Make the Judiciary Accountable - II

A friend suggested that a note talking about the need for Judicial accountability is incomplete if it does not throw any light on the contours of this concept. Rightly said and hence my attempt to address the gap.

For many years, the debate over the need for a formal mechanism to regulate judiciary would be killed over the fears of this regulation being a cover for executive interference in the Government. And truly, with the experience of ‘committed judiciary’ not being erased from our collective consciousness, even thoughts on regulating judiciary were considered sacrilegious. However, the ills plaguing the system were too stark to be ignored and faced with an imminent intervention from the executive, the Higher Judiciary attempted to self regulate with powers to transfer, appoint and castigate errant judges. However, like with other self regulating bodies, this attempt to self correct has been seen as compromised by the feature of ‘brother’ judges not willing to be seen as harsh on their brethren.

The judiciary has been rightly protected from the interference of the executive. But this protection has over the years morphed into a situation where

• There is an absence of any effective disciplinary mechanism,
• Judicial pronouncements over the years have meant that judges are protected from even being investigated for criminal offences
• Concept of contempt of court by which the judges have insulated themselves from public criticism
• Added insulation from RTI, through judicial pronouncements
• Judgements which mandate that institutions be manned by retired judges alone (latest is Information Commission)

Enter the Judicial Accountability Bill which was passed by the Lok Sabha in March 2012, as ‘The Judicial Standards and Accountability Bill, 2010, and Constitutional 114th Amendment Bill, 2010. Though the bill is not without demerits, particularly with regards to provisions on obiter dictum and fails to address issues like judicial appointments, nepotism and redressal adequately, it is a step towards enforcing judicial accountability. Broadly, the bill strives to ensure:

• Defining a mechanism for probing complaints on misbehaviour or incapacity of judges in the higher judiciary; and
• Regulate the procedure for such investigation

At the same time, the citizenry needs to press for the following to ensure that judiciary becomes accountable:

• Transparency in appointments
• Withdrawal of exemption from criminal investigations
• Abrogation of the concept of contempt of court in view of criticism
• Applicability of the Right to Information
• Cooling off period before a judge can become a member of any of the constitutional bodies, commissions and a cap to the number of such bodies he can be a member of
• Prohibition on retired judges to becoming legislatures
• Mandatory disclosure of assets of their family and its periodic scrutiny

In case the prescription seems harsh, let us not forget that Judiciary is the most potent pillar of our civilization, as we know. A weak enforcement of law will ensure that only the mighty and the crooked will rule and prosper at the cost of all others.

Acknowledgment: Prashant Bhushan, for his efforts in educating people on this area

Make the Judiciary Accountable

For a people driven to despair by the shenanigans of its ruling classes, the higher Judiciary in India seems to be a beacon of hope, an institution still committed to upholding our constitutional principles.

And truly, the various High Courts and the Supreme Court of our country have handed out judgements which have restored the much needed sanity in the madness around us. At the same time, there have been judgements which have been inexplicable and give reasons to doubt if the higher courts are really the institution which are above ills afflicting the organs of the state.

We, as Indians, have a propensity to idolize and defend the indefensible if the alleged culprits are our idols. The same tendency gets extended to our judiciary if a judge passes even one judgement which is well received by the media and the thinking classes. We then seem to forget that judgements are pronounced by humans and lesser men, when officiating as judicial officers can wreak havoc in a way which probably even politicians cannot.

The United States has well recognised that most judges are political beings with defined ideologies and that their pronouncements are well coloured by their individual biases. Hence, the appointment of judges is a well defined affair in which the judges get appointed through a vote following a hearing on their record. In India though, such appointments are driven by a mix of political expediency and the fellowship of higher judiciary.

While any system of judicial appointments will have some or the other loophole, what is more required is to build a system of accountability of our Honourable Judges. Authority and accountability need to go hand in hand if the authority is to perform what it is empowered to. If the Prime Minister and the Council of Ministers is responsible to the Prime Minister, the bureaucracy to the Prime Minister through a defined chain of command, the legislators to the people and so on, what is the case for exempting Judges from being accountable for their judgements?

So many times have the judgements of lower courts been overturned by the High Court. Countless times have High Court judgements been over-ruled by the Supreme Court. Stinging observations have been passed by the higher judicial authority on the atrociousness of judgements passed by the lower courts but that hasn’t made any difference to the careers of any of the judges concerned. Why are those judges who pass judgements which run contrary to principles of justice asked to explain their conduct? And we are still talking only of the lower courts. Why should the Honourable Supreme Court not be accountable? Before I am greeted with disbelief, I would request the readers to assess a few judgements in recent days

• The Court discharged Mayawati from the disproportionate assets case on technicalities
• The Court dismissed the petition against Mulayam Singh Yadav on unauthorised allotments of land
• The Court refused to make P Chidambaram subject to even an investigation in the 2G case when all facts point to his involvement in the decision making process
• An Honourable Judges’ penchant to dismiss any representation of the Gujarat Government in riot related cases at the outset itself
• Release of Sanjeev Nanda from jail even after accepting that he did run over 6 people in his Mercedes

 While these judgements have come in recent times, many other judgements in the last few years raise serious doubts over the intent of the Honourable judges pronouncing those verdicts. The regularisation of Commonwealth village on Yamuna Flood Plaints was blessed by the Court before the matter blew up. A chance to reform the defection game and resort politics was blown away by Supreme Court through a summary dismissal of the Karnataka High Court judgement. Almost everyone in the know now accepts that the then Chief Justice of India’s missionary drive on the Delhi sealing was driven by considerations not exactly honourable. Another retired Chief Justice of India has been hounded by serious allegations of accumulation of unaccounted wealth involving him and his family. But has anything happened to any of these people in question?

Armed with the powers of Contempt, the Courts have in effect muzzled anyone who seeks to ask – “Why, Your Honour, Why?”

It has become the norm for us to blame the executive, the legislature and the law enforcement for the woes plaguing our Nation. But if these legs of Governance are dysfunctional, can the judiciary, which sits at the apex of our Governance, escape the blame? It is the judges, the courts, which instil the fear of law among those who waver from the path of probity. It is upto the courts to set rights wrong, for it is they, who have the powers to summon, to probe and most importantly, to punish. How can then we let this exalted institution rot and crumble under the weight of unworthy men? How can we ensure that even those who are worthy enough to man these sublime posts do not waver and pronounce verdicts without any ideological or any other colour?

While not the perfect panacea, a Judicial accountability bill is the need of the hour. Let not the reform of our system stop at the demand for a Lokpal. We need a system which requires judges to be accountable and a Judicial Accountability Framework is a need which we would do well to recognise and press for fulfillment of!