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Published : February 16, 2011 | Author : heenavrm
Category : Law - lawyers & legal Profession | Total Views : 19775 | Rating :

  
heenavrm
5th Year Student New Law College Bharati Vidyapeeth University, Pune.
 

Judicial Accountability in India

(A) Nature And Meaning Of Judicial Accountability
The word ‘accountable’ as defined in the Oxford Dictionary means ‘responsible for your own decisions or actions and expected to explain them when you are asked’. Accountability is the sine qua non of democracy. Transparency facilitates accountability. No public institution or public functionary is exempt from accountability although the manner of enforcing accountability may vary depending upon the nature of the office and the functions discharged by the office holder. The judiciary, an essential wing of the State, is also accountable. Judicial accountability, however, is not on the same plane as the accountability of the executive or the legislature or any other public institution. Indian polity is under severe strain. Faith of the people in the quality, integrity and efficiency of governmental institutions stands seriously eroded.

They turn to the judiciary as the last bastion of hope. But of late, even here things are getting increasingly disturbing and one is unfortunately no more in a position to say that all is well with the judiciary. The independence and impartiality of the judiciary is one of the hallmarks of the democratic system of the government. Only an impartial and independent judiciary can protect the rights of the individual and can provide equal justice without fear and favor. The constitution of India provides many privileges to maintain the independence of judiciary. If the Preamble to our Constitution be regarded as the reflection of the aspirations and spirit of the people, then one thing that even a layman will note is that among the various goals that the Constitution-makers intended to secure for the citizens, “JUSTICE- Social, Economic & Political” has been mentioned before the rest.” No person, however high, is above the law. No institution is exempt from accountability, including the judiciary. Accountability of the judiciary in respect of its judicial functions and orders is vouchsafed by provisions for appeal, reversion and review of orders. What is the mechanism for accountability for serious judicial misconduct, for disciplining errant judges? Our Constitution provides for removal of a judge of the Supreme Court or the High Court for proved misbehaviour or proved incapacity, by what is popularly called the process of impeachment, whereunder two thirds of the members of each House of Parliament can vote for the removal of the judge. So far, only one impeachment proceeding has been initiated against a Supreme Court judge. It failed because Congress abstained from voting and consequently two-thirds majority was not available.

It is now generally accepted that the present impeachment process is cumbersome, time consuming and tends to get politicized. It needs to be reformed urgently.

(B) Need For Judicial Accountability
“All power is a trust – that we are accountable for its exercise – that from the people and for the people, all springs and all must exist”. In a ‘democratic republic’ power with accountability of the individual enjoying it, is essential to avert disaster for any democratic system. The accountability must be comprehensive to include not only the politicians, but also the bureaucrats, judges and everyone invested with power. Power and position in a democracy is depicted as attendant with responsibility, and every incumbent of a public office must remain constantly accountable to the people, who are the repository of political sovereignty. The judicial system deals with the administration of justice through the agency of courts. Judges are the human stuff which presides over the courts. They are not merely visible symbols of courts; they are actually their representatives in flesh and blood. The manners in which judges discharge their duties determine the image of courts and the creditability of judicial system itself. In India from time immemorial judges have been held in high esteem and revered as super humans but coming across recent incidents in Bihar (like killing of an under trial in the court itself and lynching a suspected thief to death) depicts that frustrated by the failure to get justice, people are slowly losing faith in judiciary and are taking law into their hands. This is highly deplorable. A need definitely is there to make judiciary accountable, as derogation of values in judiciary is far more dangerous than in any other wing of the government as judiciary has to act as the guardian of our constitution. Judicial accountability and answerability of the judges is not a new concept. Several countries in their constitutions have already provided for ensuring accountability of judiciary. This to prevent concentration of power in the hands of a single organ of the state especially in countries where judicial activism interferes with and invades into the domain of other organs. But at the same time Judicial independence is a pre- requisite for every judge whose oath of office requires him to act without fear or favour, affection of ill- will and to uphold the constitution and laws of the country.

(C) Code Of Conduct For Judges
Hon'ble Mr. Justice S.H. Kapadia , Chief Justice of India said: “When we talk of ethics, the judges normally comment upon ethics among politicians, students and professors and others. But I would say that for a judge too, ethics, not only constitutional morality but even ethical morality, should be the base…”


The well-known legal luminaries including Former Chief Justice of India S.Venkataramaiah and Former Judge of the Supreme Court D.A.Desai and another Former Judge of the Supreme Court Chennappa Reddy have expressed the view that if all the sections of the society are accountable for their actions, there is no reason why the Judges should not be so. Former Chief Justice, Verma recognized the validity of this plea when he remarked on one occasion, “These days we (Judges) are telling everyone what they should do but who is to tell us? We have task of enforcing the rule of law, but does not exempt and even exonerate us from following it”. For proper implementation of this concept of judicial accountability, it is necessary that the Judges should follow a code of conduct which may be broadly called as ethics for Judges.

