Problems in Judicial Accountability

In a Democracy, the Constitution is supreme which resolves to secure to all its citizens Justice. The judiciary is thus, appropriately one of the most important agencies of any democratic government. It is an independent body protecting the rights of the citizens and guarding the constitution zealously.

It has been rightly said that ‘Effective access to justice can be seen as the most basic requirement, the most basic human right, of a system which purports to guarantee legal rights.’ [1] The judiciary is in a very powerful position in any democracy and demands supreme confidence from the people. An individual, when harassed and threatened by the politics that engulf most governments, turn with great hope to the Judiciary.

But are our judges infallible? Aren’t they humans? And isn’t to err human? They are but the products of the society. They suffer from the same failings, frailties and shortcomings. From the same bias and prejudice and the same ills and vices. [2] Then who will judge the judges? ‘Judge not that ye be not judged’ cannot be applicable to judges in today’s scenario of corruption and judicial scandals.

Every institution of the government is accountable to some agency or the other. Every government official and body is also fully answerable to the Judiciary of the country. But when it comes to the Judiciary itself, a different set of rules, a different set of standards are followed. The Judiciary has become a judge in its own cause.

Judicial corruption has always been a part and parcel of the working of the judiciary but the recent scandals have created much concern of the slowly rotting state of the Courts. The question that is raised – ‘Who are the Judges accountable to?’ is a very valid and justifiable question. The judiciary is not accountable to the people as the people do no elect the members of the judiciary. [3] It is neither responsible to the other bodies of the government due to an ever present hue and cry about separation of power [4] and independence. So, are we creating a system of irresponsible judiciary in a scheme of democracy and republic where Judiciary is the sole guardian of the Constitution, the very foundation of the State?

Judicial Accountability and Judicial Independence

The Constitution confers great powers to the judiciary and the judiciary in turn demands wide latitude in exercising its power. The Indian judiciary is forever hidden in a cloak of secrecy. Independence has become an euphemism for the judges to act according to their whims and fancies. We should remember that it is the rule of the law [5] and not the rule of the judges or even the lawyers.

The judiciary does require certain amount of independence to carry out is functions without favor or fear. But are Independence and Accountability anti-thesis of each other? Judicial Independence is not an end itself. Both judicial independence and accountability are instrumental values. The function of independence is to let the judges decide according to the rule of law and not be influenced by any other agency of the government or any private interests or the interests of any individual. So we can safely conclude that if the judges start deciding cases arbitrarily, become corrupt, ignore the rule of law and are influenced by politics or the appeal of private gain, then their judicial independence is hampered. That is why judicial independence has to be understood in the context of its purpose.

Judicial accountability and judicial independence are complimentary to each other. Judicial accountability helps safeguard the independence and integrity of the judges. Sometimes judicial accountability can be misconstrued as it is context- based. It is very difficult to define judicial accountability and it has to be appreciated from the view of its objectives. It can be said to have three main functions. [6] Firstly to promote the rule of law by deterring any conduct that might hinder judicial independence. Secondly, to advance public confidence in the judiciary. And lastly to promote institutional responsibility of the judiciary as a whole towards the public. Seen in this perspective, judicial accountability seems if not more significant than as significant as judicial independence.

Problems of Accountability

The people hold a great stake in the administration of justice. Despite the value of judicial accountability in any free democratic republic, the judiciary in India is at best completely unaccountable to any institution in the country. Many factors have contributed to this dire situation and the problem of accountability is wide and complex.

The Contempt Of Courts Act

One of the critical reasons for the low accountability of judges in India is the power of the Courts to punish for its Contempt [7] . The Contempt of Court Act defines Contempt as Civil or Criminal. It further states that Civil contempt means willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court. [8]

Criminal Contempt means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which-

scandalizes or tends to scandalize, or lowers or tends to lower the authority of any court ; or

prejudices, or interferes or tends to interfere with the due course of any judicial proceeding; or

interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner. [9]

What is scandalizing the authority of the court has nowhere been defined and judges have time and again taken great advantage to silence even bona fide criticism advanced against them or the working of the judiciary. And this silence is not golden, just yellow. It is heavy weaponry in the hands of the Courts who have become so intolerant that they are unwilling to be questioned by the public they serve. Judicial independence has been twisted and turned to suit their purposes and used as an armor and justification for quashing any disapproval shown by few courageous members of the society.

