JUDICIAL ACCOUNTABILITY AND DEMOCRACY
The Contempt of Court Act 1971 punishes scandalizing of
the court. The Supreme Court has held that the fundamental
right of a citizen to free speech and expression has not
abolished the offence of scandalizing the court.
However, of lately, this privilege of contempt orders is used
by the court to suppress any voice which is raised against its
functioning. Recent orders of contempt of courts highlight
this issue. A strong criticism of judgments or a judge’s point
of view is being regarded as contempt of court. Recent
victim of these contempt orders are social activist Ms.
Arundhati Roy and eminent lawyer of Supreme Court
Prashant Bhushan. This is just an example of how the
fundamental right of citizens and the power of democratic
organ are misbalanced.
One of the basic elements of democracy is the
accountability. The organs of democratic country are
accountable to one another and this maintains a system of
checks and balances. However, the system of checks and
balances seems to be blurred by the separation of powers.
The concept of “separation of power between the legislature,
the executive and the judiciary” and “independence of
judiciary”, a fundamental concept, have now been elevated
to the level of the basic structure of the constitution and are
the very heart of the constitutional scheme.
An independent judiciary is the sine qua non for a vibrant
democratic system. The judiciary is the protector of the
constitution and, as such, it may strike down executive,
administrative and legislative act of the government. For
Rule of Law to prevail, judicial independence is of prime
necessity.
However, under the garb of judicial independence and from
the weapon of contempt orders, the judiciary seems to be
almost insulated from any kind of accountability and
transparency. This has given rise to the presumption that
judiciary is one of the most powerful organ having unbridled
powers. These perceptions might be one of the reasons of
the increasing cases of corruption in judiciary.
Unaccountability of judiciary has been posing a serious
threat to the democracy and it leads to corruption. The only
remedy, for any offence committed by a judge, is
‘Impeachment’. However, the impeachment process, as
prescribed in the Constitution, has proved as unworkable.
Therefore, the recent decision of the government to bring in
the Judicial Standards and Accountability Bill provides us
with some hope.
We shall further see the need for this bill, under the light of
increasing cases of corruption and the drawbacks of the bill
and how can it be made more effective.
Corruption In Judiciary
Lord Acton once observed that "Power tends to corrupt, and
absolute power corrupts absolutely.”
Judiciary in India is more powerful than any other organs.
This is by virtue of its independence, non-accountability to
anyone and almost impractical and unworkable mechanism
for removal, which the Indian republic has witnessed in
Justice Ramaswami impeachment motion.
However, when we claim ourselves to be a democratic
republic nation, we do subject ourselves to accountability.
The system of government, in India is based on separation of
power, and by virtue of that, the organs of republic India is
accountable to each other. However, the accountability of
judiciary seems to be blurred by its concept of
‘Independence.’
Corruption has rotten the whole system of governance in
India. No organ is spared from this menace, and judiciary is
no exception to it. Some of the instances which disgraced
the judiciary are:
JUSTICE K. VEERASWAMI:
The former judge of the Madras High Court was found
guilty under the Prevention of Corruption Act, 1946, but
fought his case in 1991 in the Supreme Court. The apex
court in a later judgment held that a sanction from the CJI
was necessary before a criminal case could be registered
against a judge. This judgment was criticized as it
contributed to the stiffness with regard to making a Judge
liable for corruption.
JUSTICE V. RAMASWAMY:
Son-in-law of Veeraswami was a judge in the Supreme
Court when the Speaker of the ninth Lok Sabha admitted an
impeachment motion brought by 108 MPs against him for
financial irregularities committed during his term as chief
justice of the Punjab and Haryana High Court. The motion
was, however, defeated as Congress MPs stayed away in
1993. This first ever, impeachment case provided us the
instance of how impractical the impeachment proceedings
are. Despite a high-power inquiry committee of three
eminent judges having come to the conclusion that
Ramaswami was guilty of several acts of gross misbehavior
which warranted his removal, the judge was still entitled to
discharge judicial functions from the highest court of the
land.
