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Guarding the guardians of constitution

Nishtha Malhotra 
on 07 October 2016

LinkedIn


INTRODUCTION

The three organs of the Indian government - Legislature, Executive and Judiciary perform three essential functions of rulemaking, rule application and rule adjudication respectively. The main principle behind this formulation is separation of powers: which brings accountability, keeps the government restrained and in this way our rights and liberties are safeguarded. In fact the main driving force behind this is based on the simple saying that ‘power corrupts man and absolute power corrupts absolutely’.

In the words of Montesquieu, “Constant experience has shown us that every man invested with power is apt to abuse it, and to carry his authority until he is confronted with limits’.

In short absolute power without accountability leads to corruption. Corruption in India is always in limelight. In his foreword to the UN Convention Against Corruption, the then Secretary General of the United Nations, Mr. Kofi Annan wrote, “Corruption is an insidious plague that has a wide range of corrosive effects on society. It undermines democracy and the rule of law, leads to violations of human rights, distorts markets, erodes the quality of life and it allows organized crime, terrorism and other threats to human security to flourish.”[1] However recently what has caught our attention is the corruption charges levied against judges; examples being a Calcutta High Court Judge Soumitra Sen guilty of misappropriating large sums of money and making false statements regarding it and Chief Justice of Karnataka High Court P D Dinakaran, alleged for land grabbing and corruption. It is nevertheless to be noted that the word ‘recently’ should not mislead us to think that corruption in judiciary is a new thing, it has always been there, only less talked about. But given the increase in the rate of corruption charges one can’t help but ask the question ‘who is judging the judges?’

There is another principle working together with the separation or balance of power i.e., principle of checks and balances. To simply put the theory of checks and balances holds that no organ should be given unchecked powers. The power of one organ should be checked and restrained by the other two, thus a balance is secured. After all ‘power alone can be the antidote to power’. So we see in India how the executive is individually and collectively responsible to the legislature, although here the accountability has decreased because of anti-defection law, whereby if there is any amount of dissent from the legislator, he is threatened with removal which can cost his constituency being unrepresented. Thus all decisions of party leaders are now just rubber-stamped by Parliament.[2] The laws passed by the legislature are checked by the judiciary, if it goes against the Constitution the latter declares it null and void. Moreover the legislature is accountable to the people who elect them for five years. Given this it becomes clear that the judiciary is the guardian of the Constitution and protector of fundamental rights. In spite of this there is a sudden spate of judiciary corruption which is proving to be self-defeating and is indicating towards the lack of accountability in the institution, this is what I will be discussing in my project. This is important because in the preamble we give to ourselves

JUSTICE- Social, Economic and Political.

Any authority that has some amount of public power must be responsible to the people. The fact is that in a ‘democratic republic’, power with accountability of the individuals enjoying it, is essential to avert disaster for any democratic system.[3] But before moving into the concept of accountability, what is important to note and understand is another concept i.e. ‘independence’ of judiciary. Both these concepts have to be studied together to understand any one.

INDEPENDENCE OF THE JUDICIARY

Independence is a bulwark of rule of law.[4] If law is to be applied equally to all citizens in the country then it is equally important that the judges should be independent in applying law and rendering judicial decisions. Judges can be subject to threats and pressures from litigants, including society’s criminal element.[5] Independence of judiciary is a recognized principle adopted by most of the democratic countries.

History of judicial independence in United Kingdom, United States and India.

United Kingdom: The concept first began from here. There had been a long struggle between the parliament and monarchy to control judiciary. In the 17th century, the parliament passed a settlement act, which stipulated that the tenure of the judges would be subject to good behaviour and their removal after an address to both houses of parliament.[6]

United States: Attempt for independence was seen in the 1985 Basic Principles on the Independence of Judiciary which states “the Judiciary shall decide matters before them… without any restrictions, improper influence, inducement, pressures, threats or interference, direct or indirect, from any quarter or for any reason”.[7]

India: Before independence, judges were appointed by the Crown, yet they had independence from it. After independence, this principle was taken seriously and it became a part of the Basic Structure of the Constitution, which cannot be amended. The independence is guaranteed by the Constitution which holds that the judges of the Supreme Court and the High Court hold office till he attains 65[8] and 62[9] years of age. The parliament is authorized to prescribe the privileges, allowance, leave and pension of the judges of the SC.[10] The Constitution prescribes for high qualifications for the judges.[11] Further no judge can be removed from his office by the President except upon the presentation of him of an address by each house of the parliament for such removal on the grounds of misbehaviour and incapacity.[12] A judge of the SC and HC is appointed by the President of India in consultation with the CJ of India and such judges of SC and HC as he may deem necessary.[13] The SC is also treated as the court of record.[14] However this independence has been misused by many and it has also been the reason for the growth of enormous power. The problem actually lies in the understanding of independence; it should be understood as independence from executive and legislature and not independence from accountability. The spirit of independence has been captured very aptly by Lord Woolf, “the 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.”