Code of Ethics of a Judge:-
1. Judicial decision to be honest:- It is absolutely essential that in order that the Judge’s life is full of public confidence in their role in the society, the judicial decision is to be honest and fair. No judicial decision is honest unless it is decided in response to an honest opinion formed in the matrix of the judges proficient of law and fact. However, the perception of an individual judge may be wrong. But a wrong decision honestly made does not make that decision dishonest. A decision becomes dishonest if not decided on judicial conviction of fairness, honesty and neutrality.

2. No man can be a judge in his own cause:- The basic code of ethics is the principle that no man can be judge in his own cause. The principle confines not merely to the cause where the Judge is an actual party to a case, but also applies to a case in which he has interest. A Judge should not adjudicate in a case if he has got interest therein. Judge do require a degree of detachment and objectivity in judicial dispensation. They being duty bound by the oath of office taken by them in adjudicating the disputes brought before the court in accordance therewith, Judges must remain impartial, should be known by all people to be impartial. This is made clear by the Supreme Court.

3. Administer justice:- Judges must not fear to administer justice. “Fiat justitia, ruat caelum” that is “let justice be done though the heavens fall” should be followed as a motto by a Judge.

4. Equal opportunity:- Parties to the dispute be treated equally and in accordance with the principles of law and equity. A judge does not belong to any person or section or division or group. He is the judge of all people. In the courts of law there cannot be double standard-one for the highly and another for the rest. A Judge should not have any concern with personalities who are parties to the case but only with merits. He must treat the parties to the dispute equally, giving them an equal opportunity during the trial. The Rt.Hon.Lord Hewart of Bury, Lord Chief Justice of England, said that it is “essential to the proper administration of justice that every party should have an opportunity of being heard, so that he may put forward his own views and support them by argument and answer the views put forward by his opponents”.The Supreme Court said in the celebrated case “No man’s right should be affected without an opportunity to ventilate his views”.In classical language of metaphor, the God of Justice sits on a golden throne, but at his feet sit two lions-‘law and equity’. A Judge will fail to discharge his duty if he disregards their presence and participation.

5. Maintenance of distance from relatives:- Since judging is not a profession but a way of life, the judge must distance himself from the parties to the dispute and their lawyers during the conduct of the trial. One can notice now a days the growth of a new caste in legal profession who thrive not by intellectual or professional capabilities but by utilizing their close connection with the judges. The growth of this suspicious trend can be checked if practicing lawyers and sitting judges avoid meeting frequently in private. Persons who occupy high public offices must take care to see that those who claim to be close to them are not allowed to exploit that closeness, alleged or real.

6. Too much of activity and participation in social functions be avoided:-It is often said that as a result of a very considerable amount of ordinary social activity, a Judge may become identified with people and points of view, and litigants may think they may not get fair trial. To repel that feeling, a Judge should avoid too much of social activity. Again, Judges should be very selective in attending social functions. Judges in England and USA generally decline such participation. If they attend even a private function, they ask for the list of invites.

The Supreme Court in Ram Pratap Sharma v Daya Nand issued a note of caution to the effect that it is proper for a Judge not to accept any invitation and hospitality of any business or commercial organization or of any political party or of any club or organization run or sectarian, communal or parochial line.

7. Media Publicity be avoided:-As far as possible a Judge should keep off the media. He should refrain from expressing his views in media on matters either pending before him or likely to appear for judicial consideration. Else he may be accused of prejudging the issue and his neutrality may be questioned thereby. Lord Widgery, Lord Chief Justice of England since 1971 to 1980, said that “the best judge is the man who should not court publicity and should work in such a way that they don’t catch the eyes of the newsmen”. Lord Hailsham said that the “best judges are those who do not find their names in the The Daily Mail and still, who abhor it”.

(D) Lack Of judicial Accountability In India
The framers of the Indian Constitution would not have imagined that within 60 years of the framing of the Constitution, the Indian Judiciary would emerge as the most powerful institution of the State. The Constitution established the High Courts and the Supreme Court as watchdog institutions, independent of the executive and the legislature, to not merely dispense justice, but also to ensure that the executive and the legislature did not exceed the authority conferred upon them by the Constitution. Thus, the Judiciary was given the powers to interpret the laws and the Constitution, and also to strike down executive action which violated any law or the fundamental rights of citizens. It was also the authority to examine whether laws framed by Parliament conformed to the Constitution and declare them void if they violated it. By a creative interpretation of the provision authorizing the Parliament to amend the Constitution, the Supreme Court in 1973 also acquired the power to strike down even constitutional amendments which were held by the Court to violate the basic structure of the Constitution. Many laws and some constitutional amendments have been struck down by the Courts during this period.

