In some of the most outstanding cases across the world, Supreme Courts or the Apex Court of the country have used the words like 'conduct shocking to the judicial conscience.' Irrespective of the verdict, such a strong term used by the judge(s), indicates that he or they may have relied upon their individual value systems to temper the verdict, couching it otherwise in suitable judicial terminology. Larger justice may have been achieved but can we really discount individual opinion? So, the questions are:
1. What is this 'judicial conscience'?
2. Can we define it?
3. Is it an entity beyond the domain of law - a law by itself?
4. Is it subject to some law - perhaps the law relating to 'judicial discretion', if there is such a law?
The first time I came across the term 'Conscience' in judicial parlance was about eight years ago when I was researching on Personal Liberty and Criminal Jurisprudence. Without any more prologues, I quote:
"This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach's content - this course of proceedings by agents of the government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and screw to permit of constitutional differentiation"
These were the words of Justice Frankfurter in Rochin Vs. California, one of the most outstanding piece of judicial deliberation, obiter dicta if you like it, in a case that was all about a drug peddler who was arrested by the police in a hotel room and their efforts to extract the drug from his body in the initial course of their 'investigation'. Whole world (just for the sake of argument, please. No one has heard of Rochin in Timor-Leste or Sub Saharan Africa or Mongolia) knew that he was a drug peddler, therefore a menace to the society. In the normal course if any of us had found him perhaps we would have shot him, than go through the rigmarole of legal process. Poor LAPD went through the pain of arresting him, searching him, obtaining 'hard' evidence only to face the wrath of Justice Frankfurter. Rochin was let out free.
We must know something about Frankfurter at this juncture. Felix Frankfurter, born Nov 15, 1882 at Vienna Austria; died Feb 22, 1965 at New York, USA. His father was a Rabbi. They migrated to America when he was 12. He is considered one of the most brilliant jurists in the world and that is perhaps why we are talking about him now. Incidentally, he also had a hand in shaping the Constitution of India, the younger but the most robust democracy in the world.
Between October and December 1947, Dr BN Rau, again one of the most brilliant judicial minds of India, met the former Chief Justice of the U.S. Supreme Court, Charles Evans Hughes Sr, and the then associate judges of the U.S. Supreme Court, Justices Felix Frankfurter, H.H. Burton and Frank Murphy. It was Justice Frankfurter who advised Rau to drop the due process clause from the draft Constitution because it was “undemocratic” and it imposed an “unfair burden” on the judiciary. Connoisseurs of Indian Constitution (sorry for the expression) know that the Constitution does not support the due process clause which is famously rooted in the Fifth Amendment in the US Constitution. Instead, the Indian Constitution expands the meaning of Individual liberty under Articles 7, 9, 10, 17 and 21.
Getting back to Rochin, Justice Frankfurter set another 'judicial precedence' of invoking 'conscience'. In a world of letters that law is, this is path breaking, one may say rebellious, precedent. That precisely is the reason why we must look into the question of judicial conscience. If the child of a Rabbi can change the way we look at rights of not just victims but even offenders, then 'judicial conscience' needs definition so as to prevent children of lesser mortals from tampering with justice.
The forum is open.
I seem to be only adding questions to my own self - a friend of mine who happened to see this conversation asked:
"what do you mean? Don't you think judges are also entitled to their own conscience? He is also affected the environment in which he grew up, works today and as a person with family and ties. What is shocking to his conscience is the net result of all that has 'shocked his conscience' through his own life's experience. Yes, he may choose to couch it in legalese in a judgement."
I sat with stars exploding in my mind and bees humming in my ears when he said this. It will be sometime before the astro-debris settles down and ear drums stabilize, before I can think further!!!!!
great debate! reading and trying to comprehend different dimensions of it.
Dear Professor,
Undoubtedly, 'judicial conscience' word has often been using by the Judges. We should try to find its roots in word 'Common conscience". The Conscience is associated with the eternal feeling but we find sometime something which shocks our conscience. When it is associated with the common man it become 'Common Conscience" . When the matters is deeply related with the law and more particularly with the legal principles, which can affect the conscience of a person having knowledge or understanding of the principles of law, it become 'Judicial Conscience'.
So we may define it as "the conscience of a person of judicial mind'.
The word nowhere create anything beyond the domain of law.
Sir, unfortunately it is not the subjectmatter of any specific law, but in my opinion may be the subject matter of "Law Lexicon"
It is a factor indeed while considering the application of judicial principles in practice.
Prof. Srinivasan, I am very much obliged to give me a new sight for viewing the law from a new angle.
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