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Chief Justice of India S.H.Kapadia, on the Independence Day celebrations organized by Supreme Court Bar Association, made it clear that the judiciary was not afraid of laws to make judges accountable, cautioned the government not to tinker with its independence. He said-“I would request the government that accountability be balanced with judicial independence.”In enacting laws, the concept of judicial independence should not be lost sight of. For, “decisional independence and structural independence are more important when you are required to balance accountability and judicial independence.”[1]

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. [2] Clearly, the concept of ‘judicial accountability ‘refers to making the judges answerable for their decisions in the court of law.

The concept of judicial accountability in India is considered in two ways. First aspect is the accountability in higher judiciary in India for its judgments, i.e. having the judges responsible for their decisions. The second aspect is with respect to the institutional methods of appointing the Judges, removal of Judges and the inhibitions to the criticism of their work but the ‘law of contempt of court’ [3]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. Indian polity is under severe strain. Faith of the people in the quality, efficiency and integrity of governmental institutions stands seriously eroded.

Accountability under the Indian Constitution

Among the constitutional limitation of judges, the most important one is the provision for ‘removal of judges ‘of the high court /supreme court by address of the Houses of Parliament to the President on the ground of ‘proved misbehaviour or incapacity ‘This is provided in Article 124(2) and (4) in respect of judges of the supreme court and in view of Article 217, that the 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 misbehaviour or incapacity of a judge of supreme court/high court and for the presentation of an address by Parliament to the President and for matters connected therewith.[4]

The term judiciary and justice are always associated with higher cause. They are always looked with distinctiveness and as ultimate mainspring of justice. Indian Constitution makes it clear that, there should be an impartial and independent judicial body to adjudicate upon the matters and to act as the interpreter and guardian of the constitution. In democratic setup, power and accountability should work together as it is essential for the appropriate working of the democratic system. But recently the action of some of the judges of supreme court and High courts have brought the judiciary under the radar of the public and has caused the critical introspection in the minds of people due to the conduct of some judges. Corruption has rotten the whole system of governance in India. No organ is spared from this menace, and judiciary is no exception to it. Thus the need of better accountability in the Indian Judiciary has been on a rise.

Another point, to buttress the need of such law, is the response of Judiciary towards, Right to Information Act, 2005. This Act was enacted as a tool to effectively check corruption in our democratic system. The other wings of our system, namely legislature, executive has been duly brought under the ambit of this act for all the purposes. Any information can be obtained from the departments of both of these organs. However, judiciary has kept itself aloof from RTI, for all the practical purposes. Also, the Supreme Court has confirmed that decision of the of the Registrar General of the Court should be final and not subject to any independent appeal to the Central Information Commission. The former CJI even went to extent of saying that “any self respecting judge would not like the idea of any layman (third person) probing into the allegations against a judge and imposing punishment”.

Therefore, keeping itself outside the purview of RTI undermines the confidence of the public in judiciary, vis-a-vis the system of justice in the biggest democratic country.

Thus, it is clear that how the judiciary in our country is completely unaccountable to any other organ. It is covered under the layers of protection, and has also self insulated itself from the investigation into any criminal matter without the approval of CJI. This poses a threat to the democratic fabric of our country. In fact, in these conditions, the institution of justice cannot even be considered as democratic and therefore there is a need of a law which makes Judiciary accountable.

In the Vedic days of Ancient India, the monarch alone was the administrator of law and justice, yet the monarch was not above the law but subservient to it. His duties, rights and obligations were laid down in religious texts. The foremost duty of monarch was the protection of the subjects as laid down in the ancient Indian body of jurisprudence i.e.”Dharmashastras”.If he swerved from the accepted laws of the land, he would be punished like any other citizen of the state. History is rife with instances of injustice in exercise of judicial functions.

Justice AS ANAND was accused of using his position to get the subordinate judiciary to rule in favour of his wife and mother in law in a suit that had been barred by a limitation for two decades. In another case when the supreme court upheld the validity of the Agrarian Reforms Act, a petition filed by Justice Anand in contravention to the decision of the supreme court should have been taken up by the high court and dismissed but that did not happen and Justice Anand and his family continued to benefit from the stay order of the High Court. Serious allegations of corruption and favouritism were raised against Justice Anand and former Chief Justice of India pertaining to the period when he was the judge and the chief justice of the Jammu and Kashmir High Court.[5]Thus it shows that immediate steps are needed to be taken to make judiciary accountable as it is surmised from the above facts that the degradation of judiciary has been partly caused by its own dereliction. There is a conflict between judicial independence and judicial accountability.

