Coverage of this Article
- India is the world's largest democracy and has the world's longest Constitution.
2. Independence and Accountability
- According to Article 129, the Supreme Court is empowered to punish for self-inflicted contempt.
3. THE JUDICIAL ACCOUNTABILITY
- Present Judicial Accountability Bill
4. Mode of Operation
- Section 30 of the bil
- The conclusion from the foregoing arguments is that the constitution's founders long ago understood the value of judicial independence.
India is the world's largest democracy and has the world's longest Constitution. As is clear from the preamble, the people have granted themselves the Constitution and have solemnly resolved to establish India as a Sovereign Socialist Secular Democratic Republic that ensures liberty, equality, and justice for all of its residents. The Indian people have decided to implement a democratic-republican participatory system of government in order to fulfil the aforementioned goals and ambitions.
Being a democratic republic, the government is now run by, for, and with the people.In order to fulfil the resolution and aspirations of the Indian people, the government must work to transform India into a utopian sovereign socialist secular democratic republic and guarantee "Liberty" of thought, expression, belief, faith, and worship, "Equality" of status and opportunity, and "Justice" - social, economic, and political - to every Indian citizen.
Independence and Accountability:
The United Kingdom is where the idea of "Independence of the Judiciary" first appeared. The American Constitution's Article III states that judges of the Supreme and lower courts "shall hold their positions during good behaviour and shall, at specified times, receive for their services, an incentive which shall not be weakened during their continuance in office." The USA also adopted this principle. Judicial independence is safeguarded by a number of clauses of the Indian Constitution because it was modelled after the United States and the United Kingdom when the Indian people ratified the Constitution.
Despite being a principle that most democratic countries have embraced, "Independence of the Judiciary" is still not quite clear what it means even after years of existence. Through its provisions, our constitution just mentions independence; nowhere is it specified what this independence actually entails. 1.
Article 50, which contains the Directive Principles of State Policy and makes provision for the separation of the judiciary from the government, is a constitutional clause that guarantees the independence of the judiciary in India. In the State's public services, it says, "The State shall take steps to separate the judiciary from the executive." Securing the judiciary's independence from the executive is the goal of the Directive Principle.
"No discussion shall take place in the Legislature of a State concerning to the conduct of any Judge of the highest court or of a High Court in the discharge of his duties," states Article 211 of the Constitution. Similar language is found in Art. 121, which states that "No discussion shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties, except upon a motion for the presentation of an address to the President praying for the Judge's removal." The Supreme Court and the High Court are therefore protected against political criticism by the Indian Constitution, which also guarantees their independence from political influence and interference.
According to Article 129, the Supreme Court is empowered to punish for self-inflicted contempt.
Similarly, Article 215 stipulates that each High Court should have the authority to impose sanctions for contempt of itself.
Judges' salaries are covered by Article 125 of the Constitution. Given that their salaries and benefits are set, judges' salaries and benefits are another indicator of their independence. For Supreme Court justices, they receive compensation from the Consolidated Fund of India, and for High Court judges, from the State's Consolidated Fund. According to Article 125(1), and to such rights in regard for leave of absence and pension as may from time to time be determined by or under law made by Parliament and, until this is done, to such privileges, allowances and rights as are specified in the Second Schedule: Provided, however, that neither the privileges nor the allowances of a Judge nor his rights in respect of leave of absence or pension shall be determined by or under law made by the Supreme Court.
A Supreme Court judge must retire at age 65, according to Article 124(2), while a High Court judge must retire at age 62, according to Article 217(1).
THE JUDICIAL ACCOUNTABILITY
Present Judicial Accountability Bill
An dynamic and healthy parliamentary democracy is built on participation. Whether it be through voting in legislative elections or using the NOTA button to express our disapproval. The sacred operation of the three institutions of government is guaranteed by our constitution as a necessary component of an ideal democracy, thus the new bill's initiative to allow for participation in the courts through a complaints process is to be applauded. It simply seems sense that the removal/disciplinary process should be started indirectly by our Parliamentarians via the impeachment resolution as well as by regular individuals as Article 14 declares all citizens equal before the law (except in J&K)24.
Mode of Operation
The Judicial Accountability Bill, 2010, which was approved by the Cabinet on October 5th and aims to replace the Judges (inquiry) Act of 1968, has received harsh criticism from both the civil rights community and the legal community.
They have all declared loudly and in unison that the bill, as it is currently written hastily and enthusiastically, is a cure worse than the disease. The civil society is outraged over the bill's exclusion of RTI, while the legal community is shocked by the strict scope of Section 2(1). Therefore, the authors have listed the following benefits and drawbacks of the bill while keeping in mind the rulings of Ex-Captain Harish Uppal v. UOI25 (it can be easily seen that this weapon does more harm than justice; the sufferer is society and the general public), SP Gupta v. UOI26 (independence of the Judiciary is the basic feature of the Constitution), and the Latimer House Principles of 2003 (the oversight mechanism must not hamper.
In accordance with Section 7 of the bill, incompetence has been made a reason for a judge's dismissal from his appointed position. While the legislature made a commendable attempt in defining incapacity in Section 2(d), the process for determining this so-called impairment is still unclear, adding another barrier.
Investigation Agency—likely the most crucial component in proving a judge's guilt—is regrettably also the most structurally flawed because of Sec. 22(2), which states that the JOC will decide both the investigation agency's membership and the length of each member's term. This will overpoliticize the appointment process and turn the investigation agency into a breeding ground for favouritism and nepotism. As it immediately puts the members of the investigative branch at the JOC's mercy and merely increases opacity, this furthers the investigation's bias.
The exclusion of the Bill from the scope of the RTI and the introduction of a whitewash caveat that the Judicial Oversight Committee will have the authority to reveal the papers in the public domain under Sec. 34(1) (b) are arguably the most contentious provisions. The authors can safely infer that it may have been a genuine oversight on the part of the Legislature since the long title of the act itself calls for the creation of a "credible and expedient mechanism for investigation" but there is no amicable explanation provided by the Legislature for the exclusion and under Section 30 of the bill the investigating agency has the power to form its own rules for investigation.
One must understand that the citizens of nations like India depend on the court to help them with many of their problems, therefore maintaining continuous norms of accountability that give the Indian judiciary this power is crucial. In contrast, an accountable judicial institution can only result in a stable political environment and a much more effective system of governance. The moment judicial accountability wavers, it creates a vacuum where both the political class and vested interests would take advantage of the situation to further undermine the credibility of the judiciary.
It is also understood that, if taken too far, judicial accountability can gravely undermine judicial independence, thus it is crucial that we find the correct balance between the two.
The conclusion from the foregoing arguments is that the constitution's founders long ago understood the value of judicial independence, which the courts have recognised by designating it as a fundamental element of the document. It is common knowledge that laws must evolve in order to fulfil the demands of a society that is always evolving. Similar to this, judicial independence must be viewed in light of how society is changing.