JUDICIAL ACCOUNTABILITY

Judicial accountability is in fact a corollary of the independence of the judiciary. Simply put, accountability refers to taking responsibilities for your actions and decisions. It generally means being responsible to any external body; some may insist accountability to principles or to oneself rather than to any authority with the power of punishment or correction.[15] Since accountability is a facet of independence the Constitution has provided in Article 235, for the ‘control’ of the High Court over the

Subordinate Judiciary clearly indicating the provision of an effective mechanism to enforce accountability. Thus entrustment of power over subordinate judiciary to the High Court preserves independence as it is neither accountable to the executive or the legislature.[16] The provision of the difficult process of impeachment has also been directed towards this goal. The absence of any mechanism for the higher judiciary except for extreme cases is because the framers of the Constitution had thought that ‘settled norms’ and ‘peer pressure’ would act as adequate checks. However it hasn’t happened completely in that manner. The main problem is that the judiciary is neither democratically accountable to the people nor to the other two organs.

The Supreme Court had rightly asserted that “A single dishonest judge not only dishonours himself and disgraces his office but jeopardizes the integrity of the entire judicial system.” [17]This brings us the section on why do we need accountability. A campaign issued by the people’s convention on Judicial Accountability and Reforms had mentioned, “ The judicial system of the country far from being an instrument for protecting the rights of the weak and the oppressed has become an instrument of harassment of the common people of the country…. The system remains dysfunctional for the weak and the poor… (and has been) displaying their elitist bias.”[18]

Mona Shukla has listed down three promotions done by Judicial Accountability:

  • It promotes the rule of law by deterring conduct that might compromise judicial independence, integrity and impartiality.
  • It promotes public confidence in judges and judiciary.
  • It promotes institutional responsibility by rendering the judiciary responsive to the needs of the public it serves as a separate branch of the government.[19]

Transparency is facilitated through the process of accountability. It is best achieved when one is accountable to law. The existing systems of accountability have failed, and the growing corruption is eating away the vitals of this branch of democracy. This lack of accountability has been best put forward by Pt. Nehru in a diatribe, “judges of the Supreme Court sit on ivory towers far removed from ordinary men and know nothing about them.” The demi god’s image has to be replaced, after all judges are also humans capable of making mistakes and commiting vices. But what has gone wrong? The problem in making the judiciary accountable is discussed below which will help us in understanding the issue and later find solutions to achieve it.

INDIAN POSITION

In the Indian federal system of governance, the Supreme Court of India is the highest court of law, the entire judicial system of the country is controlled by it. Article 124 of the Indian Constitution provides for the establishment and the composition of the Supreme Court. At the State level each state has a High Court and the lower courts consists of trial courts, the district and session courts which represent the first tier of the judicial setup. The lower judiciary at district levels is supervised by the higher judiciary where there is 'line accountability’ which represents the classical hierarchical model in which supervisors exercise the power to discipline those who report to them and to reward compliance. Thus the question of accountability and disciplinary action against lower judiciary is taken care by the higher judiciary comprising of High Court at state level and Supreme Court at Central level.

The constitutional limitations on the judges of higher judiciary is provided in Constitution of India, Article 124 (2) and (4) in respect of the Supreme Court and in view of Art. 217, that procedure is attracted to the ‘removal’ of judges of the High Court also. The most important one is the provision for ‘removal’ of judges of the High Court/Supreme Court by address of the Houses of Parliament to the President on the ground of ‘proved misbehaviour or incapacity’. The Judges (Inquiry) Act, 1968 was enacted in accordance with provisions of Article 124(5) of the Constitution to regulate the procedure for investigation and proof of the “misbehaviour” or incapacity of a Judge of the Supreme Court or of a High Court and for the presentation of an address by Parliament to the President and for matters connected therewith.

The Judicial Standards and Accountability Bill, 2010 replaces the Judges (Inquiry) Act, 1968. It seeks to create enforceable standards for the conduct of judges of High Courts and the Supreme Court, change the existing mechanism for investigation into allegations of “misbehaviour” or incapacity of judges of High Courts and the Supreme Court, change the process of removal of judges, enable minor disciplinary measures to be taken against judges, and require the declaration of assets of judges.

