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DATED : 5TH NOVEMBER, 2015

JUDICIAL ACCOUNTABILITY AS A COUNTER BALANCE TO


JUDICIAL INDEPENDENCE
(PROJECT SUBMTTED FOR THE PARTIAL FULFILLMENT OF THE DEGREE OF L.L.B.)

BATCH : 2015-18

SUBMITTED TO: SUBMITTED BY:

MS. PALLAVI GUSAIN MADHUR MEENAKHSHI BHATTACHARYA

FACULTY OF LAW L.L.B., 1ST SEMESTER

SIDDHARTHA LAW COLLEGE, DEHRADUN


(AFFILIATED TO UTTARAKHAND TECHNICAL UNIVERSITY, DEHRADUN)

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ACKNOWLEDGEMENT

I would like to extend my sincere gratitude to Siddhartha Law College, our


respected Principal, Dr. Sharafat Ali, our respected teacher Ms. Pallavi Gusain
and every member of the Faculty, Staff and my fellow Students who have helped me
in setting up this Project on this very interesting topic JUDICIAL
ACCOUNTABILITY AS A COUNTER BALANCE TO JUDICIAL
INDEPENDENCE within a very limited period of time. I am thankful to each
and everyone for their provision of expertise and technical support in the
implementation.

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TABLE OF CONTENTS
SL.NO. TOPIC PAGE NO.
1. OBJECTIVE OF THE PROJECT 4
2. RESEARCH METHODOLOGY 4
3. INTRODUCTION 5
4. INDEPENDENCE OF THE JUDICIARY 6
5. JUDICIAL ACCOUNTABILITY IN INDIA 8
6. CONCLUSION 17

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1. OBJECTIVE OF THE PROJECT
This project paper aims at a brief overview of the Problems of Judicial Independence and how it
can be countered by enforcing Judicial Accountability. This problem of growing corruption rate
in the Judiciary of the country has been a major concern for the past couple of decades which
needs to be tackled with immediate effect in order to restore the faith of the general public in the
Judiciary System of India.

The project paper is divided into various sections, ranging from Introduction to Conclusion. The
project author humbly believes that the present work could not give a complete picture on such a
wide and dynamic topic as Judicial Independence and Judicial Accountability. So, it would be an
injustice to claim that this work would herald a new dimension on the study of this field of the
Constitution and Criminal Law. However, the project author has tried level best to garner a brief
overview of the earlier works done on the same area and jot down the major points of
discussions. Subsequently, the Conclusion part would shade light on the theme of this paper
coupled with the project authors take in this regard.

2. RESEARCH METHODOLOGY
The Doctrinal or Traditional or Non-Empirical Legal Research Methodology has been
followed in this project paper.

PRIMARY SOURCES:

THE CONSTITUTION OF INDIA

SECONDARY SOURCES:

OUTLINES OF LEGAL LANGUAGE IN INDIA


Dr. Anirudh Prasad
Central Law Publications
Allahabad

INTERNET SOURCES : www.google.co.in


www.wikipedia.org
www.legalservicesindia.com
www.thehindu.com
www.lawteacher.net

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3. INTRODUCTION
All power is a trust that we are accountable for its exercise that from the people and for the
people, all springs and all must exist.

On October 6, 1993, the Supreme Court of India, in one stroke, became the most powerful
Supreme Court in the world. It had delivered its verdict in Advocate on Record Association v.
Union of India. By judicial legislation, it became the only Supreme Court which could select
and appoint its own personnel. The decision was welcomed by most sections of society. It was
perceived as a welcome step in securing the independence of the judiciary.

The following two decades saw the court exercising its powers with complete confidence in its
independence. The people of India have witnessed the court monitoring the 2G spectrum scam,
tackling the mining mafia, calibrating to ensure the end of manual scavenging, and evolving
principles for distribution of state largesse. It has issued scathing indictments of police atrocities.
It has read benevolent drug pricing into the patents regime.

