Indian Judiciary the Most Powerful Judiciary Worldwide

Indian Judiciary, which is the most powerful judiciary in the world [1] , is under severe strain. Faith of the people in the quality, integrity and efficiency of governmental institutions stands seriously eroded. Judiciary is the only constitutional hope that a person can look to for help when his/her human rights are jeopardized. It is needless to say that for realization of human rights, vibrant democratic machinery with rule of law is essential. That is possible only when judiciary and legal profession shines with its integrity and gains efficiency besides being independent and immune from ordinary influences such as inducement and bribery [2] . The independence and impartiality of the judiciary is one of the hallmarks of the democratic system of the government. Only an impartial and independent judiciary can protect the rights of the individual and can provide equal justice without fear and favor.

Judge Jerome Frank wrote:

“In a democracy, it can never be unwise to acquaint the public with the truth about the workings of any branch of government. It is wholly undemocratic to treat the public as children who are unable to accept the inescapable shortcomings of manmade institutions…. The best way to bring about the elimination of those shortcomings of our judicial system which are capable of being eliminated is to have all our citizens informed as to how that system now functions. It is a mistake, therefore, to try to establish and maintain, through ignorance, public esteem for our courts.”

It is evidently the consumers of justice [3] who want an independent and incorruptible judiciary which will safeguard the constitution and frustrate the attempts of the government and the powerful vested interests in the society to use it for their gain.

There are some judges and lawyers dedicated to the proper administration of justice, unfortunately there are many who are not. To create fees, lawyers can litigate frivolous, false claims or defenses endlessly and can drag on a simple case for years. To stop the litigation, the attorneys can demand payment, a so-called settlement which in many cases is nothing more than a form of extortion. These practices not only harm the individual litigants but clog up the court system.

What is Judicial Accountability?

The word ‘accountable’ as defined in the Oxford Dictionary as ‘responsible for your own decisions or actions and expected to explain them when you are asked’.

Judicial Accountability can then be defined as the costs that a judge expects to incur in case her behavior and/or her decisions deviate too much from a generally recognized standard, in this case referring to the letter of the law [4] .

The concept of judicial accountability is as old as the independence of judiciary. In India, independence and impartiality have always been considered to be essential qualities of a judge. It is with this spirit in mind that the founding fathers of the constitution have intended to uphold the principle of accountability of courts in India which is evident from the reading of the Third Schedule which imposes in the judge a duty to preserve the sovereignty and national integrity.

The constitution provides that due to the nature of the function of the judges, it is not desirable to make judges directly accountable to the people for their functions. Accountability raises questions of quality of judgments, consequent delay in judicial proceedings, inequalities in accessing justice and the ineffectiveness of mechanisms to deal with judicial corruption. Simply stated it means transparency at every level of judiciary’s functioning. The umbrella of judicial accountability includes the balance of power in regard to selection, appointment and transfer of judges of the higher courts, besides putting in place a mechanism to scrutinize their official conduct. It calls for transparency in judicial appointments and an effective complaint mechanism to deal with errant judges.

A need definitely is there to make judiciary accountable. Several countries in their constitutions have already provided for ensuring accountability of judiciary. This is to prevent concentration of power in the hands of a single organ. But at the same time Judicial independence is a pre- requisite for every judge whose oath of office requires him to act without fear or favor, affection of ill- will and to uphold the constitution and laws of the country [5] .

With a number of Commissions and Committees appointed for the purpose including the Law Commission 230th Report (2009), it is the National Mission on Delivery of Justice and Legal Reforms (2009-12) which has laid down a time-bound blueprint for strategic action. It recognized that the two goals of judicial reforms are:

Increasing access by reducing delay and arrears in the judicial system

Enhancing accountability through structural changes and by setting performance standards and capacities

On May 7, 1997, the Supreme Court of India in its Full Court Meeting unanimously adopted a Charter called the ‘Restatement of Values of Judicial Life’, generally known as the Code of Conduct for judges. Simultaneously, two other resolutions were adopted, which require declaration of assets by every High Court and Supreme Court Judge/Chief

Justice, and the formulation of an in- house procedure to inquire into any allegation of misbehavior or misconduct against them, which is considered fit for inquiry by the Chief Justice of India and some of his senior colleagues. Conscious of the fact that this mechanism lacked legal sanction for its enforcement, the then Chief Justice of India,

J.S.Verma wrote a letter dated December 1, 1997 to the Prime Minister informing him of these resolutions and the need to provide legal support to this effort. That need remained unfulfilled.

