The Accountability of the Judiciary

“Ironically the Higher Judiciary in India has powers of control over every organ under the Constitution but there exists no effective method of disciplining its own members.” [1]

The Preamble to our Constitution declares India is a ‘Democratic’ State. This broadly means that we have a government by the people, of the people and for the people’. It follows from this principle that, the Government should be accountable for all its acts or omissions to those for whom it exists.

The third branch of the government- the judiciary. The power that Judiciary enjoys, the role that it plays in our lives and the onerous task that it performs is beyond comprehension. Infact, it would be no exaggeration to say that of the three branches of the Government, Judiciary is perhaps of the greatest significance to the people, it being closest to them in the sense that anybody (even an ordinary citizen) can approach the Judiciary when he has any grievance.

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

Judicial independence was not intended to be a shield from public scrutiny. Judicial independence is not only a necessary condition for the impartiality of judges, it can also endanger it. Higher judiciary in our country is the only institution that is virtually not accountable and at the same time enjoys exceptional constitutional protection and formidable weaponry such as contempt of court to silence the critics. [2] Accountability of the judiciary in respect of its judicial functions and orders is safeguarded by provisions for appeal, reversion and review of orders. But there is no mechanism for accountability for serious judicial misconduct, for disciplining errant judges. [3]

JUDICIAL ACCOUNTABILITY: JUDGING THE JUDGES

Realizing the important role that judiciary plays, and the possibility of misuse of the power conferred, the Constitution-makers primarily made two provisions (those relating to the appointment and removal of judges) which ensured that Legislature and the Executive, the other two branches of the government (which are directly or indirectly responsible to the people) had some kind of control over the Judiciary. Here it would be interesting to mention the following cases

1st phase- the judges case one:

In 1982, the matter of appointment of High Court judges came before the Supreme Court in S.P. Gupta v Union of India [4] The main question considered by the court was: of the various functionaries participating in the process of appointment of a High Court judge whose opinion amongst the various participants should have primacy in the process of selection?

The majority took the view that the opinion of the Chief Justice of India (and that of the Chief Justice of a High Court) were merely consultative, and that the power of appointment resides solely and exclusively in the Central Government” and that the Central Government could override the opinions given by the Constitutional functionaries. The majority in Gupta gave a literal meaning to the word ‘consultation’ in Art 124(2) and 217(1). In reality this view made consultation with the Chief Justice inconsequential in the matter of appointment of the High Court Judges.

The observation of Bhagwati J. on the question of accountability-“The reason why the power of appointment of judges has been left to the Executive appears to be that the Executive is responsible to the Legislature, and through the Legislature it is answerable to the people, who are the consumers of justice. The power of appointment is not entrusted to the CJI because they do not have any accountability to the people and even if any wrong appointment has been made, they are not liable to account to anyone for such appointment.”

But going by developments that have taken place and the experiences that have been encountered, both the provisions have either been substantially modified or reduced to mere theory.

2nd phase- the judges case two:

Consequently, the matter once again came up for consideration before a 9 Judge bench in the case of Supreme Court Advocates on Record Association v Union of India [5] The Court emphasized that the question has to be considered in the context of achieving “the constitutional purpose of selecting the best…to ensure the independence of judiciary…”

Deliberating on the issue, the Court pointed out that this provision of ‘consultation’ with the Chief Justice was introduced because of the realization that the Chief Justice is best equipped to know and assess the worth of the candidate and his suitability for appointment.

Accordingly, the Court has ruled that “in the choice of a candidate suitable for appointment, the opinion of the Chief Justice of India should have the greatest weight…..the selection should be based on a participatory consultative process in which the Executive has the power to act as a mere check on the power of the Chief Justice

The Judiciary has for all practical purposes had become its own appointing authority. The Supreme Court replaced the Executive primacy with that of the CJI, which in effect has done away with the role of the Executive. The Collegium that decides the matter lacks transparency and is likely to be considered a cabal. Here the obvious question that arises is, in the absence of substantially any role of any other body, who are the CJI and other members of the Judiciary answerable to? Consumers of justice being people, whether the Judiciary is in any way answerable to the people? The Majority in the Second Judges case tried to answer it-“The CJI and the Chief Justice of the High Court, being responsible to the functioning of the Courts, have to face the consequence of any unsuitable appointment which gives rise to the criticism. Similarly, the Judges of the Supreme Court and the High Courts, whose participation are involved in the functioning of the Courts and in the selection process bear the consequences and become accountable.”

The researcher submits that this reasoning is not only insufficient and incomplete but also unsatisfactory. Besides, the little that it says in support of its stand, the argument itself seems to be paradoxical if we look at the reality. The Judiciary has taken a rather too strict a stand against the writers who have criticized the judges or their judgments (the Contempt of Court Act 1971 punishes the scandalizing of the Court. The Supreme Court has held that Fundamental Right of the citizens to of free speech and expression has not abolished the offense of scandalizing the Court). [6] The symbolic punishment given to Arundhati Roy [7] and the more recent controversy surrounding Sabarwal J. and the subsequent action taken by the Delhi High Court against the “erring” editors of a leading local newspaper are points in case. [8]

Now the 2nd major area of focus is what action can be taken if a judge misuses or abuses his power, acts with negligence or contrary to the interest of the people.