The issues of Judicial Standards must be seen in the context of Art. 124(4) of the Constitution which provides for the process of impeachment of a judge on the grounds of proved “mis-behaviour” or incapacity.” It is only Parliament which is empowered under Art 124(5) to make laws, to regulate the procedure for presentation of address of impeachment, and for the investigation and proof for the “misbehaviour” or incapacity of a judge. Article 124(5) does not empower Parliament to create any other forum for recommending impeachment proceedings, or allow complaints to be made by any person, or to make a judge liable for minor penalties. What can be done only by a hundred or more members of the Lok Sabha or fifty or more members of the Rajya Sabha (i.e. initiation of impeachment proceedings) can now theoretically be done by only one person under the Judicial Standards and Accountability Bill.

The Bill establishes the National Judicial Oversight Committee, the Complaints Scrutiny Panel and an investigation committee. A complaint can be made by any person against a judge to the Oversight Committee on grounds of ‘misbehaviour’. A motion for removal of a judge on grounds of misbehaviour can also be moved in Parliament. Such a motion will be referred for further inquiry to the Oversight Committee. Complaints and inquiries against judges will be confidential and frivolous complaints will be penalised. The Oversight Committee may issue advisories or warnings to judges, and also recommend their removal to the President.

The Bill raises the question such as whether the balance between independence and accountability is maintained by the proposed mechanism of accountability. The Oversight Committee has non-judicial members which might impinge on the independence of the judiciary. The Bill penalises anyone who breaches the confidentiality of complaints. It is questionable whether a penalty is needed for a frivolous complaint that remains confidential. The Bill does not mention whether a judge has the right to appeal to the Supreme Court against an order of removal issued by the President after Parliament finds him guilty of '‘misbehaviour”

The way forward:

“Power corrupts, and absolute power corrupts absolutely”[20]

The most fundamental tenet of democracy is that those who rule over us must also be accountable to us.[21] It means that any individual, authority or institution that exercise the power of governance of any kind, exercises it for and on behalf of the governed and therefore, should be accountable to them for its exercise. The fact that the powers of judges are very wide is in itself an indication that the powers may not be allowed to be absolute.

Writing in the 2nd century A.D Poet Juvenal coined the phrase: “quis custodiet ipsos custodes” ( who will guard the guards?). Although the poet did not have the judges in mind when he raised this issue, the expression has come to signify concerns about the functioning of the judiciary and hence the question: “Who judges the Judges?[22]

A special precaution has been taken by the founding fathers and the framers of the most constitutions to isolate the judiciary from the executive and legislatures. As such absence of specific provisions of judicial accountability is the most common feature in many the constitutions across the globe. This measure was adopted with an intention to protect the independence of the judiciary. Although judiciary cannot be made accountable in the same way as other branches of government are made accountable. But as repositories of public power, all the three branches of government hold that power in trust for the people and for the accomplishments of their assigned tasks. Thus judiciary must account to some authority outside themselves on how they use that power.[23]

In Common Cause v.Union of India,[24]the Supreme Court cancelled the allotment of petrol pumps made by the then Minister of State of Petroleum and Natural Gas,Capt.Satish Sharma on the ground of nepotism and malafide and passed severe strictures against the minister. The effectiveness of public interest litigation will be ensured when the government heeds every judicial pronouncement to practise good governance.

Judicial accountability has to be viewed as an instrumental value that promotes three discrete ends: the rule of law, public confidence in the courts, and institutional responsibility. Firstly, judicial accountability promotes the rule of law by deterring conduct that could compromise judicial independence, integrity, and impartiality. In a way, judicial accountability promotes judicial independence; it merely diminishes a judge's freedom to make themselves dependent on inappropriate internal or external influences that could interfere with their capacity to follow the rule of law. By deterring bribery, favouritism, bias and so on, accountability promotes the kind of independence needed for judges to adhere to the rule of law.

Secondly, judicial accountability promotes public confidence in judges and the judiciary. Regardless of whether independent judges follow the law, if the public's perception is otherwise, reforms calculated to render judicial decision-making subject to popular or political branch control are sure to follow, to the ultimate detriment of the rule of law itself. A system of judicial accountability that reassures a sometimes-sceptical public that judges are doing their jobs properly and yet respects the judiciary's independence can forestall resort to more draconian and counter-productive forms of court control.