The Constitution (120th Amendment) Bill, 2013 has been passed by the Rajya Sabha. The aim
and object of the amendment as benignly suggested is to provide a meaningful role to the
executive and judiciary to present their view points and make the participants accountable
while introducing transparency in the selection processes. The amendment creates a Judicial
Appointments Commission (JAC). It is modelled on the U.K. Judicial Appointment
Commission. The U.K. JAC, in contrast, expressly excludes politicians and those connected with
politics from being part of the JAC. This is done in order to secure the independence of the
judiciary. But the surprising thing is that the JAC Bill, 2013, which is modelled on the U.K.
model, has chosen to ignore its sine qua non, namely, freeing judicial appointments from the
executive. As former British Prime Minister Gordon Brown puts it, The government should
consider relinquishing its residual role in the appointment of Judges.

The U.K. model lays importance on judicial independence with a wider consultative mechanism,
which perhaps is the answer. In stark contrast, the U.K.s JAC has no politician nor any person
even remotely involved in politics. There is a need for a more transparent and accountable
system of appointments on the basis of the U.K. JAC model.

The debate on judicial appointments in India is unfortunately veering to a situation that could
leave the judiciarys independence compromised. Few realise the necessity of an independent
judiciary as much as those who are oppressed by a totalitarian state. But there are consequences
of this independence which can be counter balanced by Judicial Accountability.

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4. THE INDEPENDENCE OF THE JUDICIARY
Independence of the judiciary (also Judicial Independence) is the principle that the judiciary
should be politically insulated from the legislative and the executive power. That is, courts
should not be subject to improper influence from the other branches of government, or from
private or partisan interests.
Different nations deal with the idea of judicial independence through different means of judicial
selection, or choosing judges. One way to promote judicial independence is by granting life
tenure or long tenure for judges, which ideally frees them to decide cases and make rulings
according to the rule of law and judicial discretion, even if those decisions are politically
unpopular or opposed by powerful interests. But they may have conflicts with republicanism and
they could support it.
In some countries, the ability of the judiciary to check the legislature is enhanced by the power of
judicial review. This power can be used, for example, when the judiciary perceives that
legislators are jeopardizing constitutional rights such as the rights of the accused. Constitutional
economics studies such issues as the proper national wealth distribution including the
government spending on the judiciary, which in many transitional and developing countries is
completely controlled by the executive. The latter undermines the principle of powers' checks
and balances, as it creates a critical financial dependence of the judiciary. It is important to
distinguish between the two methods of corruption of the judiciary: the state (through budget
planning and various privileges being the most dangerous), and the private. The state
corruption of the judiciary makes it almost impossible for any business to optimally facilitate the
growth and development of national market economy.

Independence of the judiciary is sacrosanct, and any rash tinkering can tip the balance. And that
can have disastrous consequences for a constitutional democracy. But equally, seeking a broader
collegium on the lines of the United Kingdom Model needs a serious exploration. There are
several models to choose from. The appointments procedure in the United States is far too
politicized: it requires politicians to both nominate and approve appointments. In Germany, the
U.S. system of political partisanship is whittled down by the requirement of a two-thirds majority
for the approval of a candidate. Therefore, the candidate must necessarily be acceptable to
divergent political segments and hence the chances of political partisanship are eliminated to a
great extent. South Africas Judicial Services Commission is highly politicized. With 15
politicians and eight lawyers, it has the ingredients necessary for the erosion of judicial
independence.

The JAC of the U.K. has a clear edge to secure the independence of the judiciary as its
composition is dominated by non-politicians. It is important to note that it is not the judiciary
alone which wants judges to be independent. Any civilised and democratic society requires an
independent judiciary. As to what is independence is a moot question. The judiciary should be
independent of the executive. Of this, there is no doubt. But independence has a far wider
connotation when it refers to the judiciary: judges must be free from not just the governments:

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judges must be independent of the parties to the dispute; of all external and internal pressures
which may distort their verdicts.

