This article has been written by Oishika Banerji, from Amity Law School, Kolkata. This is an exhaustive article that deals with the need for stronger judicial accountability.
The judicial system in any country is an independent and impartial set up in any nation to remedy injustice. Justice is declared to be blind and therefore, it is on the judges to decide how to provide justice, keeping in mind that justice should be rendered to each and every citizen of the nation. Therefore, there comes the need to hold these judges to be accountable for their verdicts as it is the decision taken by the judges that decide the fate of the parties involved in a case being heard by the court.
Accountability is declared to be the sine qua non of any democratic nation as it secures the rights provided to the citizens and delivers justice that is meant to be equal for all. It is true that the judiciary is an independent body and it does have the authority to decide on its own way over a case. But the decisions that are made subsequently affect the public at large and therefore the judges should be held accountable for the decisions they make. Therefore, in order to regulate its function and promote impartiality among the judges while making a decision, the judiciary must strike a balance.
Remembering the important role of the judiciary and its influence on the public, there arises a necessity to judge the judges to safeguard the judiciary from abusive powers of the judges. Internal conflicts in the judiciary affecting the role of the judiciary are detrimental for the entire nation. An increase in such conflicts calls for the need for stronger judicial accountability so that justice that is to be delivered is not compromised. Judicial accountability is a two-fold mechanism. The two folds are provided below:
- The necessity of the judges to provide reasons for the decisions they make in order to maintain transparency in decision-making.
- The circumstances associated with the judges relating to their tenures, which also give rise to the disciplinary measures to be undertaken by them.
- By the term judicial accountability, it means that the judges are responsible for the decisions they deliver all by themselves. It is the transparency in the decision-making process that helps in bringing the accountability. Every public body is responsible for answering the public for the decision they take and the function they carry out.
- The extent of accountability differs in terms of the work being carried out and the functions that are discharged by the public body or institutions. Similarly, the judiciary which is one of the wings of the government is to be held accountable as well. But the judiciary is not subject to the same level of accountability as the executive or the legislative wings of the government.
- The judiciary is supposed to be an independent body responsible for delivering justice and holding the integrity of the Constitution and therefore it has to be impartial in its action as well. But all seems to be not well in the judiciary as well. Conflicts associated with appointment procedure, execution of the functions and powers are arising between the judges or between the judges and the Chief Justice of India which have become a common sight nowadays.
- Judicial accountability takes place by means of the provisions that have been laid down relating to the review, appeal and revision. The Constitution of India provides for the removal of the judges of the Supreme Court of India as well as the High Courts for misbehaviour and arbitrary regulation of power by means of impeachment. The provisions for the removal of judges rests on Articles 124(2) and (4) for the judges of the Supreme Court whereas for the judges of the High Courts the removal provision rests on Article 217.
- The removal is carried out by two-third of the votes provided by the members of each House of the Parliament. To date, only one impeachment proceeding was initiated against a Supreme Court judge but the procedure failed as the limit of the two-thirds vote was not achieved as one of the political parties in the parliament abstained from casting vote against the judge. This incident reflected that the procedure to carry out impeachment was indeed filled with several stumbling blocks in the form of political, social, economical aspects that harmed the independence and the integrity of the judiciary. This became a reason to bring a stronger system of judicial accountability.
- Judicial independence provides the judges with an ample amount of freedom but does not provide them with the authority to misuse the freedom affecting the public interests. Whenever judges or judicial officers are found to regulate corrupt practices in delivering justice or carrying out the legal procedure which results in contravention with public trust, the same must be subjected to investigation by a fair procedure to prohibit and restrict the judge from doing so.
- Article 124(5) of the Constitution of Judges (Inquiry) Act, 1968 came into force in order to regulate the investigation procedure and to find proof showing incapacity and misbehaviour on the part of the judges of the Supreme Court and the High Courts which are supposed to be presented in front of the Houses of Parliament while they cast a vote. But a fact not to be ignored is that the implementation of this Article is subjected to several loopholes as well.
India is a democratic country and the Preamble in the Constitution is painted with the word called justice which has been guaranteed to all citizens of the country in terms of social, political, and economical. The people of this democratic country are entitled to certain rights which include the right to be informed as well. Accountability is necessary for those possessing power and a dignified position and therefore is a need in order to maintain democracy and prevent it from getting eroded. In any democracy, power and position are associated with responsibilities otherwise the same goes against the very establishment of the democracy. Judges are the representatives of law holders in the courts which is an agency of the judicial system. The credibility of the judicial system, therefore, lies in the hands of these judges.
