‘Friend’ing and ‘Follow’ing Judges: The Debate
There needs to be a debate on judges using social media.
Social Media Ethic
- Can Facebook “friendship” or Twitter “follow” compromise justice?
- The public would benefit from judges commenting on social and legal issues.
- The US has rules, but why isn’t India debating?
Should Judges Use Social Media ?
A J&K High Court circular against Facebook-friending judges raises conflicting questions.
On August 27, N Paul Vasanthakumar, Chief Justice of Jammu and Kashmir High Court issued a circular castigating judicial officers for developing a “Facebook-friendship-club-culture” with advocates and “members of civil society”. Terming this a “misdemeanour” and gross violation of the code of judicial conduct, the circular tersely reminds the errant judicial officers that further transgressions would invite penal action under the relevant rules.
Judges’ relationship status with Facebook can be best termed as “it’s complicated”, and it is not too difficult to imagine the acute discomfiture they would face in confining their expressions to 140 characters on Twitter. But that’s a secondary issue. The thornier questions, which this circular raises, are about public confidence in judicial impartiality and certain non-derogable principles of judicial conduct.
In India, there is a chasm – this topic has not entered the domain of judicial discourse and consideration, but abroad, especially in the United States, there is a well-defined and considerably large corpus of rules and regulations. And because social media has become an inalienable part of news gathering, reporting and public discourse, the circular couldn’t have come at a more opportune moment.
It’s a Conundrum
No one needs an introduction to Justice (Retd.) Markandey Katju’s prolific, and often controversial social media and blogging activities. But, all these are after he had retired from the Supreme Court. Mumbai lawyer Gautam Patel, before he was elevated to the Bombay High Court, was heavily into Twitter and ran a very educative and informative blog, but suspended these activities before he donned judicial robes.
In 2010, the Times of India carried a report on some judges of the Bombay High Court and City Civil and Sessions Court signing up on Facebook for “staying in touch with family and friends” but one does not know if any action was taken against them. What is also unknown is who these “friends” were, and if any of them had been involved in any litigation over which a particular judge was presiding.
There are good grounds for approaching this issue with trepidation. Judges are supposed to be impartial and impervious to any kind of influence, so every tweet and Facebook post would obviously be dissected for any hint of bias or corruption. A person whom a judge “friended” or “followed” on Twitter today could be standing before him either as a petitioner or an accused tomorrow. It is true that friendship in real life and in the online sphere aren’t exactly the same , and one Twitter user could well follow another even if he loves to hate him, or even just keep an eye on him, but whatever it is, a considerable degree of interest is definitely involved. If a judge evinces interest in a person, there definitely would be sharp questions from lawyers, besides a few raised eyebrows.
On the other hand, 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 thinking. It would be a welcome departure from the inscrutable veneer which judges keep around themselves. But then, what would they converse on with lawyers (there are already quite a few of them who don’t shy away from expressing their opinions with utmost candour), the lay public, and even influential people like politicians and journalists?
Context is the Key?
In November 2009, the Florida Supreme Court’s Judicial Ethics Advisory Committee issued an opinion advising against “judicial friending” and said a judge cannot friend lawyers who may appear before them or accept friend requests from those lawyers. Reason – these relationships “convey to others the impression that these lawyer ‘friends’ are in a special position to influence the judge.” Opposed to this blanket prohibition is the American Bar Association’s February 2013 opinion acknowledging that “judicious use” of electronic social media (referred to as ESM) can be a valuable tool for public outreach.
Judges who have contacts with lawyers or parties in pending matters must evaluate whether the relationship should be disclosed.
“In this regard, context is significant,” the opinion says. It emphasises that judges must be mindful that such connection may give rise to the level of social relationship or the perception of a relationship that requires disclosure or recusal” in case of pending or imminent litigation.
As the nature and level of social media discourse on matters of law and policy improves and grows in India, it is important for both the Bar and the Bench to start thinking on this issue and arrive at a balanced position which does justice to all.
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