The Constitution of India adopts diverse devices to ensure the independence of the judiciary in
keeping with both the doctrines of constitutional and Parliamentary sovereignty.

o Firstly, the judges of the Supreme Court and the High Courts have to take an oath before
entering office that they will faithfully defend the constitution of India and the laws.
Recognition of the doctrine of constitutional sovereignty is implicit in this oath.
o Secondly, the judges of the Supreme Court and the High Courts are appointed by the
President. The President makes the appointments in consultation with the highest judicial
authorities. He of course takes advice of the Cabinet. The constitution also prescribes
necessary qualifications for such appointments. The constitution tries to make the
appointments unbiased by political considerations.
o Thirdly, the judges of the Supreme Court and the High Courts serve during good
behavior and not during the pleasure of the President, as is the case with other high
Government officials. They may be removed from office only through impeachment.
Their salaries and allowances once fixed cannot be varied adversely during their tenure,
except during a financial emergency under Article 360 of the constitution.
o Fourthly, the judges serve up to the 65th year of age and after retirement cannot engage
in legal practice.

The hierarchy of Judicial system in India plays an important role in maintaining the
independence of judiciary. Supreme Court is the highest court for justice. Then, there are High
Court and District Courts in every states. Then, there are Peoples courts known as Lok Adalats.
If no decision is reached at these Lok Adalats, then the cases move to courts.

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5. JUDICIAL ACCOUNTABILITY IN INDIA

The Committee on Judicial Accountability (CJA) is a group of lawyers in India who work to
improve the accountability of judges.
In 1998 the committee prepared a charge sheet to impeach Justice Madan Mohan Punchhi, and
obtained the signatures of 25 Rajya Sabha MPs. However, he was appointed Chief Justice of
India before the required 50 signatures had been obtained, at which point it became impossible to
gain further support for the motion.
The Committee on Judicial Accountability issued a highly critical report on the Judges Enquiry
Bill, 2006, saying of that bill that it "is going to reduce whatever little accountability of Judges
remained under the present Judges Enquiry Act". Anil B. Divan said "The aforementioned
new bill is worse than the old Judges Inquiry Act and it needs to be scrapped in toto. This new
bill is nothing but a sham".
In December 2009 the CJA stated that it considered that recommendations for judicial
appointments should only be made after a public debate, including review by members of the bar
of the affected high courts. This statement was made in relation to controversy about the
appointments of justices C. K. Prasad and P. D. Dinakaran. The statement was signed by Ram
Jethmalani, Shanti Bhushan, Fali Sam Nariman, Anil B. Divan, Kamini Jaiswal and Prashant
Bhushan.[3] Prashant Bhushan is also the convenor of the Working Committee of the Campaign
for Judicial Accountability and Judicial Reforms.[4]

(A) NATURE AND MEANING OF JUDICIAL ACCOUNTABILITY


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. Transparency facilitates accountability. 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. Indian polity is under severe strain. Faith of the people
in the quality, integrity and efficiency of governmental institutions stands seriously eroded. They
turn to the judiciary as the last bastion of hope. 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 judiciary. 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. If the Preamble to
our Constitution be regarded as the reflection of the aspirations and spirit of the people, then one
thing that even a layman will note is that among the various goals that the Constitution-makers

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intended to secure for the citizens, JUSTICE- Social, Economic & Political has been
mentioned before the rest. No person, however high, is above the law. No institution is exempt
from accountability, including the judiciary. Accountability of the judiciary in respect of its
judicial functions and orders is vouchsafed by provisions for appeal, reversion and review of
orders. The mechanism for accountability for serious judicial misconduct, for disciplining errant
judges is such that our Constitution provides for removal of a judge of the Supreme Court or
the High Court for proved misbehaviour or proved incapacity, by what is popularly called the
process of impeachment, whereunder two thirds of the members of each House of Parliament can
vote for the removal of the judge. So far, only one impeachment proceeding has been initiated
against a Supreme Court judge. It failed because Congress abstained from voting and
consequently two-thirds majority was not available.

