“Judiciary unlimited” is an unelected judiciary which is not accountable to anyone except itself. Today Judiciary has marginalised the Indian Government. The Supreme Court has its own laws and ways of interpretation with implementation. The issue is not whether something justifiable has come out of all this but whether the Courts have arrogated vast and uncontrolled powers to themselves. Courts are important element of governance, and the relationship between the Courts and other agencies and between Courts and citizens are essential to constitutionalism.
Thus accountability must be comprehensive to include not only the politicians, but also the bureaucrats, judges and everyone invested with public power. Accountability is the sine quo non of democracy. Transparency facilitates accountability. No public institution or public functionary is exempted from accountability although the manner of enforcing accountability may vary with the nature of office and the functions discharged by the office holder. The authors shall focus on various areas relating to judicial accountability of not only judges but also those who are vested with the power.
This paper also intends to cover various wings of issues like; Firstly, the need for accountability accountability, Secondly, structure judicial accountability in notion to separation of powers, Thirdly, the new amendments introduced in Judicial Standards and Accountability Bill, 2010 and its policy consequence. And lastly the authors intend to conclude the paper with recommendations as well as enlighten on Judicial Accountability vis-a-vis Right To Information. per-se and analyse on judicial independence with can do no wrong. In a „democratic republic? power with accountability, of the individual enjoying it, is essential to avert disaster to any democratic system. 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 includes attendant with responsibility, and every incumbent of a public office must remain constantly accountable to the people, who are the repository of political sovereignty.
The word “accountable” according to Oxford Dictionary means „responsible for your own actions or decisions and expected to explain them when you are asked?. Accountability is the sine quo non of democracy. Transparency facilitates accountability. No public institution or public functionary is exempted from accountability although the manner of enforcing accountability may vary with the nature of office and the functions discharged by the office holder. The judiciary, the essential wing of the State is also accountable.
But judicial accountability is not of the same plane as the accountability of the executive or the legislature or any other public institution. Today people?s faith in the quality, integrity and efficiency of governmental institutions stands outdated. India being a democratic country the judiciary is vested with absolute power over our courts, unparalleled in history. Our system of government is based on separation of powers. Citizens and non-citizens turn to judiciary as the last resort of weapon.
The judiciary, known for its independence and impartiality can protect the rights of the individual?s and provide equal justice without fear and favour. Judicial accountability is the fundamental democratic requirement of our Central and State government. Judicial accountability is a concept which is frequently misunderstood at its best and abused at its worst. Judges must be accountable to the public for their constitutional role of playing the law fairly and impartially. Judiciary is the last ray of hope for people to look at for help when his/her fundamental rights are violated.
The need of an effective mechanism for the enforcement of judicial accountability, when needed, is a felt need and must be accepted. Hence the method by which judges are selected has become a matter of considerable concern for the citizens of our state. The Preamble to our Constitution be regarded as the reflection of our hope and spirit of people, then one small thing a layman will also notice is that among the various goals set out by the Constitution, the framers intended to secure for the citizens, “Justice- social, economic and political” has been mentioned before the rest. No person is high above the law and every person is equal in the eyes of law. No institution is exempted from accountability even including the judiciary. No one questions the accountability of the judges why?? Are not they accountable for the actions or decisions taken…? Accountability of the judiciary in respect of its judicial functions and orders is immune by provisions like appeal, revision and review of orders. Now the question comes that what is the mechanism for accountability to check a serious judicial misconduct, for indiscipline errant judges?
Our Constitution provides for removal of a judge of Supreme Court or High Court for proved misbehaviour or proved incapacity, by what is known as impeachment where two-thirds of the members of each House of Parliament can vote for the removal of the judge. The public servants, judges must be role models for every citizen. If students make a mistake it?s excusable and can be corrected by the teacher but if the teacher himself makes a mistake all the students will do the same mistake. Imagine if the judiciary is not accountable to the citizen or not performing their duty then what are they supposed to perform?
