Judiciary vis-a-vis Social Media Ethics
This paper is a succinct analysis of various views and opinions on judiciary vis-a-vis social media ethics write Purvi Nanda and Mohit Khandelwal.
|“A judge may participate in electronic social networking, but as with all social relationships and contacts, a judge must comply with relevant provisions of the Code of Judicial Conduct and avoid any conduct that would undermine the judge’s independence, integrity, or impartiality, or create an appearance of impropriety.1”
Contemporary times have witnessed technological advancement, entailing an astounding increase in the use of cyberspace by citizens. In recent years, social media sites have become intricately interwoven within the fabric of society. In fact, the first decade of the twenty-first century is considered the dawn of the ‘social media age2 and the effect of social-networking sites can be felt globally3 including individuals working in the legal profession. Rapid advancement in electronic social media network [hereinafter referred to as ESM] has furthered communication and dissemination of information4. Legal professionals, viz. judges, advocates as well as the judicial staff are flocking to social media sites like Facebook, Twitter, etc. to magnify their professional presence in the emerging digital frontier. Although, judges have been slower than the general public to embrace social media, howbeit, surveys report that the number of users from the judiciary has been increasing.5 For instance, Justice (retd.) Markandey Katju has over 1 Lac followers and almost 11,000 tweets.6
Due to its ubiquitous nature, ESM facilitates public outreach. Further, social exchanges of all kinds, including ESM, can be beneficial to judges as they prevent them from being thought of as inaccessible or secluded. There has been a divergent view on the issue of use of ESM by the
1. American Bar Association, Judge's Use of Electronic Social Networking Media, Formal Opinion 462 (2013).
2. Carolyn Elefant, The “Power” of Social Media: Legal Issues & Best Practices for Utilities Engaging Social Media, 32 Energy Law Journal 1, 4 (2011).
3. Karen Tanenbaum, Should the Default be “Social”? Canada's Pushback Against Over-Sharing By Facebook, 40 Georgia Journal of International & Comparative Law 275, 277 (2011).
4. Shreya Singhal v. Union of India, AIR 2015 SC 1523.
5. CCPIO New Media Survey, A Report of the Conference of Court Public Information Officers, CCPIO (2014), available at http://ccpio.org/wp-content/uploads/2014/08/CCPIO-New-Media-survey-report_2014.pdf, last seen on 20/04/2016.
6. Markandey Katju, Twitter, available at https://twitter.com/mkatju, last seen on 19/04/2016.
judges as it has the potential to compromise or appear to compromise the independence, integrity, and impartiality of the judge. Moreover, it is also capable to undermine public confidence in the judiciary. With different rules in different states, the opinions vary from absolute prohibitions on judges using ESM,7 to general acceptance of such interactions, with some judicious limitations.8
Henceforth, important questions regarding the use of ESM by Judiciary and its extent arise. Does the revered role of a court or a judge disapprove the use of ESM? Can the judges use online forums to discuss law-related issues? Can a judge use ESM in his private capacity? Should judges be denied the right to social networking?
The major strain in answering these issues is that over the past few decades there has been a profound change in the role of judiciary. Passively highlighting the inquisitorial role of a judge in common law society, it is contented that judges play an active role in identifying and reflecting the social values in a case.9 Hence, the values of a judge find their way into his decisions where those values are related to. Moreover, they act as social innovator and serve as a cushion to the social shock induced by drastic socio-legal changes in the society.
This article is a succinct analysis of various views and opinions on the aforementioned questions. While the incidence and manifestation of such occurrences are open for deliberation, the use of ESM by the court and judiciary has spurred many debates. For instance, in Florida, a judge had to recuse himself over his Facebook friendship with a prosecutor.10 Further, in the United Kingdom, guidelines were laid down stating that judges should not refer on Twitter or Facebook to their judicial activities or cases in which they were involved11. The article aims at highlighting the arguments for and against the ESM interactions by the Judiciary, accentuating the natural law doctrine of propriety.
