Balancing Judicial Independence & Accountability

“With great power comes great responsibility”. Every person who watched Spiderman will never forget the words uttered by Uncle Ben. Power without responsibility or responsibility without power both are harmful for the society, there should always be a balance between them. Doctrine of checks and balances is enshrined in the Constitution of India. Our Constitution contains checks and balances which require all the three wings Legislature, Executive and the Judiciary to work harmoniously. It has created a separation of powers between all the three wings. The legislature and the executive must act within their powers as declared by the Constitution and whenever they exceed their powers or jurisdiction, Judiciary stepped in time and again to maintain balance. But power without responsibility is dangerous in a democratic setup such as ours. Accountability and transparency are the very essence of the democracy. No one single public institution or for that matter even a private institution dealing with the public is exempted from accountability. Hence Judiciary too is accountable. Judges’ accountability is to the Constitution and the laws, to the precedents and to the Code of Ethics that govern all judicial powers and conduct. But allegations of corruption on the Judiciary left a bloat mark on the credibility of the Judiciary. Lack of accountability is bound to shake the confidence of the public in the Judiciary as an institution and that in turn can lead to disastrous consequences to the rule of law and democracy. 

 

Indian Judiciary being the custodian of the Constitution was bestowed with the responsibility to uphold Constitutional values. Judiciary safeguards fundamental rights (Art. 32) and the Constitution and can strike down any law or executive action that is contrary to the fundamental rights or other provisions of the Constitution. In Kesavanand Bharati Case, Doctrine of Basic Principles was formulated to uphold the Constitutional supremacy. The Indian Judiciary’s powers of judicial review to declare Parliamentary and executive actions ultra vires of the Constitution have been recognized ever since 1950, when the Constitution came into force. Art. 50 of the Directive Principles of the Constitution states that the State shall take steps to separate the judiciary from the executive in the public services. When the legislature or the executive failed to act on the alleged allegations of corruption in 2G spectrum Judiciary stepped in. But to manage the task of upholding Constitutional supremacy Judicial Independence must be maintained. Judiciary should be free from all sorts of external influences. Judge should decide a case according to law and he cannot be interfered with by anybody without process.  The Constitution has insulated Judiciary from interference both by legislature or executive. There are several provisions in the Constitution which safeguards independence of the Judiciary and the Judges:

i.            Judges of the High Courts and the Supreme Court have their tenure guaranteed by the Constitution till they attain the age of superannuation.

ii.                 Judges salaries and allowances are charged on the Consolidated Fund of the State or Union, as the case may be and are not subject to a vote by the State Legislatures or the Parliament. Their pensions are also charged on the Consolidated Fund.

iii.              Art. 121 and 211 prohibit any discussion in the Parliament or State Legislatures on the conduct of a Judge of Supreme Court or High Court in the discharge of their respective duties.

iv.              The High Courts and Supreme Court are Courts of record and have powers to punish for contempt.

v.                 Judges are immune under various laws like Judges (Protection) Act, 1985 from civil or criminal action for their acts, speech etc., in the course of or while acting or purporting to act in the discharge of their official or judicial duties or function.

Independence of the Judges in their individual capacity or of the Judiciary as an institution is not absolute. Courts are institutions run by human beings and human beings are subject to selfish or venal motives and even moral paragons differ in the quality of their mental faculties and in their capacity for judgement and wisdom. Among the constitutional limitations on the Judges of the High Courts/Supreme Court by the address of the Houses of Parliament to the President on the ground of ‘proved misbehaviour or incapacity’. This is provided in Art. 124(2) and (4) in respect of Judges of the Supreme Court and in view of Art 217, that procedure is attracted to the ‘removal’ of Judges of the High Court also. Judicial accountability is an indispensable counterbalance to the judicial independence. Accountability is fostered through the processes for selection, discipline and removal found in the Constitution and statutes in various judicial systems. As the judicial system involves complete inter-relationships among the three branches of the Government, the demand for openness and the transparency cannot shield the judiciary from the scrutiny.       

