Judicial Accountability – an Illusion or a Reality

Posted by Law Article on July 12th, 2009 at 12:20am

Name: Sukant Vikram

Class : 5th Year BBA LLB

 

College : Symbiosis Law School, Pune , India

 

 

 

 

Topic—-                Judicial Accountability- An illusion or a reality

Introduction —-

      

               “Rex non potest peccare” —- The King can do no wrong

 

In a ‘democratic republic’ power with accountability of the individual enjoying it, is essential to avert disaster for any democratic system. The accountability must be  comprehensive to include not only the politicians, but also the bureaucrats, judges and everyone invested with public power. Power and position in the society come attendant  with responsibility, and every incumbent of a public office must remain constantly accountable to the people, who are the repository of political sovereignty.

 

Accountability of the judiciary at every level, in a democracy cannot be doubted. The need of an effective mechanism for the enforcement of judicial accountability, when needed, is a felt need and must be accepted.The method by which judges are selected has become a matter of considerable concern for the citizens of our state. Although judicial elections may always has been important and vital process, the selection process is now coming under particular scrutiny. Some believe that although imperfect, the process in place works well enough to need only minor adjustments; others claim that a major overhaul, even scrapping, of the system is necessary. Certainly attention to the issue is warranted: The provisions in place for judicial accountability all threatened by the spread and deepening of problems that, if left unattended, will erode the public’s confidence in our judiciary.Objective —- A democracy is highlighted by the fact that each and every part of it is accountable to each other. In this situation, an independant judiciary which is the backbone of the efficient functioning of the democracy in India has come under a lot of scrutiny.  How far do we go to ensure the independance of judiciary when transparency is the shrill and persistent demand of the Time. The judiciary – especially the higher judiciary – has put itself up on Cloud Nine, wrapping itself in a cloak of inviolabilityHow are Judges appointed? Why are they appointed? What are their short-comings? How are these dealt with?These are some questions, the answers of which we would endeavour to reach analysing the various relevant provisions of The Constitution Of India.

 

 

Main Text —-

 

Appointment of Judges—   

The High Court judges are appointed by the president after consulting the chief justice of India, the governor of the state concerned and, in case of appointment of a judge other than the chief justice, the chief justice of the high court to which the appointment is to be made as provided by the article 217(1).

Every judge of the supreme court shall be appointed by the president after consultation with such of the judges of the supreme court and of the high court’s as the president may deem necessary for the purpose as laid down under article 124(2).

The words “appointed by the government in consultation with the Chief Justice” in the Constitution were interpreted as “appointed by the government on the advice of the Chief Justice” in the various judgments by the Supreme Court as cited:-

 

S. P Gupta—-

A seven Judges Bench of Supreme Court extensively considered the issues of Independence of Judiciary in relation to the appointment and transfer of Judges, the issue of appointment of the Additional Judges of the High Court, the issue of the privilege of the Government against disclosure of State documents and the scope of judicial review of the powers exercised by the President.

While deciding the issue of the locus standi of the petitioning lawyers who had challenged the Circular of the Law Minister and short-term extensions of Additional Judges on ground of attack on the independence of the judiciary, Justice P.N. Bhagwati while upholding their right to do so held that where the effected persons are really helpless, the Supreme Court will not insist on a regular writ petition to be filed by the public spirited individual espousing their cause. The Court will readily respond even to a letter addressed by said individual espousing the public cause.

A bunch of cases were decided together in the present case which were raised in two batches of writ petitions filed in different High Courts which were transferred under Article 139-A to the Supreme Court since they raised common issues of great constitutional importance. One writ was also filed in the Supreme Court. Several more related issues were raised and discussed during the hearing. Each of the Judges delivered a separate judgment.

Supreme Court Advocates-on-Record Association Vs. Union of India

This case directed to constitute a Bench of nine Judges to examine the two questions referred therein, namely, the position of the Chief Justice of India with reference to primacy, and justiciability of fixation primacy, and justiciability of fixation of Judge strength.

 

Impeachment—-

Removal of judges can be done through an impeachment procedures provisioned in the article 124 hereinafter stated as -:

Article 124 (4) of Indian Constitution: A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.