Judicial Code of Conduct in ESM Exchanges
7. Florida Supreme Court, Judicial Ethics Advisory Opinions, Opinion 2012-12 (2012).
8. Board of Comm’rs on Grievances & Discipline, The Supreme Court of Ohio, A judge and a lawyer being “friends” on a social networking site, Opinion 2010-7 (2010).
9. Sir William Blackstone, The Commentaries on the Laws and Constitution of England, University of Chicago Press Edition 1796 (1979).
10. Sandra Chace v. Robert Loisel, Jr. 170 So.3d 802 (2014, District Court of Appeal of Florida, Fifth District).
11. Martin Beckford, Judges banned from blogging or tweeting about cases, The Telegraph (15/10/2012), available at http://www.telegraph.co.uk/news/uknews/law-and-order/9477275/Judges-banned-from-blogging-orTweeting-about-cases.html, last seen on 20/04/2016.
Judicial ethics and code of conduct serve as the pillar to the roof of integrity, independence and propriety of the Judiciary. Accordingly, the paper shall analyze the issue of judicial propriety and biasness in pre-ESM period. Further, it shall examine the application of existing principles in the emerging era of social media as a platform for social interactions. The prevalent issues evince the need of devising a model code of conduct which will serve as a guidance system for the judiciary in ESM network.
Existing code of judicial conduct
Judges are attributed by dispensation of justice. The fundamental guarantee of a fair trial requires judicial independence, integrity and impartiality in order to ensure the faith and confidence of general public and litigants in the judiciary. Accordingly, these judicial ethics shall be evinced and endorsed by the judge in the institutional as well as individual bearings. Further, Article 50 of the Indian Constitution12 which separates the Judiciary from the Executive has crystallized the integrity and independence of Judiciary. Correspondingly, the oath administered by a judge requires him to perform his duties without fear or favor, affection or ill-will.13
Man is a social animal. The social behavior has an attribute of favoritism towards friends or relatives. This act of preference or partiality can be termed as bias. According to the doctrine of natural justice, a judge should be impartial and neutral and must be free from bias (nemo debet esse judex in propria causa).14 Bias is a predisposition to decide for and against one party without proper regard to true merits of dispute.15 A Judge may have a personal bias towards a party owing to relationship.16 The exquisite nature of a judge’s duties requires certain degree of detachment. A workable line of distinction has to be drawn by the judges while functioning in the society as an individual. These pre-requisites lead us to the issue of personal bias. The causes which may lead to personal bias cannot be exhausted. The principle would come into operation whenever there is a ‘real likelihood of bias’.17 In other words, the test is not whether a bias has ‘actually affected’ the judgment, but whether a litigant could ‘reasonably apprehend’ that a bias
12. Art. 50, the Constitution of India.
13. Schedule 3, the Constitution of India.
14. J. Mohapatra & Co. v. State of Orissa, (1984) 4 SCC 103.
15. Ratan v. Managing Committee, (1993) 4 SCC 10; State of Gujarat v. Anand, AIR 1993 SC 1196; Mohinder v. Chief Election Commr., AIR 1978 SC 851; Bd. of Mining exam v. Ramjee, AIR 1977 SC 965; State of Kerala v. Shaduli, (1977) 2 SCC 777.
16. Ashok v. State of Haryana, (1985) 4 SCC 417.
17. State of U.P. v. Nooh, AIR 1958 SC 86.
have operated against him in the final decision of the judge.18 Hence, the issue at hand is the ‘real likelihood of prejudice’19, however, it does not require certainty.
‘Propriety and the appearance of propriety are essential to the performance of all of the activities of a judge.’ This principle has been affirmed by the Bangalore Principles of Judicial Conduct20. According to it, a judge shall diligently avoid impropriety and the appearance of impropriety in all his activities. In fact, a judge is constantly under the public gaze, must accept personal restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. He shall not allow any social relationship to improperly influence his judicial conduct.