Through all this, the superior courts in India have emerged as perhaps the most powerful courts in the world, exercising virtually Imperial & unchecked powers. While executive action and even legislation could often be struck down by the courts, the directions of the courts, sometimes issued without even notice to the affected parties, were beyond question, and had to be obeyed by all executive officers on pain of contempt of court. Of course, often these powers were wisely exercised to correct gross executive inaction.

While the Court was acquiring these powers, by an even more inventive (called purposive) interpretation of the provision regarding appointment of judges by the government, it took over the power of appointment of judges. Thus judges of the High Court and Supreme Court are now appointed by a collegium of senior judges of the Supreme Court. The judiciary has thus become like a selfperpetrating oligarchy. There is no system followed in the selection of judges and there is no transparency in the system. In particular, no regard is given to examining the record or credentials of judges in their ideological adherence to the constitutional ideals of a secular, socialist democratic republic or their understanding of or sensitivity towards the common people of the country who are poor, marginalized and unable to fight for their rights in the courts.

Thus, the courts in India enjoy virtually absolute and unchecked power unrivalled by any Court in the world. In these circumstances, it is absolutely vital that judges of the superior judiciary be accountable for their performance and their conduct – whether it be for corruption or for disregard of constitutional values and the rights of citizens. Unfortunately, neither the Constitution, nor any other law has created any institution or system to examine the performance of judges or examine complaints against them. 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. Our 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. This is because MPs and political parties to which they belong are very reluctant to take on a sitting Judge because virtually all of them have pending cases in courts. The judges often behave like a trade union and do not take kindly to brethren being accused of misconduct. It is, therefore, virtually impossible to get an impeachment off the ground unless the matter has become a big public scandal. Only in those cases, is it possible to get enough MPs to sign an impeachment motion. The only impeachment of a Judge to have gone far was that of Justice V. Ramaswami in the early 90’s. After the motion was presented, a Judges Inquiry Committee found him guilty of several charges of misconduct when the matter went up for voting to Parliament.

The ruling Congress Party directed all their MPs to abstain from voting. Thus, though the motion was unanimously passed in the Lok Sabha, it did not get the support of the majority of the total membership of the House and, therefore, failed. The Judge remained in office till he retired, but was not assigned any judicial work by the then Chief Justice. Only last month, we have seen a second motion against a Judge of the Calcutta High Court signed and submitted to the Chairman of the Council of States. Allegations and charges against a Judge even when supported by documentary evidence, rarely get any coverage in the media because of the widespread fear of contempt of court. The contempt law in India allows any judge of the High Court and Supreme Court to charge any one with criminal contempt and send him to jail, on the ground that he/she has “scandalized the Court or lowered the authority of the Court”. What “scandalizes or lowers” the authority of a Court is also the subjective judgment of each Judge. In Arundhati Roy’s (the well known writer) case, a bench of 2 judges of the Supreme Court charged her with contempt and sent her to jail merely because she criticized the Court in her affidavit.

Earlier, the Supreme Court has declared that a person charged with “scandalizing the Court” will not be permitted to prove the truth of his allegation against a Judge. Though Parliament has recently amended the Contempt of Courts Act to expressly allow truth as a defence, nothing has been done to prevent judges against whom allegations are made from charging the person with contempt and hauling him to jail. The criminal contempt jurisdiction of the Court and the cavalier manner in which it is exercised, is another example of the enormous and unchecked power of the superior courts in India Our campaign for Judicial Accountability has since long been demanding that the courts’ power to punish for “scandalizing and lowering the authority of the Court” must be taken away by legislation. Of course, this demand has been stoutly resisted by the courts who claim that deleting this provision would greatly encourage baseless allegations and abuse of judges by disgruntled litigants and would thereby erode public confidence in the courts.

But then, there is the law of civil and criminal defamation to protect judges against vilification. Moreover, public confidence in the courts as in any person or institution, is generated or eroded by the actions of the courts and not by any baseless allegations by disgruntled litigants. However, with such fierce opposition by the courts, the legislature has not had the courage to delete this provision from the Contempt of Courts Act. In 1991, the Supreme Court by another ingenious judgment, involving Justice Veeraswami (the father-in-law of Ramaswami), who was Chief Justice of the Tamil Nadu High Court who was caught with assets, vastly disproportionate to his income, laid down that no judge of a superior court could be subjected to a criminal investigation without the written permission of the Chief Justice of India.