Justice V. RAMASWAMY was a judge in the Supreme Court when the Speaker of the ninth Lok Sabha admitted an impeachment motion brought by 108 MPs against him for financial irregularities committed during his term as chief justice of the Punjab and Haryana High Court. The motion was, however, defeated as Congress MPs stayed away in 1993. This first ever, impeachment case provided us the instance of how impractical the impeachment proceedings are. Despite a high-power inquiry committee of three eminent judges having come to the conclusion that Ramaswami was guilty of several acts of gross misbehaviour which warranted his removal, the judge was still entitled to discharge judicial functions from the highest court of the land.

Judicial independence ensures that powerful people must confront to law. Need of judicial independence is not only for the judges, but for the people also. The term ‘accountability’ is a concept in ethics and governance with several meanings. As an aspect of governance, it has been central to discussions related to problem in the public sector, nonprofit and private worlds. In leadership roles, accountability is the acknowledgment and assumption of responsibility for actions, products, decisions, and policies including the administration, governance and implementation within the scope of the role or employment position and encompassing the obligation to report explain and be answerable for resulting consequences.

The law of human conduct has laid down considerable precedent that for the use of a device there also exists its abuse. It is evident that the absolute autonomy to the judiciary becomes a vassal of prerogative. The same has been succinctly stated by Justice Frankfurter, that men being what he is cannot be safely trusted with the complete immunity from outward responsibility in depriving others of their rights.[6]

The manners in which judges discharge their duties determine the image of courts and the creditability of judicial system itself. In India from time immemorial judges have been held in high esteem and revered as super humans but coming across recent incidents in Bihar (like killing of an under trial in the court itself and lynching a suspected thief to death) depicts that frustrated by the failure to get justice, people are slowly losing faith in judiciary and are taking law into their hands. This is highly deplorable. 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 as judiciary has to act as the guardian of our constitution. 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. This to prevent concentration of power in the hands of a single organ of the state especially in countries where judicial activism interferes with and invades into the domain of other organs. But 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. 

In India from time immemorial judges are considered to be the mainspring of justice. It is they who must respond to the cry of the society and the community that judiciary is there to serve the needs of people and to give justice to them. However the gravity of the words “your honour “appears to be diminishing at an alarming pace in recent times when we hear the stories of people who are frustrated by the failure to get justice .This shows that people are slowly and slowly losing faith in judiciary which is highly dreadful.

In a democratic country like India where powers are vested with politicians, judges and bureaucrats its accountability becomes a question of utmost importance to prevent the disaster. Accountability raises questions of quality of judgments, the accumulated arrears and consequent delay in judicial proceedings, inequalities and inequities in accessing justice, balance of power and good governance, uncertain in law arising out of conflicting opinions and the ineffectiveness of mechanisms to deal with judicial corruption.

The Judicial Standards and Accountability Bill 2010, is a legislation which aims to increase accountability of the higher judiciary in India, comprising the Supreme Court and the high courts. As stated in the Preamble and in the Statement of Objects and Reasons, it seeks to achieve this aim by establishing statutory judicial standards, instituting a system of public complaint against judges for misbehaviour and incapacity and setting up a revised administrative mechanism to enforce these standards and hear these complaints.

It seeks to devise a new “complaint procedure” under which any person may be able to file a complaint in writing against any judge of a superior court. Upon such a complaint being filed and examined, the Judicial Oversight Committee (proposed to be constituted under the statute), may either dismiss the complaint or make a reference to Parliament for the removal of the judge, issue advisories, warnings, withdraw judicial work or make a request for voluntary retirement.

The issue 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 misbehaviour 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 misbehaviour or incapacity of a judge. The present Bill, cleverly disguised as being permissible under Art 124(5), is an example of the most blatant violation of constitutional safeguards and is a cure that is surely worse than the disease. 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 theoretically be done by only one person.