R. C. Lahoti in his famous work, Canons of Judicial Ethics, have very well stated that “The judiciary... has no influence either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither force nor will but merely judgment- a speaking impartial judgment.” Henceforth, where justice shall not only be done but seen to be done, a judge has to be not only impartial but seen to be impartial.
Code of conduct in ESM era
ESM exchanges augment plenty concerns. Online networks permit the members to post any content on other members’ sites; it can be that of a judge as well. Moreover, judge being a member of ESM network nearly loses the control over the privacy on the exchanges he indulges in. In fact, labels such as ‘friend’ or ‘follower’ generally imply a close relationship, closer than actually exists. These relationships are exposed to public gaze and therefore, engender the appearance of impropriety.
In order to ascertain the confidence and trust of the public in the judiciary, judicial ethics have been emphatically crystallized on the issue of impropriety. Appearance of impropriety has become more prominent in the backdrop of advanced ESM. A paradigm can be drawn from the instance of recusal of Judge Thomas Placey. It was found that he continued the hearing for a
18. Rattan v. Managing Committee, (1993) 4 SCC 10.
19. R v. Camborne Justice, 2 All E.R. 535 (1954, Queen’s Bench Division).
20. Judicial Group on Strengthening Judicial Integrity, The Bangalore Draft Code of Judicial Conduct (2002).
defendant who was among the judge’s ‘Facebook’ friends and the same was not disclosed. 21 The recusal was sought, nevertheless, Judge Placey asserted that he had never socialized with the defendant nor did he consider him a ‘real’ friend.
Hence emanate the divergent views regarding the issue that whether a judge shall indulge in ESM exchanges.
Arguments favoring ESM interactions by Judiciary
Supreme Court of India in Kameshwar v. State of Bihar22 has held that “by the mere fact a person enters government service, he does not cease to be a citizen of India or disentitle himself to the rights conferred by this article”. It is submitted that freedom of speech and expression guaranteed under our constitution under Art. 19(1) (a) is a basic natural right23 always subjected to a liberal interpretation.24 Since, judges are entitled to enjoy basic rights conferred under Part III of the Indian Constitution, they also enjoy right to free speech and expression.
Further, the Court in Abraham Kuruvilla v. S.C.T. Institute of Medical Sciences & Technology and Others 25, pointed out that bias must be proved by adducing cogent and sufficient evidence in support thereof.26 Not only existence of a factual bias has to be proved, but it must also be shown that the same has resulted in miscarriage of justice. Subsequently, the question of bias shall be decided by taking into consideration reasonable probabilities and human conduct.27
Moreover, the degree of closeness shall be used as a criterion to decide the reasonable likelihood of bias. Closeness of relationship28 cannot be proved merely by the fact of Facebook friendship so as to give rise to reasonable apprehension of bias. There must exist, circumstances where the prejudice against a law-seeker can be construed reasonably by a fair-minded man29.
21. Dan Miller, Cumberland County District Judge Thomas Placey Recuses Himself from Case Over Facebook Flap, The Patriot News (21/10/2011), available at http://www.pennlive.com/midstate/index.ssf/2011/10/districtjudge-tom-placey_ recu.html, last seen on 20/04/2016.
22. Kameshwar v. State of Bihar, AIR 1962 SC 1166; S.B. Narasimha Prakash v. State of Karnataka, (1997) 11 SCC 425.
23. State of West Bengal v. Subodh Gopal Bose, AIR 1954 SC 92; Pannalal Binjraj v. Union of India, AIR 1957 SC 397; Jamuna Prasad v. Lachhi Ram, AIR 1954 SC 686.
24. State of Karnataka and Anr. v. Associated Management of (Government Recognised-Unaided-English Medium) Primary and Secondary Schools and Ors., (2014) 9 SCC 48; Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574.