JUSTICE A.M. BHATTACHARJEE:
The chief justice of the Bombay High Court was forced to
resign in 1995 after it was found that he had received Rs.70
lac as book advance from a publishing firm known to have
links with the underworld.
JUSTICE AJIT SENGUPTA:
The Calcutta High Court judge made it a routine to issue ex
parte, ad interim stay orders on anticipatory bail pleas from
smugglers having links with the Mumbai underworld. He
was arrested in 1996 for F.E.R.A. violations after retirement.
JUSTICE A.S. ANAND:
As CJI, he was accused of using his position to get the
subordinate judiciary to rule in favor of his wife and mother-
in-law in a suit that had been barred by limitation for two
decades. There was also a CBI probe after a dispute arose
over his age in 2000. The investigation report was not made
public.
Some of the recent cases, in which the judges are facing
corruption charges are:
Justice Soumitra Sen of Calcutta High Court: He was
charged with the allegations of misappropriation of large
sums of money, which he had received in his capacity as
Receiver appointed by the High Court of Calcutta. He also
misappropriated the facts relating to the investigation.
Justice P. Dinakaran of Sikkim High Court {former CJ
Karnataka High Court}: Misappropriation of assets.
Justice Nirmal Yadav of Uttrakhand High Court {former
Judge Punjab and Haryana High Court}
Provident fund scam: one of the biggest judicial scam in the
history. More than 15 Judges of Ghaziabad court and also
few of them from High Court are charged with
embezzlement of more than Rs 7 Crore.
These are only some of the reported cases of corruption in
judiciary, many of them still goes unreported. The main
reason for this is the sword of contempt, through which
judiciary has got unbridled authority without any
accountability towards it.
All these cases and increasing demand of transparency in all
organs of government, led to the passage of Judicial
Standards and Accountability Bill. Now, we shall discuss
the need for such law in detail.
Need For Judicial Accountability Bill
“Responsibility is the price of freedom.” A freedom or a
right always comes with correlative responsibility or duty.
Therefore when we argue or advocate for the independence
of judiciary, we have to bear in mind that for their
independence, they have to be accountable. But again the
vital question remains as to whom they should be
accountable?
The real need for this law might have felt in year 1991 itself,
when the Supreme Court relaxed the investigation of
corruption charges against a Judge {Veeraswami case}. It is
the effect of this judgment that prevented the investigation
and prosecution of many Judges against whom there was
documentary evidence of corruption, fraud,
misappropriation, etc. Further, the constitutional provisions
regarding the impeachment of Judges, seems to be so
inadequate and un practical, that till now not a single judge
have been impeached, even after the sufficient evidence
against them, in hand.
The growing cases of corruption and indiscipline among the
judges seems alarming, in the absence of any workable
provisions of any law. Therefore, this bill seeks to make the
judges accountable to a certain extent for their acts and
conduct in their official capacity. Although there do exists
certain loopholes and flaws, which, if amended would make
the bill more meaningful. The flaws of the bill are discussed
later under this paper.
Transparency in the judicial organization and among the
judges was very much demanded in the recent past. A need
was felt that the judges should declare their assets. However,
many judges of the higher judiciary have declared their asset
voluntary, although, its reliability is still questionable.
Another point, to buttress the need of such law, is the
response of Judiciary towards, Right to Information Act,
2005. This Act was enacted as a tool to effectively check
corruption in our democratic system.
The other wings of our system, namely legislature, executive
has been duly brought under the ambit of this act for all the
purposes. Any information can be obtained from the
departments of both of these organs. However, judiciary has
kept itself aloof from RTI, for all the practical purposes.
Also, the Supreme Court has confirmed that decision of the
of the Registrar General of the Court should be final and not
subject to any independent appeal to the Central Information
Commission. The former CJI even went to extent of saying
that “any self respecting judge would not like the idea of any
layman {third person} probing into the allegations against a
judge and imposing punishment”. Therefore, keeping itself
outside the purview of RTI undermines the confidence of the
public in judiciary vis-a-vis the system of justice in the
biggest democratic country.