It is true that judicial commissions exist in other countries like the U.S. and Canada, but their reach does not extend to the apex court. Also, adopting such structures from other countries without having regard to the unique conditions existing in ours is untenable and fraught with the danger of destabilising our delicate constitutional balance. Some of the other major loopholes in the Bill are:-

Definition of misbehaviour: The Bill seeks to provide a straight jacketed definition of misbehaviour in Clause 2(j), but by laying down a strict definition, the concept loses its elasticity and becomes both under-inclusive and over-inclusive. Over-inclusive, that absent a de minimis exception, even a minor breach of judicial standards, say late filing of assets declaration, could constitute misconduct; and under-inclusive that to the extent that the definition is exhaustive (since it uses the word “means”), it is incapable of catching within its fold any “misbehaviour” that might not be covered by this provision. The Constitution framers had been careful not to define the term misbehaviour, let alone define it exhaustively. Implicit in this understanding was the belief that if the power of removal was vested in high constitutional authorities, they would be in the best position to judge when misbehaviour (or incapacity) had been occasioned.

Statutory provision for judicial standards: The Bill also provides a list of standards of judicial conduct to which all judges are expected to adhere. Sixteen of the 18 enumerated standards are derived from the “Restatement of the Values of Judicial Life” adopted at a Full Court Meeting of the Supreme Court on May 7, 1997. However, the very idea of statutorily providing for judicial standards, irrespective of their content, is violative of judicial independence.

A significant portion of litigation before higher courts today is public in nature and involves the State as one of the parties. Laws are also routinely impugned for their unconstitutionality. Given this, investing the legislature with the power to lay down and amend the standards which all sitting judges must adhere to (or risk the proposed penalties), has the potential to severely threaten impartial and effective adjudication.

Scheme of filing complaints: Under the Bill, “any” person may file a complaint in a prescribed format. Further, the proposed Judicial Oversight Committee will just act as a post-office and refer each complaint to a Scrutiny Panel. 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 colossal waste of time.

Clause 18 provides that the Oversight Committee shall consist of five persons with two serving and one retired judge, an appointed eminent person and the Attorney-General of India. The presence of the Attorney-General on the Oversight Committee is highly suspect. The Attorney-General has the responsibility of regularly appearing on behalf of the government before the court. On occasions, 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.

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. It would be difficult for judges to dispassionately decide a case against one of their own and sitting with them day in and day out.

Furthermore, the composition and tenure of the Investigation Committee which is to be constituted for the purpose of enquiry into misbehaviour by a judge is undefined. Theoretically, therefore, it is possible for a lay person without any knowledge, experience or standing to be a part of an inquiry panel against a sitting judge of a superior Court.

Minor punishments: The idea of “minor” punishments is unworkable and has the potential to seriously undermine judicial status. If sitting judges are issued advisories and warnings and thereby publicly censured, but still continue on the bench and decide cases, this damages the credibility of the entire system.

Atmosphere of secrecy: Through Clause 43, 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.[7]

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.

Demands for change to existing systems in the judiciary must be met rationally, bearing in mind the objectives sought to be achieved. The first site of change must be in the process of judicial appointments. The present system where judges of the superior courts are chosen based on undisclosed criterion in largely unknown circumstances reflects an increasing democratic deficit. The legitimacy of the judiciary ultimately flows from public support, which cannot be maintained without a transparent and open selection process.

The guiding principle should always be this: accountability there is and must be, but let it always be commensurate with judicial independence and impartiality. Ultimately, the appropriate balance between competing principles must be found in something that is best suited to our constitutional setup and is, in that sense, uniquely Indian. The citizens of India deserve no less.

The Bill also proposes to form a panel to incorporate a provision to have in-camera proceedings of the committee which will scrutinize complaints against judges. The Parliamentary Standing Committee on Personnel, Law and Justice has recommended a provision to “restrain” judges from making “unwarranted comments” against other constitutional bodies or persons in courts.[8]

There is a great need of a code of judicial conduct. Hon'ble Mr. Justice S.H. Kapadia, Chief Justice of India said: “When we talk of ethics, the judges normally comment upon ethics among politicians, students and professors and others. But I would say that for a judge too, ethics, not only constitutional morality but even ethical morality, should be the base…”

The well-known legal luminaries including Former Chief Justice of India S.Venkataramaiah and Former Judge of the Supreme Court D.A.Desai and another Former Judge of the Supreme Court Chennappa Reddy have expressed the view that if all the sections of the society are accountable for their actions, there is no reason why the Judges should not be so. Former Chief Justice Verma recognized the validity of this plea when he remarked on one occasion, “These days we (Judges) are telling everyone what they should do but who is to tell us? We have task of enforcing the rule of law, but does not exempt and even exonerate us from following it”. For proper implementation of this concept of judicial accountability, it is necessary that the Judges should follow a code of conduct which may be broadly called as ethics for Judges.