25. Abraham Kuruvilla v. S.C.T. Institute of Medical Sciences & Technology and Ors., (2005) 9 SCC 49.
26. Mustill and Boyd, Commercial Arbitration, 214 (17th ed., 1982).
27. A.K. Kraipak v. Union of India, AIR 1970 SC 150.
28. Lane v. Facebook 696 F.3d 811 (2012, United State Court of Appeals, 9th circuit).
29. S. Parthasarathi v. State of Andhra Pradesh, (1974) 3 SCC 459.
General allegation of intimacy with one party is insufficient to require recusal of judge30. If the judge does not have reason to be partial, then the question of the judge depriving a party of its right to a fair trial before an impartial judge cannot arise31. In Locabail v. Bayfield32 the Court of Appeal defined certain objections which would not ordinarily be relevant for considering the recusal of judge these include objections based on previous political associations; or membership of social or sporting or charitable bodies or extra-curricular utterances.
Thus, a judge is not required to recuse himself or herself any time he or she has knowledge of, contact with, or an interest in the case over which he or she is presiding33. In the absence of a valid reason for disqualification relating to the subject matter of the litigation, the trial judge has the duty to preside over the case.34
Arguments opposing ESM interactions by Judiciary
The right of free speech and expression of a judicial officer is subjected to dignity, impartiality and independence of judiciary. Conduct of a judge should uphold the trust of individual over the judicial system. Thus, if any restriction is imposed on judicial officers to preserve the above mentioned aspects then that shall fall within the purview of reasonable restrictions.
Moreover, preference often arises in the form of ‘unconscious bias’35. Certain factors go far beyond those we use to determine the ‘closeness’ of a friendship. In Public Utilities Commission of District of Columbia et al. v. Pollak et al36, the Supreme Court of United States pointed out that a judge should work in accordance with the legal framework and submerge his personal feelings. Though, it is true that a person is unware of the influence of a subconscious feeling, howbeit, it is also true that such unconscious feelings may influence ultimate judgment, or may even give rise to appearance of impropriety. Thus, judges, in such cases, recuse themselves.
30. Morse v. Lewis, 54 F.2D 1027 (1932, Circuit Court of Appeals, 4th circuit).
31. Andrew Suh v. Guy Pierce, Warden, 630 F .3d 685 (2011, United States Court of Appeals, 7th circuit)
32. Locabail (UK) Ltd v. Bayfield Properties Ltd. and Another, (2000) 2 WLR 870 (2000, Court of Appeal, Civil Division).
33. People v Thomas, 199 Ill. App. 3d 79 (1990, Appellate Court of Illinois, Second District).
34. Blades v. Dafoe, 666 P.2d 1126 (1983, Colorado Court of Appeals, Div. I)
35. Deana A. Pollard, Unconscious Bias and Self-critical Analysis: The Case for a Qualified Evidentiary Equal Employment Opportunity Privilege, 74 Washington Law Review 913, 917-24 (1990).
36. Public Utilities Commission of District of Columbia et al. v. Pollak et al, 343 U.S. 451 (1952, Supreme Court of the United States).
Further, there exists the concept of ‘in-group bias’, which occurs when individuals consciously or unconsciously classify others into groups, and then exhibit bias towards or against others based on group membership.37 By accepting the ‘friend request’ of a person on Facebook or ‘following’ someone on Twitter, a judge is in fact categorizing the persons ‘friended’ or ‘followed’ into one special group. Being a member of different social media pages, a judge may exercise bias against or in favour of persons forming a part of particular group on social networking sites.
Henceforth, the question mark lays on the circumstances that create reasonable suspicion of likelihood of bias operating the decision, and not the actual bias.38 Thus, if relation of a judge with any individual on social networking platform is capable of creating an impression of bias in the mind other person then that falls within the purview of reasonable likelihood of bias.
These arguments lead us to two primary facets emerging out of this paradigm, viz. disqualification and disclosure.
“The appearance of fairness is as important as fairness itself.”39
Courts have held that close friendships can require disqualification.40 A personal relationship precipitates bias as it is reasonably presumed that a judge will treat the testimony of his friend with different credibility.