Finally, judicial accountability promotes institutional responsibility by rendering the judiciary responsive to the needs of the public it serves as a separate branch of government. The public is entitled to courts that administer justice effectively, efficiently, and expeditiously. The judiciary spends taxpayer money just like the other branches of government and, just like the other branches, the judiciary should be subject to regulation aimed at making its operations more streamlined and cost effective.[25]

We live in an era of greater public demands for judicial accountability. The call for judicial accountability has gained momentum in many parts of the world. The judiciary is therefore no longer considered a sacrosanct and inviolable sanctuary of its occupants.[26] In a democracy, based on the rule of law, it is now the expectation of every citizen that all aspects of the government ought to be highly accountable and judiciary should not be an exception to the legitimate expectation of a citizen. As such Judicial accountability cannot be taken as an interference or a limitation on the judicial independence but need to be seen as necessary instrument in administration of justice. .”In enacting laws, the concept of judicial independence should not be lost sight of. For, “decisional and structural independence are more important when you are required to balance accountability and judicial independence.”[27]

INSTANCES:

Justice Sinha is the only Judge impeached. Our Fore-Fathers represented by Constituent Assembly of India framers of Constitution of India then in 1949 impeached Mr. Justice Sinha finding him “guilty of improper exercise of judicial functions, the cumulative effect of which was to lower the dignity of his office and undermine the confidence of the public in the administration of justice…”

Justice V. Ramaswami, May 11, 1993 will be remembered as a black day for Parliament and for the judiciary in this country. The impeachment motion against Justice V. Ramaswami of the Supreme Court was established. Thus, despite the motion for removal being passed unanimously by the members who voted, it failed. The result, therefore, is that despite a high-power inquiry committee of three eminent judges having come to the conclusion that Ramaswami was guilty of several acts of gross mis-behavior which warranted his removal, the judge is still entitled to discharge judicial functions from the highest court of the land. It is another matter that after the impeachment motion failed, Ramaswami was persuaded to resign by the Congress (I) which belatedly behavior that it would have to pay a heavy price for being seen to have supported a corrupt judge. The failure of the motion, especially after the tortuous course it went through, raises several grave issues for the future of the administration of justice in this country and indeed for probity in public life in general.

The Judicial Standards and Accountability Bill, 2010 was introduced in the Lok Sabha on December 1, 2010. The Bill was introduced by the Minister of Law and Justice. Which is also 97th amendment of the constitution. Here we will try to understand the provisions of the new bill. The procedure of removal of judges is presently regulated by JUDGES INQUIRY ACT (1968) .The bill seeks to repeal it.

  • Judges will also be required to declare their asset and liabilities and also of their spouse and children’s.( such declaration has to take place within 30 days of judges taking his oath to enter his office).
  • Every judge will also file an annual report of their assets and liabilities.
  • The assets and liabilities of judges will be displayed on the website of the court which he belonged.

MECHANISM FOR INVESTIGATION AND REMOVAL FOR JUDGES 

Initial complain will be made to judicial oversight committee and they will referred this to scrutiny panel.

MECHANISM FOR INVESTIGATION AND REMOVAL OF JUDGE/JUDGES

The Judicial Appointments Commission Bill, 2013

The Judicial Appointments Commission Bill, 2013 was introduced in the Rajya Sabha on August 24, 2013 by the Minister of Law and Justice, Mr. Kapil Sibal. The Bill has been introduced in conjunction with the Constitutional (One Hundred and Twentieth Amendment) Bill, 2013, which inserts Article 124A, providing for the setting up of a Judicial Appointments Commission, and is pending before Parliament. The Bill provides for the composition, functions and procedure of the Judicial Appointments Commission. The Commission is sought to be established for the purpose of recommending persons for appointment as Chief Justice of India and other Judges of the Supreme Court, and Chief Justice and other Judges of High Courts.

The Bill seeks to enable equal participation of Judiciary and Executive, ensure that the appointments to the higher judiciary are more participatory, transparent and objective

Establishment and composition of Commission

1. The Commission shall be chaired by the Chief Justice of India (CJI) and shall comprise of two other senior most Judges of the Supreme Court, the Union Minister for Law and Justice, and two eminent persons to be nominated by the collegium.

2. The collegium comprises the Prime Minister, the CJI and Leader of Opposition of the Lok Sabha. The eminent members will retain membership for a three year period and are not eligible for re nomination.