Due to several loopholes and drawbacks of the court system recent instances that have taken place in India reflect the frustration and distress the public have developed towards the courts. Judiciary which is one of the most important wings of the government should, therefore, be held accountable for the evolving derogative values within it that are causing severe effects on the country and its people. Several countries all across the world have the provision for accountability of the judiciary and therefore this concept of judicial answerability is not a new one. Several renowned judges themselves have held that as every profession has some ethics and values to be abided with, the profession of a judge should also have ethics and morality that every judge mandatorily should follow while conducting in the court. Some of these ethics have been listed below:
- Honest decisions: The whole question of judicial accountability arises due to the influence and biases involved in judicial pronouncement. A judge has to be neutral in his approach thereby ensuring that justice is provided to all. Any wrong decision by the judge that has been made with honesty, good faith, and fairness can no longer remain wrong.
- Abiding by the principle of natural justice: The two basic rules of the principle of natural justice that are Audi Alteram Partem and Nemo judex in causa sua should be applied in every decision taken by the judges. This eliminates any kind of irrational and arbitrary action on the part of the judges along with being impartial.
- Administration of justice: One of the most recognised ethics of all judges is to administer proper justice without any kind of fear or influence. In a recent incident that took place in Bihar which involved the killing of the person under trial during the court session which was followed by the lynching of a person who was suspected of being a thief shows that the administration and regulation of justice are not taking place in a correct manner and the same should be put under check.
These codes help in moving a step forward towards the attainment of judicial accountability. A judge is also said to avoid too much socializing in terms that prohibits the judge from functioning independently for being social, making the judge be influenced to a greater extent. Although this should not be counted as an ethical value to be followed by the judges, the Supreme Court in the case of Ram Pratap Sharma v. Dayanand opinionated that a judge should avoid accepting invitations from any business, political party, commercial entities to avoid getting influenced in any way. It is rather an act of caution that needs to be followed.
At present, the judges of the Supreme Court and the High Courts are appointed by a collegium system which includes all the senior judges of the Supreme Court. Although there have been many debates associated with this method of appointing judges, the collegium system is one where transparency is absent in totality. Some refer to this system as a system of bias as well for the credentials of the judges are not taken into concern in this system. Therefore the courts in India are provided with an excessive amount of unchecked powers compared to any other court in the world. Removal of judges can take place in no way other than impeachment which again depends on the majority of votes of both the Houses of the Parliament.
Therefore the need for stronger judicial accountability is increasing on an everyday basis. Whenever an allegation that is supported by documents as evidence, is brought against a judge, the same gets very less coverage by the media for there exists the fear of contempt of court. The judges of the Supreme Court and the High Courts are manifested with the power to charge any person for the criminal contempt of court and subsequently send him behind bars. Setting up of judges associations with a strong framework can help the judges to deliver judgment with independence but with a check in the same.
Accountability can be considered as one of the cornerstones for establishing good governance. Judicial accountability can be termed as a corollary to judicial independence. Some of the challenges in implementing judicial accountability are listed below:
- The most important challenge for the regulation of judicial accountability is that the judiciary is an independent organ and the independence of the judges cannot be done away with. Article 235 of the Indian Constitution provides for the authority any High Court has over the Subordinate Courts which clearly hints on the effective mechanism necessary to enforce accountability.
- There exists no other way in which a judge can be removed except through impeachment. Impeachment is a process that involves a lot of hurdles. This is the other challenge faced by the judiciary in bringing in judicial accountability.
- The influence of politics in the judicial system is another challenge for the judiciary to perform with integrity. The judges failed to make decisions with transparency and fairness if they are dominated largely by the political bodies in the country. This indeed becomes a challenge for the judiciary to implement accountability alongside securing the independence of the judiciary.
Need for stronger judicial accountability
The demand for stronger judicial accountability with respect to today’s scenario is arising due to the following factors:
- Change in demands of the public belonging to a welfare State: India as a democratic country is fast changing with more and more citizens are seeking education which is raising the awareness of the rights and obligations among them. Public participation has also taken a rise from what was a decade before. The willingness to know as to how things being regulated in the country is required to be fulfilled by increasing the accountability on the part of public officials and institutions which is inclusive of the judiciary also.