The above unanimous resolutions dated May 7, 1997 were adopted by the Chief Justice’s

Conference in 1999, and were followed by the Bangalore Principles of Judicial Conduct,

2002. These documents together provide the basic framework for enacting the law in this behalf to provide the requisite legal sanction for enforcement of judicial accountability at all levels, whenever needed.

The Judges Inquiry Bill, 2006 was introduced to amend the Judges Enquiry Act, 1968 but didn’t become law. It had unreasonable penalty [6] for frivolous complaints which was apparently meant for blocking such complaints but it would have deterred the people from making any complaints at all. It prohibited the disclosure of papers, documents and records of proceedings relating to complaint to any person. The Bill discriminated against the MPs with reference to complaints made to the National Judicial Council (NJC) to probe charges of ‘‘misbehavior’’ against any High court or Supreme Court judge, while it provided that any citizen could singlehandedly set the process in motion by lodging a “complaint” with NJC. The Bill allowed Parliament to approach NJC if and only if a “reference” made by the presiding officer of either House is backed by at least 50 MPs from Rajya Sabha or 100 from Lok Sabha, respectively. Recently, The Judicial Standards and Accountability Bill, 2010 has been approved by the Cabinet.

Tension between Judicial Accountability and Independence of Judiciary

Need of judicial independence is not for the judges, but for the people. However, independence of judiciary is not absolute it should not be construed in the manner to confer immunity from the demands of justice for misdeeds or to protect a judge from investigation for a valid charge. The advocates of independence observe the judges should not be held accountable for following the rule of law. This canvasses a picture of conflict between judicial independence and judicial accountability but they are inseparable and in fact, they nourish each other.

When misconduct is alleged, there will be a demand for action against the judge in question, just as there would be against any governmental actor. Judicial independence should not protect a judge from investigation and censure for a valid charge; judges should not be immune from the demands of justice for misdeeds. Indeed, there are several valid reasons for censure or removal of a judge, such as bribery, corruption, commission of a felony, and senility. The issue therefore, is how to detect judicial corruption accurately, to investigate it fairly, and to eradicate it effectively without eroding an independent judiciary.

As Judge Clifford Wallace puts it,

“Judicial corruption certainly exists, I know of no country that is completely free of corruption with its insidious effect of undermining the rule of law. Attempts to solve judicial corruption, however, can themselves weaken the rule of law if the judiciary comes under the influence or control of the legislative or executive branch. The challenge to all governments, therefore, is to eradicate judicial corruption without intruding on the independence of the judiciary.

When judges are guilty of a crime they are open to criminal prosecution. But all judicial conduct is not criminal. Various investigatory systems are possible, but it should be left primarily to judicial branch. Giving power to the executive or legislative branch to investigate judges for all misconduct can interfere with an independent judiciary.

We want the judges to treat the parties appearing in front of them with respect, to separate relevant from irrelevant arguments, and to decide the case within a reasonable period of time according to the letter of the law. We do not want them to let their personal preferences or their sympathy or antipathy with the parties to taint their decision. In that sense, we want judges to be accountable to the law. Judicial Independence is thus a necessary, but not a sufficient condition for the realization of the rule of law [7] . In order to make judges act upon the letter of the law, adequate incentives are needed. Judicial Accountability can be thought of as one important aspect of these incentives. If a judge aims at making decisions in accordance with the letter of the law (i.e. is accountable), the absence of pressure from either the other government branches or the conflicting parties seems a crucial precondition. In other words: Judicial Accountability is the more encompassing concept and it might be difficult to estimate the effects of Judicial Independence and Judicial Accountability in isolation empirically.

Checks and Balances Imposed upon Judges to maintain integrity of Judicial system

Our Constitution contains checks and balances, which require all the three wings to work harmoniously. Checks and balances mean that there are limits to judicial discretion in the sense that the judiciary is checked upon by the other branches [8] . No institution is exempt from accountability, including the judiciary. What is the mechanism for accountability for serious judicial misconduct, for disciplining errant judges?