The main purpose of the Contempt Power has been to enable the court to be able to enforce its orders and to punish for obstruction in administration in justice. But over the years this power has been considerably widened and freely used by the courts. Today, in countries like UK and U.S.A. the concept has been liberalized. But India still follows the old British-rule norms, which undoubtedly was not a free democracy.

Lord Diplock has stated that the species of contempt which consists of scandalizing is virtually obsolescent in England and maybe ignored. [10] In the U.S., the law is only invoked if there is clear and present danger to the administration to justice.

The Arundhati Roy Case is a sad example of how even in a social democracy like ours where Freedom of Speech and Expression is a fundamental right, the Courts hold in contempt legitimate representation by a citizen regarding the working of the Court and its decision which in no way impede the dispensation of Justice.

Similarly in the recent Wah India Case, The Contempt of Courts act was invoked against Editor-in-Chief of wah India, Madhu Trehan, and four staff members of the magazine for having published an article rating the High Court’s Judges in terms of various attributes and qualities. It can be argued that this does amount to bad journalism. But how does the article obstruct the administration of justice and why can’t the defamation [11] law be enough to punish the wrongdoers. A Judge whose name is impugned in such an article can surely file a defamation case.

Earlier even truth was not considered as a defense to imputation against the Courts. In many cases the judges reiterated to this thought. Now truth has been made a valid defense to contempt. [12] But this is a discretionary power given to the Court and is not enough to protect the public against this extensive authority handed over to the Courts. Sometimes certain allegations are made bona fide, reasonably, and still it might be not be possible to prove the truth as it happened in the Mysore sex scandal case.

Power of contempt cannot be the answer to sincere critique of the working of the judiciary. The argument that the court’s integrity and esteem can be injured if appropriate action is not taken does not hold any water. When the courts decide to use the contempt power, they ordinarily tarnish their reputation further by showing a bigoted attitude.

Our constitution promises every citizen the fundamental right to freedom of speech and expression. [13] On the other hand the constitution also makes the High Courts [14] and the Supreme Court [15] , courts of record and empowers them to punish for its contempt. These two provisions seems to be contradictory in many a cases. The right of freedom to expression and speech has been fervently upheld by the Supreme Court in various cases over the years. But when the ball comes to its own court, Supreme Court has shown double- standards.

There is no clarity on which law supersedes which. The issue that arises is, aren’t the fundamental rights of the citizens supreme and more important then the so called independence of the Courts. “Indeed, to criticize a Judge fairly albeit fiercely, is no crime, but a necessary right, twice blessed in a democracy.” [16] There has to be a way to reconcile these two laws.

Serious reforms are needed in the law of contempt. It is high time that the Courts interpret the Contempt of Courts Act more liberally and realize that justice is more important than individual egos. In a healthy democratic state public opinion, discussions, awareness and debates are imperative to the progress of the nation. This is impossible in a system where the media, jurists and other citizens are silenced due to the fear of being subjugated to contempt laws. Judiciary has to earn reverence through the test of truth and not by fear. [17]

Appointment and Selection of Judges

The court being such an important institution in the country, it is imperative to select judges of high veracity who can uphold the constitution. Four qualifications [18] described for a judge are- he should be able to hear courteously, answer wisely, consider soberly and decide impartially. This only indicates the consequences of a bad appointment arrangement for a judge. The appointment of judges in India makes a good example of this.

The Indian Constitution states that the Supreme Court of India will comprise of the Chief Justice of India and at the most 7 other judges. [19] This number has now been increased to 25. The Supreme Court judges are appointed by the President on the consultation of other judges of Supreme Court and High Court. Other than in case of the appointment of the Chief Justice of India himself, the President has to consult the Chief Justice of India when appointing the other judges. High Court judges [20] are also appointed by the President on the recommendation of the Chief Justice of India and the Governor of the concerned state. The Chief Justice of the High Court is also consulted for appointing the judges, other than for the appointment of the Chief Justice himself.

