serious misconduct. When a judge commits a
crime, he or she is subject to criminal prosecution like any other person.
If convicted of a criminal offence a judge would be subject to disciplinary action. However,
when a judge is acquitted of a criminal charge a question may arise whether he or she will be
subject to discipline.
6.2.2) Mechanisms for Discipline:
The effectiveness of a system of disciplining judges depends on the features of the mechanisms
for discipline. In this respect, perhaps the most important factors are openness and transparency
in the mechanisms and the working members involved in them. Since judicial discipline is an
important aspect combining the two conflicting concepts of judicial independence and
accountability, the mechanisms for discipline must reconcile the tension between them in

89
disciplining judges. In the context of disciplinary mechanisms, judicial discipline may be
classified as informal or formal.
A simple visit from the Chief Justice or Chief Judge 'may prove highly effective in persuading a
miscreant judge to change his or her behavior'. The Canadian Federal Court of Appeal observed:
[A] Chief Justice cannot disinterest himself or herself from
the pace of progress and the timeliness of disposition of the
cases the court has to deal with. He or she has a
responsibility to ensure that the court provides "timely
justice". Indeed, it is his or her duty to take an active and
supervisory role in this respect.
Similarly, on appeal from the Federal Court, the Supreme Court of Canada held that 'a Chief
Justice is responsible for the expeditious progress of cases through his or her court and may
under certain circumstances be obliged to take steps to correct tardiness'.
6.2.2.1) Parliament
The power of discipline or removal of judges is vested in parliament in a large number of
countries including Australia, Canada, England, India and the United States of America. Under
this system, disciplinary action can be taken against judges by impeachment or address of
parliament.
6.2.2.2) Judiciary
The judiciary may be involved in disciplining judges in two ways: (1) investigation required for
other disciplinary mechanisms, for example, a parliamentary procedure and (2) consultation or
recommendation.
(1) Judicial Involvement through Investigation
The power to discipline judges may be exercised by the executive or legislature on the
basis of a report of an investigation conducted by the judiciary. In this regard, the
disciplinary system of superior Judges of India may be an important example.
Under Arts 124(4) and 217(1)(b) of the Constitution of India a Supreme Court
Judge or a High Court Judge may be removed by order of the President of India upon
address of each House of Parliament (the House of the People and the Council of States).
The proceedings for an address for removal originate by a notice of motion signed by at

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least 100 members of the House of the People or 50 members the Council of States. 2 If the
Speaker/Chairman of the House/Council admits the motion, he or she constitutes a
Committee for the purpose of investigating the alleged grounds for removal of the judge.
(1) Judicial Involvement through Consultation or Recommendation
In the case of consultation, the powers of initiating and adjudicating disciplinary
proceedings are vested in the executive, but in exercising these powers the executive may consult
the senior judiciary. In such cases, the role of the judiciary is merely consultative and the advice
given by the judiciary in the course of consultation may or may not be accepted by the executive.
In addition, unless the advice of the judiciary is public, it is not a transparent process.
6.2.2.3) Independent Commission:
The system of disciplining judges by an independent commission is1 relatively modern
practice and it is working in some countries including the United States of America and
Australia. In 1960, a Commission on Judicial Performance was first introduced in California in
the United States, but subsequently all other states have established some form of commission
for disciplining judges) Following the Californian model, a Judicial Commission has been
established in New South Wales in Australia under the Judicial Officers Act 1986. The
effectiveness of such a commission depends on its composition, powers and functions. If a
disciplinary commission comprising members of the executive, legislature, judiciary, legal
profession and lay persons uses an open and transparent process, it might be effective to retain
public confidence in the disciplinary system and to balance the conflicting values of
independence and accountability in disciplining judges. In this context, the models of
commission used in California and New South Wales may be discussed briefly:

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6.3) Bangladesh Perspectives:

This section examines the causes and mechanisms for discipline of judges in Bangladesh. Its
purpose is to evaluate the causes and mechanisms for discipline of judges in Bangladesh on the
basis of the arguments developed in the preceding section. Discussion in this section is divided
into two subheadings, causes for discipline and mechanisms for discipline.
6.3.1) Causes for Discipline:
In examining the causes for discipline of judges in Bangladesh the issues concerning Supreme
Court Judges are discussed first followed )by those concerning subordinate court judges.
6.3.1.1) Supreme Court Judges:
The Constitution of Bangladesh lays down provisions for the discipline of Supreme Court
Judges. Under Art 96 of the Constitution judges are subject to removal for 'gross misconduct' or
'physical or mental incapacity'. As the causes for removal of judges, the original Art 96 used the
terms 'proved misbehavior' or 'incapacity', but the Constitution (Fourth Amendment) Act 1975
omitted the word 'proved'. The Second Proclamation (Seventh Amendment) Order 1976 again
used the term 'proved misbehavior' or 'incapacity'. Eventually, the Second Proclamation
(Amendment) Order 1977 incorporated 'physical or mental incapacity' and 'gross misconduct' as
the causes for removal of judges.
The Supreme Judicial Council then prescribed the revised Code of Conduct which has been
effective since 7 May 2000. Some of the important provisions of the Code of Conduct are as
follows:

Judges 'should participate in establishing, maintaining, and enforcing high standards

of conduct, and should personally observe those standards, so that the integrity and
independence of the judiciary may be preserved'.

Judges 'should respect and comply with the law'. They should always act 'in a manner
that promotes public confidence in the integrity and impartiality of the judiciary'.

Judges 'should not allow family, social or other relationships to influence judicial
conduct or judgment'. They 'should not hold membership in any organization that
practices invidious. discrimination of the basis of race, sex, caste, religion or place of
birth.2

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Judges should be faithful to and maintain professional competence in the law, and
should not be swayed by partisan rests, public clamour, or fear of criticism'. They
'should be patient, dignified, respectful, and courteous to litigants, lawyers, and
others' who may be in contact with them in an official capacity?

