Tejashree M. Dusane
Abhaysingh K. Bhosale
JUDICIAL ACCOUNTABILITY OF THE HIGHER JUDICIARY
“This article is based upon the concept of judicial accountability and consists of the importance of Judiciary and the need for judicial accountability in the present time. We have also critically analyzed the Judges (Inquiry) Bill 2006 and have given recommendations that we think apt for the subject.”
“The judiciary was to be an arm of the social revolution upholding the equality that Indians had longed for”[i]
The Judiciary, also known as the judicial system or the judicature, is an age long mechanism for resolution of disputes that has been in existence right from the rule of the kings until the present date. It has been effective in the protecting our constitution from the evils of the society and safeguarding the rights of the citizens and also human beings as a whole. The independence and impartiality of the Judiciary is one of the hall-marks of the Indian Constitution. But in the age of immense competition and a quest to outsmart the other, one has come to see some pitfalls in the present judicial system. The so called judicial system which was laid on the highest pedestal is now suffering from incurable infections of corruption, misuse of powers, inefficiency, incapacity of the judges so on and so forth. It has thus become a necessity to keep a thorough check on these infections and prevent them from spoiling the high image of the Judicature in the eyes of common man.
One such case which has brought the issue of need for judicial accountability to the forefront is the recent case of PF scam[ii]. In this case 36 judges of the High courts of Allahabad, Uttarkhand and others and some from the lower judiciary were alleged to have misappropriated the provident funds provided and had used the huge amount for their household purpose. This scandal came to light when the main accused in the case, Ashutosh Asthana, confessed before a magistrate that around 36 members of the judiciary were either beneficiaries of the diversion of the funds from the district treasury or knew about it. The diversion was happening for at least seven years. Sixty-nine persons have been arrested to date and the Allahabad High Court is monitoring the probe[iii]. This case emphasized the need for an appropriate machinery to conduct inquiry in such cases of fraud, deception and misbehavior on part of the judicial officials. This also brought to light, the flaws present in the provisions relating to the impeachment and removal of the judges in the Constitutional law of India.
The concept of judicial accountability emanates from the basic premise that “power corrupts and absolute power corrupts absolutely”. It involves keeping a check on the different branches of government, which is essential to the functioning of a good democracy. However for all its theoretical bashness the concept of judicial accountability or more correctly the mechanism for judicial accountability is almost non-existent in India.
The general attitude towards a Judge in India can be best described as reverential. Most Judges of the Supreme Courts and a large majority of the holding the High Courts are men of excellent understanding, high intellect, and laudable personal achievements, who have charmed the people with their sensibility in gazing the pulse of the nations and set difficult standards to achieve. The Judiciary is undoubtedly the most creditable organ of the government and Judges the high priests that occupy the pedestal. For this reason a Judge like Caesar's wife should be above suspicion, a Judge is looked upon as an embodiment of justice and thus the slightest suspicion on his professional or personal conduct can cast an ugly shadow on the whole institution. Judges no doubt should be unbiased and above party politics. But can they be above ideas? Is judicial objectivity possible? Can we have unbiased Judges? Judges are not hermits. They do have their sets of ideas, attitudes and passions. Judicial objectivity should not be taken to mean value neutrality. Philosophically also, no person can completely detach himself from society. 'I' and 'mine' give the individual a feeling of sense and consistency. The concept of ego plays a very significant role and thereby generates consciously or unconsciously feelings of competition, struggle, favor, rejection, honor, dishonor, etc. leading to selfishness of some or the other kind. Another factor in determining human personality is environment or prevalent socio-economic conditions. Karl Marx in his treatise The Communist Manifesto stated that “man is made by his environment”. Judges like other human beings are not above these traits. Justice Cardozo rightly said, "the decisions of a judge are consideration of social philosophy. He is influenced by inherited instincts, traditional beliefs, acquired convictions and conceptions of social needs. He must balance his analogies, his sense of right and all the rest and adding a little here and taking a little out there must determine as wisely as he can which weight shall tip the scales"[iv].
In Andhra Pradesh State Road Corporation vs. Satyanarayan Transporters[v] the Supreme Court propounded the concept of judicial or quasi-judicial bias in the following words, "it is an elementary rule of natural justice that a person who tried a case should be able to deal with the, matter objectively, fairly and impartially[vi]". Such bias can arise from a variety of causes such as:
Causes for bias:
§ Pecuniary interest of the judge in the subject matter before him.
§ His interest in one or the other of the litigating parties
§ Political pressure or personal views about political parties
§ Desire on his part to gain favour regarding his future prospects.
§ Yielding to influence brought to bear upon his judicial duties by private individuals.
§ The human psychology returning the good turn done to him prior to his appointment as
a judge or during currency of office.
§ A desire to patronize any former colleagues at bar.
§ A misplaced craving to make improper use of the wide powers placed in him.
§ An inherent tendency to show favor to certain classes of cases.
§ Any other corrupt motive not covered by any of the above items.
Impeachment procedure: Article 124: Keeping a check on the Judiciary
The Indian Judiciary has been bestowed upon with great judgmental powers and superior authority. Yet, despite of the enormous power they yield, the superior courts in India are virtually unaccountable. The procedure for impeachment, as the only method of accountability that the Constitution-makers created for the accountability of the Judges, states in clause (4) of Article 124,
"A judge of Supreme Court shall not be removed from office except by an order of the president, after address to each house of the Parliament supported by a majority of not less than two-thirds of the members of that house present and voting has been presented to the president in the same session for such removal on the ground of proved misbehavior or incapacity"[vii].