3. The Secretary to the Government of India in the Department of Justice shall be the convener of the Commission.

Functions of Commission

1. The Commission seeks to perform functions that relate to appointment, transfer and quality of candidates.

2. Those include (i) recommending persons for appointment as Chief Justice of India; judges of the Supreme Court Chief Justices of High Courts and other judges of High Courts; (ii) recommending of transfer of Chief Justices of High Courts and the judges of High Courts, from one High Court to any other High Court; iii) ensuring that the person recommended is of ability, integrity and standing in the legal profession.

3. The procedure for recommendation with respect to appointment of High Court Judges includes eliciting views of the Governor, Chief Minister and Chief Justice of High Court of the concerned state, in writing. This shall be in accordance with procedure specified by regulations made by the Commission.

Reference to Commission for filling up of vacancies

  1. Upon the arising of a vacancy in the High Court and Supreme Court, references to the Commission shall be made by the Central Government.
  2. Intimation of existing vacancies shall be made within a period of three months from the date of coming into force of this Act.
  3. In the case of vacancy due to the completion of term, reference shall be made two months prior to the date of occurrence of vacancy.
  4. In the case of vacancy due to the death, resignation, reference shall be made within a period of two months from the date of occurrence of vacancy.

Procedure for short listing of candidates

1. Process for selection shall be initiated by the Convener, by inviting recommendations from the Chief Justices of High Courts, the Central Government and the State Governments, for candidates fulfilling eligibility criteria.

2. The Commission may make regulations to specify the procedure for short listing of candidates for considering their appointment as Judges to the High Court and Supreme Court.

[1] “Draft Lokpal Bill- Civil Society Version”, The Hindu, in  

[2] Harsh Gupta, “Defecting from anti-defection”, in  http://www.livemint.com/2009/06/07212108/Defecting- from-antidefection.html

[3] J.S. Verma , ‘Mechanism for judicial accountability’ ,p.1,in http://www.judicialreforms.org/files/mechanism_jud_acc_verma.pdf,

[4] David Pimentel, ‘Reframing the Independence vs Accountability Debate’, p.5, in  http://www.clevelandstatelawreview.org/57/issue1/Pimentel.pdf 

[5] Ibid , p.6

[6] Mona Shukla, ‘Judicial Accountability: an aspect of judicial independence in  Judicial Accountability’, Regal Publications, New Delhi, 2010, p. 24

[7] David Pimentel, ‘Reframing the Independence Vs. Accountability Debate’, p.4, in

 http://www.clevelandstatelawreview.org/57/issue1/Pimentel.pdf.

[8] Art 124(2) of the Indian Constitution

[9] Art 217(1) of the Indian Constitution

[10] Art. 125 of the Indian Constitution

[11] Art. 124(3) of the Indian Constitution

[12] Art 124(4) of the Indian Constitution

[13] Art. 124(2) of the Indian Constitution

[14] Art 129 of the Indian Constitution

[15] David Pimentel, ‘Reframing the Independence Vs. Accountability Debate’, p.15, in  http://www.clevelandstatelawreview.org/57/issue1/Pimentel.pdf .

[16] J.S. Verma , ‘Mechanism for judicial accountability’ ,p.1,in  http://www.judicialreforms.org/files/mechanism_jud_acc_verma.pdf,

[17] Anil Divan, ‘Judicial Integrity’, p.1, in  http://www.judicialreforms.org/files/Hindu_judicial_integrity_lessons_from_the_past.pdf

[18] Mona Shukla, ‘Judicial Accountability: an aspect of judicial independence’ in Judicial Accountability, Regal Publications, New Delhi, 2010, p. 4

[19] Ibid, p.4

[20] John Emerich Edward Dalberg Acton's quote. Source: http://www.legalindia.in/ %E2%80%9Cjudicial- accountability%E2%80 %9D

[21] http://www.cvsa.asn.au/judicialaccountability.html

[22]The Accountability of the Judiciary - Accountable to whom? Is there such a Mechanism? By Hon. Chief Justice Ernest L. Sakala, the Chief Justice of the Republic of Zambia at the Southern Africa Judges Commission meeting held at Windhoek, Namibia from 11th to 14th August, 2005

[23] Ibid.

[24] AIR 1996 SC 3538.

[25] See Rescuing Judicial Accountability from the Realm of Political Rhetoric by Charles G.Geyh Indiana University Maurer School of Law, cgeyh@indiana.edu

[26] Comment made by Justice Sir Moti Tikaram of Fiji, Public Accountability – Who Judges the Judges?, 19 COMMW .L. BULL.1231 (1993).

[27] See, we are not scared of accountability laws, says CJI ,The Hindu,available at http://www.thehindu.com/news/national/article 3776546.ece?homepage=true.


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