Guarding The Guardians – Need For Stronger Judicial Accountability?
This Blog is written by Lisa Coutinho from SVKM’s Pravin Gandhi College of Law, Mumbai. Edited by Harshita Yadav.
The Constitution of India has enshrined the Indian Judiciary with the significant duty of interpreting the laws made by the legislative body of the government by settling disputes and punishing the lawbreakers, adjudicating justice, and identifying and filling in the legislative lacunas by setting out precedents. The Judiciary is considered as the watchdog and custodian of the constitutional rights of the citizens and ensures that the legislature and executive do not exceed their constitutional authorities. It occupies the highest place in people’s faith, confidence, and conscience, as they look up to it as their guardian and protector. It is recognized as the Bastian of last hope when other governmental machinery fails to do their jobs.
As the judiciary is entrusted with the most important task of rendering justice to the citizens, it becomes highly pertinent and necessary that justice is rendered with utmost integrity, fairness, and equality. However, the judiciary is not unaffected by Nepotism, Bribery, and Corruption. Moreover, they have used the power of contempt of courts to stifle criticism. It is rightly stated by Lord Dalberg Acton, “Power tends to corrupt and absolute power corrupts absolutely’. Justice fails in the presence of corruption which could endanger democracy. As corruption in the judiciary has been highlighted in recent years, many questions arise, such as Who is judging the judges? Who is Guardian the Guardians? To whom is the judiciary accountable to?
According to Black’s Law Dictionary, the word ‘accountability’ means ‘responsibility’. Judicial accountability means that the judges must take full responsibility for their judicial actions as accountability is the sine qua non of a good democracy. Judicial accountability is part of the constitutional philosophy. This is indicated by Article 235 of the Indian Constitution which provides for ‘control’ over the subordinate courts by the higher courts. Another significant question arises as to who controls the Higher Courts? Considering the important role played by the judiciary and keeping in mind the possibility of misuse of powers in their hands, the Constitution has made provision for keeping a check and control over the Judiciary by the other two branches of the government, i.e. Legislature and Executive. However, this hasn’t proved too effective either. Highlighting the lack of Judicial accountability, Pandit Nehru remarked that “judges of the supreme court sit on ivory towers, far removed and know nothing about them”.
It was observed by the Supreme Court “a single dishonest judge not only dishonours himself and disgraces his office but jeopardizes the integrity of the entire judicial system”. It is required that the judicial system is free and unaffected by acts that would demean its essence, dignity integrity and sanctity. To ensure this there is a need for an effective mechanism of judicial accountability. To ensure accountability, there should be a certain level of transparency in the judicial system. In the past, the higher court judges were not held accountable for their corrupt acts. In 1991, the former Chief Justice of the Madras High Court, Justice Veeraswami was caught in an act of corruption. In K. Veeraswami v. the Chief Justice of Tamil Nadu,  he challenged the FIR filed against him under the Prevention of Corruption Act, 1988 on the grounds that it did not apply to judges. The Supreme Court held that all the corrupt judges should be brought within the purview of the Act.
JUDGING THE JUDGES
In India, the judges can be held accountable by two means. The prevailing mechanisms are as follows:
To ensure the independence of the judiciary from the executive action, certain procedures are provided under Articles 124(4), (5), 217 and 218 of the Indian Constitution, and also under the Judges Inquiry Act, 1968. Thus, the Supreme Court and High Court judges can be removed from office on the grounds of “misbehavior or incapacity”. For the same, a motion has to be passed before each house of the parliament and must be supported by a majority of not less than two-thirds of the total members. Once the motion is admitted, an inquiry committee comprising a Supreme Court Judge, chief justice of High Court, and an eminent jurist is set up which looks into the matter and submits a report on whether the judge is guilty or not. If he is found to be guilty, the motion for his removal has to be passed by both houses and it again has to be supported by not less than a two-thirds majority.
Justice V. Ramaswami, Chief Justice of Punjab and Haryana High Court, was the first judge against whom impeachment proceedings were initiated. Even though he was found guilty by the inquiry committee, the motion failed. Justice Soumitra, Judge of Calcutta High Court, was the first judge who has been impeached. He resigned from his post after the impeachment motion for misconduct was passed against him.
An alternative approach to the cumbersome procedure of impeachment is the in-house mechanism. In this mechanism, when a serious complaint is made against a Supreme Court judge, a three-member committee is set up to look into the issue. If the allegations are serious, then the proceeding for the removal of the judge is initiated. The judge is usually advised to resign or take voluntary retirement. A similar situation existed in the Soumitra Sen case. The biggest shortcoming of this mechanism is that it has no statutory or constitutional basis. This also points out the problematic issue of the judiciary, taking law into their own hands by endorsing self-governance, which may be harmful and lead to judicial arbitrariness.