On the issue of whether the Code allows ESM connections, there is a split of opinions into ‘restrictive’ approach and ‘permissive’ approach. States, such as Florida, that adhere to a restrictive view forbid a judge from friending lawyers who may appear before the judge.41 By accepting a lawyer as a ‘friend’ on ESM, the judge is selecting a special class of individuals. This preference is publicly communicated through social networking, which conveys the impression that the lawyer is in a special position to influence the judge. Thus, the relationship
37. Marilynn B. Brewer, In-Group Bias in the Minimal Intergroup Situation: A Cognitive-Motivational Analysis, 86 Psychological Bulletin 307 (1979).
38. Supreme Court Advs. on Record Assn. & Ors. v. Union of India, AIR 2016 SC 117.
39. Leslie W. Abramson, Appearance of Impropriety: Deciding When A Judge's Impartiality “Might Reasonably Be Questioned”, 14 Georgetown Journal of Legal Ethics 66 (2000).
40. United States v. Kelly, 888 F.2d 732, 746 (1989, United States Court of Appeals, Eleventh Circuit); United States v. Murphy, 768 F.2d 1518, 1540 (1985, United States Court of Appeals, Seventh Circuit).
41. Florida Supreme Court, Judicial Ethics Advisory Opinions, Opinion 2012-12 (2012).
violates the Code. This approach has been profoundly followed by Massachusetts, Oklahoma, and Connecticut. Howbeit, states like New York, Kentucky, South Carolina, Maryland, and Ohio endorse permissive view. For example, the Kentucky Ethics Committee concluded that a judge does not violate the Judicial Code simply by connecting with a lawyer on social media.42 Similarly, the New York Committee concluded that social network connections are allowed, but judges must consider whether the circumstances of each case would indicate a ‘close social relationship’ and require disclosure, recusal, or both.43
A middle ground between restrictive and permissive opinions was sought by the California Committee44. The Committee did not answer whether there is a “per se prohibition on social networking” but instead considered motley of factors to determine whether the connection created an appearance of impropriety. Although the committee used a permissive, fact-specific approach, it concluded that a judge cannot “interact with attorneys who have matters pending before the judge” and that any such lawyers should be “unfriended.”
Disqualification entails disclosure of the social relationship by the judge. It focuses on what a reasonable person might consider relevant to disqualification.
“Sunlight is ...the best of disinfectants.”45
Even if the judge himself does not believe that the relationship is significant enough to create an appearance of impropriety, the judge must disclose a social relationship- including a social media connection-if reasonable people might disagree. The ABA Opinion, for example, said that a “judge should conduct the same analysis of a social media connection that must be made whenever matters before the court involve persons the judge knows or has a connection with professionally or personally. The judge should consider a number of factors: the number of
42. Judicial Ethics Committee, Kentucky Court of Justice, Judges Membership on Internet-based Social Networking Sites, Formal Opinion JE-1 19 (2010).
43. New York Advisory Committee on Judicial Ethics, Rules Governing Judicial Conduct and use of Internet-based Social Network, Opinion 08-176 (2009).
44. Judicial Ethics Committee, California Judges Association, Online Social Networking, Opinion 66 (2010).
45. Justice Louis D. Brandeis, Encyclopedia of World Biography, available at http://www.brandeis.edu/legacyfund/bio.html, last seen on 19/04/2016.
friends that a judge has, whether the judge has a practice of accepting all friend requests, and other factors...”46
Hence, from the perusal of the two concepts, it can be conveniently inferred that a guidance system has been provided to the judges regarding their conduct on the ESM. However, the divergence in the views on disqualification has led to subsisting ambiguity in judicial ethics regarding the use of ESM. The root and jolt of such ambiguity in the guidance system has been discussed subsequently.
Impact of ESM on Indian Judiciary
In Indian judicial forum this topic has not entered the domain of discourse and consideration. There are divergent opinions on the issue of permissible role of a judge in social institutions.