- Absence of remedy for regulating misbehaviour among judges: In several judgments delivered by the courts, the one thing that has come under notice is that there are no remedies to regulate the misbehaviour or mistakes committed by the judges except just removing them through impeachment which is again a long process. The court in the case of Sub-Committee on Judicial Accountability v. Union of India took into the observation that there exists no provision in any statutes to charge a judge of the Supreme Court or the High Courts for their misbehaviour during a court proceeding. This absence calls for stronger judicial accountability to keep intact the uprightness of the judiciary.
- The legitimacy of a judicial procedure: Constitutional legitimacy is essential to be present and abided by in any decision taken by the judges or any law passed by the judiciary. In order to ensure legitimacy, the judiciary should be held accountable as well to show that the decisions are taken by then or the law brought to force by them is abiding by the Constitution of India.
- Knowledge about the standard of the judges practising in the courts: The credentials of the judges practising in the Supreme Court of India or the High Courts are kept private from the public in general. There has also been the appointment of several judges based on political connections, biases which are disadvantageous for the judiciary. In order to avoid the same in the future, stronger judicial accountability is necessary to ensure the delivery of justice with fairness and clarity.
- Reservation of seats in the judiciary: In light of the presence of both the minorities as well as the majorities in India, demand as to reservation of seats in the judiciary for the weaker and the depressed section of the society has been brought to focus. Accountability on the part of the judiciary is necessary to ensure that such a thing is carried out in some way or the other. The only way to carry out the same is to treat the judicial service examination as the sole examination to enter the judiciary for all.
- The necessity of efficiency: At present, there is a presence of thirty-one judges in the Supreme Court of India but astonishingly only a few judgments passed by the court have brought in differences and change in the existing framework. Therefore this system filled with loopholes and deficiencies calls for efficiency in the judges and in the system. Accountability helps in keeping a check on the judges and their activities. If the judges are checked and are restricted from accessing excessive power then the efficiency of the judicial system will automatically be restored.
- The necessity of transparency: Judiciary is the only organ of the government that delivers justice to the common citizens. Therefore, in order to successfully achieve this role of the judiciary, there comes a requirement for accountability on the part of the judicial system. It is not that accountability was absent from the system but negligence on the part of the judges in delivering judgment existed and still exists. This calls for stronger judicial accountability as the Chief Justice of India has clearly mentioned that the judiciary will not be subjected to the Right to Information Act, 2005.
- Absence of provision to review the Supreme Court’s decisions: There exists no provision in the Indian Constitution which directs in reviewing the Supreme Court’s decision. Except for the Supreme Court itself, there exists no other body or council to have a check on the decisions passed by the apex court. But the three organs of the government are not interdependently independent therefore the judiciary cannot resist the want for security, accountability, and transparency. In this 21st century, there is not only the necessity for the speedy delivery of justice but also justice that will include honesty, fairness and accountability on the part of the judiciary.
These are some of the instances that call for stronger judicial accountability in recent times.
Judicial independence and judicial accountability: the balance
Judicial independence is a need to ensure the efficient delivery of justice to the common people of the nation. Judges are supposed to protect the law and remedy injustice without any favour or fear on their part. Judicial accountability as has been mentioned earlier also is reasoning the judges, the regulators of law about their decisions and verdicts which has an impact on the entire nation. With a microscopic view on both these terms, it can be said that both are contrary to each other. But both have a similar level of importance to be present in the judicial system of the country. One of the reasons for having stronger judicial accountability is to strike a balance between judicial accountability and judicial independence.
Both these concepts are believers of the rule of law that is the supremacy of law over all men. Further judicial accountability is necessary to bring in fair and impartial hearings by the judges similar to judicial independence which promotes fair and transparent hearing and does not benefit the judges as having been perceived in several cases. But these similarities are handled by the two concepts in different ways and therefore independence can never be equated with absolutism. Rather they can be considered to be complementary with each other. The aim of both these concepts is to bring about judicial courage and judicial integrity is to be enforced together to increase the efficiency of the working of the judicial system. Both judicial independence and judicial accountability first take a look at finding correct judges who can work with courage, diligence and fairness to correctly carry out their job.
This is the essence of both these concepts which are required to be taken into concern. The balancing of these two concepts should be out on the basis of the needs of the country and the quality of judges already functioning in the courts. Rather than competing with each other, judicial accountability and judicial independence should be regulated together to bring in impartial justice to the citizens of the nation. It is only through balancing these two concepts, can stronger judicial accountability be brought into the nation.
