Accountability in Judiciary

Presentation prepared by SANJEEV KUMAR CHASWAL (L.L.M 1st year) Mewar University

need of judicial Accountability

Legal institutions play a key role in distribution of power, rights and in over all development of the society. They overlook forms and functions of other institutions that deliver public services and also regulate market practices. A well functioning judicial system is essential to improve governance, consolidate the democratic order and foster economically sustainable development. As stable judicial system is key to promoting rule of law, development and good governance

Why we need judicial system

There is always a concern about the latent dangers of the judicial independence and this raises the importance of Judicial Accountability

[W]hile unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of self restraint. Justice Harlan F.Stone in United States v. Butler 287 US 1 (1936).

Meaning Judicial Accountability

Accountable Oxford Dictionary defines it responsible for your own decisions or actions and expected to explain them when you are asked.

Accountability is the sine qua non of democracy.

No public institution or functionary is exempted from Accountability and enforcing of accountability depend 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, can not be put equivalent to executive accountability or of the legislature or of any other public institution. The independence, impartiality of the judiciary is one the hallmarks of the democratic system of the government and governance.

 Only an impartial and independent judiciary can protect the rights of the individual and can provide equal justice without and favor.

The constitution of India provides many privileges to maintain the independence of judiciary. The Independent judiciary regarded as reflection of the aspirations and spirit of the people.

FUNDAMENTAL QUESTIONS, JUDICIAL ACCOUNTABILITY

What system need to be in place before a judiciary can be said to be independent and accountable?

Who is the judiciary accountable to?

What is the judiciary accountable for? Who will supervise judicial accountability? Besides judges and other judicial staff, who else can monitor judicial performance? Through which system judicial corruption can be curbed and judges who do not appear to br monitored or can not police themselves?

Mechanism for Judicial Accountability

In a democratic republic power with accountability of the individual enjoying it, is essential to avert disaster for any democratic system. What is the mechanism for accountability for serious judicial misconduct, for disciplining errant judges?

Our Constitution provides for removal of a judge of the Supreme Court and High Court.

Need For Judicial Accountability

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. A need definitely is there to make judiciary accountable, as judiciary has to act as the guardian of our constitution.

Need For Judicial Accountability

Judicial accountability, answerability of the judges is not a new concept. Several countries in their constitutions have already ensured accountability of judiciary. 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.

CODE OF CONDUCT FOR JUDGES

Hon'ble Chief Justice S.H. Kapadia 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 Former Chief Justice, Verma 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.

Code of Ethics of a Judge

JUDICIAL DECISION TO BE HONEST: 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.
NO MAN CAN BE A JUDGE IN HIS OWN CAUSE: A Judge should not adjudicate in a case if he has interest therein and require a degree of detachment in judicial dispensation. MAINTENANCE OF DISTANCE FROM RELATIVES: :The judge must distance himself from the parties to the dispute and their lawyers during the conduct of the trial.

CODE OF ETHICS OF A JUDGE

ADMINISTER OF JUSTICE : The 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. EQUAL OPPORTUNITY: The Parties to the dispute be treated equally and in accordance to the principles of law and equity.

PARTICIPATION IN SOCIAL FUNCTIONS BE AVOIDED:- it is not proper for a Judge to accept invitation and hospitality of any person, organisation, commercial or otherwise during his tenure as judge.

CODE OF ETHICS OF A JUDGE

MEDIA PUBLICITY BE AVOIDED: 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
No APPAEARENCE OF FAMILY MEMBERS IN SAME COURTS: As far as possible a Judge should keep off his immediate family members like son daughters or other immediate family members from appearing in the same court or courts.

Lack Of judicial Accountability In India

The Indian Judiciary has emerged as the most powerful institution within 60 years of the framing of the Constitution. The Constitution established the Supreme and High Court as watchdog institutions, as also a authority to examine and declare them void if they violated it, the Supreme Court has power to strike down even constitutional amendments, which were held by the Court to violate the basic structure of the Constitution.

Thus, the courts in India enjoy virtually absolute and unchecked power unrivalled by any Court in the world. Lack of accountability coupled with the enormous unchecked powers is making the judiciary a very dangerous institution and indeed a serious threat to Indian democracy. The 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.

Judicial Accountability And Discipline

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. 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.

Accountability to whom and for what?

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. HOW TO ACHIEVE JUDICIAL ACCOUNTABILITY? Fostering of independence, impartiality and accountability among judges is a vital step towards ensuring the overall integrity of the judiciary, further developing codes of judicial conduct can also foster judicial accountability.

DETECTING CORRUPTION IN JUDICIAL SYSTEMS: T

The 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? 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 and properly investigated.

Incorporating whistleblower protection or anti-corruption telephone hotlines as can help improve detection of corruption in the judiciary

ENSURING EFFECTIVE JUDICIAL DISCIPLINE

An appellate body or judicial council may be constituted with disciplinary functions. As in the case of lower courts, the 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..

RIGHT TO INFORMATION:

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 . The learned Judges of the SC, on the proposed amendments in to the RTI Act have observed:Transparency or openness is an accepted principle of democracy and good governance.

Key recommendations
Limited immunity for actions relating to judicial duties should be in place. Disciplinary rules should ensure that the judiciary carries out initial rigorous investigations of all allegations. An independent body must investigate complaints against judges and give reasons for its decisions.

Strict and exacting standards should apply to the removal of a judge. Removal mechanisms for judges must be clear, transparent and fair.

Key recommendations
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.

Judging The Judges (Case Laws)

A HISTORIC NON-IMPEACHMENT:
The 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 motion 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

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.

Arundhati Roys Case

The facts were these: 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. They eventually held her guilty of contempt and sent her to jail with Justice Patnaik sitting as a Judge in his own cause.

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. yet he came to be appointed during that time, due to the lack of transparency in the matter of appointments

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 five-member oversight committee to deal with complaints against the higher judiciary

 OVERSIGHT COMMITTEE
Its basic features, contemplates setting up of a national oversight committee, to be headed by a former Chief Justice of India, with which the public can lodge complaints against erring judges, including the Chief Justice of India and the Chief Justices of the High Courts. At present, there is no legal mechanism for dealing with complaints against judges, who are governed by Restatement of Values

 SCRUTINY PANELS:
In the case of a complaint against a Supreme Court judge, the scrutiny panel will consist of a former Chief Justice of India and two sitting Supreme Court judges.
In the case of a complaint against a High Court judge, the panel will have a former Chief Justice of the High Court and two of its sitting judges. The scrutiny panels will have civil court powers and can call witnesses for evidence and will require to give their report within three months.

Conclusion
It is well known that REX NON POTEST PECCARE The King can do no wrong and further POWER TENDS TO CORRUPT, AND ABSOLUTE POWER CORRUPTS ABSOLUTELY - LORD ACTON so keeping in mind of the above, the law has to change so as to meet to the needs of the changing society, similarly judicial independence has to be seen with the changing dimension of the society. The Judicial Accountability and Judicial Independence have to work hand in hand to ensure the real purpose of setting up of the institution of judiciary.

Sanjeev Kumar Chaswal, (L.L.M ) Ist year

Mewar University, Study Campus

Sector-4, Vasundhara