Judicial Accountability In India

"Power corrupts, and absolute power corrupts absolutely"

Indian Judiciary system is the most powerful judiciary in the world after USA. Judiciary in India being a democratic country is vested with the highest power by the people and is considered as strongest pillar of the democracy. Judiciary in India has been given Supreme powers by the Legislature which has lead to the non-accountability of the judiciary to anyone. Judiciary in India enjoys judicial independence but this independence sometimes results in misuse of the powers and privileges by the Judges. Thus, the concept of Judicial Accountability is nowadays is in question. All over the world various conferences and discussions are going on as to whether judiciary can be held accountable for actions.

Why there is a need of judicial accountability?

The word 'accountable' as defined in the Oxford Dictionary means 'responsible for your own decisions or actions and expected to explain them when you are asked'. Accountability is the sine qua non of democracy. It is a well settled principle of modern day governance that an authority deriving its existence from same source cannot claim to be absolute and unaccountable. It must be accountable either to the source of its origin, to the institution and more importantly to the people.

All wings of Government belong to the people, when the legislature and the executive both are accountable, the judiciary cannot remain unaccountable and absolute. No person, howsoever high is above the law similarly, no institution howsoever sanctified can claim to be unaccountable. Ultimately, every institution is accountable to the people in every democratic polity like ours. At the same time Judicial independence is a pre- requisite for every judge whose oath of office requires him to act without fear or favour, affection of ill- will and to uphold the constitution and laws of the country. Thus, here arises a tension between Judicial Independence and Judicial Accountability.

Constitutional provisions for making the Judiciary Accountable

The fact that the powers of judges are very wide is in itself an indication that the powers may not be allowed to be absolute. Among the constitutional limitations on the judges, the most important one is the provision for 'removal' of judges of the High Court's /Supreme Court by address of the Houses of Parliament to the President on the ground of 'proved misbehavior or incapacity'. This is provided in Constitution of India, art. 124(2) and (4) in respect of judges of the Supreme Court and in view of art 217, that procedure is attracted to the 'removal' of judges of the High Court also.

In pursuance of the provisions of Article 124(5) of the Constitution the Judges (Inquiry) Act, 1968 was enacted to regulate the procedure for investigation and proof of the "misbehavior" or incapacity of a Judge of the Supreme Court or of a High Court and for the presentation of an address by Parliament to the President and for matters connected therewith.

Judicial Standards and Accountability Bill, 2010

The Judicial Standards and Accountability Bill, 2010 replaces the Judges (Inquiry) Act, 1968. It seeks to create enforceable standards for the conduct of judges of High Courts and the Supreme Court, change the existing mechanism for investigation into allegations of "misbehavior" or incapacity of judges of High Courts and the Supreme Court, change the process of removal of judges, enable minor disciplinary measures to be taken against judges, and require the declaration of assets of judges.

Questions raised in the Bill.....

1. Whether the balance between independence and accountability is maintained by the proposed mechanism in the Bill?
2. It is not clear whether the power of the Oversight Committee to impose minor measures is constitutionally valid?
3. The Bill does not mention whether a judge has the right to appeal to the Supreme Court against an order of removal issued by the President after Parliament finds him guilty of "misbehavior"?

The issues of Judicial Standards must be seen in the context of Art 124(4) of the Constitution which provides for the process of impeachment of a judge on the grounds of proved "misbehavior" or incapacity." Art 124(5) empowers Parliament only to make laws to regulate the procedure for presentation of address of impeachment, and for the investigation and proof for the "misbehavior" or incapacity of a judge. Article 124(5) does not empower Parliament to create any other forum for recommending impeachment proceedings, or allow complaints to be made by any person, or to make a judge liable for minor penalties. What can be done only by a hundred or more members of the Lok Sabha or fifty or more members of the Rajya Sabha (i.e. initiation of impeachment proceedings) can now