Doctrine of Separation of Powers
As India is a democratic country, all the three organs of the government are supposed to be accountable for their very function and duties. The judiciary cannot be allowed to remain absolute and unaccountable. The doctrine of separation of powers provides that the three organs of the government are independent of each other and are subject to their own functions. In India, as the doctrine does not have a stronghold, the organs of the government are interdependent with each other. It is only through the process of checks and balances can the organs of the government allow the doctrine of separation of powers to be activated. The checks and balances should be carried out on one organ by the other two organs in order to bring in an equitable relation among the three organs of the government to restrict arbitrary use of powers by any one organ of the government. The doctrine of separation of powers provides help to the judiciary to bring in strong accountability on its part to uphold the correctness of the judiciary. The doctrine instead makes the work easier for stronger judicial accountability to take a shape. Therefore a need for stronger judicial accountability can be met if the doctrine of separation of powers is carried out effectively.
- The Supreme Court in S.P. Gupta v. Union of India rejected the claim made by the Central Government to extend protection against disclosure of confidential documents to the public in general. The court clearly mentioned that disclosure of documents is only restricted to those documents that are contrary to the interest of the public in general and not any other documents. In this case, the petitioner had asked for information about the transfer of judges and their appointments by the Chief Justice of India.
The court observed that in this situation, the knowledge about transfer and appointment of judges is immensely important for the public to have. This is one very essential judgment delivered by Justice Bhagwati regarding the essentiality of strong judicial accountability. The court agreed to the fact that they are accountable to the public to answer queries related to the decisions they take for the interest of the public. This has been granted to the public by Article 19(1)(a) of the Constitution. It is not that the courts always adhered to being accountable for their judgments.
In the Mid-Day Journalists case, there was the involvement of corruption in the decision made by the judges. The Midday journalists were convicted for contemplating the court for publishing certain evidence against one Justice who had passed the order to seal all commercial properties in and around the residential areas of Delhi. This order was passed after Justice’s sons were involved in a partnership with some of the recognized shopping malls.
Therefore the order passed by the Justice was made in consideration with the benefits of his sons. Although no actions were taken on the part of the court against the Justice, it is only after the journalists were convicted the general public could come to know about the same. This incident reflects that there exists a fear in part of the media fir regulation of arbitrary powers by the Judges whenever an investigation involving the judiciary is carried out. Therefore this kind of situation calls for the need for strong judicial accountability.
- In the case of K. Veeraswami v. Union of India and Others, the Supreme Court of India compounded the problem associated with judicial accountability. The Supreme Court held that no investigation of a civil or criminal offence can be carried out by a judge belonging to the Supreme Court or the High Courts without taking the written approval from the Chief Justice of India. This judgment of the court was indeed detrimental for the entire judiciary and raised questions on the integrity of the court system. Due to such a judgment, it has been very rare that a judge has been subjected to investigation. This, therefore, deletes the concept of judicial accountability as well. This judgment had overturned the decision taken by the court in S.P. Gupta v. Union of India and Others. It has been long known that the only way of removing a judge from his duty is by impeachment. But this process has not been successful yet.
- In the case of Sarojini Ramaswami v. Union of India & Ors, also known as the Ramaswamy case, the impeachment issued by the apex court failed badly due to the lack of majority vote from the Houses of the Parliament. Justice Ramaswamy was charged with misusing the court’s fund but was not impeached for the refusal of one of the parties to cast a vote. This case brought to light the drawbacks of the judiciary and the need for strong judicial accountability to keep in check such issues happening in the future. The judgments that have been listed above makes us realize that stronger judicial accountability is welcoming because it ensures the correct and fair delivery of justice to the people. Great scholars have said that justice must not only be delivered but also must see to have been delivered. Therefore for the judiciary to be certain in its decision-making activity, the judiciary must be accountable for its activities.
The judiciary has been provided with key responsibilities to be carried out. Transparency and fairness are the two important ingredients that are required to be adopted by the judges who are the agents of the courts. In order to increase the faith of the citizens in the judiciary, the judiciary should have a stronger and more developed system of accountability in order to bring in clarity to the decision-making activity. Several allegations have been raised over many judges of the Supreme Court and the High Courts along with the Chief Justices on the fact that they were partial in coming to a conclusion of a case. The only way such allegations can be erased away is by making the judiciary more accountable to the public. Therefore keeping the facts that have been discussed, the issues that have been raised, and the cases that have been mentioned the conclusion that one can reach is that the country requires stronger judicial accountability in order to provide justice to every citizen of the nation.
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