In the case of S.P. Gupta vs. Union of India, [21] it was held that the President has the right to differ from the advice provided by the judges and it can only be challenged if it is based on mala-fide and irrelevant consideration. This decision was reversed in SC Advocates on Record Association vs. Union of India [22] whereby it was held that in the matter of appointment of judges of high courts and Supreme Court, the Chief Justice should have the primacy and the appointment of the Chief Justice should be based on seniority. It further held that the Chief Justice must consult his two senior most judges and the recommendation must be made only if there is a consensus among them. Further the Third Judge Transfer case held that an advice given by the Chief Justice without proper consultation with other judges is not binding on the govt. These two judgments practically make India the only democracy where judges select themselves. The Second Judge Transfer case is a truly sad decision which undermines any kind of accountability in the appointment procedure of the Judges. Effectively a collegium headed by the Chief Justice of India comprising of senior most judges of the High Court selects and recommends the names to the Government for appointment. The Government may ask the collegium to reconsider the names. But in case the collegium returns back with the same recommendation, the Government cannot but ask the President to accept the recommendation.

The whole procedure is ad hoc and arbitrary. There is no clear grounds according to which the judges are recommended. There is such a secrecy surrounding the whole modus operandi and it is defended with ambiguity. The only trend that emerges is that well- connected people are appointed. Proximity to power has become a criterion.

What is amazing to note is that, in the lack of a mechanism for making judges accountable, a judge with doubtful integrity and motives is also appointed as the judge even after the questions are raised regarding the suitability of him as a judge. This is well illustrated by the case of Justice Ashok Kumar. The collegium of three senior judges of the Supreme Court unanimously decided not to confirm him as a permanent judge in August 2005 because of serious doubts regarding his integrity. Despite this his appointment was confirmed in February 2007 on the Chief Justice’s recommendation.

Similarly, Justice M.M. Punchi was a judge of Supreme Court in 1998 and motion of impeachment was initiated against him. Before the motion could succeed, he became the Chief Justice of India. After that it became impossible to get the requisite signatures of the ministers to pass the motion.

Recently Justice A.P. Shah Retired from judicial office and this raised many questions regarding the mechanism of appointment of the judges. When asked by an activist why he was not elevated to Supreme Court despite his seniority, the Government replied that seniority is not a criterion. Though, clearly tradition says otherwise. Moreover the department of justice has given two different answers in responses under the RTI Act. [23] One response states ‘merit, ability, suitability and seniority’ as the criteria, while the other rules out seniority as one of the yardsticks.

This shows a total lack of transparency and the presence of ambiguous and vague methods. There is a critical want of restructuring the law. This was a short time ago highlighted by the Dinakaran episode also.

Justice Paul Daniel Dinakaran was recommended for appointment by the collegium for the post of Chief Justice of India. When certain top jurists, lawyers and activists raised objection to this recommendation, the Government returned the same to the collegium. Later impeachment proceedings were initiated against him. Even while these proceedings were pending against the Justice, he was sworn in as the Chief Justice to the High Court of Sikkim. This is the revolting state of affairs in our judiciary.

Impeachment

The impeachment procedure for a judge in India is one of the most impractical and difficult procedure to put into motion. The motion has to be addressed to both the houses of the parliament and should be passed by a simple majority of the whole house and also by a 2/3rd majority of members present and voting. [24] No Member of Parliament is willing to sign and vote for such a motion unless there is hard proof against the judge. This is not possible unless an investigation is conducted to gather evidence. But due to the decision in K. Veeraswamy’s Case this is not possible unless a special permission by Chief Justice of India is granted to investigate the Judge. Now such permission is again not given unless the charge has substantial proof backing it. And proof cannot be obtained without an investigation. This is the lacuna in the law.

Public pressure is another factor that plays important role in the decision taken by the Members of Parliament. If such a charge has gathered public and media interest, they are more willing to initiate the impeachment motion. But of course any such public discussion by the media is muted by the contempt laws.

This is the vicious circle of the impeachment of judges. The unfeasibility and hopelessness of this law has been seen time and again when impeachment procedure has been tried to be initiated against corrupt judges.

