Judicial Accountability

The judiciary as an institution needs to preserve its independence, and to do this it must strive to maintain the confidence of the public in the established courts. Independence of judges is best safeguarded by the judges themselves — through institutions and organizations that the law empowers them to set up, to preserve the image of an incorruptible higher judiciary that would command the respect of all right-thinking people.

The reach of India’s highest court is all-pervasive. The Supreme Court sits in final judgment over the decisions not only of the high courts in the states, but also tribunals, (Central and State) functioning throughout India; there are literally hundreds of them. And the law declared by the Supreme Court, including its pronouncements on the validity of enacted law, is binding (under the Constitution) on all other courts and authorities in the country.

There is virtually no area of legislative or executive activity which is beyond the highest court’s scrutiny. Its writ extends to all two million square miles of Indian territory, and more than its now 1.3 billion inhabitants. Empowering itself with the trappings of modern technology, India’s Supreme Court has been performing a stupendous task with considerable distinction.

There is no reason for the judiciary to be perturbed by the Judicial Standards and Accountability Bill 2010, cleared by the Union Cabinet, because the proposed legislation seeks to neither curb its independence nor impose the will of the executive on its functioning. In fact, the draft Bill is in keeping with the growing popular demand for transparency and accountability in public institutions — something that our courts themselves have emphasized on several occasions. The need for a fresh legislation arose after it became clear that the Judges Inquiry Act of 1968 — now lapsed — had failed to adequately address issues related to perceived acts of impropriety committed by judges. Even if such incidents have been more an exception than the rule, the guilty have gone virtually unpunished.

Salient Features of Bill
The Judicial Standards and Accountability Bill, 2010 aims at laying down judicial standards and establishing a mechanism to deal with complaints of 'misbehavior' or 'incapacity' of a judge of the Supreme Court or high court. The approval for the Bill came after it was deferred by the Union Cabinet in March last. It was introduced in Parliament during the 14th Lok Sabha, but lapsed after the House was dissolved. It seeks to lay down judicial standards and establish a mechanism to deal with complaints of misconduct of judges of the Supreme Court and high courts.

The Bill proposes that a judge can be warned, taken off work, censured or admonished, depending upon the misconduct. It seeks to lay down judicial standards and establish a mechanism to deal with complaints of misconduct of the Supreme Court and high courts judges It also proposes to make provision for declaration of assets and liabilities by judges.

The Bill also proposes to make provisions for declaration of assets and liabilities of judges. At present, there is no legal provision for dealing with complaints filed by the public against the judges of the Supreme Court and the high courts.

At present, there is no legal provision for dealing with complaints filed by the public against the judges of the Supreme Court and the high courts. Also, the judiciary has adopted resolutions for declaration of assets by judges and 'restatement of values of judicial life'. However, there is no law that requires judges of the Supreme Court and the high courts to declare their assets and liabilities and also there is no statutory sanction for judicial standards.

The Bill had been approved with an amendment. It provided for a five-member oversight committee, headed by a former Chief Justice of India (CJI) and having Attorney General as a member, which would look into complaints of misconduct by judges.

New Mechanism
The amendment brought forward was for the setting up of the National Judicial Oversight Committee that would also include a sitting judge of the Supreme Court, the Chief Justice of a high court to be appointed by the CJI and an eminent personality. Complaints received by the oversight committee would be referred to a scrutiny committee. The scrutiny committee would have a time limit of three months to get to the oversight committee with its report after which the case would be referred to the President for action.

The new Bill envisages a mechanism for enquiring into complaints against the judges of the Supreme Court and High Courts and lays down judicial standards. In that sense, it empowers the citizens to punish judges for corruption and misconduct. Of course, as a safeguard against frivolous complaints, a scrutiny committee will examine the petition and then forward it, within three months, to the judicial oversight committee for action if a prima facie case is made out. A former Chief Justice of India will head the five-member panel. The process of impeachment will start once this committee comes up with adverse findings.

Bad Phase of Judiciary
The higher judiciary is passing through a bad phase. Its image has been eroded following allegations of corruption against Chief Justice P.D. Dinakaran of the Sikkim High Court, Justice Nirmal Yadav of the Uttarakhand High Court and Justice Soumitra Sen of the Calcutta High Court.

The Supreme Court collegium’s current policy of transferring judges who are under a cloud is flawed because if Justice Nirmal Yadav, for example, is unfit to serve the Punjab and Haryana High Court, she doesn’t become a perfect judge to serve the Uttarakhand High Court at Nainital. Clearly, the Manmohan Singh government has greater stakes on the new legislation because its commitment to cleansing up the higher judiciary is now on test.

Public Interest Litigation
One outstanding failing in our system of judicial governance is that although mandated by law, costs hardly ever follow the event. The fear of costs is what the courts must instil into the dilatory and speculative litigant including, I would plead on the litigant who undertakes a PIL (Public Interest Litigation). Projects and programs devised by popularly elected governments are held up for years in the high courts (and in the Supreme Court) at the instance of persons who have no direct interest, but on some suspicion of corruption or the like — and when at the end of a tortuous judicial process such PILs are ultimately dismissed, the loss in economic terms to the community at large is never compensated. In India there is hardly any court decision where costs are made to follow the event.

Then, take the problem of vacancies of judges in the superior judiciary — they keep piling up. An action plan to prevent this is not one which requires a high degree of sophistication or planning. It requires only some elementary co-ordination between the Justice Ministry and chief justices: of high courts and of the Supreme Court. We all know that judges in high courts retire at 62 and in the Supreme Court at 65. So there need be no unfilled positions: dates of birth are recorded, and anticipated vacancies can always be filled in time; if there is the will to do so.

Need of the Hour
There may be some merit in the counter-argument that the earlier Judges Inquiry Act of 1968 failed not because of lacunae in the law but the failure of the executive to ensure the impeachment of errant judges. Either the parliamentarians failed to muster the requisite number of signatories to an appeal for impeachment or, when they did succeed, the treasury benches stalled the effort in Parliament. But that is precisely why a new law is needed to ensure misconduct does not go unpunished. Since the other solution -- a complete overhaul of the system of impeachment -- is an elaborate affair that will take time, why should anyone object if at least immediate concerns of ensuring accountability and transparency by the judiciary are met?

The judiciary of the 21st century needs to set an example in exemplary self-discipline: discipline in its approach to legal, and more often, political-cum-legal, problems that fall in its lap. There is also need for greater transparency in the lifestyle of the justices, and an abiding tolerance of public criticism. Litigants no longer accept judge’s decisions as they used to in the past. The mystique of the judiciary -- the 'awesome Majesty of the Law' as it used to be called -- is no longer a sufficient protection. The job has become harder. Judges are seen less as the impersonal agents of a system and regarded more as human beings responsible for the failure of the losing party; the attacks have shifted from the ball to the player! Hence the need for ethics -- and some guidelines from the top, which 'the top' too must scrupulously observe!In a country like India, and in times like these, it is not enough for the judiciary to be independent of the executive and of all other external influences.

The Judges, because of the high office they hold and the plenitude of powers they exercise, must be seen to have qualities of excellence -- of mind and of heart. Above all they must be men and women of courage. Nobility and courage in the highest court begets nobility and courage all down the line.