This judgment has been use to prevent the investigation and prosecution of many judges against whom there was documentary evidence of corruption, fraud, misappropriation, etc. This has also increased the impunity of judges who have now got used to the feeling that they can get away with any kind of misconduct or even criminal conduct, without any fear of any criminal action or action for removal. Armed additionally with the power of contempt, they also have little fear of public exposure. All this makes for an alarming picture of lack of accountability of the higher judiciary in India. You cannot practically take any disciplinary or criminal action against misconduct or crimes committed by judges.

If you expose them publicly, you run the risk of contempt. This lack of accountability coupled with the enormous unchecked powers that the courts have acquired and are exercising make the judiciary a very dangerous institution and indeed a serious threat to Indian democracy. This lack of accountability has led to considerable corruption of the higher judiciary which is evident from the recent spate of judicial scandals which have erupted in India. The recent report of TI on corruption perception index shows that the judiciary is perceived to be the second most corrupt institution in India after the Police.

(E) Judicial Accountability And Discipline
The judiciary needs to be independent of outside influence, particularly of political and economic entities such as government agencies or industry associations. But judicial independence does not mean that judges and court officials should have free rein to behave as they please. Indeed, judicial independence is founded on public trust and, to maintain it, judges must uphold the highest standards of integrity and be held accountable to them. Where judges or court personnel are suspected of breaching the public’s trust, fair measures must be in place to detect, investigate and sanction corrupt practices.

1. Accountability to whom and for what?
In everyday terms, accountability is simply the ability to hold an individual or institution responsible for its actions. The question for the judiciary is accountability to whom and for what? Broadly speaking, the judiciary must be accountable to the law, in the sense that the decisions made are in accordance with the law and are not arbitrary. Like other branches of government, it must also be accountable to the general public it serves.

2. How to achieve judicial accountability?
Fostering a culture of independence, impartiality and accountability among judges is a vital step towards ensuring the overall integrity of the judiciary. This is particularly the case in countries where there is a lack of accountability in other branches of government. Developing codes of judicial conduct can also provide an important means of fostering judicial accountability, since they serve as both a guide to and a measure of judicial conduct. Strong and independent judges associations, meanwhile, can provide a safe point of reference for judges,allowing them to interact with the state in an accountable, yet robustly independent manner. Ultimately, though, the judiciary must be responsible to the citizens of a country, and civil society actors, including the media and NGOs, must play an enhanced role in demanding judicial accountability.

3. Detecting corruption in judicial systems
Judges are expected to take decisions about breaches of law by individuals, governments and companies, but what happens if it is the judge who breaks the law? While judicial independence requires that judges have some limited measure of immunity and that they should be protected from trivial or vexatious complaints, mechanisms must be in place to ensure that corruption by judges or court personnel is detected, investigated and properly sanctioned. Incorporating whistleblower protection or anti-corruption telephone hotlines as part of judicial systems can help improve detection of corruption in the judiciary. It is often courageous members of the public or individuals of integrity within the judicial system itself who speak out against specific instances of corruption. Such action can be encouraged by developing a confidential and rigorous formal complaints procedure so that lawyers, court users, prosecutors, police, media and civil society organisations can report suspected or actual corruption in a judicial system.

4. Ensuring effective judicial discipline
There are different models for judicial discipline, though all models tend to operate at two levels: first, a disciplinary system that can admonish, fine or suspend judges for misdemeanours; and, second, a system of removal of judges for serious misconduct, including corruption. It is essential that any disciplinary mechanism is independent, fair and rigorous. In particular, a judge has the right to a fair hearing, legal representation and an appeal in any disciplinary matter. In some instances, an appellate body or judicial council may have disciplinary functions. In others, supreme courts may be responsible for disciplining lower court judges, while supreme court judges themselves may be removed by parliament. All types of procedures should be balanced to, on the one hand, protect judicial independence and, on the other, provide accountability to command public confidence. Importantly, mechanisms for judges’ removal from office must be fair, transparent and take the principle of security of judicial tenure into account.

5. Right To Information
In the light of the above discussion, and in the absence of a proper, specific law, to effectively check the power and scope of ‘judicial activism’ or laying down codes of conduct (based on the call for the accountability of the judges), the Right to Information Act, at least, as of now, seems to be a best available tool in dealing with some (if not all) aspects of the demand for a more accountable and transparent judiciary . The learned Judges of the SC, on the proposed amendments in to the RTI Act have observed:-

“Transparency or openness is an accepted principle of democracy and good governance. A distinguished American judge Louis Brandeis had said “Sunlight is the best disinfectant and electricity is the best policeman”. The ‘Seven Principles of Public Life’ indicated in Lord Nolan Committee’s report on standards in public life include objectivity, accountability and openness.”