Judicial office is essentially a public trust. All power is a trust hat and we are accountable for its exercise, that form the people and for the people, all spring and all must exists. In a democratic republic the power of accountability the individual enjoying would welcome avert disaster for any democratic system. 8 The judiciary has been long regarded as a holy cow that was considered out of bounds of people?s.
The Constitution of India has guaranteed certain fundamental duties to each citizen. It is the duty of every citizen to uphold he dignity, honour of our democratic institution, to protect our national integrity the accountability must be comprehensive and it should not only include politicians but also judges, bureaucrats and everyone who is vested with such powers. Power and position is depicted as attendant with responsibility. 9 The judicial system deals with administration of justice through courts and judges are the human creations who preside in the courts.
They are not only the visible symbols but they are actually their representatives in flesh and blood and the manner in which the judges discharge their duties it determines the image of the courts and the credibility of the judicial system. In India, judges have been held with high esteem from time immemorial and are aged as super humans but coming across certain incidents makes us think that frustrated by the failure of justice people are slowly losing their faith in the judiciary and are now taking law into their own hands.
There is an urgent need to make the judiciary accountable as derogation of power in the judiciary is far more danger than any other wing of the government as the judiciary has to act as guardian of our constitution. 10 Judicial accountability and judges being answerable is not a new concept several countries have already provided in their constitution about judges accountability. This concept was introduced to avoid the concentration of power in the hands of the single organ of the state.
Independence? literally means absence of dependence, which is to say complete autonomy and insusceptibility to external guidance, influence, or control. If we think of judicial independence in literal terms however federal judges are not independent no as dictionaries define the word independence.
Judicial independence is the central goal of most of the legal systems, and systems of appointments are seen as crucial mechanism to achieve goal. Judges who are in some way dependent on the person who appoint them may not be relied upon to deliver neutral, high quality decision and so undermine the legitimacy of legal system as a whole. 12 The diversity of system of judicial selection suggests that there is no consensus on the best manner to guarantee independence. Hence, whenever there is a slight probability of corruption or absolute unaccountable discretion it leads to breakdown of the judicial mechanism..
The distorting of the concept of judicial accountability threatens to undermine the safeguards of democracy and liberty that are beautifully conceived by those who designed our governmental institution and drafted our constitution. Judicial independence is the vial mechanism that empowers judges to make decision that may be unpopular but nonetheless correct. By doing this, the judiciary vindicates that no person or group, however powerful is above law and it gives life to the concept of Rule of Law safeguards the minority from the tyranny of the majority. 5 Judicial accountability properly conceived plays a critical role in judicial independence. Judicial independence is just the other side of the coin of judicial accountability.
The two views are not in conflict with each other; rather serve as a means to an end than to being an end in itself. Judicial accountability has many roles to play as of judicial independence. Judicial accountability should serve to moderate what would otherwise be unacceptable decisional independence, (i. e. ) decision unchecked by law that is commonly misunderstood. Judicial accountability should run to the public, including litigants whose disputes courts resolve and who therefore have legitimate interest in court proceedings that are open to public and in judicial decisions that are accessible. Judicial accountability should run to the courts and the judiciary as institutions, both because individual independence exists primarily for the benefit of institutional independence. 17 Judicial accountability is a facet of judicial independence. It must be developed consistent with the principles of judicial independence.
Constitutionalism is not enhanced by hostility directed against the judiciary, which plays such a pivotal role in maintaining the rule of law. 18 In Judicial accountability, there is no difficulty in accepting the principle that in a society based on the rule of law and democratic principles of governance, every power holder is, in the final analysis, accountable to the people. 19 And absolute power always corrupts absolutely. There is no reason why the judiciary should not be accountable to the community for its due performance of the functions vested in it. Power is given on trust and judicial power is no exception.
The challenge, however, is to determine how the judiciary can be held to account, consistent with the principle of judicial independence. How does one achieve the right balance between autonomy in decision making and independence from external forces on the one hand and accountability to the community on the other hand? Thus Judicial Independence is always in conflict with Judicial accountability. Criminal conduct of a judge has to be investigated and prosecuted but how to tackle non-criminal misconduct of the judges. It is rightly being argued that the prosecution of these misconducts must be left to the judicial branch only.