Judges 'should accord to every person who is legally interested in a proceeding, or

[his or her] lawyer, full right to be heard according to law, and except as authorized
by law, and neither initiate nor consider ex parte communications on the merits, or
procedures affecting the merits, of a pending or impending proceeding.

Judges should dispose promptly of their judicial functions and should avoid
'inordinate delay' in making judicial decisions. They are expected to let their
'judgments speak for themselves and 'will not give interviews to the media.

Judges should not make any comment about the merits of a proceeding. They should
disqualify themselves in a proceeding in which their 'impartiality might reasonably be
questioned. In the case of 'any embarrassment to hear a case', a judge 'shall inform the
Chief Justice of such embarrassment so the Chief Justice can take appropriate steps'.

Judges 'will not accept gifts or hospitality' from any person except their 'family, close
relatives and friends'.

(9)-Judges should not be involved 'directly or indirectly in trade or business' activities. They
should 'disclose their assets and liabilities, if asked for, by the Chief Justice'.
6.3.1.2) Subordinate Court Judges:
On the basis of the causes for discipline two kinds of penalties, minor and major penalties, may
be imposed on subordinate court judges. The minor penalties include censure and withholding of
promotion or incremental benefit of salary for a specified period.' The major penalties include
reduction to a lower post, compulsory retirement and removal or dismissal from office? There is
an important distinction between the effect of 'removal' and 'dismissal'. 'Dismissal' from office
disqualifies a person from future employment in the government or in any statutory institution,
but 'removal' does not disqualify from future employment.

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I) Inefficiency
Subordinate court judges may be subject to any minor or major penalty, except censure and
dismissal from service, for inefficiency. A judge may be inefficient by reason of
a. infirmity of mind or body, or
b.

having, on two or more consecutive occasions, failed to pass in a departmental

examination prescribed for the purpose of maintaining or raising general efficiency, or

c. having, without reasonable cause, failed to appear at any such examination as aforesaid,
or
otherwise.1

d.

This definition includes 'infirmity of mind or body' that may be translated as 'physical or mental
incapacity' which is an important m cause for discipline of judges.
II) Misconduct
For misconduct in a subordinate court judge any penalty whether minor or major may be
imposed. The term 'misconduct' is defined as 'conduct prejudicial to good order or service
discipline or contrary to
Any provision of the Government Servants (Conduct) Rules, 19 unbecoming of an officer or
gentleman'. It also includes

disobedience to lawful orders of superior officers,

(ii) gross negligence of duty, for of Government orders. circulars and directives
without any lawful cause, and

(iii) submission of petitions before any authority containing wild, vexatious, Mdse or
frivolous accusation against a Government servant.1

III) Desertion
A subordinate court judge may be subject to any minor or major penalty for 'desertion' if he or
she

quits 'service without permission, or

remains 'absent from duty for a period of sixty days or more', or

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remains 'absent from duty in continuation of absence from duty with permission, for a
period of sixty days or more without further permission', or

leaves the country without permission and [remains] abroad for thirty days or more
or

overstay abroad after leaving country with permission, for sixty days or more without
further permission.1

IV) Corruption
Subordinate court judges may be subject to major penalties, compulsory retirement, removal or
dismissal from office, for corruption if

they are or any of their dependants or any other person through them or one their behalf
is in possession (for which [they] cannot reasonably account) of pecuniary resources or if
prosperity disproportionate to [their] known sources of income, or

they have assumed a style of living beyond their ostensible means, or

they have a persistent reputation of being corrupt.2

V) Subversive Activities
A judge may be subject to compulsory retirement, removal or dismissal from office if he or she is

engaged in subversive activities, or

reasonably suspected of being engaged in subversive activities, or

reasonably suspected of being associated with others engaged in subversive

activities and retention in service is considered prejudicial to national security.1

6.3.2) Mechanisms for Discipline:
The effectiveness of a system of disciplining judges depends on the features of the mechanisms
for discipline. In this respect, perhaps the most important factors are openness and transparency
in the mechanisms and the working members involved in them. Since judicial discipline is an
important aspect combining the two conflicting concepts of judicial independence and

95
accountability, the mechanisms for discipline must reconcile the tension between them in
disciplining judges. In the context of disciplinary mechanisms, judicial discipline may be
classified as informal or formal.
A simple visit from the Chief Justice or Chief Judge 'may prove highly effective in persuading a
miscreant judge to change his or her behavior'. The Canadian Federal Court of Appeal observed:
[A] Chief Justice cannot disinterest himself or herself from
the pace of progress and the timeliness of disposition of the
cases the court has to deal with. He or she has a
responsibility to ensure that the court provides "timely
justice". Indeed, it is his or her duty to take an active and
supervisory role in this respect.

6.4) Conclusion:
The disciplinary system of Bangladesh is not sufficient to gain public confidence for several
reasons, three of them very significant. Firstly, causes for discipline of judges are not clearly
defined in all respects. Under Art 96(5) of the Constitution of Bangladesh "gross misconduct is
an important cause for discipline of judges of the Supreme Court, but it is not clearly defined
either in the Constitution or in the Code of Conduct for judges prescribed by the Supreme
Judicial Council (SJC).
Secondly, there is no specific system or procedure for making complaints against a transgressing
judge. Consequently, it is almost impossible for the general public to file a complaint against a
judge for incapacity or misconduct, particularly for corruption.
Thirdly, the Supreme Judicial Council in Bangladesh, which is exclusively composed of the three
senior judges, is the most powerful mechanism for disciplining Supreme Court Judges.