The first time ever impeachment proceedings were initiated against a sitting judge of Supreme Court was in K. Veeraswamy vs. Union of India [25] . The motion for impeachment in this instance failed and was defeated in the Lok Sabha. This was not so because any member of the house was against the motion, but only because they all abstained from voting. How can the ministers who are the major litigants in the court be trusted to select or remove the judges?

Moreover after this decision not a single Chief Justice of India has granted permission to investigate a judge. In case of Shamit Mukherjee, the evidence was obtained coincidentally. When confronted with the same by the Chief Justice, he resigned. After that the question of permission for investigating did not arise.

When Justice A.S. Anand was the Chief Justice of India, serious allegations of favoritism and corruption were raised against him based on valid grounds. But no action was taken. Instead he was later appointed as the Chairman of the National Human Rights Commission.

The whole scheme of impeachment is frustrating and time-consuming and its utility is non-existent. In addition, it is depended upon a corruption ridden government and is highly susceptible to political pressure.

Disciplinary Mechanism

There is virtually no disciplinary mechanism to deal with complaints against the judges. The in-house mechanism is a futile attempt of bringing the judges to justice. Impeachment is too harsh a punishment and cannot, even if practical, be the answer to every kind of misbehavior and misconduct on the part of the Judges. Impeachment is like a penal code providing only for one extreme punishment, viz., death sentence [26] and nothing else. If the misconduct is not grave enough to demand impeachment, what is then the remedy? Is it correct in such a scenario to let the Judge continue in office? Is he not accountable at all for his behavior?

Time and again, the Government has tried to enact a bill bringing in force a suitable disciplinary instrument but failed miserably. The talk of a National Judicial Council has been on going forever but nothing has till date come out of it. The Judges Inquiry Bill, 2006, recommended the constitution of a National Judicial Council with powers to investigate complaints against the judges and recommend suitable actions. It suggested that the complaint be allowed to be made by anyone against any judge of the Supreme Court or the High Court except for the Chief Justice of India. The members of the council would be the Chief Justice of India, two senior most Supreme Court Judges and two High Court Judges. In case of a complaint brought forward against a Supreme Court Judge it would comprise of the Chief Justice of India and four senior most judges of the Supreme Court.

But the National Judicial Council has failed to come into existence. It only proves to be a half-hearted attempt to satisfy the masses. The composition of the council is not at all satisfactory and it only compounds the problem. It is just another example of the judiciary being a judge in its own cause. When every sitting Chief Justice of India has found it not necessary to allow the investigation of any claim of corruption against the judges over so many years, why would this council, headed by such a judge, take any worthwhile action against delinquent judges?

A need for a National Judicial Commission was also felt which would be an independent investigating body to investigate complaints against judges and take disciplinary action. No draft bill has still been finalized as yet.

We need a workable mechanism for disciplining erring judges and it should constitute both corrective and punitive measures. Different types of misconduct should be dealt with differently. For this purpose accountability can be divided into three kinds. [27] Firstly, collective or institutional accountability. In such a case the judiciary is accountable as a whole and as a separate organ of the government. Secondly, behavioral accountability where a judge is responsible for his individual actions both in office and out of the office (judicial and extra-judicial). Even certain extra judicial incidents may reflect badly on the suitability of a person to continue as a Judge. These might be action in private capacity of the individual but speak about the character and honor of the person. Thirdly, decisional accountability whereby a judge is fully responsible for the judicial decisions he takes. It is this kind of approach that is required towards the problem of accountability in the judicial system.

Other Problems

It is disgraceful in a democratic republic for judges holding positions of significance to come under the radar for dishonest and crooked acts. Immune from any authority’s scrutiny and empowered with judicial review, the courts have started interpreting laws to suit their aims and fortify themselves from any external scanning. They have invented their own laws, rules, and methods of implementation, and have used contempt of court as a threat for disobedience of their orders. [28] Also every judge tries to impose his own personal philosophy and ideas in his judgments. This has led to a vast number of contradictory judgments on the same issues. Somehow many of them have forgotten that their decisions should be backed by reasons and not by personal ideas. It was truly said that-

“we must regard the attitude of the judges as typical of decision making habits of middle class metropolitan Indians:  technically unpredictable, not uninfluenced by imitative cosmopolitan habits, conditioned by native instinct to a depth not yet predictable by the psychologist or documented even by the novelist, the dramatist or the fiction-writer, and suffering from an over-sensitive opinion of their lonely and unparalleled position.” [29]