“After all public power is derived from ‘we the people of India…’ Its exercise must be subject to legitimate scrutiny by the people who are the source of that power. The people have a participatory role in a republican democracy as they are “the keepers of the Constitution”. In such circumstances there is no justification for such any amendment to the RTI Act being proposed which seeks to unreasonably and unconstitutionally restrict the peoples right to know what their public servants are doing on their behalf.”

Having said this, the reaction of the Judiciary, as far as the application of the Act on itself is concerned, strongly recommending that it should be left out of its ambit, seems preposterous. If the amendments suggested by SC are enacted by Parliament, they will strike at the root of the safeguard contained in the Act: all public authorities, including courts, are subject to the jurisdiction of an independent appellate body..

This Act should be seen as only a step towards enforcing the accountability of the Judiciary directly to the people, until a specific and more detailed law is enacted in this regard.

6. Key recommendations
Limited immunity for actions relating to judicial duties should be in place. This allows judges to make their decisions free from fear of civil suit; though immunity should not apply in corruption (or other criminal)cases.

Disciplinary rules should ensure that the judiciary carries out initial rigorous investigations of all allegations. An independent body must investigate complaints against judges and give reasons for its decisions. Strict and exacting standards should apply to the removal of a judge. Removal mechanisms for judges of all levels must be clear, transparent and fair, and reasons need to be given for decisions. If there is a finding of corruption, a judge is liable to prosecution. A judge should have the right to a fair hearing, legal representation and an appeal in any disciplinary matter.

A code of judicial conduct serves as a guide to and measure of judicial conduct, and should be developed and implemented by the judiciary. Breaches of the code must be investigated and sanctioned by a judicial body. A confidential and rigorous formal complaints procedure is vital so that lawyers, court users, prosecutors, police, media and civil society organisations can report suspected or actual breaches of the code of conduct, or corruption by judges, court administrators or lawyers. An independent judges association, elected by judges, should represent them in their interactions with the state and its other organs. It should be accessible to all judges; support individual judges on ethical matters; and provide a safe point of reference for judges who fear that they may have been compromised in some way.

(F) Judging The Judges (Case Laws)
Recently, the judiciary has been greatly in the news, but for all the wrong reasons. A string of judicial scandals have erupted in the recent past, starting with Chief Justice Sabharwal’s case, and then going on to the Ghaziabad district court Provident fund scam, the 15 lakh cash-at-judges-door scam of Chandigarh, and the Justice Soumitra Sen case of Calcutta. Some of these have arisen due to the lack of transparency in the selection and appointment of judges. In many cases, persons of doubtful integrity come to be appointed and confirmed through a totally secretive, ad hoc, arbitrary and non-transparent process of selection and appointment through a Collegium of judges of the High Court and the Supreme Court. Unfortunately however, we are finding that these rotten eggs who come to be appointed, get confirmed, even when they are found by the Collegium to have been of doubtful integrity, and are not removed even when a judge's committee has found them guilty of criminal misappropriation and criminal breach of trust, and even after the Chief Justice of India has recommended their impeachment selection, appointment and removal of judges.

A historic non-impeachment
1. Case Of Justice V. Ramaswami
May 11, 1993 will be remembered as a black day for Parliament and for the judiciary in this country. For on that day, 205 Lok Sabha members belonging to the Congress(I) and its allies sabotaged the impeachment mo tion against Justice V. Ramaswami of the Supreme Court by abdicating their constitutional duty of voting for or against and thus defeating the motion by ensuring that it did not receive the support of an absolute majority of the total membership of the House. Each one of the 196 MPs, who voted, all belonging to the Opposition parties, voted for the removal of the judge. Thus, despite the motion for removal being passed unanimously by the members who voted, it failed, bringing to a close the more-than-two-year old proceedings for the removal of Ramaswami. The result, therefore, is that despite a high-power inquirycommittee of three eminent judges having come to the conclusion that Ramaswami was guilty of several acts of gross misbehaviour 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 mo tion failed, Ramaswami was persuaded to resign by the Congress(I) which belatedly realised 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.

