This blog is inscribed by Sarthak Sharma.
Judicial accountability is an essential feature of the Indian constitution that ensures the responsibility and transparency in the judiciary. Every organ has its own specific and unique way of being accountable or responsible to the people or to the Constitution.[1] However, the manner of getting accountable wholly depends on the nature of the office and the officeholder. The judiciary too is responsible for its actions but the manner in which it is responsible is different from the executive or the legislature or any other institution working in India. Article 235[2] of the constitution states that the high court has control over the district court and the court subordinate; Thus it can also regulate the service and the coordination of these courts. This somehow brings forward the principle of checks and balances. The integrity of the nation has to be maintained by every organ of the government and the judiciary as mentioned hitherto has its own way of doing so. This principle states that power bequeathed upon any organ or institution or individual should be used judiciously not belligerently. The power given to a particular institution should not be absolute, as absolute power goes hand in hand with absolute corruption. Thus to hinder this, the principle of checks and balances is essential for judicial accountability.
Accountability as specified adds on to be the basic feature of the judiciary. This further has a nexus with transparency done by the judiciary. Thus justice should not only be done but also be seen to be done. Transparency in the verdicts of the court has been a major question since the establishment of the highest order of justice during the British rule in India.[3] But this system of transparency has failed miserably as the Judiciary has been in a constant tussle with the government in power or the corruption prevailing in the system or the judiciary itself. Further, the demi-god representation of the judges should be abrogated and it should be accepted that the judges are also humans and can commit a mistake while delivering a verdict. But, this should be accepted not appreciated. Lack of accountability has been best put by the first prime minister of our country that, “judges of the Supreme Court sit on ivory towers far removed from ordinary men and know nothing about them.”[4]
Problems In Making Judiciary Accountable:
1. Impeachment :
Impeachment, the present and the only available practice to account for the responsibility of the judges have been a bug for judicial accountability. Since independence, the process of impeachment has only been initiated four times in the parliament out of which none of the judge is impeached to date. Under Article 124(4) of the constitution, the judge of any court in India can be impeached on the grounds of proved misbehavior and incapacity. According to the Judges Inquiry Act, 1968, a resolution of impeachment can be passed in either of the houses, if in Lok Sabha, to be passed by 100 members, and if in Rajya Sabha, to be signed by 50 members and can be submitted to the presiding officer of the respective house.[5] There is a three-member committee comprising two judges-one from Supreme Court and the other member is the Chief Justice of India if it is against a High Court judge; and two Supreme Court judges if it is against a sitting judge at the apex court. Before any recommendation to the house, a systematic and perusal investigation is done about any proven misbehavior or incapacity done by the judge. If the constituted committee finds the allegations true then the impeachment process is introduced in any of the two houses.
For equity and equal justice to be delivered, the alleged judge is also provided a chance to rebuke the charges alleged against him. After proper hearing of the rebuttals of the judge, the process of impeachment is put to the motion of the vote. Now, the process of impeachment to be passed by both the houses has to be approved by two-third members of the present and voting members of the respective houses. Finally, if the provision is passed by both the houses then the resolution is introduced to the president, and after the assent of the president, the judge stands impeached. But the impeachment process as stated before is flawed and detrimental for the judiciary of our country. The basic reason for the same is that the judges that are to be impeached are the same that are handling the criminal and civil suits against the parliamentarians.
A recent report puts light on the criminal record of the parliamentarians and an expected 36% of the parliamentarians and member of legislative assemblies was facing criminal charges during the 2014 elections.[6]This proves that the judges are at a threat even to deliver verdicts and the parliamentarians at a threat to impeach the judges from any court of the jurisdiction. In one of the interviews with the senior advocate of the Supreme Court, Prashant Bhushan cites that during the impeachment process of Justice Bhalla, the members of the Bhartiya Janata Party declined from voting as the same judge was handling cases of the L.K. Advani, who was alleged for the demolition of the Babri Masjid. In another situation, the members of the Congress party withhold their vote to the bill, as Justice Ramaswamy was the one who was about to be impeached.[7]
2. Judges Inquiry Act:
The judiciary is under immense pressure when it deals with any high profile case that would have an impact on the society or would completely turn the tables for the political domains. This was witnessed by the people of the country during the Sabrimala judgment or the Adhaar judgment or the Keshavnanda Bharti case. This pressure or the crumbling atmosphere creates immense external pressure on the judiciary. Not to compromise with any of these external factors the judiciary came up with an in-house mechanism to investigate corruption within the judiciary. This was proposed by the Judges Inquiry Act Amendment Bill 2006 which provided for a National Judicial Council consisting of the Chief Justice of India, two senior-most judges of the Supreme Court and two Chief justice’s of High courts as members to enquire into the allegations of “proved misbehavior” or “incapacity”.
The contentions arising here is that the judges regard each other as working in an environment of close brotherhood. This does not end here as there is also uncle judiciary being followed up in the courts. This makes it almost impossible for the judges to constitute a committee to prosecute one of them. What is more objectionable in this report is Section 33 of the act that states not to disclose any information relating to the complaint to any person in any proceeding except when directed by the Council.[8] This somehow is a flaw in the whole process as the things investigated are never publicized and never under the public domain and even if it finds or gets to prove misbehavior or incapacity, it can only suggest introducing the process of impeachment in the house which can again be struck down which was seen earlier in Ramaswamy’s and Justice Bhalla’s case.[9] Thus, the only positive which can be drawn out of the Act is that the committee can only recommend initiating the process of impeachment.
3. Judicial Activism:-
The three organs or the pillars of the constitution have divided the work among themselves to perform better and smooth functioning of the government. But this division of power sells snow to the Eskimos when any of the organs interrupts in the functioning of the other one. Recently the judiciary has interrupted the functioning of the legislative as it thinks that the government is not paying justice to its role of legislation. To cite a few, the demolition and pulling down of the juggis and hawkers, cycle rickshaw, and many more from river Yamuna was an outreach of order by the court as it stepped into the shoes of the legislatures. Further, the apex court also directed the union government to release five million tons of food grains for the distribution as millions and tons of food grains were lying and the government had no space for the storage of the same.[10]
Thus, judicial accountability is quite a cumbersome issue that needs absolutely unconventional ways to be dealt with. But, despite all odds, our judiciary is splendid while delivering justice and guarding the constitution of the largest democracy in the world.
[1] Subhash C. Jain,The Constitution of India,264(2d ed. 2000).
[2] Article 235, Constitution of India.
[3] J.S. Verma, “Mechanism for judicial accountability”, p.23,in
[4] Mona Shukla, ”Judicial Accountability: An aspect of judicial independence” p. 4, Regal Publications, 2010
[5] The Judges Inquiry Act, 1968 ACT No. 51 of 1968.
[6] Udit Kumar, Judges who face impeachment, The Hindu(May 25, 2010) http://www.thehindu.com
[7] Frontline; Vol.10, No.11, May 22- June 4, 1993, Pg 18
[8] The 230th Report of the Law Commission (Aug 5,2009)
[9] Prashant Bhushan (on behalf of the Committee on Judicial Accountability), ‘Committee on Judicial Accountability’ , p.1 in http://www.judicialreforms.org
[10] Abhinav Chandrachud, “Dialogic judicial activism in India”, in http://www.hindu.com
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