In this regard the Constitution has laid down only one provision- Article 124 whereby it lays down that a judge can be removed from his office by following an elaborate procedure, on the ground of ‘proved misbehavior or incapacity.’ The points to be pondered over here are:

This is the only provision on what action can be taken against an errant Judge.

The action that I envisaged here is a drastic one, that of removal from office.

The procedure mentioned here being so elaborate (being analogous to the impeachment) signifies that ‘proved misbehavior or incapacity’ should be of a very high degree.

Not only does this provision lay down too complex a procedure, but it also fails to take care of the deviant acts not amounting to ‘misbehavior or incapacity’. Added to this Ramaswami J. controversy [9] is a case in point as it reflects the deep anomalies and loopholes with which this provision is ridden.

Hence while the existing provision is insufficient in so far as erroneous acts not amounting to ‘misbehavior or incapacity’ have not been taken care of, the remedy that does exist is rendered useless by the loopholes that have been exploited.

Thus (practically) answerable to no one and for all intent and purposes having no efficient mechanism to discipline the judges, the Judiciary has become its own master. At least theoretically it can be said that this will lead to abuse of power.

But having said this do we really urgently need to reform the legal provisions relating to Judiciary? Do the apprehensions have any real basis? Several instances will show that these are not mere apprehensions.

In 1958 the Law Commission of India in its 14th Report on the Reform of Judicial Administration submitted that-“It is widely felt that communal and regional considerations have prevailed in making the selection of judges…..best talent among the judges of the High Courts has not always found its way to the Supreme Court…We are concerned that the views expressed to us have show a well founded and acute public satisfaction at these appointments”. While this report was complied at a time when the Executive had a significant role to play in the judicial appointments, it is submitted that the position has not changed much (as will be clear from the illustrations that follow) after the Second Judges Case.

In 1964, Committee on Prevention of Corruption remarked that it had been informed by Vigilance and Special Police Establishment, that the corruption is rampant at the lower levels and in some place, it has spread to the higher ranks.

Then we have the 1993 case of Ramaswami J. who was sought to be removed from office and who after having been found guilty of misbehavior in misappropriating and misusing public property, by a Committee constituted under the Judges’ Inquiry Act 1968, still managed to go scot free because the motion in Parliament of his removal failed as the ruling majority abstained from voting for his removal.

Again the charges of misconduct against two sitting judges of the Supreme Court were made in 1997 and 2000. In the first case, the judge in question was due by seniority to be appointed as the Chief Justice and an in house committee of the Supreme Court Judges is reported to have considered the charges. But the judge was recommended for appointment as the CJI by the outgoing CJI. In the second case which related to a CJI though considerable publicity was given to the charges, no action was taken either within or outside the Court.

In the absence of an effective remedy for removal of a judge, the Bar of the Bombay High Court resorted to the unconventional method of disciplining by passing the resolutions against them to resign and requesting the Chief Justice of the High Court not to assign work to them.

On another occasion, the Chief Justice of the Bombay High Court was charged with misconduct by the Bar. Going by the earlier experiences the Bar had no other option but to resort to extra-constitutional way out. They made an application to the CJI to requesting the CJI to seek his resignation. The Chief Justice of that High Court under the advice of the CJI tendered the resignation.

Judicial accountability has today become the catch word all over the world. The judges can no longer oppose calls for greater accountability on the ground that it will impinge upon their independence. Independence and accountability must be sufficiently balanced so as to strengthen judicial integrity for effective judicial impartiality.

Discussion of the conduct of the judges in the legislature:

“In accordance with the Universal Declaration of Human Rights, members of the judiciary are entitled to freedom of expression, belief, association and assembly; provided, however, that in exercising such rights, judges shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary.” [10] Neither in Parliament nor in a State Legislature a discussion can take place with respect to the conduct of the Supreme Court in discharge of his duties.

Articles 121 and 211 provide immunity to the members of Higher Judiciary, with respect to the conduct of the Judges in the discharge of their duties. Article 211 amounts to an absolute constitutional prohibition against any decision in the Legislature of a State in respect of the judicial conduct of the Supreme Court or of the High Court. Article 121 on the other hand provides for a general rule that no discussion shall take place in the Parliament with respect to the conduct of any judge of the Supreme Court or of the High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the judge under the circumstances stated in the Constitution. Thus, reading Article 121 and 211 together, it is clear that the judicial conduct of a judge can not be discussed in the State Legislature. It can be in Parliament only, upon a motion for presenting an address to the President praying for the removal of the Judge. The Constitutional makers attached so much importance to the independence of judiciary that they thought necessary to place them beyond any controversy except in the manner provided in Article 121.