2. The Case Of Justice Ashok Kumar
In the case of Justice Ashok Kumar, who was appointed an additional judge in April 2003, the Collegium of three senior judges of the Supreme Court unanimously decided not to confirm him as a permanent judge in August 2005 because of adverse reports regarding his integrity. Despite this, he was given extensions as additional judge, and finally came to be confirmed in February 2007 on the Chief Justice’s recommendation, which was made without consulting other members of the Collegium of judges, in complete violation of several judgements of the Supreme Court. These had clearly laid down that in a matter of appointment of judges, the Chief Justice cannot act alone and must go along with the majority view of the Collegium of senior judges of the Supreme Court. The 9 Judge judgments also provided that an appointment made without consulting the Collegium was challengeable and could be struck down in a judicial proceeding. The memorandum of procedure lay down by the law ministry also made it abundantly clear that in such matters the Chief Justice must consult the Collegium of senior judges, as well as those other judges who have come from the same High Court in which the proposed appointment is to be made. Thus, Justice Ashok Kumar's appointment was clearly contrary to the Constitution, and the law laid down by the Supreme Court itself. Though Justice Ashok Kumar's confirmation as a permanent judge was challenged by senior advocates of the Supreme Court, unfortunately the court has upheld his confirmation on the basis of very dubious reasoning. While the Court berated the previous Chief Justices for having given extensions to Justice Ashok Kumar as additional judge for political considerations, it found nothing wrong with his confirmation, despite the fact that it was done without consulting the Collegium and after his integrity was found doubtful by the previous Collegium of judges when it had considered the matter. Moreover, nothing had changed subsequently to cast any doubt on the finding of the previous Collegium. Thus the Supreme Court, missed the opportunity to judicially correct the administrative illegality in confirming a judge whose integrity had been found to be doubtful, and that too without consulting the Collegium of senior judges of the Court. Such judicial behaviour of the Supreme Court only confirms the growing public perception that the recent crisis of credibility and integrity of the higher courts is largely a result of improper appointments due to extraneous considerations which are facilitated by the totally nontransparent manner in which judges are selected and appointed.

3. Arundhati Roy’s Case
The facts were these: After the judgment of the Supreme Court in the Narmada Dam case, there was a public protest outside the Supreme Court in which Medha Patkar (the leader of the anti-Dam movement in India) and Arundhati Roy participated. A couple of lawyers (probably on the hint of the Court itself) filed a contempt petition against Patkar, Roy and Mr. Prashant Bhushan alleging that we had raised abusive slogans against the Court. The lawyers’ contempt application, apart from being in grotesque language, also contained palpably absurd allegations that Roy and Patkar (who can hardly be considered rowdies) manhandled the burly lawyers. Roy, in her reply to the court notice said: “For the Court to have issued notice on such a ridiculous petition to three persons who have been vocal in their criticism of the Court shows a disquieting inclination on the part of the Court to muzzle dissent and stifle criticism”. Though he discharged the first notice, the same judge (Justice G.B. Patnaik) who had issued the first notice, issued a second contempt notice, this time to Roy alone for daring to berate the court in this manner. They eventually held her guilty of contempt and sent her to jail with Justice Patnaik sitting as a Judge in his own cause

4. The Case Of Justice Soumitra Sen
Justice Sen has been recommended to be removed by impeachment by the Chief Justice of India, for the offence of misappropriating funds received by him as a court receiver and thereafter for giving false explanations to the High Court. The Chief Justice made this recommendation after a report of a committee of three Judges, who after carefully examining the facts came to the conclusion that he had committed several acts of serious misconduct. Though these acts of misconduct were the subject matter of proceedings pending against him in the Calcutta High Court, yet he came to be appointed during that time, due to the lack of transparency in the matter of appointments. Though the report of the judges committee was submitted a year ago, and the Chief Justice’s recommendation for the removal by impeachment of Justice Sen was made five months ago, the government has not made any attempt to proceed with his impeachment. This is despite the fact that the government has proposed a bill to amend the Judges Enquiry Act by which this very procedure for initiating impeachment proceedings is being sought to be given statutory status. The inaction of the government in Justice Sen’s matter displays the complete lack of seriousness on the part of the government in enforcing judicial accountability. In these circumstances, the Campaign for Judicial Accountability and Reforms has prepared an impeachment motion against Justice Sen and is sending it to all the political parties with the request that they should have it signed by their MPs so that it could be presented to the Chairman of Rajya Sabha for proceeding with his impeachment.