Impeachment

Our Constitution provides for removal of a judge of the Supreme Court or the high court for proved misbehavior or proved incapacity, by what is popularly called the process of impeachment, where under two thirds of the members of each House of Parliament may vote for the removal of the judge. So far, only one impeachment proceeding [9] has been initiated against a Supreme Court judge. It failed because Congress abstained from voting and consequently two- thirds majority was not available. The disciplinary control exercised in Justice Veeraswami case (1991) is an impractical and extremely difficult process to pursue. The additional immunity with which judges have cloaked themselves in Justice Veeraswami case has meant that even an FIR for any criminal misconduct cannot be registered against a judge and the he cannot be subjected to an investigation without the prior permission of the Chief Justice of India. This has resulted in a situation whereby no sitting judge has been subjected to even investigation in the last 15 years since that judgment, despite public knowledge and complaints of widespread corruption in the judiciary

It is concerned with the behavior of a single judge. If the impeachment process [10] is only kicked off after the judge has broken some generally agreed upon standard, it does thus qualify as an institution of Judicial Accountability. But as long as the power to initiate impeachment proceedings is vested with the executive and/or the legislature, it can be misused to intimidate judges – and thus be turned into an instrument of judicial dependence.

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. Moreover, the bulk of the main stream media is afraid to publicize charges against the sitting judge for fear of contempt. In Justice Ramaswami’s case, the above three conditions were satisfied. Even documentary evidence was available. In the case of Justice MM Punchi, the charge sheet was prepared by the Committee on Judicial Accountability in 1998, when Justice Punchi 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 Punchi was appointed Chief Justice of India. After that, 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.

K G Balakrishnan had recommended the removal of Calcutta High Court judge Soumitra Sen to the government as he was accused of having been involved in financial misappropriation before he was appointed as a judge. This recommendation revived the debate over the cumbersome process for impeachment as laid down in the Constitution as well the question of judicial accountability.

This is why, impeachment of judges; however corrupt they might be is not a practical remedy in disciplining them.

Care must be taken to preserve the independence of judiciary and to ensure separation of judiciary from executive. The adjudicative power must, necessarily, vest in a committee of senior judges, and the consequential action should be taken by the President of India on the advice of the Chief Justice of India in accordance with the judicial finding. This can be a mode in addition to, and as an alternative to impeachment. [11]

Public Interest Litigation

In the 80s, the Supreme Court evolved a new jurisdiction which has come to be known as Public

Interest Litigation which evolved a liberal interpretation of the fundamental right of life and

liberty guaranteed by Article 21 to include the right to live with dignity and, therefore, to enjoy the enjoy the basic amenities of life such as food, water, shelter, basic education, health care and even the right to a healthy environment. Simultaneously, the court declared that they could and should direct the executive to provide these amenities to citizens who were denied these.

The frequent use of this concept has led to several instances where courts have directed actions that were considered to be exclusively in the domain of the executive e.g. orders to convert commercial vehicles in Delhi to natural gas fuel [12] . It is for consideration whether judges should be held accountable for any attempt to exceed their powers and to encroach on the territory of the executive.

Right to Information

This Act should be seen as only a step towards enforcing the accountability of the Judiciary

directly to the people, until a specific and more detailed law is enacted in this regard.

Judicial Standards and Accountability Bill, 2010

Recognizing that “sunlight is the best disinfectant” [13] , the Judicial Standards and Accountability Bill 2010 has been introduced looking at three major aspects:

judicial standards governing court proceedings

declaration of assets and liabilities by Judges

mechanisms for dealing with complaints of misbehavior and incapacity of a Judge of the Supreme Court/High Court

The Judicial Standards and Accountability Bill, 2010 provides for the constitution of a National Judicial Council to inquire into complaints against errant judges which is being perceived as a long awaited initiative to introduce some accountability for judges of the higher judiciary.

It lays down judicial standards and provides for accountability of judges, and establishes credible and expedient mechanism for investigating into individual complaints for misbehavior and to regulate the procedure for such investigation and for the presentation of an address by Parliament to the President in relation to proceeding for removal of a Judge [14] . It was tabled in the Lok Sabha on December 1, 2010 by Law Minister Veerappa Moily even as Opposition MPs were demanding a JPC probe into the 2G spectrum scam [15] . The Bill seeks to repeal the Judges (Inquiry) Act, 1968 while retaining the basic features and aims to achieve the objectives of the Bill [16] . The various measures envisaged in the bill will increase accountability of judges thereby further strengthening the independence of the judiciary.