It is absolutely essential that in order that the Judge’s life is full of public confidence in their role in the society, the judicial decision is to be honest and fair. No judicial decision is honest unless it is decided in response to an honest opinion formed in the matrix of the judges proficient of law and fact. However, the perception of an individual judge may be wrong. But a wrong decision honestly made does not make that decision dishonest. A decision becomes dishonest if not decided on judicial conviction of fairness, honesty and neutrality.

The basic code of ethics is the principle that no man can be judge in his own cause. The principle confines not merely to the cause where the Judge is an actual party to a case, but also applies to a case in which he has interest. A Judge should not adjudicate in a case if he has got interest therein. Judges do require a degree of detachment and objectivity in judicial dispensation. They being duty bound by the oath of office taken by them in adjudicating the disputes brought before the court in accordance therewith, Judges must remain impartial, should be known by all people to be impartial. This is made clear by the Supreme Court.

Judges must not fear to administer justice. “Fiat justitia, ruat Caelum” that is “let justice be done though the heavens fall” should be followed as a motto by a Judge.

Parties to the dispute are treated equally and in accordance with the principles of law and equity. A judge does not belong to any person or section or division or group. He is the judge of all people. In the courts of law there cannot be double standard-one for the highly and another for the rest. A Judge should not have any concern with personalities who are parties to the case but only with merits. He must treat the parties to the dispute equally, giving them an equal opportunity during the trial. The Rt.Hon.Lord Hewart of Bury, Lord Chief Justice of England, said that it is “essential to the proper administration of justice that every party should have an opportunity of being heard, so that he may put forward his own views and support them by argument and answer the views put forward by his opponents”. The Supreme Court said in the celebrated case “No man’s right should be affected without an opportunity to ventilate his views”. In classical language of metaphor, the God of Justice sits on a golden throne, but at his feet sit two lions-‘law and equity’. A Judge will fail to discharge his duty if he disregards their presence and participation.

Since judging is not a profession but a way of life, the judge must distance himself from the parties to the dispute and their lawyers during the conduct of the trial. One can notice now a days the growth of a new caste in legal profession who thrive not by intellectual or professional capabilities but by utilizing their close connection with the judges. The growth of this suspicious trend can be checked if practicing lawyers and sitting judges avoid meeting frequently in private. Persons who occupy high public offices must take care to see that those who claim to be close to them are not allowed to exploit that closeness, alleged or real.

Too much of activity and participation in social functions be avoided:-It is often said that as a result of a very considerable amount of ordinary social activity, a Judge may become identified with people and points of view, and litigants may think they may not get fair trial. To repel that feeling, a Judge should avoid too much of social activity. Again, Judges should be very selective in attending social functions. Judges in England and USA generally decline such participation. If they attend even a private function, they ask for the list of invites. 

The Supreme Court in Ram Pratap Sharma v Daya Nand issued a note of caution to the effect that it is proper for a Judge not to accept any invitation and hospitality of any business or commercial organization or of any political party or of any club or organization run or sectarian, communal or parochial line.

As far as possible a Judge should keep off the media. He should refrain from expressing his views in media on matters either pending before him or likely to appear for judicial consideration. Else he may be accused of prejudging the issue and his neutrality may be questioned thereby. Lord Widgery, Lord Chief Justice of England since 1971 to 1980, said that “the best judge is the man who should not court publicity and should work in such a way that they don’t catch the eyes of the newsmen”. Lord Hailsham said that the “best judges are those who do not find their names in the Daily Mail and still, who abhor it”[9]

JUDICIAL ACTIVISM AND GOOD GOVERNANCE.

There is also a need to ensure Standard and Accountability in Judicial Activism. It is satisfying that higher judiciary is exercising judicial activism in under the same constitution taking advantage of some implicit principles by ignoring the other implicit principles of the same constitution. Thus the safest way to ensure standard and accountability in judicial activism is to remind the higher judiciary its constitutional limitations. Three Organs of the state Parliament, Executive and Judiciary in India is duty bound to discharge its own duty and not to interfere in functions assigned to the other organs.