Shortcomings in the Bill

1. The Bill seeks to provide a straight definition of "misbehavior" in Clause 2(j), but by laying down a strict definition, the concept loses its elasticity and becomes both under-inclusive and over-inclusive.
2. The Bill also provides a list of standards of judicial conduct to which all judges are expected to adhere. The very idea of statutorily providing for judicial standards, irrespective of their content, is violative of judicial independence.
3. Under the Bill, "any" person may file a complaint in a prescribed format. This is likely to lead to a multiplicity of complaints and even though the Bill proscribes false and vexatious complaints under Clause 53, this is unlikely to prove much of a deterrent, and since each of them will have to be checked by the Scrutiny Panel, it is also likely to result in a huge waste of time.
4. The Attorney-General has the responsibility of regularly appearing on behalf of the government before the court. The possibility of his appearing before a judge against whom a complaint has been filed cannot be ruled out. In such a circumstance, there is clearly a conflict of interest since the Attorney-General will be a member of the Oversight Committee to look into the complaints made against the former.
5. The Scrutiny Panel is to consist of three members, two of whom will be judges sitting in the same court as the judge against whom the complaint is made. Since these judges would be colleagues sitting in the same court, it is likely that this will, either way, influence their conduct.
6. The idea of "minor" punishments is unworkable and has the potential to seriously undermine judicial status.
7. The Bill completely excludes the operation of the RTI. This establishes an atmosphere of total secrecy more regressive than the present system, and for which, there does not appear to be any rational reason to make a change.
8. The Bill makes no mention of whether a judge who has been removed has a right to appeal to the Supreme Court. The Standing Committee had stated that there should not be any provision for appeal as the finality of a Presidential order should not be challenged.

Thus, it is totally impermissible for the legislature to strike upon the independence and fearlessness of the judiciary. A judge of a superior court cannot be treated as an employee of the government. The present Bill is incapable of salvage and must be rejected in totality. In a system where half the litigants must necessarily lose their cases, and where most of the complaints against judges are frivolous and made by disgruntled litigants, this bill, if implemented, would mark the beginning of the end of the judiciary.

Conclusion with Suggestion for Improving Judiciary System

The legal system in India and the judiciary has reached a stage now where the public openly criticize the judiciary and the News Channels debate even the judgments delivered by the Constitutional Courts. It is an open fact in author's opinion that the public opinion at the legal system in India and as to how the judiciary is not able to deliver results meeting the expectations of the public, has taken away the caution to be exercised while referring to the judiciary or the legal system. The respect can never forcibly be received and the respect should come voluntarily. The functioning of judiciary or the legal system has a direct impact on the society and the rights of the people.

If a criminal could manage a magistrate or court dealing with his case, then, who will protect the society from evil forces? We cannot expect the government to be very clean and responsive given the complications in the Indian political system. As such, the Judiciary or the legal system has a big role to play in protecting the rights of the people, ensuring orderliness in the system and even making a judgment on the executive actions when those are not in conformity with the public interest. There are critics on the allegations of corruption and lack of transparency in the Judiciary. In my opinion, many people talk about the judiciary and the judicial reforms only because people have the hope that Judiciary can protect their rights and ensure 'right to life' as guaranteed under Art

The problem with judicial reforms in India is that we lack clarity as to who is ultimately responsible to the citizens. But, with experience, the collegiums system has invited so much criticism and the executive do not bother to address the issue showing judicial independence and they will say that they can do nothing given the legal position in this regard. Likewise, the problem is where to start and whose responsibility it is to address the issue of delay in disposal of cases before various courts in this country. It is for sure that we can certainly curtail the delay in justice delivery and can ensure speedy justice to the citizens. For which what we need is commitment from Government and the concerned ministry.

We have so many eminent judges with vast experience who also command great respect among the professionals and people. We need to utilize their services and get their guidance as to how to cure the system and make the speedy disposal of cases a reality. Judicial reforms will transform this country to a great extent and we can see lot of change in the things in the society if we are able to bring the judicial reforms. There will not be any illegality in the society or at least we can see substantial reduction in illegal activities in the society if there is an effective judicial system in place. This is the impact of effective judicial system in the Country.

Alleged corruption in Judiciary and particularly lower judiciary is a matter of grave concern. We need to address the issue of corruption in Higher Judiciary first and we need to concentrate on the issue of judicial appointments. The judge's accountability is a serious issue as options are less to deal with the judge who is not accountable or who is corrupt. So, the responsibility of appointing efficient and clean judges is to be given to executive and they should not be allowed to take a defence that they are not concerned with the appointments and as such they can do nothing when it comes to corruption in judiciary. When we make the system very transparent, then, there is a chance of reducing the corruption to a great extent and such the executive should concentrate as to how to make the entire judicial system in the country transparent.

All that needed is:

1. Speedy justice not amounting to justice buried.
2. Simplistic procedures where even a common man with basic knowledge can directly approach the court.
3. Transparency in the system and reduction of corruption to a great extent.
4. Appointment of efficient and clean professionals as judges.
5. Ensuring the required standards in the legal professional or the person concerned.

Contributed by – Suman Meena