    The Judges (Inquiry) Act, 1968 was passed providing for procedure for the investigation and proof of misbehaviour and incapacity of Judges of the Supreme Court (including the Chief Justice of India), the Chief Justices and Judges of the High Courts, where reference is made by the Speaker or the Chairman to a three Member Committee after admitting a Motion initiated by a specified number of Members. But the process for the removal of a judge is too difficult. The motion for the removal of a judge on proved misbehaviour must be passed by at least 2/3^rd majority of the members present and voting and not less than majority of the total membership. This is too difficult to achieve in current scenario. When Justice Ramaswami faced the motion for his removal it failed as required majority was not garnered for the motion. Recently Justice Soumitra Sen too faced removal motion which was passed in Rajya Sabha. But before the motion was passed by Lok Sabha, Justice Soumitra Sen submitted his resignation so Lok Sabha decided to drop the proceedings. Even Justice P.D. Dinakaran too faced the motion and was forced to resign before the motion was passed. So are we well equipped to deal with the corruption allegations on the Judiciary? Recently Lok Sabha passed the Judicial Standards and Accountability Bill, 2010. Some of the highlights of the bill are:

Ø The bill requires judges to declare their assets, lays down judicial standards and establishes processes for removal of judges of the Supreme Court and High Courts.

Ø Judges will be requires to declare their assets and liabilities and also that of their spouse and children.

Ø The Bill establishes the National Judicial Oversight Committee, the Complaints Scrutiny Panel and an investigation committee. Any person can make a complaint against a judge to the Oversights Committee on grounds of ‘misbehaviour’.

Ø A motion for removal of judges on grounds of misbehaviour can also be moved in the Parliament. Such a motion will be referred for further inquiry to the Oversights Committee.

Ø Complaints and inquiries against judges will be confidential and frivolous complaints will be penalised.

Ø The Oversights Committee may issue advisories or warnings to the judges and also recommend their removal to the President.

Ø The Oversights Committee consists of three judicial and two non-judicial members. It will consist of a retired Chief Justice of the Supreme Court as a Chairperson, a judge of the Supreme Court, a Chief Justice of a High Court, the Attorney General of India and an eminent person appointed by the President of India.

Ø Scrutiny Panel will be constituted in the Supreme Court and every High Court. It shall consist of a former Chief Justice and two sitting judges of that court.

Ø Investigation Committee will be setup by the Oversights Committee to enquire into complaints. The Bill does not specify the qualifications of the members of the investigation committee but leaves it to the discretion of the Oversights Committee.

  

The bill included many recommendations of the Law Commission and the Standing Committee to review the bill. The process for removal of a judge is only enshrined in the Judges Inquiry Bill, 1968.With this, the allegations which does not warrant removal go un-punished. So Law Commission in its review of Judges (Inquiry) Bill, 2005 recommended equipping the council with the power to impose minor measures when proved misbehaviour does not warrant removal except when it was referred by the Chairman/Speaker on motion for removal. Another recommendation includes forming the council with only judges. Some criticized that it is unfair to for judges to judge the judges. But peer review is an international norm and is covered by several resolutions of the International bodies. The drafted bill includes non judicial members like Attorney General and any eminent person appointed by the President of India in the Oversights Committee. But the Scrutiny panel include members of judiciary only.

Judiciary is accountable and independent. Judicial Accountability and Independence cannot be viewed as dichotomous but must be viewed as two sides of the same coin. At the same time too much interference by the executive on the judiciary too is not acceptable. Executive try to influence the judiciary by promises of nominated posts after retirement. So transparency should be maintained while appointing persons for these kinds of nominated positions. So Judiciary while being accountable to the Constitution must maintain its independence too. Lee Epstein in the book ‘Judicial Independence’ says that, ‘Too little independence can undermine the separation of powers; too much independence can undermine the democratic basis of a political order’.

Sources:

i.                   Law Commission Report 195

ii.                 PRS India- Final Brief for printing - Judicial Standards and Accountability Bill 2010.

iii.              www.judicialreforms.org