On one hand, considering integrity as the hallmark of judicial discipline47, the Supreme Court of India in cases like High Court of Judicature for Rajasthan v. Ramesh Chandra Paliwal48 and Daya Shankar v. High Court of Allahabad49, have given paramount importance to the fact that ‘judges have to live and behave like hermits. Their mission is to supply light and not heat.’ Albeit, on the other hand, the nine-judge Bench in Indra Sawhney etc. v. Union of India50 has held that the social change has to be ushered in as expeditiously as possible but at the same time with the least friction and dislocation in national life. Thus administration of justice has to change with the changes in social usages and perspectives. With the advent of Facebook, the legal fraternity in India has also embraced this change and entered the social media. However, the aforementioned conflicts have augmented the sustenance of ambiguity in Indian scenario. It is pertinent to note that ESM network allows individuals with a common interest interact with the like-minded.
Recently, in 2015, N. Paul Vasanthakumar, Chief Justice of Jammu and Kashmir High Court issued a circular51 condemning the judicial officers for developing a ‘Facebook-friendship-club-culture’ with advocates and ‘members of civil society’. The circular termed the conduct as a
46. Supra 2.
47. Tarak Singh v. Jyoti Basu, AIR 2005 SC 338; High Court of Judicature at Bombay v. Uday Singh, AIR 1997 SC 2286.
48. High Court of Judicature for Rajasthan v. Ramesh Chandra Paliwal, (1998) 2 SCC 72.
49. Daya Shankar v. High Court of Allahabad, (1987) 3 SCC 1; High Court of Judicature at Bombay v. Shashikant S. Patil, (2000) 1 SCC 416.
50. Indra Sawhney v. Union of India, AIR 1993 SC 477.
misdemeanor and severe violation of judicial code of conduct. Previously, in 2010, the issue came up succinctly when some judges of Bombay High Court and District Court signed up on Facebook for ‘keeping in touch with their family and friends’.52
However, even after such instances there is a paucity of concrete guidance system leading to a state of confusion for the judges in the ‘social media age’.
IAmbiguous Rules and Ambiguous Conduct
“A rose is a rose is a rose. A friend is a friend is a friend? Not necessarily. A social network friend may or may not be a friend in the traditional sense of the word.”53
Judges desire greater guidance so they can use social media and still comply with ethical obligations under the Code. Currently, judges in California are the only ones with clear guidance on the disclosure of social media connections, while judges in the rest of the country are left without any clear direction.
Firstly, the meaning of social media ‘friendship’ is abstruse. ESM connection does not, in and of itself, indicate the degree or intensity of a judge’s relationship with a person. Moreover, the Court in Youkers v. The State of Texas has held that “the mere fact of Facebook friendship does not show bias”.54 The nature of relationship cannot be construed from a virtual label of ‘friend’. This leads to the issue in hand, i.e., whether the identification of a lawyer as a ‘social media friend’ conveys that the lawyer is in position to influence the judge. While the connection is publicly known, the nature of friendship is not.
Secondly, there is a significant presence of wide ranging views on disclosure and subsequent disqualification. The ethics opinions are divided on the issues of delineating the extent of ESM relations. Where one bloc endorses a restrictive approach, the other abides by the permissive opinion.
Thirdly, conundrum develops as most state ethics opinions do not equip judges with clear guidance on what social media connections is permissible and to what extent. Further, the
51. J&K High Court Circular, Dropbox (2015), available at https://www.dropbox.com/s/tkp00q60wdcxmw0/J%26K%20HC%20Circular.jpg?dl=0, last seen on 20/04/2016.
52. Hetal Vyas, Judges join Facebook to catch up with family, Times of India (10/09/2010), available at http://timesofindia.indiatimes.com/city/mumbai/Judges-join-Facebook-to-catch-up-with-family/articleshow/6527289.cms, last seen on 20/04/2016).