Article 50 of the Constitution of India explicitly says, “The State shall take steps to separate the judiciary from the executive in the public services of the State. This article makes it abundantly obvious that the Constitution visualises separating judicial functions from the executive functions in the public services.Artice 53(1) states, executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.”Article 74(1) state, “There shall be a Council of Ministers with the Prime Minister at the head to aid and advice the President in the exercise of his functions. Article 75(2) the question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court. Article 75(3) states, “The Council of Ministers shall be collectively responsible to the House of the People. Article 79 states, “There shall be a Parliament for the Union which shall consist of the President and two Houses to be known respectively as the Council of States and the House of the People. Article 83 states, “(1) The Council of States shall not be subject to dissolution, but as nearly as possible one-third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions made in that behalf by Parliament by law.(2) The House of the People, unless sooner dissolved, shall continue for five years from the date appointed for its first meeting and no longer and the expiration of the said period of five years shall operate as a dissolution of the House. At the same time the Constitution by Article 32(2) empowers the Supreme Court to issue directions or order writs for the enforcement of fundamental rights guaranteed in Part III.

The framers of the American Constitution visualised a special role for the judicial branch in protection of rights.[10]One of the motivations for creating this unique role for the judicial branch may have been a distrust of the other branches. The framers probably feared most the executive branch of the government because they had fresh in minds the oppressive potential of a king.

The above provision of the Indian Constitution and the American rationale behind assigning a specific role for the judicial branch in protection of rights which was also followed by framers of the Indian Constitution by incorporating Articles 32 and 226 makes it imperative for the judiciary to apply restraint. Also it is aptly said, “Legal economy further justify judicial restraint…Litigation does not produce wealth…Finally, Judicial restraint is consistent with and complementary to the balance of power among the three independent branches,”[11]

PUBLIC INTERST LITIGATION AND GOOD GOVERNANCE

Public interest litigation achieves those objectives which private litigation fails to and hence plays a vital role in the civil justice system today Public interest litigation enables the civil society to spread awareness of human rights as well as participate in the decision making process of the government. The Supreme Court by entertaining such PILs and providing justice to the needy ensures good governance.

The right of a citizen to a good public administration is a moral right if not a legal right. As a taxpayer such a right extends to having government which practises good governance. In Common Cause v.Union of India,[12]the Supreme Court cancelled the allotment of petrol pumps made by the then Minister of State of Petroleum and Natural Gas,Capt.Satish Sharma on the ground of nepotism and malafide and passed severe strictures against the minister. The effectiveness of public interest litigation will be ensured when the government heeds every judicial pronouncement to practise good governance.

Good governance moves around citizens to improve quality of life, administrative system, and efficiency in delivering services and to establish greater efficiency, legitimacy, citizen-caring and responsive administration. It comprises activities of those manning the political system of a country having necessary authority and responsibility to govern, directed towards the maximum good of the maximum number. The judiciary should help and assist the public interest litigants who have taken upon themselves to ensure that administrative bodies do not act ultra vires.Administrative procedures can always be improved and a good governance be ensured by the help of judicial pronouncements.

The Judicial standards and accountability bill will set judicial standards and make judges accountable for their lapses. It will also mandate that judges of the High Courts and supreme courts declare their assets and liabilities including those of their spouses and dependants. The judicial standards and accountability bill, 2010 has been passed by Lok Sabha in 2012 that provides for setting up a five-member oversight committee to deal with complaints against members of the higher judiciary. Official sources and judges would also be required to declare their assets and file an annual return of assets and liabilities. It will further require judges not to have close ties with any member of the Bar, especially those who practise in the same court. The enactment of the bill will address the growing concerns regarding the need to ensure greater accountability of the higher judiciary by bringing in more transparency and will further strengthen the credibility and independence of judiciary. Good governance entails effective participation in public policy-making, the prevalence of the rule of law and an independent judiciary.

Since it alters the entire mechanism for investigating allegations of misbehaviour against members of the higher judiciary and simplifies the procedure for their removal the judicial standards and accountability bill is a hugely significant piece of legislation. The proposed law which seeks to replace the outmoded Judges Inquiry Act1968, under which cumbersome impeachment trials are necessary to dismiss erring judges, lays down enforceable norms for their conduct and enables a wider range of disciplinary action for proven misbehaviour. On the other hand there is no doubt about the need for an alternative and more effective statutory framework to address complaints against judges which have increased vastly in recent years.