(B) NEED FOR JUDICIAL ACCOUNTABILITY


In a democratic republic power with accountability of the individual enjoying it, is essential to
avert disaster for any democratic system. The accountability must be comprehensive to include
not only the politicians, but also the bureaucrats, judges and everyone invested with power.
Power and position in a democracy is depicted as attendant with responsibility, and every
incumbent of a public office must remain constantly accountable to the people, who are the
repository of political sovereignty. 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
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.

(C) CODE OF CONDUCT FOR JUDGES


Hon'ble Mr. Justice S.H. Kapadia, former 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.

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Code of Ethics of a Judge:-

Judicial decision to be honest.


No man can be a judge in his own cause.
Administer justice without fear.
Equal opportunity.
Maintenance of distance from relatives.
Too much of activity and participation in social functions be avoided.
Media Publicity to be avoided.

(D) LACK OF JUDICIAL ACCOUNTABILITY IN INDIA


The framers of the Indian Constitution would not have imagined that within 60 years of the
framing of the Constitution, the Indian Judiciary would emerge as the most powerful institution
of the State. The Constitution established the High Courts and the Supreme Court as watchdog
institutions, independent of the executive and the legislature, to not merely dispense justice, but
also to ensure that the executive and the legislature did not exceed the authority conferred upon
them by the Constitution. Thus, the Judiciary was given the powers to interpret the laws and
the Constitution, and also to strike down executive action which violated any law or the
fundamental rights of citizens. It was also the authority to examine whether laws framed by
Parliament conformed to the Constitution and declare them void if they violated it. By a creative
interpretation of the provision authorizing the Parliament to amend the Constitution, the Supreme
Court in 1973 also acquired the power to strike down even constitutional amendments which
were held by the Court to violate the basic structure of the Constitution. Many laws and some
constitutional amendments have been struck down by the Courts during this period.

Through all this, the superior courts in India have emerged as perhaps the most powerful courts
in the world, exercising virtually Imperial & unchecked powers. While executive action and even
legislation could often be struck down by the courts, the directions of the courts, sometimes
issued without even notice to the affected parties, were beyond question, and had to be obeyed
by all executive officers on pain of contempt of court. Of course, often these powers were wisely
exercised to correct gross executive inaction.

While the Court was acquiring these powers, by an even more inventive (called purposive)
interpretation of the provision regarding appointment of judges by the government, it took over
the power of appointment of judges. Thus judges of the High Court and Supreme Court are now
appointed by a collegium of senior judges of the Supreme Court. The judiciary has thus become
like a self-perpetrating oligarchy. There is no system followed in the selection of judges and
there is no transparency in the system. In particular, no regard is given to examining the record
or credentials of judges in their ideological adherence to the constitutional ideals of a secular,
socialist democratic republic or their understanding of or sensitivity towards the common people
of the country who are poor, marginalized and unable to fight for their rights in the courts.

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Thus, the courts in India enjoy virtually absolute and unchecked power unrivalled by any Court
in the world. In these circumstances, it is absolutely vital that judges of the superior judiciary be
accountable for their performance and their conduct whether it be for corruption or for
disregard of constitutional values and the rights of citizens. Unfortunately, neither the
Constitution, nor any other law has created any institution or system to examine the performance
of judges or examine complaints against them. The Constitution provides that High Court and
Supreme Court judges cannot be removed except by impeachment. That process requires
signatures of 100 MPs of the House of People or 50 MPs of the Council of States for its
initiation. If a motion containing charges of serious misconduct with the requisite signatures is
submitted, and admitted by the Speaker of the House of People or the Chairperson of the Council
of States, an Inquiry Committee of 3 judges is constituted to hold a trial of the judge.

Only if he is found guilty, the motion is placed before each House of Parliament where it has to
be passed by a 2/3 majority of each House. Our experience has shown that it is practically
impossible to remove a Judge through impeachment even if one is somehow able to get
documentary evidence of serious misconduct. In Arundhati Roys case, a bench of 2 judges of
the Supreme Court charged her with contempt and sent her to jail merely because she criticized
the Court in her affidavit.

