Author Name:   swatisehgal3

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.

Judicial Accountability Bill

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. No public institution or public functionary is exempt from accountability although the manner of enforcing accountability may vary depending upon the nature of the office and the functions discharged by the office holder. The judiciary, an essential wing of the State, is also accountable. Judicial accountability, however, is not on the same plane as the accountability of the executive or the legislature or any other public institution. The judicial system deals with the administration of justice through the agency of courts. Judges are the human stuff which presides over the courts. They are not merely visible symbols of courts; they are actually their representatives in flesh and blood. The manners in which judges discharge their duties determine the image of courts and the credibility of judicial system itself. In India from time immemorial judges have been held in high esteem.

The independence and impartiality of the judiciary is one of the hallmarks of the democratic system of the government. Only an impartial and independent judiciary can protect the rights of the individual and can provide equal justice without fear and favor. The constitution of India provides many privileges to maintain the independence of judiciary. But of late, even here things are getting increasingly disturbing and one is unfortunately no more in a position to say that all is well with the the guardian of our constitution. Judicial accountability is a facet of judicial independence and recently, the judiciary has been greatly in the news, but for all the wrong reasons. A string of judicial scandals have erupted in the recent judiciary.

A need definitely is there to make judiciary accountable, as derogation of values in judiciary is far more dangerous than in any other wing of the government. The Ghaziabad district court Provident fund scam, the 15 lakh cash-at-judges-door scam of Chandigarh, and the Justice Soumitra Sen case of Calcutta. Some of these have arisen due to the lack of transparency in the selection and appointment of judges. In many cases, persons of doubtful integrity come to be appointed and confirmed through a totally secretive, ad hoc, arbitrary and non-transparent process of selection and appointment through a Collegiums’ of judges of the High Court and the Supreme Court.

Judicial accountability and answerability of the judges is not a new concept. Several countries in their constitutions have already provided for ensuring accountability of judiciary. Thus, 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. There is no reason why the judiciary should not be accountable to the community for due performance of the functions vested in it. Power is given on trust and judicial power is no exception. But at the same time it must be developed consistent with the principles of judicial independence.

The challenge, however, is to determine how the judiciary can be held to account, consistent with the principle of judicial independence. There is a need to 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. Regular election of judges or their recall by popular vote, is neither required nor recommended. Further enforcement of judicial accountability should be done by the judiciary itself. Any external effort would be dangerous for the judiciary's independence. Impeachment as has been seen does not work.

The Union Cabinet on December 13, 2011 cleared the Judicial Standards and Accountability Bill, 2010 as part of its efforts to bring before Parliament a series of Bills to tackle graft in the country. Aimed primarily at cleansing the judicial system of India, the Bill's key objectives, as enunciated in its introductory text, includes a code of judicial standards and accountability of judges, establishment of credible and expedient mechanisms for investigations into individual complaints for misbehavior or incapacity of the judges of either the Supreme Court or the High Court, regulating the procedures for such investigations as well as presentation of an address by Parliament to the President in relation to proceedings for removal of judges.

According to the proposed Bill, all judges of the Indian judiciary are expected to declare their assets and liabilities to the requisite authority which can be reproduced as and when investigations are necessary on charges of assets disproportionate to known sources of income.

The Bill also lays down specific judicial standards for judges, including the cases involving relatives and family members not to be decided by the judges related to them. It refrains the judges from offering political views on any subject matter to be specifically decided by them and debars them from hearing cases involving organizations, societies, trusts etc. in which his family members/relatives etc. have a stake.

One of the major highlights of the Bill is the establishment of the National Judicial Oversight Committee, the Complaints Scrutiny Panel and an Investigation Committee. While the Investigation Committee as the name suggests has the responsibility to inquire into charges of misbehavior or incapacity of the judges, it is the composition of Oversight Committee that merits serious attention. One of the foundational principles of liberal democracy is the need to maintain distance between the judiciary and the executive i.e. the judiciary in its decision making process ought to follow the rule and arrive at a decision on purely reasonable and logical grounds and any political pressure from the executive must be resisted and rejected at all costs.

The rot which has set in certain sections of the judiciary is a result of arriving at judicial decisions on grounds extraneous to the cogent process of decision making. It is herein that the Oversight Committee steps in to ensure that the judges dutifully perform their requisite functions and avoid what the Bill terms as "misbehavior" or incapacity. The Oversight Committee will consist of a retired Chief Justice of India as the Chairperson, a judge of the Supreme Court nominated by the sitting Chief Justice of India, a Chief Justice of the High Court, the Attorney General for India, and an eminent person appointed by the President.

Considering the fact that in the past allegations have been made against even the senior most judges of the Supreme Courts, it is necessary to appreciate that to decide on matters involving previous colleagues does have the potential of a bias. To ensure this, it is necessary to include members from outside the judiciary, especially those with strong legal credentials. These could include law professors, social activists with a "substantive understanding of the law", corporate lawyers etc. This will achieve twin objectives i.e. (a) deflate the widely held opinion, especially by certain senior lawyers of the Bar, that the higher judiciary often has "vested interests" and therefore cannot be expected to take a strong stance against corruption, nepotism, misbehavior etc, (b) will help to restore a much needed semblance of transparency in the public perception that the judiciary is open to other members enquiring into their misdeeds if any and has nothing to hide.

The biggest fear that has been expressed that there will be unnecessary interference in the workings of the judiciary is unfounded and unsubstantiated by any logical reasoning. It will in the longer run improve the public understanding of certain pertinent issues which have plagued the judiciary and will prevent such occurrences in the future. The judiciary which is still revered by many as credible, fair, sensitive and an institution of last resort will get a much needed respite.

The Scrutiny Committee empowered with the powers of initial investigation has the authority to screen out frivolous or vexatious complaints. As a penalty measure, it has also ensured a rigorous imprisonment of up to 5 years and a fine up to five lakhs of rupees. Keeping in consideration the presence of motivated interests to defame the judiciary, it is indeed a commendable provision, though the penalty measures appear to be a trifle too harsh. With respect to the motion to remove judges, it can be introduced in Parliament by the Members of Parliament. If the notice is admitted, it can be referred to the Oversight Committee for enquiry.

With regard to the High Courts, it is necessary that the proposed changes as stated above in the Oversight Committee be ensured since corruption in the High Courts is often rampant and in some cases it is institutionalised and considered the norm.

The Judicial Accountability Bill, looked at in a holistic manner, is indeed a step ahead to restore some of the fundamental values in the judicial bodies of the government i.e. integrity of the judges, transparency, independence of judiciary and decision making derived from reasoned analysis at all levels of the judicial architecture in the country.

The author can be reached at: swatisehgal3@legalservicesindia.com

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