Thus, it is clear that how the judiciary in our country is
completely unaccountable to any other organ. It is covered
under the layers of protection, and has also self insulated
itself from the investigation into any criminal matter without
the approval of CJI. This poses a threat to the democratic
fabric of our country. In fact, in these conditions, the
institution of justice cannot even be considered as
democratic and therefore there is a need of a law which
makes Judiciary accountable.
Before examining the provisions of the accountability bill,
let us see some of the existing provisions of the Constitution
and other law, which provides for several judicial processes.
Constitutional Provisions And Judges Inquiry Act
From reading the preamble of the constitution, it becomes
evident that “Justice is placed higher than the other
principles of ‘Liberty’, ‘Equality’ and ‘Fraternity’.
The task to secure justice has been specially assigned to
judiciary, and this may be the reason, as to why there have
been so much of provisions in the constitution regarding the
independence of judiciary. The members of Constituent
Assembly were very much concerned with the question of
independence of judiciary and, accordingly made several
provisions to ensure this end. The Supreme Court has itself
observed: “The constitutional scheme aims at securing an
independent judiciary which is the bulwark of democracy”.
However, this independence has been misused by the
judicial fraternity in number of circumstances as discussed
above.
From the process of appointment, till the procedure for
impeachment, almost all the provisions which was included
in the constitution for better functioning of the judiciary, has
been misused by the it.
Constitutional Provisions Regarding Appointment:
It is evident from the bare provisions that our constitutional
makers did not wanted the appointment of judiciary
exclusively in the hands of executive. Although it was clear
that there should be effective involvement of the chief
justices in the appointment of judges, but it was not clear as
to who will have the last word in appointment. This created
a lot of confusion when the regular course of appointment,
{i.e:the senior most judge would become the chief justice}
was broken. It led to First Judge case of S.P. Gupta V.
Union of India, in which it was held that CJ did not have the
last word in the appointment. However, this was overruled
in the Second Judges case, Supreme Court Advocates on
Records Association V. Union of India. In this case, it was
held that the opinion of the Chief Justice of India, as a
consultee would have to be final opinion which must prevail
in the appointment of a judge. The opinion of the CJI is to
be formed collectively, that is to say, after taking into
account the views of his senior colleagues who are required
to be consulted by him for the formation of his opinion.
Thus through this judgment the executive element in the
appointment process is reduced to the minimum and any
political influence is eliminated.
This process of appointment is now settled. However, it is
criticized as being arbitrary, adhoc and non-transparent. “A
judiciary which has total control over its own composition
would have a conformist outlook. Collegiums which decides
the matter in secrecy lacks transparency and is likely to be
considered a cabal. Prejudice and favor of one or other
member of the collegiums for an incumbent cannot be ruled
out”.
Recently, this appointment procedure again raised a strong
criticism, when Justice Dinakaran name has been
recommended, along with four others by the Supreme Court
collegiums for elevation as judges of the Supreme Court.
Provisions Regarding Impeachment:
The question of removal of a Judge before the age of
retirement is an important one as it has a significant bearing
on the independence of judiciary. The Constitution provides
that High Court and Supreme Court judges cannot be
removed except by impeachment. That process requires
signatures of 100 MPs of the House of People or 50 MPs of
the Council of States for its initiation. If a motion containing
charges of serious misconduct with the requisite signatures
is submitted, and admitted by the Speaker of the House of
People or the Chairperson of the Council of States, an
Inquiry Committee of 3 judges is constituted to hold a trial
of the judge.
Only if he is found guilty, the motion is placed before each
House of Parliament where it has to be passed by a 2/3
majority of each House.