5. Case Of Justice Ashwini Kumar Mata
The problems created by the lack of transparency in the appointment of judges is exemplified by the presently proposed appointment of Mr. Ashwini Kumar Mata who has recently been recommended for appointment as Judge to the Delhi High Court. Mr. Mata has recently purchased one floor of a house in Safdarjang Enclave from a builder who had an agreement with the owner of the plot that he would construct the building and hand over three floors to the owner. The remaining two floors would remain with him which he could sell only after handing over possession of the three floors to the owner. Despite the fact, that the builder had not completed the construction of the building and not handed over the possession of the floors belonging to the owner to him, Shri Mata entered into an agreement for purchasing one of the floors which was to go to the builder from him. Shri Mata thereafter used his agreement with the builder to seek mutation (getting his name recorded as owner) of that floor in his name. In his application, he attached a copy of his agreement with the builder, containing the forged signatures of the owner, Mr Joshi. When this was discovered by Mr. Joshi, he made a complaint to the police regarding the forgery. Eventually, at the instance of a magistrate, an FIR came to be registered and an investigation began into this forgery. The act of forgery became clearer when Mr. Mata filed a different version of the same agreement in arbitration proceedings which he had initiated. In this version of the agreement, the signatures of the owner were not there. These facts were learnt only after the recommendation for the appointment of Shri Mata had already been sent to the Law Ministry by the Collegium of the High Court. Thereafter a representation was sent to the collegiums in the High Court and the Supreme Court. Mr. Mata responded to the representation and said that the criminal investigation by the police had exonerated him. The police report had been given hurriedly after the representation, without even waiting for the forensic examination of the forged signatures, and is dishonest. Thereafter another representation was sent to the Supreme Court and the High Court collegiums detailing the misconduct of Mr.Mata and pointing out why it is not possible for the signatures of the owner to have been forged without Mr. Mata’s knowledge and consent. We have pointed out in our representation that even if it is not certain that Mr. Mata participated in the forgery of his agreement with the builder, it is better to err on the side of caution by not appointing him, instead of being faced with a situation as that with regard to Justice Soumitra Sen of the Calcutta High Court.

(G) Judicial Accountability Bill Approved
The Judicial Standards and Accountability Bill will set judicial standards and make judges accountable for their lapses. It will also mandate that judges of the high courts and the Supreme Court declare their assets and liabilities, including those of their spouses and dependants. The Union Cabinet has approved the draft Judicial Standards and Accountability Bill, 2010 that provides for setting up a five-member oversight committee to deal with complaints against members of the higher judiciary. Official sources said judges would also be required to declare their assets and file an annual return of assets and liabilities. All these details will be put up on the websites of the Supreme Court and high courts. It will further require judges not to have close ties with any member of the Bar, especially those who practise in the same court. “The enactment of the Bill will address the growing concerns regarding the need to ensure greater accountability of the higher judiciary by bringing in more transparency, and will further strengthen the credibility and independence of the judiciary,” Information and Broadcasting Minister Ambika Soni told reporters after a meeting of the Union Cabinet. The proposed oversight committee will be headed by a former chief justice of India and include the attorney general, a Supreme Court judge, a chief justice of a high court and an eminent person nominated by the President.

Oversight committee
The Bill to replace the Judges Inquiry Act retains its basic features, contemplates setting up of a national oversight committee, to be headed by a former Chief Justice of India, with which the public can lodge complaints against erring judges, including the Chief Justice of India and the Chief Justices of the High Courts. At present, there is no legal mechanism for dealing with complaints against judges, who are governed by ‘Restatement of Values of Judicial Life,' adopted by the judiciary as a code of conduct without any statutory sanction.

The five-member committee to be appointed by the President will have a serving judge of the Supreme Court and a serving High Court judge, both nominated by the Chief Justice of India; the Attorney-General; and an eminent person nominated by the President.

Scrutiny panels
On receiving a complaint, the committee will forward it to a system of scrutiny panels. In the case of a complaint against a Supreme Court judge, the scrutiny panel will consist of a former Chief Justice of India and two sitting Supreme Court judges, and in the case of a complaint against a High Court judge, the panel will have a former Chief Justice of the High Court and two of its sitting judges. The members of the Supreme Court panel will be nominated by the Chief Justice of India, and that of the High Court panels by the Chief Justice of the High Court concerned. The scrutiny panels will have the powers of a civil court. For instance, they can call for witnesses and evidence. They will be required to give their report within three months to the oversight committee. In the case of a complaint against a Chief Justice, the oversight committee itself will conduct the scrutiny. On receiving the report from the scrutiny panels, the oversight committee will set up a committee to further investigate the case. Like the scrutiny panels, the investigation committee will have the powers of a civil court; it will have the power to frame definite charges. If the charges are not proved, the investigation committee can dismiss the case. Otherwise, it will give a report to the oversight committee, which can issue an advisory or warning or recommend minor punishment if the charges are not too serious. If the charges are serious, the committee can request the judge concerned to resign. If the judge does not do so, the oversight committee will forward the case to the President with an advisory for his removal. The Bill mandates that judges should not have close association with individual members of the Bar and not allow any member of their immediate family to appear before them in courts. Judges should not contest any election to any office of club, society or other association, except those associated with the law or any court. Further, they should not have any bias in judicial work or judgments on the basis of religion, race, caste, sex or place of birth.