Earlier, the Supreme Court has declared that a person charged with scandalizing the Court will
not be permitted to prove the truth of his allegation against a Judge. Though Parliament has
recently amended the Contempt of Courts Act to expressly allow truth as a defence, nothing has
been done to prevent judges against whom allegations are made from charging the person with
contempt and hauling him to jail. The criminal contempt jurisdiction of the Court and the
cavalier manner in which it is exercised, is another example of the enormous and unchecked
power of the superior courts in India Our campaign for Judicial Accountability has since long
been demanding that the courts power to punish for scandalizing and lowering the authority of
the Court must be taken away by legislation. Of course, this demand has been stoutly resisted
by the courts who claim that deleting this provision would greatly encourage baseless allegations
and abuse of judges by disgruntled litigants and would thereby erode public confidence in the
courts.

If you expose them publicly, you run the risk of contempt. This lack of accountability coupled
with the enormous unchecked powers that the courts have acquired and are exercising make the
judiciary a very dangerous institution and indeed a serious threat to Indian democracy. This lack
of accountability has led to considerable corruption of the higher judiciary which is evident from
the recent spate of judicial scandals which have erupted in India. The recent report of TI on
corruption perception index shows that the judiciary is perceived to be the second most corrupt
institution in India after the Police.

(E) JUDICIAL ACCOUNTABILITY AND DISCIPLINE


The Judiciary needs to be independent of outside influence, particularly of political and

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economic entities such as government agencies or industry associations. But judicial
independence does not mean that judges and court officials should have free rein to behave as
they please. Indeed, judicial independence is founded on public trust and, to maintain it, judges
must uphold the highest standards of integrity and be held accountable to them. Where judges or
court personnel are suspected of breaching the publics trust, fair measures must be in place to
detect, investigate and sanction corrupt practices.

1. Accountability to whom and for what?


In everyday terms, accountability is simply the ability to hold an individual or institution
responsible for its actions. The question for the judiciary is accountability to whom and for what?
Broadly speaking, the judiciary must be accountable to the law, in the sense that the decisions
made are in accordance with the law and are not arbitrary. Like other branches of government, it
must also be accountable to the general public it serves.

2. How to achieve judicial accountability?


Fostering a culture of independence, impartiality and accountability among judges is a vital step
towards ensuring the overall integrity of the judiciary. This is particularly the case in countries
where there is a lack of accountability in other branches of government. Developing codes of
judicial conduct can also provide an important means of fostering judicial accountability, since
they serve as both a guide to and a measure of judicial conduct. Strong and independent judges
associations, meanwhile, can provide a safe point of reference for judges,allowing them to
interact with the state in an accountable, yet robustly independent manner. Ultimately, though,
the judiciary must be responsible to the citizens of a country, and civil society actors, including
the media and NGOs, must play an enhanced role in demanding judicial accountability.

3. Detecting corruption in judicial systems


Judges are expected to take decisions about breaches of law by individuals, governments and
companies, but what happens if it is the judge who breaks the law? While judicial independence
requires that judges have some limited measure of immunity and that they should be protected
from trivial or vexatious complaints, mechanisms must be in place to ensure that corruption by
judges or court personnel is detected, investigated and properly sanctioned. Incorporating
whistleblower protection or anti-corruption telephone hotlines as part of judicial systems can
help improve detection of corruption in the judiciary. It is often courageous members of the
public or individuals of integrity within the judicial system itself who speak out against specific
instances of corruption. Such action can be encouraged by developing a confidential and rigorous
formal complaints procedure so that lawyers, court users, prosecutors, police, media and civil
society organisations can report suspected or actual corruption in a judicial system.

4. Ensuring effective judicial discipline


There are different models for judicial discipline, though all models tend to operate at two levels:
first, a disciplinary system that can admonish, fine or suspend judges for misdemeanours; and,
second, a system of removal of judges for serious misconduct, including corruption. It is
essential that any disciplinary mechanism is independent, fair and rigorous. In particular, a judge

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has the right to a fair hearing, legal representation and an appeal in any disciplinary matter. In
some instances, an appellate body or judicial council may have disciplinary functions. In others,
supreme courts may be responsible for disciplining lower court judges, while Supreme Court
judges themselves may be removed by parliament. All types of procedures should be balanced
to, on the one hand, protect judicial independence and, on the other, provide accountability to
command public confidence. Importantly, mechanisms for judges removal from office must be
fair, transparent and take the principle of security of judicial tenure into account.