Despite the existence of such provisions, and even though impeachments proceedings have been initiated many times in the past, no judge has been impeached in India, till date. This clearly points out the difficulty in enforcing the law in force. It also points out the lacuna in our executive system, wherein even though certain legislations are present, there still exist hurdles in executing them due to the widespread corruption prevalent in the country. This calls for a need for an effective mechanism. There should also be a provision for the regular evaluation of the performance of the judges. Even though such a provision exists in the form of annual confidential reports for judges of lower courts, no such mechanism exists for higher court judges, as though they are totally immune from the evaluation. Introducing stronger judicial accountability will not just keep away the evils of corruption, etc. from the judicial system, but will also check the lapses in the behavior of the judges and help in the effective functioning of the judiciary.
JUDICIAL ACCOUNTABILITY BILL
The Judicial Standards and Accountability Bill set enforceable standards of conduct of the judges, making them accountable for their lapses. In order to bring in more transparency, the judges required to declare their assets and liabilities. The draft bill was approved by the Union Cabinet in 2010, which provides for setting up of a five-member oversight committee for dealing with complaints against the higher court judges. The main aim of the bill was to strengthen the credibility of the judiciary by addressing the growing issues and concerns regarding judicial accountability. The then Law Minister Salman Khurshid said that “the bill aimed at striking a balance between maximizing judicial independence and laying down accountability at the same time for the higher judicial members”. The bill is a step forward to restore the integrity, transparency, accountability, and independence of the judiciary.
TENSION BETWEEN JUDICIAL ACCOUNTABILITY AND INDEPENDENCE
Judicial independence and impartiality are the pre-requisite of a democratic, free, and egalitarian society. A tension exists between the principles of judicial accountability and judicial independence as they are fundamentally opposed to each other. According to Central Public Information Office, Supreme Court of India v. Subhash Chandra Agarwal  Judicial independence is the ability of the judges to decide objectively, without succumbing to pressure, or without any fear or favor, affection or ill will. The constitutional bench of the Supreme Court, while hearing the matter related to the applicability of the Right to Information Act stated that one cannot destroy the judiciary in the name of accountability. Often the meaning of judicial independence is confused and misinterpreted and is used by the judiciary to exercise its powers arbitrarily. However, it is to be borne in mind that the main feature of judicial independence is impartiality and judicial neutrality. It means the decision of the judges should be unbiased and fair. Judges are exempted from incurring liability from acts performed in their judicial capacity. However, this right should not be allowed the judges to misuse this privilege and abuse their powers. These immunities exist only to further the purpose of justice. These privileges should be reasonable and should not exempt the judiciary from being accountable and responsible for their actions.
RECOMMENDATIONS AND SUGGESTIONS
A very limited immunity must be granted to judges while discharging their judicial functions. The immunity will exempt the judges against civil suits, and at the same time, it will make them more cautious while exercising their powers and privileges. A very well-established mechanism must be set up to decide the situations case to case and draw the fine line.
A similar committee like the one set up by the Judicial Standards and Accountability Bill must be set up to ensure discipline in the judicial system. This independent body must investigate the complaints against judges and must also regularly check the performance of the judges. This will help in decreasing corruption in the judiciary to some extent. The removal mechanisms of the judges should also be well established fair and reasonable and must be put into effect when needed. The privilege of contempt of court given to judges should also be exercised only under limited circumstances and the judges must justify their reasons for excising the same.
The then United Nations Special Rapporteur on the Independence of Judges and Lawyers, Leandro Despouy, in his 60th session of the Commission on Human Rights stated that“A lack of trust in justice is lethal for democracy and development and encourages the perpetuation of corruption.”
The phenomenon of Corruption and Nepotism is not new in the judiciary and has increased over the years. By enjoying the power of contempt of courts and hiding behind the shield of judicial independence, the judges have abused the integrity and sanctity of the judicial system in the past. Even though Indian mechanisms addressed the issue, corruption has been so strong that they have been ineffective. The judiciary has always managed to escape the clutches of judicial accountability. This could engender the trust and faith of the people in the judicial system. This calls for an urgent need for a stronger, effective, and comprehensive mechanism of judicial accountability in India.
 1991 SCC (3) 655
 162 (2009) D.L.T. 135
(1) LawTeacher, ‘The Accountability of the Judiciary’,<https://www.lawteacher.net/free-law-essays/constitutional-law/the-accountability-of-the-judiciary-constitutional-law-essay.php#ftn1> accessed 3 July 2020.
(2) ‘Judicial Accountability and Judicial Independence’, <https://shodhganga.inflibnet.ac.in/bitstream/10603/207059/14/14_chapter%208.pdf> accessed 5 July 2020.
(3) The Wire, ‘A Manifesto for Judicial Accountability in India’, <https://thewire.in/law/cji-ranjan-gogoi-supreme-court-judiciary> accessed 7 July 2020.
(4) Gayatri Rokade ,Abhijit Vasmatkar ,Richa Dwivedi,Transparency and Accountability in the Indian Judicial System,<http://www.jcreview.com/fulltext/197-1578480534.pdf> accessed 6 July 2020.
(5) Baruah, Rishiraj and Arora, Ronak, Judicial Accountability and Judicial Independence: The Touchstone of Indian Democracy, <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2011755> accessed 3 July 2020.