(H) Conclusion
Corruption in the judiciary is hardly a new phenomenon, though it has certainly increased over the years. It is worthwhile however to examine the reasons for the sudden spate of exposures of judicial corruption. Having enjoyed enormous powers, including the power of contempt, without any accountability, the higher judiciary has over the years, tread on the toes of many persons and institutions, particularly the media. Not wanting to suffer criticism, the judiciary has used its power of contempt to stifle criticism. More than 50 editors, publishers and journalists have been issued contempt notices by the Karnataka High Court for having written stories about a judicial sex scandal, reportedly involving three judges of the High Court. Small wonder then, that the media is enjoying every bit of the juicy judicial scandals that have exploded. That there has been corruption in the judiciary for many years One reason why judges have been treated as demigods in this country is because of the power of contempt wielded by them. This is a jurisdiction in which a judge against whom an allegation has been made can himself act as the complainant, prosecutor and judge. The judge can even refuse to allow the maker of the allegation to prove its truth. The very existence of this power has been enough to silence the media and inhibit them from exposing judicial misbehavior or corruption. The amendment recently moved in Parliament to make truth a defense in a contempt action is not an adequate safeguard for the citizens and the press. As the case involving the journalists who wrote about the Karnataka sex scandal shows, though the allegation may be made bona fide and on a reasonable basis, it may not always be possible to prove its truth. This could be because the witnesses are won over or the evidence disappears for some other reason.

Preamble to the Constitution says-“ We, the people of India having solemnly resolved……….to secure to all its citizens:

JUSTICE: social, economical and political

LIBERTY of thought….

EQUALITY of….

FRATERNITY….”

# Prasanthi, I.L .Judicial Accountability as proposed under Judges Inquiry Bill,2006
# Available at  http.//beta.thehindu.com/news/national/article420137.ece
# Rama Reddy Padala, “Advocates Practice” Vol. 2
# It is the Latin principle “Nemo debt esse judex in causa propria sua” which means that no man can be a judge in his own cause
# Dr. D.C. Saxena v. Hon’ble Chief Justice of India 1996 SC 216
# Nand Lal Mishra v. Kanhaiya Lal Mishra AIR 1960 SC 882
# Rt.Hon.Lord Hewart of Bury, Lord Chief Justice of England: The New Despotism p.47
# Charan Lal Sahu v. Union of India AIR 1990 SC 1480
# Satyendra Narayan Singh v. Ram Nath Singh AIR 1984SC 1755
# AIR 1977 SC 809
# David Pannick QC, “Judges”
# J.S. Verma J., Krishna Iyer J., P.B . Sawant J., as noticed in “ Combat Law” March- April issue p.41
# “The Right to Transparent Governance” , Aruna Roy, Jean Dreze and Nikhil Dey
# ibid
# Retrieved from http://timesofindia.indiatimes.com/articleshow/1917400.cms
# The SC in its first Annual Return in May on implementation of RTI Act has recommended three far reaching amendnents
# The Right to Transparent Governance” , Aruna Roy, Jean Dreze and Nikhil Dey

Authors contact info - articles The  author can be reached at: heenavrm@legalserviceindia.com




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Article Comments

Posted by Mahesh Chandra Harsh on April 06, 2012
Dear Sir,
Judiciary is not acconutable to public,although judges are paid by public money. They are generally in influence of highly paid advocates. My civil writ pettition No 626/2010 in Rajasthan High Court Jodhpur is pending for last 2 Years, because I have not hired highly paid advocate.Court is not pursuing respondant to submit the reply and decide the case whereas I am a retired employee.

Posted by vijay on February 08, 2012
it's wounderful.......

Posted by gayatri on December 08, 2011
kishor bhore babu why should the SC and HC work be LIVE... you are missing the point these bodies are created for individual grievance redressal how will they like to make it live in public... nly govt or official related mattersyes can be considered

Posted by kishor bhore on December 07, 2011
Supreme Court and High court work must be on line live.

Posted by anup naravane on November 14, 2011
it will help to create public opinion to fight against judicial corruption,and to protect devine duties of judiciary. we should also give focus to lower level judicial accuountability.

Posted by Likha Ram on October 29, 2011
you did a very good job by writing such an article in an organised way.i appreciate a much for your work.

Posted by R.Rama Krishna on October 14, 2011
Ms.Arundathiu Roy deserves appreciation for her tough stand against the contempt petition. In post-independence people are afraid of going to jail. It is common to tender unconditional ap0logy whenever they are charged of contempt. ButRoy Prepared herself to face the contempt petition.

Posted by Manoj on May 20, 2011
Good

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