5. Right To Information
In the light of the above discussion, and in the absence of a proper, specific law, to effectively
check the power and scope of judicial activism or laying down codes of conduct (based on the
call for the accountability of the judges), the Right to Information Act, at least, as of now, seems
to be a best available tool in dealing with some (if not all) aspects of the demand for a more
accountable and transparent judiciary.

A code of judicial conduct serves as a guide to and measure of judicial conduct, and should be
developed and implemented by the judiciary. Breaches of the code must be investigated and
sanctioned by a judicial body. A confidential and rigorous formal complaints procedure is vital
so that lawyers, court users, prosecutors, police, media and civil society organisations can report
suspected or actual breaches of the code of conduct, or corruption by judges, court administrators
or lawyers. An independent judges association, elected by judges, should represent them in their
interactions with the state and its other organs. It should be accessible to all judges; support
individual judges on ethical matters; and provide a safe point of reference for judges who fear
that they may have been compromised in some way.

(F) JUDGING THE JUDGES (CASE LAWS)


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 past, starting with Chief Justice Sabharwals case,
and then going on to 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
Collegium of judges of the High Court and the Supreme Court. Unfortunately however, we are
finding that these rotten eggs who come to be appointed, get confirmed, even when they are
found by the Collegium to have been of doubtful integrity, and are not removed even when a
judge's committee has found them guilty of criminal misappropriation and criminal breach of
trust, and even after the Chief Justice of India has recommended their impeachment selection,
appointment and removal of judges.

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A HISTORIC NON-IMPEACHMENT
1. Case Of Justice V. Ramaswami
May 11, 1993 will be remembered as a black day for Parliament and for the judiciary in this
country. For on that day, 205 Lok Sabha members belonging to the Congress(I) and its allies
sabotaged the impeachment mo tion against Justice V. Ramaswami of the Supreme Court by
abdicating their constitutional duty of voting for or against and thus defeating the motion by
ensuring that it did not receive the support of an absolute majority of the total membership of the
House. Each one of the 196 MPs, who voted, all belonging to the Opposition parties, voted for
the removal of the judge. Thus, despite the motion for removal being passed unanimously by the
members who voted, it failed, bringing to a close the more-than-two-year old proceedings for the
removal of Ramaswami. The result, therefore, is that 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 is still entitled to discharge
judicial functions from the highest court of the land. It is another matter that after the
impeachment mo tion failed, Ramaswami was persuaded to resign by the Congress(I) which
belatedly realised that it would have to pay a heavy price for being seen to have supported a
corrupt judge. The failure of the motion, especially after the tortuous course it went through,
raises several grave issues for the future of the administration of justice in this country and
indeed for probity in public life in general.

2. The Case Of Justice Ashok Kumar


In the case of Justice Ashok Kumar, who was appointed an additional judge in April 2003, the
Collegium of three senior judges of the Supreme Court unanimously decided not to confirm him
as a permanent judge in August 2005 because of adverse reports regarding his integrity. Despite
this, he was given extensions as additional judge, and finally came to be confirmed in February
2007 on the Chief Justices recommendation, which was made without consulting other members
of the Collegium of judges, in complete violation of several judgements of the Supreme Court.
These had clearly laid down that in a matter of appointment of judges, the Chief Justice cannot
act alone and must go along with the majority view of the Collegium of senior judges of the
Supreme Court. The 9 Judge judgments also provided that an appointment made without
consulting the Collegium was challengeable and could be struck down in a judicial proceeding.
The memorandum of procedure lay down by the law ministry also made it abundantly clear that
in such matters the Chief Justice must consult the Collegium of senior judges, as well as those
other judges who have come from the same High Court in which the proposed appointment is to
be made. Thus, Justice Ashok Kumar's appointment was clearly contrary to the Constitution, and
the law laid down by the Supreme Court itself. Though Justice Ashok Kumar's confirmation as a
permanent judge was challenged by senior advocates of the Supreme Court, unfortunately the
court has upheld his confirmation on the basis of very dubious reasoning. Thus the Supreme
Court, missed the opportunity to judicially correct the administrative illegality in confirming a
judge whose integrity had been found to be doubtful, and that too without consulting the
Collegium of senior judges of the Court. Such judicial behaviour of the Supreme Court only
confirms the growing public perception that the recent crisis of credibility and integrity of the
higher courts is largely a result of improper appointments due to extraneous considerations