53. Supra 9.
54. Youkers v. The State of Texas, 400 S.W.3d 200 (2013, Court of Appeals of Texas, Dallas).
meaning and application of the disclosure standard are explained quite succinctly. Very little has been written about the meaning and application of the disclosure standard. For example, a judge applying the case-by-case approach might conclude that he does not have to disclose his ESM connection in the case. But that does not change how the one [the lawyer, media, etc.] who discovers the ‘friendship’ might feel about the connection. Rather, this would add to the suspicion.
Fourthly, both the disqualification standard and the disclosure standard being objective create uncertainty. The standard requires the judge to disclose information that a reasonable person might find relevant to disqualification even if the judge does not believe that the information is relevant.
On that account, an effort to apply a vague standard to ambiguous conduct creates uncertainty. These opinions perhaps overstate the power, and potential for abuse, of these online connections. Thus, a transparent approach putting everybody on a level playing field is required. Where, the ultimate goal is to reduce ‘appearance of impropriety’, disclosure serves the best purpose. Broad disclosure rule shall bolster the confidence of public in judiciary and also ensure destruction of any shenanigans taking advantage of the ambiguity.
One of the primary arguments against a broad disclosure rule is that it may deter judges from using social media at all because of the hassle of making disclosures which may invite disqualification motions. This boosts the anagram as this notion promotes the socially sterile life of a judge. It goes against the Blackstonian principle of inquisitorial role played by the judge in the society. Famous Sociologist Marx and Engels have explained that the administration of justice must change with laws and changes in society.55 Howbeit, due to aforementioned issues, the ambiguity has continued and is still continuing.
It has to be kept in mind that if judges are commenting on social media, it would be a great boost to judicial transparency, giving the public a clear idea and valuable insights into judicial
55. E.M. Sankaran Namboodiripad v. T. Narayanan Nambiar, AIR 1970 SC 2015.
thinking. There is a need to harmonize the aspect of freedom of judiciary and confidence of justice seeker in the judicial system. If presence of judge on social networking platforms is creating a suspicion of bias in the mind of the person appearing before the judge then that shall be a hindrance in promoting judicial integrity and ethics. Today judges in a majority of states still lack needed clarity from their ethics regulators on these points, and the different opinion fares no better, noting simply that the context of such friendship is significant in analyzing the judge’s duties. Hence, where conduct of judge on ESM is affecting the public in general and lawyers in particular, there is a colossal requirement of a concrete guidance system to nurture the transparency and integrity of judicial system of a country. Emphasis is thus laid on the ‘broad disclosure’ motion by the judges in order to skim the suspicion by general public and the bar, maintaining confidence in the judiciary. Moreover, ESM connections alone should not lead to their disqualification as done in the case of recusal of Judge Placey56. Thus, in the backdrop of broad disclosure regime, the opinions on judicial ethics in ESM forum are summed up through the following bullets:
- A judge should disclose his ESM connection with any person involved in the case for the scrutiny by the other party.
- Judges should refrain from commenting on the ESM network about the cases still pending.
- Judges should be careful to avoid ex parte communications on social media.
- Judges should refrain from engaging into independent investigations on ESM network.
- Judges should be careful about what they ‘say’ and ‘like’ on social media.
- A judge should carefully monitor the privacy settings on his ESM network.
- A judge should recuse himself or herself from a proceeding when the judge’s ESM relationship creates bias.
Henceforth, it is acknowledged that a clear guidance is required for the use of ESM as a part of the code of conduct of the judicial officers. The guidance should thus address the issue of whether judges can indulge in ESM exchanges with lawyers and others who may appear before them and whether such
56. Supra 22.
connections must be disclosed to litigants, recognizing the principle of disclosure vis-à-vis the role of judge in a dynamic society.
| PURVI NANDA and MOHIT KHANDELWAL are students pursing B.A. LL.B (Hons.) from the Rajiv Gandhi National University of Law, Patiala. They can be reached at email@example.com and firstname.lastname@example.org respectively.