The maladies and problems which hinder good governance are not going to vanish very soon. Unstable coalition government are order of the time. A weak government cannot be expected to take strong action to purge the administration clean of corruption; inefficiency. No miracle is going to happen. However the rising dissatisfaction of the civil society and empowerment of common man with right to information certainly augurs well for the future governance of the country. The Judiciary which has till now responded commendably will have to play a proactive role in upholding the rule of law and the mandate of the constitution.

The judiciary is the sentinel of the qui vive and sans fearless, accessible and impartial judicial process which operates remedially with promptitude and early finality, justice. A mechanism should be made for making the right balance between independence and accountability. Judicial independence and judicial accountability must sufficiently balance so as to strengthen judicial integrity for effective judicial impartiality. Judicial independence and judicial accountability are like those two poles of magnet which must be kept at such a sufficient distance so as not to deter one another in the same magnetic flux. All this is to save last man on the road, so that he should not feel that a mere penny he has in his pocket is safe and if stolen there is an omnipotent and a higher possessor of integrity but standards a judicial organ to vindicate his claim. This is the magic of a law maturing and the sustenance of the doctrine of judicial accountability amongst and between other doctrines is a reflection of this magic.[13]

Prime Minister Manmohan Singh raised the alarm bell over judicial corruption at a conference of Chief Ministers and Chief Justices of High courts on April 19, 2008. “Corruption is another challenge we face in government and judiciary, “he said stressing the need to “instil greater confidence in our judicial delivery system. A similar concern over judicial accountability was shown by the Bar Council of India when it initiated an all India survey among lawyers to assess the legal community’s perception of issues ranging from transparency and performance of the judiciary to bar examinations.

Since in the 21st century has become exceedingly complex, the population around the world has also increased and so is the number of disputes among the people, so has the responsibility of judiciary to give justice. In today’s outlook of greater transparency and accountability in government, the judiciary cannot escape close scrutiny for its performance and the conduct of its members. The conceptual argument that the judiciary should not be accountable because of its independence as an institution, and of being unelected and enjoying security of tenure will not pass muster. It is doubtful also whether the passive assurance of integrity by the judges themselves will meet today’s climate. For example Lord Donaldson the Former Master of the Rolls says:

“Judges are without consistency and answerable to no one except to their consciences and the law”.

The judiciary is not the only organisation that can help prevent corruption. Some possibilities for education include requiring a lawyer ethics in law school, having an ethics examination before admission to the bar, and requiring the taking of ethics courses to maintain a licence to practice. The improvement in the functioning of the judiciary by way of use of information technology can be done, as it will accelerate the process of changing the mindset of judges and judicial officers by providing those means of acquire knowledge which will improve their capability, productivity and proficiency. As the father of our nation Mahatma Gandhi has said:

“You must be the change you wish to see in the world.”

The judicial accountability and transparency is the need of the hour to maintain the faith and trust in judiciary and their juise.We should endeavour to make them a reality in our home territories without hindering to the independence of the judiciary.

“Without transparency, there can be no accountability; Secrecy is only the preserve of dictatorship.”

Ajit Prakash Shah

The former Chief Justice, Delhi and Madras High Court.

 

[1]See, we are not scared of accountability laws, says CJI ,The Hindu,available at http://www.thehindu.com/news/national/article 3776546.ece?homepage=true, accessed on 18/10/12

[2] OXFORD CONCISE ENGLISH DICTIONARY 10(Oxford University Press,2009)

[3] Cyrus Das,JUDGES AND ACCOUNTABILITY 200.(Universal Law Publishing,2004)

[4] See, Judicial Accounatbility,by Suman Meena,available at http://www.legalindia.in

[5] Judicial Accountability, http://www.judicialreforms.org/judicial account.htm

[6] Joint Anti-Fascist Refugee Committee v.McGRATH,341U.S.123,171(1971)

[7] http://www.thehindu.com/opinion/lead/article1582573.ece

[8] http://socialissuesindia.wordpress.com/2012/03/03/the-judicial-accountability-bill/

[9] http://legalservicesindia.com/article/article/judicial-accountability-in-india-538-1.html

[10] J.Clifford Wallace, “The Jurisprudence of Judicial Restraint: A Return to the Moorings”,50 Geo.Wash.L.Rev.3(1981-1982)

[11] Richard A.Posner, “The Meaning of Judicial Self-Restarint”,59Ind.L.J.10(1983-1984)

[12] AIR 1996 SC3538.

[13] Arati Puri, “Accountability of Superior Judiciary in India: Need of the Hour”, AIR July 2008.


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