GUARDING THE GUARDIANS- NEED FOR STRONGER JUDICIAL ACCOUNTABILITY? BY REHAN AHMAD

INTRODUCTION

“Constant experience has shown us that every man invested with power is apt to abuse it, and to carry his authority until he is confronted with limits.”

–        Montesquieu

Exercising power without being accountable leads to chaos and corruption. Corruption is a plague which has corrosive effects on society. It compromises democracy, rule of law, leads to violation of Human Rights, disrupts market and standard of living and encourages crimes, terrorism etc. India exercises Separation of powers where functions of the government are divided between three independent wings; legislative, executive, and judiciary. Their work is to make rules, execute the rules made and adjudicate disputed rules respectively.  This separation of powers brings accountability and restricts the government to take arbitrary actions so that our rights and liberties are safeguarded. However, the allegations made against the judges draw our attention such as, accusations of corruption against Judge Soumitra Sen and Chief Justice of Karnataka High Court P D Dinakaran, there arises a question ‘who is judging these judges?

The most important principle of Separation of powers is the principle of checks and balances. This theory suggests that no organ of the government should be given unchecked powers. It acts as a bridge between all three organs by checking and restraining the power of one organ by the other two. Legislature passes laws which are interpreted and tested by the judiciary; if any law violates the constitution it is struck down and is declared null and void. Here, the Legislature is accountable to the citizens who have elected them and therefore, Judiciary serves as the guardian of the constitution and protector of fundamental rights.

MEANING OF JUDICIAL ACCOUNTABILITY

Lord Woolf once said that “the independence of the Judiciary is not the property of the Judiciary, but a commodity to be held by the Judiciary in trust for the public. The judges must be independent in applying law and rendering judicial decisions equally to all citizens in the country. Most of the democratic countries have adopted the principle of Independence of Judiciary in order to protect their judges from threats and pressures from litigants or any society’s criminal element. However, the term independent has been misused continuously and has become the sole reason for the growth of enormous power. It is clear that independence from the executive wing and legislature wing should not be understood as independence from accountability. Oxford Dictionary defines the word ‘accountable’ as ‘responsible for your own decisions or actions and expected to explain them when you are asked’. In other words it means to take responsibilities for your actions and decisions. It is of utmost importance in democracy, however, the manner of enforcing accountability varies from institutions to institutions but no public institution is exempted from accountability. The highest place in people’s conscience and confidence is the Indian Judicial System; people reach out to the judiciary as their last ray of hope when all other government functionaries fail to do their jobs. However, from the past several years judiciary is experiencing Favoritism, Nepotism, Corruption, and Bribery which is being protected by the defense of Contempt of Court and unaccountability and hence results in undetected misconduct and crimes of the judges. This spreading chaos shall be restricted by the democratic disciplines. Nonetheless, the credibility of the judiciary fading away from the minds of rational people is one of the greatest threats of the independence of the judiciary.

The exemption of judiciary from the Right to Information Act, 2002 (RTI Act) can be considered as a clear example of judiciary being unaccountable. The RTI Act was introduced in Indian legislation to increase transparency and accountability; however, the higher judiciary did not comply with the same. In the case of Manohar v. State of Maharashtra & Anr[1], Supreme Court stated that “it is undoubted that transparency is important or rather say sine qua non to democracy, and if an authority is made accountable, probability of errors becomes less The protection of Rule of Law in the country has also been assigned to the bold and independent judiciary, for which the judiciary needs to be transparent and constitutionally sound.” Further the court also held that “The judiciary when setting down standards of morality and behaviour for others should also make sure that they follow it on their own.”

Judicial Accountability: The Judges Being Judged

Considering the crucial role of Judiciary in Indian context and the possibility of misusing the power granted, two provisions were drafted by the constitution makers which gave the Legislature and the Executive some control over the Judiciary related to the appointment and impeachment of judges.

  1. 1ST PHASE: THE JUDGES CASE ONE:

In the case of S.P. Gupta v. Union of India[2]the matter of appointment of High Court judges was brought before the honorable Supreme Court. The question which drew the attention of the judges was that whose opinion amongst the various functionaries participating in the appointment of a High Court judge should have importance in the process of selection?

The court held that the Central Government has solely and exclusively the power of the appointment and opinion of the Chief Justice of India and Chief Justice of a High Court were consultative and the Constitutional functionaries’ opinions can be overridden by the Central Government. Further Justice Bhagwati also stated that “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 an appointment.”

  1. 2ND PHASE: THE JUDGE CASE ONE:

However, in the case of Supreme Court Advocates on Record Association v. Union of India[3]the matter was brought again into consideration before a 9 Judges bench. The court deliberated on the issue raised i.e. the constitutional purpose of selecting the best to ensure the independence of judiciary. The court observed the word ‘consultation’ [in Article 124(2) and 217(1)] with respect to the Chief Justice was introduced as the court realized that the knowledge, assessment of the worth of the candidate and also his suitability for appointment lies best in the hands of the Chief Justice. Hence, the Executive primacy was replaced with the Chief Justice of India by the Supreme Court. Also the Collegium that decided the matters was considered as a cabal due to lack of transparency. But the question arises here is who are the CJI and other members of the Judiciary answerable to?

The 9 Judges bench tried to answer the question by making the CJI, the Chief Justice of the High Court and also the Supreme Court and the High Court Judges responsible for the functioning of the courts and will have to face the consequences if there is any unsuitable appointment which gives rise to the criticism.

CONCLUSION

Now the question is, if a judge is abusing his power or is being negligent or is acting in contrary to the interest of the people then what actions are to be taken against him/her?

Many will argue that we have Article 124 that lays down the elaborated procedure for removal of a judge on the grounds of ‘proved misbehavior or incapacity’ but the points that need to be considered here are; first, that the prescribed procedure is very elaborated i.e. the proved misbehavior or incapacity should be of a very high degree. Secondly, the provision is very complex in nature and reflects loopholes. However, it is not wrong to say that judges in India must frame a Judicial Code of Conduct by themselves and should strictly follow it. They should make themselves accountable to the people and restore the declining faith of the citizens in the judiciary. The UPA government in its second tenure tried to implement The Judicial Standards and Accountability Bill in 2010, the bill was passed in the Lok Sabha on 20/03/2012 but was never taken to the Rajya Sabha because of some inexplicable reasons which were never released in public. Later, NDA government introduced National Judicial Commission Appointment Act and also the 99th Amendment to the Indian Constitution, which was passed by both the houses and was ratified by more than half of the state legislatures. However, it got struck down by the Supreme Court on the ground of violation of judicial independence. The judicial independence needs to be looked at with the lens of jurisprudence of checks and balances. Parliament must constitute a Permanent Standing Committee for appointments and transfer of judges that should be of 13 members including the chairperson of the Rajya Sabha and the Speaker of the Lok Sabha and for every appointment of the judges there must be two-thirds majority confirmation. Furthermore, The Judicial Standards and Accountability Bill should also be re-introduced. The main motive behind the independence of the judiciary should be to deliver expeditious and impartial justice as people have the right to get justice, irrespective of their status.

FOOTNOTES

[1] Manohar v. State of Maharashtra & Anr (2012) 13 SCC 14.

[2] S.P. Gupta v. Union of India (1981) Supp SCC 87.

[3] Supreme Court Advocates on Record Association v. Union of India AIR (1994) SC 268.

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