In the absence of any responsibility of the Judiciary to anyone but itself, the Judges have started considering themselves as demi-Gods. It only goes to show on that ‘Corruptio optima pessima’- corruption of the best is the worst of all. The judiciary is plagued with numerous problems and the lack of any kind of scheme of accountability has let to the decay in the system. The common man is slowly loosing all confidence in the judicial system. The vast amount of backlogs and delays in cases only reinforces this loss of faith. Adjournments are given easily and witnesses wait for hours to have evidence recorded. A simple Xerox of a document takes a year long. [30] Most of the Judges are least bothered about their dockets and conduct the proceedings according to their whims and fancies. The number of days and number of hours that the Supreme Court and High Court Judges work is just not enough to deal with the problem. The situation in district courts is worse off.

Despite a code of judicial values and various laws regarding the same, judges over and over show complete disregards for the law of the land. For example a judge should not decide a case whereby he might have certain vested personal interests. Nevertheless judges hear and decide cases which directly or indirectly affect their individual interests and escape any kind of punishment or disciplining due to a complete lack of enforcement machinery for the same.

Justice Kapadia and Justice Y.S. Sabharwal make good cases to the point. Justice Kapadia was alleged to having decided the Vedanta case in 2007 and 2008 despite a conflict of interests. The explanation forwarded by the Justice was that he had disclosed the presence of a conflict of interests at the very outset of the case and also that none of the parties objected to his presence on the Special Bench. This representation was nothing but an attempt at misleading the Courts. He only disclosed his interest in the case near the end of the hearing before passing a judgment and secondly the parties which initiated the challenge never consented to his presence on the bench. Unfortunately this is not the only case where the Judge has alleged to have had a conflict of interests.

In the case of Justice Y.S. Sabharwal, he gained some property related benefits during the sealing of commercial properties in Delhi in which he played an instrumental role.

The courts are truly at the edge of a precipice. Judges cannot continue to act like Kings answerable to none.

Politics

These are not the only problems faced by the Indian Judiciary. The increasing role of politics in the realm of Justice has only amplified the crisis of accountability. But this is not a new phenomenon. The best case in point is the Fundamental Rights case [31] . During the hearing of the case, the Attorney- General then, appearing for the Union of India and the counsel for some states expressly referred in open court, to the alternative of ‘political action’ if the Supreme Court’s ruling did not favor with the Government. [32]

The instances of such nexus between corrupt politicians and the judiciary have only grown over the years. Another example of the court being sucked into politics is the Government asking the Chief Justice of India to decide whether the then Prime Minister Mr. Desai’s son should be prosecuted or not.

The task of the judiciary is to only decide the cases before it. It is in this scenario that separation of power protects the integrity and independence of the judiciary. It is true that ‘you are what you wear’ and it is up to the Judges to keep up certain manner of conduct which will put them in a category beyond the politicians and members of the bureaucracy. [33] In order to exact reverence from the masses, they need to conduct themselves in a manner beyond reproach.

This goal seems much farther in the wake of the judicial outrages erupting all over the nation. U.P. High Court Judge, Justice Jagdish Bhalla was promoted as the chief justice of the Kerala High Court in 2006 and then again nominated as Himachal Pradesh Chief Justice in 2008 despite serious charges of corruption against him. No action is being taken even in the case of Justice Vijender Jain who was involved in the Delhi sealing case. He was amazingly promoted as the Chief Justice of Punjab Haryana High Court. The Government has no comments about the lack on any actions or investigations.

Ghaziabad Provident Fund Scam case is another ugly illustration of the decaying condition of the judicial system. In the Ghaziabad district court, successive judges had siphoned out over seven crores from the State Treasury in the guise of Provident Fund advances. The same was reported to the High Court by certain judges of the district court. This was then substantiated by the confessional statement of one Mr. Ashutosh Asthana who was the administrative officer of the court. He later died under mysterious circumstances in the jail. The police was told that it cannot directly investigate the judges by the Chief Justice of India and later the case was transferred to the CBI [34]