Art 124(5) also provides that parliament may pass any law
and lay down detailed procedure according to which the
address of Impeachment may be presented and the charge of
misconduct or incapacity, against the Judge, may be
investigated and proved. Accordingly, the Parliament
enacted The Judges (Inquiry) Act, 1968. This Act was a
legislative attempt to hold the judges accountable for their
acts of omissions and commissions. An attempt was made to
amend this act by way of Judges (Inquiry) Bill 2006.
However this Bill has now lapsed and the Judicial
Accountability Bill 2010 seeks to replace the Act.
The first ever impeachment proceeding under this law was
that of Justice V. Ramaswami. Despite the motion for
removal being passed unanimously by the members who
voted, it failed to impeach, as the members of ruling party
abstained themselves from voting.
This experience has shown that it is practically impossible to
remove a Judge through impeachment even if one is
somehow able to get documentary evidence of serious
misconduct. The failure of motion raised certain grave
question about the integrity of the judiciary and the
administration of justice.
Currently, the impeachment proceeding is going on against
Justice Soumitra Sen of the Calcutta High Court. The case of
Justice Dinakaran of the Sikkim High Court (earlier in the
Karnataka High Court) is under investigation.
Significant Provisions And Authorities Under The
Proposed Act
The background and the need for the accountability bill have
already been explained. There are some new provisions in
the act which seek to address the prevailing situation of
infirmity. The bill, if enacted will repeal the Judges’ Inquiry
Act, 1958 or will have overriding effect on it.
The proposed accountability bill includes certain new and
demanded provisions for maintaining discipline and
transparency in the judicial organization. These are:
Mandatory disclosure of assets and liabilities of not only
judges, but also of their spouse, children and other near
relatives.
Certain activities of judges are prohibited and restrained
keeping in view the code of conduct required to be
maintained by them. Some of them are:
A prohibition is been placed on keeping close association
with a member of bar who practices in the same court.
Family Members, who are also the member of the bar,
cannot use the judge’s residence for professional work.
A Judge also cannot hear or decide a matter in which his
family or relatives are involved.
Also, a Judge cannot enter into public debate on any matter
which he likely to decide.
The abovementioned provisions are only few illustrations of
new changes been proposed to made into the judicial ambit.
A significant change will also be made in the process of
removal of judges. The existing provisions for impeachment
have been proved as unworkable and insufficient to remove
a judge or punish him for his misdeeds. Let us now examine
the existing provision and the proposed changes.
Under the existing law of Judges (Inquiry) Act, the
complaint has to be filed by a Member of Parliament. The
new bill provides that the complaint can be filed by any
person. The complaint can be made to the Speaker of Lok
Sabha or to the Chairman of Rajya Sabha. In addition to this,
under the new bill the complaint can also be made to the
Oversight Committee set up under the Act.
Authorities Under The Act
The bill recommends a complete new set of arrangement for
complaint mechanism and procedures after that. However,
this has been much controversial as regards to judicial
independence.
The bill establishes three authorities, or we can say three
steps for looking into the alleged complaints. These are:
The National Judicial Oversight Committee;
The Complaints Scrutiny Panel; and
Investigation committee.
Let us now examine these authorities:
National Judicial Oversight Committee: It will consist of a
retired Chief Justice of India as the Chairperson, a judge of
the Supreme Court, a Chief Justice of the High Court, the
Attorney General for India, and an eminent person appointed
by the President. The Oversight Committee shall have
supervisory powers regarding investigation into complaints
against judges, and also the power to impose minor
measures.
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. The Panel shall conduct
an initial investigation into the merits of a complaint made
against a judge. It shall also have the power to report
frivolous or vexatious complaints. Persons making frivolous
or vexatious complaints can be penalized by rigorous
imprisonment of up to five years and fine of up to five lakh
rupees.
Investigation Committee: will be set up by Oversight
Committee to enquire into complaints. The investigation
committee will be set up if the Scrutiny Panel recommends
that an inquiry should be carried out to investigate a
complaint. The Bill does not specify the qualifications of
members of the investigation committee, but leaves this to
the discretion of the Oversight Committee.