Analysis of the Bill

The Bill seeks to (a) lay down judicial standards, (b) provide for the accountability of judges, and (c) establish mechanisms for investigating individual complaints for misbehavior or incapacity of a judge of the Supreme Court or High Courts. It also provides a mechanism for the removal of judges. The procedure of removal of judges is presently regulated by the Judges (Inquiry) Act, 1968, which the Bill seeks to repeal.

The Bill seeks to provide a straightjacket definition of “misbehavior” under Section 2(j), which tends to lose its elasticity. A minor breach of judicial standards could constitute misconduct, and in so far as the definition is exhaustive, it is incapable of catching within its fold any “misbehavior” that might not be covered by this provision.

The positive features of the Bill are that it accords the Restatement of Values in Judicial Life 1997 adopted by the Chief Justices’ Conference a statutory basis. This binding resolution lays down a moral and ethical code of conduct guiding the conduct of all Judges of the Supreme Court and the High Courts. It requires judges to practice universally accepted values of judicial life including a prohibition on: (a) close association with individual members of the Bar who practice in the same court as the judge, (b) allowing family members who are members of the Bar to use the judge’s residence for professional work, (c) hearing or deciding matters in which a member of the judge’s family or relative or friend is concerned, (d) entering into public debate on political matters or matters which the judge is likely to decide, and (e) engaging in trade or business and speculation in securities. The issue of deciding matters relating to family members had come up for the first time when a retired chief justice of India, Justice Sabharwal was accused of favoring relatives. Sabharwal had allegedly benefited his two sons, who run businesses related to construction, through his judicial decisions. He passed sealing and demolition orders (against illegal shops) in the capital, which largely benefited his sons and associates.

Judges will also be required to declare their assets and liabilities, and also that of their spouse and children. Such declaration has to take place within 30 days of the judge taking his oath to enter his office. Every judge will also have to file an annual report of his assets and liabilities. The assets and liabilities of the judge will be displayed on the website of the court to which he belongs [17] . With the ‘The Judges (Declaration of Assets and Liabilities) Bill’, it had become essential for judges to reveal their assets, but there wasn’t any binding obligation to do so. 20 of the Supreme Court’s judges had made public their assets on the Court’s website. 21 judges of the Supreme Court, including the Chief Justice of India (CJI), posted the details of their assets on the court’s website. Justice B.N. Agrawal, who retired recently, also provided the details of his assets on the website on special request. If this Bill becomes a law, it will mandate the judges to declare their assets which will be an important step forward in imposing accountability and transparency for judges. A major portion of their declaration deals with gifts, etc., received by judges, and visits, conferences and lectures attended by them. In the light of the Ghaziabad (P.F.) scam [18] , I think financial disclosure by judges in India should contain this component as well.

The Bill establishes two authorities to investigate complaints against judges. The Two authorities are:

National Judicial Oversight Committee; and

Scrutiny Panel.

Initial complaints will be made to the Oversight Committee, and they will be referred to the Scrutiny Panel. A Scrutiny Panel will be constituted in the Supreme Court and every High Court. It shall consist of a former Chief Justice and two sitting judges of that court. If the Scrutiny Panel feels there are sufficient grounds for proceeding against the judge, it shall report on its findings to the Oversight Committee. If it finds that the complaint is frivolous, or that there not sufficient grounds for inquiring into the complaint, it shall submit a report to the Oversight Committee giving its findings for not proceeding with the complaint. Frivolous or vexatious complaints may be penalized by the Oversight Committee. If the Scrutiny Panel recommends investigation into a complaint against a judge, the Oversight Committee will constitute an investigation committee to investigate into the complaint. The inquiry committee will consist of not more than three members. It will have some powers of a civil court and also the power to seize documents and keep them in its custody.

The Bill tended to render the Oversight Committee just a post office referring each complaint to the Scrutiny Panel. This was likely to lead to multiplicity of complaints against judges and also a colossal waste of time [19] .

