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