Need for Stronger Judicial Accountability

The article 'Need for Stronger Judicial Accountability' critically analyses the need for stronger judicial accountability and its pros and cons. It also enumerates the challenges that are present in order to have stronger judicial accountability.

Introduction

"Accountability is the glue that ties commitment to the result"- Bob Proctor 

Accountability, according to the Cambridge Dictionary is said to be 'the fact of being responsible for what you do and able to give a satisfactory reason for it or the degree to which this happens.' It is said that justice should be available, accessible, and accountable. When people resort to filing a case, that is when they have exhausted all the other social remedies that may be available to them.

The Judiciary is the third pillar of Indian democracy, which calls for its higher need of accountability. Therefore, the judiciary is an independent, and impartial remedy-providing system. When two parties approach the court, they hope to get the best relief possible, they have endured inconvenience and struggle, and then have decided to approach the court. That is the reason why judges need to be held accountable for their decisions.

Another aspect that raises the need for stronger Judicial Accountability is corruption in the judicial, which is not a new phenomenon but is only increasing.[1]

India is a democratic country, and the Constitution and the preamble set out a basic structure for it, which includes that the justice served should be social, economic, and political. "The narrow conception of accountability however suffers from a straitjacket view devoid of general guiding principles."[2]   But when we look at it from a wider perspective the word accountability is the search for normative values inculcated by democratic values that try to guide the exercise of power and freedom enshrined in the Constitution.

However, it is against the principle of judicial immunity granted to them under Articles 124(4) and 218 of the Constitution of India.

Judicial Accountability v/s the Concept of Judicial Immunity

The concept of judicial immunity protects the judges from being punished against wrong decisions which say that a Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament under by majority of less than two-thirds Article 124(4) and the same is applied for judges of the high court by the virtue of Article 218. Only Article 235 tries to hold some accountability on the lower court judges, it says that the high court has control over the posts not below that of the district judge. However, in the case of Krishna Prasad Verma v. State of Bihar[3], it was held that an erroneous order cannot be said to be a miscount unless they are passed for extraneous reasons. It was held in another case that the High Court is the only authority that is the sole custodian of control over the judiciary.[4]

From this case, it can be interpreted that the only custodian is the High Court, there is the accountability of the district court's judges to the High Court. That can be said to be accountable internally within the judiciary. And there is no external accountable authority, the only process that is there is the removal of the High Court Judge under Article 218 and for a Supreme Court Judge is 124(4).

Judicial Independence and Judicial Accountability

"The judicial independence and judicial accountability are often seen as conflicting values."

It is believed that judicial independence which guarantees adjudication free from interference from the legislature and the executive, is entailed by the questions of judicial accountability. However, according to Honourable Chief Justice D.Y. Chandrachud, this is a misconception and fallacy.

The judiciary runs on the pillar of independence and impartiality, and the independence of a judge will determine his ability to give fair decisions. To be independent, a judge must have the ability to decide "without fear and favour, affection or ill will".

The constitution ensures that a judge's ability is not disrupted by the provisions discussed above. These are intrinsic elements of the constitutional machinery. Judicial independence is not to protect the wrongdoer but to ensure the basic constitutional right to a fair trial is fulfilled, therefore not a carte blanche i.e., absolute freedom to do anything. "Judicial independence does not mean the insulation of judges from the rule of law." That is because "transparency and right to information are crucially linked to rule of law itself."[5]

Judicial independence focuses on freedom, and judicial accountability is in the manner in which that freedom is exercised. Judicial independence to a judge is not given to him, to insulate and protect from the actions which have no bearing on the discharge of judicial duty. Rather it is given to hear both parties and give reasoned orders and decisions.

When it comes to legislative accountability, that is there, because they are the elected representatives, however, the judges are not chosen that way. Hence, their accountability is different and the same is to protect the independent decisions they have to make.

Judges cannot be questioned like the elected representative because they are vested with the crucial duty to make reasoned decisions, unlike the elected representatives of the legislature. Hence, they are accountable in a different way as defined in the Judges (Inquiries) Act, of 1968. Under section 3 of the act, the judges can be impeached only on the ground of misbehaviour and incapacity. Hence, it cannot be said that the principle of accountability will somehow affect its independence and thereby it's functioning.

The Procedure of impeachment under the Judges (Inquiries) Act, 1968

Under Section 3 of the act, a notice of motion needs to be given to the president for the removal of a judge, by the House of People, by not less than 100 members of the House or by a Council of States, by not less than 50 members of that council. Then the speaker or the chairman, admits the motion and then sets up a committee of one of the supreme court judges, one of the Chief Justices of the High Court, and one distinguished jurist (in the opinion of the speaker or the chairman).

Then this committee will frame charges and start an investigation on the basis of that. During the investigation, the committee shall have the same powers as that of a Civil Court, and the accused judge shall be given an opportunity of being heard.

If the committee thinks the judge of being mentally or physically incapable, then medical examination needs of the judge to be done, if he refuses to undergo a medical examination, then he shall be considered medically unfit. After the investigation is complete the committee shall state in the report it's finding, whether the charges against the judge are found to be true or not. If true, then the motion together with the report of the Committee will be taken up for consideration by the House of Parliament in which it is pending. If no charge is proved then no further steps shall be taken in either House of Parliament.