Judicial independence depends upon the public acceptance of the judiciary as fair, just and honest body, for which it becomes rather a liability on the judiciary to carefully structure its investigation to assure public that the judiciary is taking care of its own problems of corruption. According to the traditional rules of interpretation of the Constitution, a court of law must gather the spirit of the Constitution from the language used, and what one may believe to be the spirit of the Constitution cannot prevail if not supported by the language, which therefore must be construed according to well established rules of interpretation uninfluenced by assumed spirit of the Constitution. 1 Well established rules of interpretation require that the meaning and intention of the constitution framers must be ascertained from the language of the Constitution itself; with the motives of those who framed it, the Court has no concern.
At the same time the Constitution is not to be construed in a narrow pedantic sense and a broad liberal spirit should inspire those whose duty it is to interpret it. Constitution must be treated as a living organic thing. Hence, it should be interpreted on the principle that ‘it is better for a thing to have effect then to be made void’. 2 This principle is the basis of the presumption of constitutionality. Through inheritance of British constitutional principles, judges in many commonwealth countries are accountable to either the legislature or the executive, in the sense that one or the other of these two branches of government is vested by the constitution with the power to remove judges for proved misbehaviour or incapacity. 23 At times, this power has been grossly abused in some of the countries. Judges inevitably end up in the political arena in deciding controversial cases — whichever side they rule.
In resolving disputes between citizens and the State or evaluating a constitutional issue, judges are forced to make decisions which are at times termed political decisions. 24 Judges are, however, not in a position to defend their judgments as they are bound by a code of silence. As stated above, judges should account for exercise of judicial power, especially when pronouncing judgments of significance. The recent statement of Justice P. N. Bhagwati in reflection on the judgement of “Habeas Corpus case”25, that political involvement affected 21 Langon, P. St. J. Maxwell on Interpretation of Statutes.
The Judicial Standards And Accountability Bill 2010, was introduced in the Lok Sabha on December 1, 2010, hereinafter referred to as “the bill”. 27 The Bill was introduced by the Shri Veerappa Moily, the Minister of Law and Justice. The Bill seeks to provide for a mechanism to deal with complaints of the public against judges, give legal shape to the Reinstatement of Values of Judicial Life adopted by the Supreme Court in 1997, make it obligatory for judges to declare their assets and liabilities after assuming office and whenever new assets are acquired, and to replace the Judges Inquiry) Act, 1968, without affecting the right of the members of Parliament to initiate action for the removal of judges on the ground of misbehaviour or incapacity.
The Bill contemplates the constitution of a “complaints scrutiny panel” in the Supreme Court and in every High Court to scrutinise the complaints and refer such of them as needed to be enquired into by the Oversight Committee consisting of a retired Chief Justice of India (Chairman), a judge of the Supreme Court, the Chief Justice of a High Court, the Attorney-General and an eminent person nominated by the President (Members). 9 The Oversight Committee would constitute an investigation committee to go into the complaints and thereafter hold an enquiry against the judge concerned, giving him a reasonable opportunity to defend himself. If the charges proved do not warrant removal of the judge, the Oversight Committee may issue advisories or warnings. If it notices commission of any offence by a judge, prima facie, it may recommend his or her prosecution. If the charges proved are serious, warranting removal of the judge, it would make a request to the judge to 26
Ibid Judicial Standards And Accountability Bill 2010, voluntarily resign, failing which it would advise the President to make a reference to Parliament for the removal of the judge under Article. 24(4). 30 The Bill requires judges to practise universally accepted values of judicial life. This has however been tinged with cynicism about our major democratic institutions and a pessimism about their future. The judiciary, which till now has been looked upon as the strongest pillar of Indian democracy, has been beset with unprecedented problems. In recent times, the working of the judges of superior courts (High Courts and the Supreme Court) has come in for intense scrutiny and grave doubts have been cast against the conduct of some judges.