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which are facilitated by the totally nontransparent manner in which judges are selected and
appointed.

3. Arundhati Roys Case


After the judgment of the Supreme Court in the Narmada Dam case, there was a public protest
outside the Supreme Court in which Medha Patkar (the leader of the anti-Dam movement in
India) and Arundhati Roy participated. A couple of lawyers (probably on the hint of the Court
itself) filed a contempt petition against Patkar, Roy and Mr. Prashant Bhushan alleging that we
had raised abusive slogans against the Court. The lawyers contempt application, apart from
being in grotesque language, also contained palpably absurd allegations that Roy and Patkar
(who can hardly be considered rowdies) manhandled the burly lawyers. Roy, in her reply to the
court notice said: For the Court to have issued notice on such a ridiculous petition to three
persons who have been vocal in their criticism of the Court shows a disquieting inclination on
the part of the Court to muzzle dissent and stifle criticism. Though he discharged the first
notice, the same judge (Justice G.B. Patnaik) who had issued the first notice, issued a second
contempt notice, this time to Roy alone for daring to berate the court in this manner. They
eventually held her guilty of contempt and sent her to jail with Justice Patnaik sitting as a Judge
in his own cause

4. The Case Of Justice Soumitra Sen


Justice Sen has been recommended to be removed by impeachment by the Chief Justice of India,
for the offence of misappropriating funds received by him as a court receiver and thereafter for
giving false explanations to the High Court. The Chief Justice made this recommendation after a
report of a committee of three Judges, who after carefully examining the facts came to the
conclusion that he had committed several acts of serious misconduct. Though these acts of
misconduct were the subject matter of proceedings pending against him in the Calcutta High
Court, yet he came to be appointed during that time, due to the lack of transparency in the matter
of appointments. Though the report of the judges committee was submitted a year ago, and the
Chief Justices recommendation for the removal by impeachment of Justice Sen was made five
months ago, the government has not made any attempt to proceed with his impeachment. This is
despite the fact that the government has proposed a bill to amend the Judges Enquiry Act by
which this very procedure for initiating impeachment proceedings is being sought to be given
statutory status. The inaction of the government in Justice Sens matter displays the complete
lack of seriousness on the part of the government in enforcing judicial accountability. In these
circumstances, the Campaign for Judicial Accountability and Reforms has prepared an
impeachment motion against Justice Sen and is sending it to all the political parties with the
request that they should have it signed by their MPs so that it could be presented to the Chairman
of Rajya Sabha for proceeding with his impeachment.

5. Case Of Justice Ashwini Kumar Mata


The problems created by the lack of transparency in the appointment of judges is exemplified by
the presently proposed appointment of Mr. Ashwini Kumar Mata who has recently been
recommended for appointment as Judge to the Delhi High Court. Mr. Mata has recently