The Bill restricts the power to investigate into complaints against higher judges in the hands of their colleagues and fellow court members. The new law only intends to give people a false feeling that there is a safety mechanism. [20]

The investigation committee will frame definite charges against the judge and shall communicate the same to the judge. The judge shall be given an opportunity to present his case, but if he/ she chooses not be heard, the proceedings may be heard ex-parte. If the charges against a judge are proved, the Oversight Committee may recommend that judicial work shall not be assigned to the judge. It may also issue advisories and warnings if it feels that the charges proved do not warrant the removal of the judge. If the Committee feels that the charges proved merit the removal of the judge, it shall (a) request the judge to resign voluntarily, and if he fails to do so, (b) advise the president to proceed with the removal of the judge. In such a case, the President shall refer the matter to Parliament. The composition and tenure of the Investigation Committee is also not defined. So, does that mean it is possible for a layperson without any knowledge, experience to be part of an inquiry panel against a sitting judge of a superior court?

A motion for removal of a judge can also be introduced in Parliament by members of Parliament. In such a case, the Speaker or the Chairman can either admit the notice, or refuse to admit it. If the notice is admitted, the matter shall be referred to the Oversight Committee for inquiry. The Bill exempts documents and records of proceedings related to a complaint from the purview of the Right to Information Act, 2005. The reports of the investigation committee and the order of the Oversight Committee shall be made public.

Despite these positive developments, judicial accountability requires more than just political will to make it possible.  With vested interests within the judiciary opposed to norms of openness and transparency, the process of institutional reform runs the risk of being reduced to a piecemeal initiative. It is, therefore, imperative to build a momentum through people’s participation to reclaim a robust, independent but accountable judicial system in the country.

Recommendations and efforts to secure Judicial Accountability

Though enforcing accountability of judges without compromising on judicial independence is very difficult, it is an urgent requirement. We need to structure a workable mechanism to secure accountability.

Impeachment of judges did not work which was clear from the Ramaswamy case.

Hence, legislation was a must. Till a law is made, a committee, headed by the Chief Justice and comprising senior judges, should look into allegations against judges. If they found that a case was fit for inquiry, appropriate action could be taken. “This would bring about transparency in the judicial system and deter baseless complaints,” Mr. Justice Verma said.

Judicial independence is always in conflict with judicial accountability. Judicial independence depends upon the public acceptance of the judiciary as fair, just and honest body, the judiciary must carefully structure its investigations to assure the public that the judiciary is taking care of its own problems of corruption. Moral leadership and strength of character alone can sustain judicial accountability.

US developed judicial councils of circuits which were local independent administrative bodies comprised of judges. Definition of judicial misconduct in US Judicial Councils Reform and Judicial Conduct and Disability Act of 1980:

The circuit council can consider only complaints that allege facts which show that a judge ‘has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts or allege that such a judge or magistrate is unable to discharge all duties office by reason of mental or physical disability’.

Thus Circuit Council was not responsible for determining if judges were involved in inappropriate conduct generally or other details of their personal lives. We need to examine whether such a definition of misconduct would work in India. An immoral or improper conduct, if it does physically affect the business of the courts cannot be kept beyond definition of misconduct. Judiciary itself should evolve and structure a workable approach to investigate the misconduct and discipline judges for wrongs, because absence of it will shatter the confidence the people reposed in the judiciary.

If we examine the system available in US the following points would emerge for consideration to incorporate within the mechanism to ensure judicial accountability.

Judicial officers should have no immunity from any level of corruption or misconduct.

There should be an effective mechanism to remove judges for offences such as bribery as well as a system for correcting conduct less than a removable offense which provides for a response to complaints from litigants, lawyers and judges.

A system of having regional control over judicial misconduct.

The power of investigation and disciplinary action must be within the judiciary.

See that there are no financial pressures on judges such as low pay of salary and lack of required facilities.

Judicial accountability is the need of the hour so that we can enforce the accountability of other institutions through judiciary. The people in India repose enormous confidence and trust in judiciary, and thus it is the responsibility of those who man and operate judiciary to retain that trust and it is for the civil society including media to press for developing a workable mechanism to ensure the judicial accountability without compromising on the vital aspect of judicial independence.

Transparency in Appointment Process

It is clear that we do not have transparent and fool-proof system of appointment of judges to higher judiciary. There have been delays in filling judicial vacancies. Only advocates having prescribed practice have the chance of getting elevated to higher judiciary. Our Constitution provided under Article 124 (3) (c) for appointing eminent jurists as judges of Supreme Court, which was, unfortunately never used. An RTI application was filed in the Delhi High Court seeking information on recruitments of the Class III and Class IV employees from 1990 to 2000. The PIO’s response was that vacant po