Defective Composition
As we examine, the composition and the powers of each
committee, we will find that it consists mainly of the
members from judicial fraternity itself. This may again
prove as an encumbrance in dealing with complaints
effectively.
It is always that judiciary is never acceptable of any third
person for any of the matter within its framework. The
defense of judicial independence is always there with it.
Even in the oversight committee, there is mention of only
one “eminent person” and Attorney General. This “eminent”
person may or may not be a judicial person. Even though
s/he is not a judicial person, his opinion may not be of much
weight age, as the majority decision of the committee will
always be considered.
One of the biggest defaults in the composition of the
committee is that, it consists mainly of the sitting judges of
high court or Supreme Court. This leads us to the general
believe that the opinion of the judge might be influenced by
any political or extra judicial considerations. Moreover, we
are already facing a crisis of lack of judges in the courts and
because of this large no. of pending cases are also there. In
these scenarios, appointment of any judge for this function is
not feasible, as the function of investigation can be carried
out even by administrative personnel also.
Another point of defect in the composition is that of the
inclusion of a Attorney General. Attorney General
represents the government in courts. It is possible that
previously Attorney General might have appeared before a
judge against whom allegations have been made. This will
surely amount to conflict of interest.
One of the commendable things is that the scrutiny
committee has to set up in each of the high court and also
Supreme Court. However, the composition of this committee
is even more dangerous. This committee shall consist of a
sitting judge of that high court or Supreme Court. This
judge’s opinion is bound to be influenced, when he is
deciding the case against one of his colleagues.
Clearly, this composition violates the basic norms of
equality and natural justice. For example, a thief cannot
investigate into charges of another thief; similarly a judge
should not decide or investigate into a case of another judge.
The composition of members of investigation committee is
not mentioned in the bill. This again gives the independence
and flexibility to include any person in the committee. No
doubt, that this membership will also be politicized.
Loopholes In Draft
The accountability bill seems to be a savior, in those
situations where other existing provisions to check the
judicial menace, have failed.
However, a close examination of the provisions of the bill
will reveal that the bill itself is not complete and it contains
certain loopholes, which may be misused. The process for
enquiry and investigation is weak.
One of the biggest flaws in the bill is the constitution of the
committees under the act. The fellow judge who
compromises of the investigating members might be
influenced by some extraneous considerations. The power of
investigation in the hands of fellow judges amounts to the
conflict of interest. The judges are also over burdened with
their task of adjudicating and this may seem to further
overburdening him.
The accountability bill is also alleged to compromise with
the independence of Judiciary, so much so that it allows any
person to complain against judges. No doubt that this
allegation has been made by members of judiciary itself.
The present process of impeachment requires the consent of
more than 200 parliamentarians. This process ensures
democratic aspect of impeachment. However, under the
present bill, impeachment process can theoretically be done
by one office or say one man only. This is not at all fair,
democratically and also for judicial independence.
One of the most controversial provisions is the definition of
the term “misbehavior”. Section 2(j) gives the definition of
the term It reads as:
Misbehavior means:
Conduct which brings dishonor or disrepute to judiciary; or
Willful abuse of judicial office; or
Willful and/or persistent failure to perform duties of the
judge; or
Corruption or lack of integrity which includes delivering
judgments for collateral or extraneous reasons, making
demand for considerations in cash or kind for giving
judgment or any other action on the part of the judge which
has the effect of subverting the administration of justice; or
Committing an offence involving moral turpitude; or
Failure to furnish the declaration of assets and liabilities in
accordance to the provisions of this act; or
Willfully giving false declaration of assets and liabilities
under this act; or
Willful suppression of any material fact, whether such fact
relates to a period before assumption of office, which would
have bearing on his integrity ; or
Willful breach of judicial standards.