The fact that Article 211 appears under a topic dealing with “Procedure Generally” cannot mean that the prohibition prescribed by it is not mandatory. In trying to appreciate the full significance of this provision, Article 121 and 211 should be read together. It is true that Article 194(2) in terms provide for immunity of action in any court in respect of a speech made by a member or a vote given by him in the Legislative Assembly. Undoubtedly, the Speaker would not permit a member to contravene Article 211, but, if inadvertently or otherwise, a speech is made within the legislature which contravenes Article 211, the Constitution-makers have given protection to such speech from any action in any court. The House itself may and would, no doubt, take action against the member. [11]

Removal of a judge:

“A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge.” [12]

“Judges shall be subject to suspension or removal only for reasons of incapacity or behavior that renders them unfit to discharge their duties.” [13]

“All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct.” [14]

“Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.” [15]

The manner of removal of a Judge, as brought out and made clear by Constitutional provisions, SC interpretations and the Judges Inquiry Act, 1968, and Judges Inquiry Rules, 1969, stands summed up in Krishna Swami v. UOI [16] as follows, “Every judge of the Supreme Court & High Court on his appointment is irremovable from office during his tenure except in the manner provided in Cls. (4) & (5) of Art. 124. The law made by the Parliament under Art. 124(5), namely the Judges Inquiry Act, 1968, (and Judges Inquiry Rules, 1969 framed there under) are to be read along with Article 124(4), to find out the constitutional scheme….for the removal of a judge. The law so made under Art. 124(5), provides that any accusation against a sitting Judge to initiate the process of his removal has to be by not less than minimum number of members of the Parliament specified in the Act, all other method being excluded. On initiation of the process, the Speaker/Chairman has to decide whether the accusation requires investigation. If he chooses not to act, the matter ends there…..otherwise on a consideration of the material available and after consulting such persons as he thinks fit, forms opinion that a prima facie case is made out, he constitutes a Committee in accordance with s.3(2) of the Act. If this …..Committee….. records a finding that a Judge is not guilty, the process ends there…..If the finding of the Inquiry Committee is that the Judge is guilty, then the Parliament considers the motion for removal of the Judge along with the Committee’s Report and other available materials including the cause, if any, shown by the Judge concerned against his removal for which he has to be given an opportunity after the submission of the report to the Speaker/Chairman under s. 4(2) of the Act…..If the Parliament does not adopt a motion for removal of the Judge, the process ends there…If the motion is adopted by the requisite majority of the Parliament, culminating in the order for removal of the Judge by the President of India under Art.124(4), then only the Judge shall have remedy of Judicial Review available on the permissible grounds against the order of removal….”

CONCLUSION

In mater of appointment, a lot has been said about the dangers of substituting absolute Executive authority with absolute ‘Chief Justice Authority’. It is important to have a more important broad based appointing body in the legal system, incorporating undoubtedly the higher judicial functionaries but also giving representation to some outside elements form the categories of eminent jurists, academics and both the ruling executive and the opposition. Moreover this process would certainly be more transparent and open. In such broad based appointing body at least two leading members of the bar must find representation. The manner of selection/ nomination of those persons should be carefully thought out to ensure objectivity and absence of conflict of interest.

The second crucial aspect which cannot be separated from the first is the vital necessity of a workable mechanism for regulating judicial conduct, taking corrective action and if necessary disciplining the errant judges shot of and up to removal.

Unless one puts in place a reasonable, internal, fair, expeditious and effective in house regulatory regime short of impeachment, allegations against judges will always be on the rise.

The general dissatisfaction with the Courts self appointed role in appointment and transfer of Judges has led to suggestions that it is high time that a National Judicial Commission should be appointed which would not only consist of high judicial members but also other non-judicial members and which would make recommendations for such appointments. The suggestion for a National Judicial Commission has been made by the 80th and 121st reports of the law commission of India. [17] A constitutional amendment (67th Amendment) bill 1990 was formulated by the ministry of Justice in 1990 for setting up such a body but the bill lapsed on the dissolution of the parliament. [18]

The independence of judiciary is an important concept being the basic principle of the constitution but what has to be realized is that it is not an end in itself but only a means to achieve an end. The end is to secure efficient, expeditious and impartial delivery of justice. The main intention behind this principle is that the people should get justice, irrespective of their status. This principle is required to instill confidence of the people in its Justice Delivery System. Confidence is very important. Our society is usually peaceful, not because there is a police force and lawyers to take you to the court. It is because people respect the courts and the laws they apply. If, however, people loose confidence in the courts and think that they would not receive a fair hearing, they might disrespect the law generally.

So any new step towards revamping the Judicial System should aim at balancing in the best possible manner judicial independence and judicial accountability.