By virtue of Article 128, Article 214 (4) applies to the Judges of High Court also. The expression “misbehavior” has not been defined in the Constitution. In our fifty-four years of judicial history the only actual impeachment process that took place was that of Justice V. Ramaswami[viii], sitting judge of the Supreme Court, in which he was not impeached as members of the house abstained from voting. Ever since independence not even a single judge of High Court or Supreme Court has been removed from office. In 1970 Mr. George Fernandes made attempt to have judge J C Shah of the Bombay High Court removed. However the motion was allowed to lapse, as the requisite majority could not be summoned. There have been several other cases of judicial misconduct. K. Veeraswami, a former Chief Justice of the Madras High Court, was prosecuted in 1991 for amassing wealth disproportionate to his income[ix].
In November 1991 K.N.Srivastava, a judge designated at the Guwahati High Court, was suspended on charges of corruption. The image of the Indian Judiciary suffers, as the impeachment laws remain illusory. Even though in Britain where it evolved the law of contempt has become almost extinct, Indian courts have continued to exercise it. The truth is that irreverence is not contempt.
Judges (Inquiry) Bill 2006:
The Judges (Inquiry) Bill 2006 is a shield which holds the scrupulous Judges from misusing their authority. The National Judicial Council appointed under this Bill consists of experienced and reputed Judges who can sit in the shoes of the Judges. This should however not mean that “A cat judging in a trail of mice”. Any personal or social relations could be a reason for biased and partial Judgment. Although this Bill gives a detail procedure for the accusation as well as adjudging and removal of a judge it is rather lengthy and time consuming process which requires the consent of the majority of both houses. This is however a double facet theory which balances democracy along with its negative aspect of time consuming. The Bill emphasizes on the compulsory trail in which the accused judge shall be given an opportunity to defend his case personally or by appointment of an advocate by Central Government. The power attributed to the Council is very wide and comprises of search, seizure, summoning or seeking corroborative evidence with mandatory enforcement. Any interference in the working of Council is punishable under Criminal Procedure Code which makes the Iron door of Justice more strong and impenetrable. The bill also mentions about the possibility of Secrecy to be maintained during the investigation. This however becomes two sided coin as it limits the access to information or if allowed might lead to a permanent or dark black spot. The bill therefore makes the Judges more accountable and responsible and controls the rein of power governed and exercised by the Judges. The Bill shall be a step forward for cementing the ideology of democracy in our nation[x].
The above mentioned recommendations in the form of the Judges (Inquiry) Bill 2006 are constructive and more importantly a step towards achieving the aim of accountability of Judiciary in a democratic society. Perhaps the most important reason for lack of judicial reforms is the reluctance of the press to write about and discuss the state of affairs within it for fear of invoking the contempt law. One must not forget that every citizen has the right to lash a judge with his tongue and pen if he is vicious or obnoxious on the bench or corrupt for his culpable deviance. Silence is guilt when there is duty to speak. The great English judge Lord Atkin expressed the sentiment admirably, " justice is not a cloistered virtue, she must be allowed to suffer the scrutiny and respectful, even through outspoken comments of ordinary men".
If Judges browbeat, Legislatures invade, violate, and intimidate freedoms so essential to democracy, functional fascism and new despotism will darken our republic. Judges, speakers and tribunals, if they outrage dignity, decency and decorum, then they too must suffer the punitive consequences of contempt. Pollution of power, while high functionaries sit on the bench or chair, is equally reprehensible and must be visited with due condemnation. Lord Erskine said, “if the dignity of law is not sustained, its sun is set, never to be lighted again".
The Judges (Inquiry) Bill 2006 is one such method in improvising the procedure for accountability of judges and must be therefore enacted. In a democracy however the Judiciary must lean more towards indulgence than indignation. Unless one can freely and frankly discuss and comment upon the motive of the courts how can there be any meaningful democratic review of the courts. After all what is bad is not politics or philosophy but weak character. Reforms and constructive criticism to prevent the system from stagnating are vital.
[i] Constitutional Law of India, Dr. J. N. Pandey
[ii] Provident fund scam 2008, Uttar Pradesh
[iii] News, www.business-standard.com
[iv] V.R.K. Iyer, Some Half Hidden Aspects of Indian Social Justice (1981), p. 67
[v] AP 87 (1948)
[vi] A.A. Misra, Law of Bias and Malafides (1970), p.2
[vii] Art. 124 (4) Of the Constitution of India
[viii] Ref. by Constitutional law of India, Dr. J. N. Pandey
[ix] 1991 (3) SCC 655
[x] Judges (Inquiry) Bill 2006
Raina, S.M.N., Law Judge and Justice, 1979
Basu, D.D., Commentary on the Constitution of India, 1970
Chagla, M.C., Role of Judiciary in Parliamentary Democracy, 1974
Iyer, Y.R.K., Some Half Hidden Aspects of Indian Social Justice, 1979
Dr. J. N. Pandey, Constitutional Law of India
Cowin, Edward, The Constitution and What it Means Today, 1973
M. P. Jain, Constitutional Law of India
“Committee on Judicial Accountability”, Supreme Court of India, New Delhi
Judges (Inquiry) Bill 2006:Impeachment of Judges: A theoretical stroke on judicial accountability” by Sayak Chaudhari
Tags :Constitutional Law