Although the definition seems to be exhaustive and includes
almost all the aspect of the judicial misbehavior. However,
by defining, the term misbehavior, it loses its flexibility. It
means that although other acts or conduct by a judge, which
may ultimately be regarded as corruption, if not included in
this definition, will not be liable under this act.
Former CJ of Madras and Delhi High Court Justice Ajit
Prakash Shah said that, “By laying down a strict definition,
the concept loses its elasticity and becomes both under-
inclusive and over-inclusive. Over-inclusive, in the sense
that even a minor breach of judicial standards, say late filing
of assets declaration, could constitute misconduct; and
under-inclusive to the extent that Definition is exhaustive
(since it uses the word “means”), it is incapable of catching
within its fold any “misbehavior” that might not be covered
by this provision.”
The procedure for appointment of judges, was one of the
matter which was criticized all over, for being an “in-house
procedure” .The bill makes no effort to amend the existing
provision of appointment of judges.
This bill does not really make the judges accountability to
the public at large as it exempts the procedure of
investigation and other documents from the purview of RTI.
Clause 43 of the bill clearly exempts the operation of RTI,
relating to all the documents, records and proceedings
related to complaints, preliminary investigation and inquiry.
Therefore this bill maintains the status quo with regard to
any information being made public. This provision really
hampers the credibility of the bill, as it is being excluded
from the Transparency law of India.
Therefore, considering these issues may be concluded that
the bill is just an attempt to bring judicial accountability,
through an enactment. Apart from few provisions, the bill
fails to address the issue of corruption and accountability.
Prashant Bhushan, an eminent lawyer of the Supreme Court,
described the Bill as a “cosmetic exercise designed to fool
the people into believing that some kind of exercise was
conducted by the Government to clean up corruption in the
judiciary.”
Conclusion:
Lord Woolf, the Chief Justice of England and Wales, in a
article, said that, “independence of the judiciary is not the
property of the judiciary, but a commodity to be held by the
judiciary in trust for the public.”
The utmost importance is given to the judiciary in
comparison with other organs of the republic. This is
because of the reason that, the judiciary is established as the
protector of Constitution, dispenser of justice and it also acts
as a watch dog to other organs. But, in the changing times,
the judiciary has lost its confidence and integrity among the
public. The accountability bill, although suffers from certain
drawbacks, it first time attempts to introduce judicial
accountability, through the legislation.
However in the judiciary, the function may be both
administrative and judicial. For example; appointment of the
judges and staff in the registry, files in the court and their
journey till its final disposal are all administrative. So the
transparency in these processes does not call for interference
in the judiciary and these may be open to public scrutiny. It
is only the process of hearing and decision making a
completely judicial. Therefore, for administrative and
similar functions, the judiciary should not claim a complete
immunity from RTI.
The question which remained unanswered is that to whom
the judiciary should be accountable. Holding accountable is
one thing, which is not difficult to achieve, but in this case
the question is, “to whom”?
Accountability should always be towards the authority to
which we are answerable. At the end, I’m critical of the
Committee being setup under the Bill. Because of the
composition of this Committee, the judiciary is only
answerable to their fellow judges. In this context, the
previous provisions regarding impeachment, which is
provided in Art 124(5) seems much more complete.
To avoid any prejudice, there should be an independent
body, to investigate into any allegation against the judge.
This independent body should also be entrusted with all the
powers and functions as necessary for any investigation.
Further, Impeachment process should be made more
democratic and practical. It should involve votes from all
organs of republic.
If the loopholes mentioned above are filled in, then this bill
would be one of the historical legislation. Till then, we can
only hope that the spirit enshrined in this bill should to taken
to its true sense by all the organs of republic.
Cases Referred
EMS Namboodiripad vs Nambiar {1970} 2 SCC 325
State of Bihar vs Bal Mukund Shah AIR 2000 SC 1296
AC Thalwal vs High Court of HP (2000) 7 SCC 1, 9
AIR 1982 SC 149
Author may be reached at: shalin@legalserviceindia.com