But the practical problems faced during the impeachment of any judge has been highlighted in the following instances.

The first ever impeachment—-.

Justice V. Ramaswami

The first-ever impeachment motion against a SC judge, Justice V. Ramaswami, was signed by 108 MPs in 1991. A year later, an inquiry found Ramaswami “guilty of willful and gross misuses of office… “While serving as the Chief Justice of the Punjab and Haryana High Court”. Ramaswami survived the impeachment process as Parliament got divided along regional lines, southern MPs strongly supported him. Only 196 members of Parliament, less than the required two-thirds, voted for his ouster.

Justice M.M. Punchi   

This charge sheet was prepared by the Committee on Judicial Accountability in 1998, when Justice Punchhi was a judge of the Supreme Court of India. It was signed by 25 MPs of Rajya Sabha. However, before it could get the signature of the requisite number of 50 MPs of Rajya Sabha, Justice Punchhi was appointed Chief Justice of India. After this, it became virtually impossible to get the Notice of Motion signed by any MPs. Consequently, Notice of Motion could not be presented to the Speaker. The imp lesson of this exercise was that it is very difficult to get the MPs sign the impeachment motion unless three conditions are satisfied. Firstly, the charges must be very serious; secondly they must be provable by documentary evidence which is annexed to the Notice of Motion and finally, the charges must have been given substantial publicity in the media.

In the absence of all the three conditions been satisfied, MPs are afraid and reluctant to sign a charge sheet against a sitting judge. It is normally exceedingly difficult to get documentary evidence to prove charge against sitting judge, particularly in the absence of a statutory investigation by an agency having powers of investigation. Moreover, the bulk of the main stream media is afraid to publicise charges against the sitting judge for fear of contempt. In Ramaswami’s case, the above three conditions were satisfied. Documentary evidence was available against Ramaswami because of the report of the Accountant General who audited the purchases made by Ramaswami as Chief Justice of Punjab and Haryana High Court. This is why, impeachment of judges, however corrupt they might be, is not a practical remedy in discipling them.

 

 

Investigation—-

Free and fair investigation is one of the basic pre-requisite of a free democracy. In consonance with this principle, the free and fair investigation of judiciary has become of an immense significance in contributing to the public faith in the effectiveness and impartiality in of the judiciary.

Justice K.Veeraswamy the then Chief Justice of Madras High Court was charged for possession of assets disproportionate to his known sources of income and a case was filed against him by the CBI under the Prevention of Corruption Act. The High Court of Madras dismissed his Petition for quashing of the Case against him and referred the matter to the Supreme Court for deciding certain questions of law. The Supreme Court while deciding the case against the delinquent Judge laid down strict guidelines to protect the independence of Judiciary according to which no F.I.R. can be registered against a Judge or Chief Justice of the High Court, or a Judge of the Supreme Court without the sanction of the Chief Justice of India in the matter. It was held that the Supreme Court is not a court of limited jurisdiction of only dispute settling, and that the court has been a law maker and it is the courts responsibility and duty to apply the existing law in a form more conducive to the independence of the judiciary. It was also said that any complaint against a Judge and its investigation by the CBI, if given publicity will have a far reaching impact on the judge and the litigant public therefore there is need of a judicious use of taking action under the Prevention of Corruption Act.

 

Right to Information & The judiciary—-

 

There was a time when the Courts in India, particularly the Supreme Court waxed eloquent about the “Right to Information”, being a part of the Constitutionally enshrined right to speech and expression. It was on the basis that the Right to Information is a fundamental right of people, that the Court ordered that even candidates contesting elections would be obligated to publicly disclose information about their criminal antecedents and their income and assets etc. Yet, though the courts general pronouncements on the right to information have been very liberal, it’s practices have often not been in conformity with the declared right. The double standards of the Courts on Right to Information have become even more obvious after the Right to Information Act has come into force. Though the Act clearly applies to Courts which are obviously included in the definition of Public Authorities, most High Courts did not even appoint Public Information Officers (PIOs) even months after the Act came into force. The Supreme Court has recommended to the government that so far as the Supreme Court is concerned, the decision of the Registrar General of the Court should be final and not subject to any independent appeal to the Central Information Commission. They have further recommended that the Chief Justice should have the unfettered right to interdict the disclosure of any information, which in his opinion, might compromise the independence of the Judiciary. The Chief Justice has already gone on record to say that even the disclosure of income and assets by judges or the formation of any independent disciplinary authority over judges, would compromise the independence of the judiciary. Going by this, it is obvious that no information about complaints against judges or about their incomes and assets would be available under the Right to Information.