Challenges in implementing judicial accountability

The challenges or problems with judicial accountability are as follows:

1. The process of impeachment of a judge has only been initiated 5 times to date.[6]
2. There is no process for the general public to request for impeachment of a judge, only the legislature can do so.
3. The legislature has control over who gets impeached, they can use it in a political way, for their benefit.
4. The judge is presumed to be medically unfit if he refuses to go for a medical examination.
5. The investigation by the committee is not similar to a trial, where the judge can also have a lawyer appointed for his defence. When every accused has the right to a fair trial then why not the judge?
6. No appeal can be filed against the impeachment order.

The Judges (Inquiry) Bill, 2006 which inculcates the provisions that solve the above problems, hasn't been passed in the parliament, the leaders refuse to vote for it, because then the formation of the committee will different, i.e., the council for preliminary investigation, it will consist of the Chief Justice of India, two judges of the Supreme Court, two judges of the High Court, all nominated by the Chief Justice of India, and therefore, a member (distinguished jurist decided by the speaker or the chairman) shall not be present in such committee. Therefore, it will be an entirely judges council. And the people of the houses will think why will the judges go against a fellow judge, therefore a question of bias will be there in their minds.

This is a highly pointless opinion of the members sitting to pass the Bill as they will be the same judges that give judgments on crucial issues of law for the benefit of society.[7]

There is no other penalty other than impeachment to impose stronger judicial accountability. Section 3 of the Judges (Protection) Act, 1985 states that no court shall entertain any civil or criminal proceeding against a judge for anything said, or done in the course of discharging his judicial duty.

The doctrine of Separation of Powers

The doctrine of Separation of powers also known as "trias politica" states that there should be a strict division of power between law-making, law-enforcing, and law-reviewing. If the same doesn't prevail, there can be a serious miscarriage of justice, and also a constitutional breakdown.

It is the principle that states there shall be three organs of the state, the legislative, the executive, and the Judiciary. It also illustrates that one person cannot be a part of more than one organ. It also states that one organ cannot interfere with the functioning of the other organ. It is based on the legal maxim "Nemo judex in causa sua", which is the Latin for no one can be a judge in his own case. If the same organ reviews what it does, it might never occur to be wrong.

The current process of impeachment is based on the same principle; therefore, the houses of parliament have been given the power to impeach the judge, and the president's assent is also considered necessary for it. Like the laws made by the legislature can be reviewed by courts, the decision of removal of a judge stays in the hand of the Parliament and the President

Landmark Judgments

In the case of Sub-Committee on Judicial Accountability v. Union of India[8], it was held that neither the doctrine that dissolution of a House "passes a sponge over parliamentary slate" nor the particular provisions contained in any rules made under Article 118 of the Constitution determine the effect of dissolution on the ongoing motion for removal of a Judge under Article 124. The reason is that Article 124(5) and the law exclude the operation of Article 118 in this area. Article 118 expressly states that each House of Parliament may make rules "for regulating, subject to the provisions of this Constitution". Therefore, it's not exclusive for the courts to decide whether such a motion shall lapse after the dissolution of the houses.

Sections 3 and 6(2) of the Judges (Inquiry) Act say that the motion shall be kept pending until the committee submits its report of the investigation of charges against the judge and if the committee finds the Judge guilty, the motion shall be taken up for consideration.

Article 124(5) is parliamentary law that is of higher efficacy than rules made by the House for itself under Article 118. It was also enumerated that, the courts including the Supreme Court do not have any jurisdiction to pass any order in relation to a proceeding for the removal of a Judge of the superior courts.

In the case of Purushothaman Nambudiri v. State of Kerala[9], it was held that the Lok Sabha Rules, Rules 185, 186, and 187 should be treated as supplementary to sections 3 and 6 of the Judges (Inquiry) Act, 1968. The original motion admitted by Speaker remains pending till it is taken up when the date is fixed by the speaker on receipt of the report from the committee. This concept of pendency of the original motion is the life and soul of the Act and without it, the Act is liable to be struck down as ultra vires. Judges (Inquiry) Act, 1968. Therefore, Sections 3 and 6 were held constitutional and intra vires.

Conclusion

Judicial accountability of the lower courts is vested with the High Court, and that of the High Court's and the Supreme Court's is vested with the Parliament, that is the process of impeachment. However, there is nothing else that can be done except impeachment to severe the judicial accountability as of now.

If we cannot file a criminal or civil case against the judiciary, then one can think of reporting any misconduct to the media, which in turn has the risk of being punished with contempt of court. Contradictorily, there is no judge that has been impeached till date, but the process of impeachment has been started several times against Judges. For example, Justice Ramaswami, Soumitra Sen, Justice Ashwini Kumar Mata, Justice P.D Dinakaran, and Justice J.B. Pardiwala.

References

[1] Judicial Accountability in India, Available Here

[2] Supreme Court of India v. Subhash Chandra Agarwal, (2020) 5 SCC 481

[3] (2019) 10 SCC 640.

[4] P.S. Malik v. High Court of Delhi, (2020) 19 SCC 714

[5] Supreme Court of India v. Subhash Chandra Agarwal, (2020) 5 SCC 481

[6] List of judges who faced impeachment proceedings, Available Here

[7] Judicial Accountability In India, Available Here

[8] (1991) 3 SCC 65

[9] 1962 Supp (1) SCR 753

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