The pressing call for greater institutional accountability in the Indian judiciary is now stronger than ever. Removal of a judge can take place only 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 the House present and voting. Contrastingly, the Bill is set in the right direction but has been cleverly disguised.
It has some welcome features such as providing for a transparent mechanism for scrutiny and an inquiry into complaints against judges, requiring declaration of assets and liabilities by them and for the exhibition of information on the website of the court concerned, enumerating judicial standards which every judge shall practice, including not permitting any member of his family to appear before him or to use his residence or other facilities provided to him for professional work, etc. But as we say good things don?t come free, cleverly disguised as being permissible under Art. 24(5), an example of the most blatant violation of constitutional safeguards and is a cure that is surely worse than a disease.
Art 124(5) does not empower Parliament to create any other forum for recommending impeachment proceedings, or allow complaints to be made by any persons, or to make a judge liable for minor penalties. What can be done only by a hundred or more persons, or more members of the Lok Sabha or fifty or members of Rajya Sabha can theoretically be done by one person. 31 Looking at the definition of misbehaviour it includes not only corruption or lack of integrity but also failure to furnish assets and liabilities. The question here is: Are these provisions enough to ensure accountability? The real problem is not about investigation or enquiry into charges of judicial misbehaviour by an impartial committee but the uncertainty of impeachment by Parliament as it happened in the case of Justice V. Ramaswamy.
His misbehaviour was established in an open and transparent inquiry conducted by a committee with a sitting judge of Supreme Court as Chairman, Chief Justice of High Court and a retired judge of a Supreme Court as member. It was expected from the Parliament that it would give due deference to the finding of a highpower committee. Even judges were not unanimous on his continuing to discharge duties while the inquiry proceedings were going on. Chief Justice Sabyasachi Mukherjee pronounced an order in an open court that he would not assign work to Justice Ramaswami till he was proved guilty / cleared of all charges farmed against him.
Justice Ranganath Misra, constituted a committee of three judge to decide whether he would be allowed to work / function, notwithstanding to the inquiry. The committee concluded that there is no express provision of law in terms of which he could be prevented from discharging his judicial duties. As a r result of which the judge was allowed to resume his work. But the Sub-Committee on Judicial Accountability and the Supreme Court Bar Association filed a writ petition in the Supreme Court, praying that no work should be assigned to Justice Ramaswami.
A constitution bench rejected the prayer saying that it is up to the Chief Justice of India to decide whether work should be assigned or not to the judge. It is possible to suspend a judge facing an inquiry into charges of misbehaviour by invoking Sec. 16 of the General Clauses Act 1897, read with sec 21. The President of India can suspend a judge facing such inquiry in consultation with the Chief Justice of India and the collegiums.
Amongst the millions of us we have the right to know. But how many of us really want to know or use our right to know power?
In the society which this country supports, there is no dearth of issue that cannot be raised. The main purpose of this is to examine the lacunae in our existing system and what effective machinery can be resorted to curb this problem and degradation of this system. According to our constitutional scheme, executive, legislature and he judiciary are the three arms of our constitution. The Executive is accountable to the Legislature, which in turn is democratically accountable to the people.
Out of the three pillars of this democracy, Judiciary is the most powerful, because it has the power of judicial review over every action of executive and the legislature.
The Right to Information Act is a tool which attempts to monitor and ensure accountability and transparency in every public functionary which also includes well within its purview the judiciary. 5 We know right to seek information is a part of every Indian citizen?s fundamental and human right. The people of this have a right to know every public act, intension and measure taken by their public functionaries which is likely to affect the interest of general public. This Right to Information Act is one of the beneficial legislations which act as a medium to empower the public to legally exercise their right to information and inject transparency and accountability in the governance.