 

Conclusion

 

Middle class Indians love their Judiciary.If someone were to draw up a list of institutions that they still believe in, I suspect only two would qualify — the Indian Army and the judiciary. If soldiers protect the nation’s physical well-being, the courts are the gatekeepers of its conscience. And we hate our politicians so reflexively that in any battle between the government and the judiciary, even if we don’t quite follow the contours of the debate, we cheer the courts on.

Small wonder then that we blindly support every attempt by the judiciary to insulate itself from external control. This is because we believe in the independence of the judiciary.

But should this independence mean freedom from accountability?

It may be a worn-out cliché, but after all these years, it’s a question still in search of an answer: who will judge the judges?

Recently the cabinet approved a Bill to amend the Judges Inquiry Act and to create a National Judicial Council that will examine all complaints of corruption and misdemeanours against judges. It has been sold as an example

of cleaning up the system and making it more transparent. But other than some stray comments by a handful of lawyers, no one has dared question the new terms by which India’s judges will judge themselves. There is going to be a setting up of a judicial council.It is to be made up of five senior judges of the Supreme Court, who will handle complaints related to the Supreme Court. Three Supreme Court judges will be assisted by two chief justices of the high courts for all other cases of corruption.

In other words, the judiciary will remain answerable only to itself.

Then, there are the omissions in the new Bill: the Chief Justice of India is entirely exempt from the scrutiny of the judicial council and the council’s powers will not extend to complaints against retired judges.

But for the short comings of the composition of the commission it may be very easily said that it is an absolute necessity to put in place a transparent system for selecting judges for appointment. They should also have an investigative machinery at their disposal, through which they can evaluate complaints against judges and proposed candidates investigated.  Such an institution is more likely to result in the selection of proper candidates and would introduce at least a modicum of urgently needed accountability in the judiciary. So maybe we can have a way of treating corruption in higher judiciary. Such measures have to be

institutionalised. And they can be only institutionalised without damaging the general

credibility of the judiciary as a body by having in place (with almost immediate

effect) an office called the office of “Judicial Ombudsman”. I believe this is the only way in whic h we can accommodate the need for keeping

clean and bright the image of our High Judiciary.

Once people know that legitimate complaints are being entertained in confidence,

they will be made to the authority concerned in confidence. And once they see

something is done we will no longer have to see the sorry spectacle of

scandalous and un-substantiated allegations being made openly in the press

about individual Judges.

 

 

However, one must appreciate that the immunities provided to ensure judicial independence are intended for the benefit of the litigants in particular and the citizens in general. Therefore it is also acknowledged that judicial accountability if stretched too far can seriously harm judicial independence and thus it is essential that we strike the right balance between the two. Relying on the strong tradition of sharing of ideas and experiences amongst the judiciary across the commonwealth is perhaps one of the optimum methods of arriving at such a balance.

 

 

So, it becomes even more imperative that the men and women we trust so implicitly should not be scared of our collective judgment.

Explaining the decision to drop the archaic and colonial prefix of ‘Your Lordship’ from the court rulebook, India’s Chief Justice famously said, “The Lord is only one and he is God above all of us. I am not God, judges are not gods.”

Let’s take that image further. Only God is above the law. All human beings — even those we admire and respect — must be held accountable.

And finally, judges are as human as you and me

 

 

 

Tags: Appointment Of Judges, Chief Justice, Commission, Constitution, Democracy, Impeachment, Independence, India, Judges, Judges Inquiry Act, Judicial Accountability, Judicial Ombudsman, Judiciary, Public Information Office, Right To Information, Supreme Court