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purchased one floor of a house in Safdarjang Enclave from a builder who had an agreement with
the owner of the plot that he would construct the building and hand over three floors to the
owner. The remaining two floors would remain with him which he could sell only after handing
over possession of the three floors to the owner. Despite the fact, that the builder had not
completed the construction of the building and not handed over the possession of the floors
belonging to the owner to him, Shri Mata entered into an agreement for purchasing one of the
floors which was to go to the builder from him. Shri Mata thereafter used his agreement with the
builder to seek mutation (getting his name recorded as owner) of that floor in his name. In his
application, he attached a copy of his agreement with the builder, containing the forged
signatures of the owner, Mr Joshi. When this was discovered by Mr. Joshi, he made a complaint
to the police regarding the forgery. Eventually, at the instance of a magistrate, an FIR came to be
registered and an investigation began into this forgery. The act of forgery became clearer when
Mr. Mata filed a different version of the same agreement in arbitration proceedings which he had
initiated. In this version of the agreement, the signatures of the owner were not there. These facts
were learnt only after the recommendation for the appointment of Shri Mata had already been
sent to the Law Ministry by the Collegium of the High Court. Thereafter a representation was
sent to the collegiums in the High Court and the Supreme Court. Mr. Mata responded to the
representation and said that the criminal investigation by the police had exonerated him. The
police report had been given hurriedly after the representation, without even waiting for the
forensic examination of the forged signatures, and is dishonest. Thereafter another representation
was sent to the Supreme Court and the High Court collegiums detailing the misconduct of
Mr.Mata and pointing out why it is not possible for the signatures of the owner to have been
forged without Mr. Matas knowledge and consent. We have pointed out in our representation
that even if it is not certain that Mr. Mata participated in the forgery of his agreement with the
builder, it is better to err on the side of caution by not appointing him, instead of being faced
with a situation as that with regard to Justice Soumitra Sen of the Calcutta High Court.

(G) JUDICIAL ACCOUNTABILITY BILL APPROVED


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 the Supreme
Court declare their assets and liabilities, including those of their spouses and dependants. The
Union Cabinet has approved the draft Judicial Standards and Accountability Bill, 2010 that
provides for setting up a five-member oversight committee to deal with complaints against
members of the higher judiciary. Official sources said judges would also be required to declare
their assets and file an annual return of assets and liabilities. All these details will be put up on
the websites of the Supreme Court and high courts. 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
proposed oversight committee will be headed by a former chief justice of India and include the
attorney general, a Supreme Court judge, a chief justice of a high court and an eminent person
nominated by the President.

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6. CONCLUSION

Corruption in the judiciary is hardly a new phenomenon, though it has certainly increased over
the years. It is worthwhile however to examine the reasons for the sudden spate of exposures of
judicial corruption. Having enjoyed enormous powers, including the power of contempt, without
any accountability, the higher judiciary has over the years, tread on the toes of many persons and
institutions, particularly the media. Not wanting to suffer criticism, the judiciary has used its
power of contempt to stifle criticism. More than 50 editors, publishers and journalists have been
issued contempt notices by the Karnataka High Court for having written stories about a judicial
sex scandal, reportedly involving three judges of the High Court. Small wonder then, that the
media is enjoying every bit of the juicy judicial scandals that have exploded. That there has been
corruption in the judiciary for many years One reason why judges have been treated as demigods
in this country is because of the power of contempt wielded by them. This is a jurisdiction in
which a judge against whom an allegation has been made can himself act as the complainant,
prosecutor and judge. The judge can even refuse to allow the maker of the allegation to prove its
truth. The very existence of this power has been enough to silence the media and inhibit them
from exposing judicial misbehavior or corruption. The amendment recently moved in Parliament
to make truth a defense in a contempt action is not an adequate safeguard for the citizens and the
press. As the case involving the journalists who wrote about the Karnataka sex scandal shows,
though the allegation may be made bona fide and on a reasonable basis, it may not always be
possible to prove its truth. This could be because the witnesses are won over or the evidence
disappears for some other reason.

One of the safest way to ensure Judicial Accountability is its exposure to the public gaze. As the
Apex Court observed in the case of Mohd. Shahabuddin v. State of Bihar, (2010) 4 S.C.C. 653,
the courts, like other institutions, also belong to people. They are as much human institutions as
any other. The instruments and institutions of the State may survive by the power of the purse
and might of the sword, but not the courts. The courts have no such means or power. The courts
could survive only by the strength of public confidence. The required public confidence can be
fostered by exposing courts to more and more public gaze.

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