The judiciary system of ours, far from being an instrument for protecting the rights of the weak and oppressed, has now become a tool for harassment of the common public. The problems with the judiciary started with the lack of access to the system for the weak and oppressed because of the procedural complexities that the system is beset with which can only be accessed by the lawyers who are not affordable by the common people. The red tapism and lethargic attitude prevalent in our system acts as a major deterrent to those who can afford access in the system and makes justice seem more all elusive.
One wonders as to why there have been only few cases of corruptions reported when they are plethora of cases corruption that can be unleashed. This is because one has the evidence of act of neither corruption it neither get exposed nor its investigation only due to the fear of “Contempt”. The law of contempt has often been misused to punish outspoken and exposure of judicial misconduct. Justice Brenan stated that, “nothing rankles more in human heart than a brooding sense of injustice. Illness we can put up with, but injustices want to pull things down. ”36 Our judiciary has essential become an instrument for protecting and furthering the interests of the rich and powerful. The courts have been continuingly showing their elites bias, making the system dysfunctional for the poor.
The judiciary has made several attempts to escape accountability by using the weapon of “Law of Contempt”. “No self respecting judge will disclose his assets”, we may believe it or not but it is the statement given by the sitting Chief Justice of India, K. G. Balakrishnan who himself is the supporter of right to information. 37 Such statements show the double standards of our judiciary. The Supreme Court has delivered various judgements upholding citizen?s right to information and also stated that right to life is enshrined under Art. 1 of the Constitution which also includes right to information. 38 On the other hand when there was a human cry about bringing the judiciary under the purview of RTI, CJI K. G. Balakrishnan made a statement like “the Chief Justice is not a public servant. ” Our Judiciary plays a dual role; firstly, of performing administrative functions and secondly, of judicial decision making.
This is substantiated by a report of the Parliamentary Standing Committee on Personnel, law and Justice; which states that “except judicial decision making all other ctivities of administrations and persons included in the judiciary are subjected to RTI. ”The report clarifies that the executive, legislature and judiciary are fully covered under the RTI Act and since all organs of the state are accountable to he citizens of India, in a democracy. The layers of protection from accountability afforded to judges include the lack of any effective disciplinary mechanism as well as lack of machinery for appointment of judges.
Efforts being made to induce accountability within the judiciary are visible from the introduction of the Judges Inquiry Bill (introducing National Judicial Council) and a bill introducing the National Judicial Committee. National Judicial Council to undertake preliminary investigation and inquire into allegations of misbehaviour or incapacity of a judge of the Supreme Court or a High Court and to regulate the procedure of each investigation, inquiry, proof and for imposing minor measures.
The Constitution needs to provide for systems with checks and balances to eliminate abuse and misuse of public power. The caution administered by Dr. Rajendra Prasad at the concluding session of the Constituent Assembly is worth recalling.
He then said: “Whatever the Constitution may or may not provide, the welfare of the country will depend upon the way in which the country is administered. That will depend upon the men who administer it… a Constitution, like a machine, is a lifeless thing. It acquires life because of the men who control it and operate it, and India needs today nothing more than a set of honest men who will have the interest of the country before them”. 41 This is the crux of the matter. The expectation from the judiciary is indeed very high in view of the nature of its role in the Constitution.
The independence of the judiciary is meant to empower it as the guardian of the rule of law. It is not merely for its honour, but essentially to serve the public interest and to preserve the rule of law. Judicial accountability is a facet of the independence of the judiciary in the republican democracy. There are, therefore, recognized norms of judicial behaviour expected from the judges. In the words of Addison, „to be perfectly just is an attribute of the divine nature, to be so to the utmost of our abilities is the glory of man?. Hence we would like to conclude that judicial accountability is essential aspect of constitutionalism and rule of law which can best be stated as; “Let the king appoint, as members of the courts of justice, honourable men of proved integrity, who are able to bear the burden of administration of justice and who are well versed in the sacred laws, rules of prudence, who are noble and impartial towards friends and foes”.
Cite this Judicial Accountability
Judicial Accountability. (2016, Oct 14). Retrieved from https://graduateway.com/judicial-accountability/