By Akash Agarwal, Amity Law School, Noida.
Accountability and Transparency are the two big-wig cornerstones of any democratic establishment for providing justice to the general public. However, the form of transparency and accountability may vary from one state to another depending upon certain relevant factors. In a democratic country like India, adhering to the concept of separation of powers, which establishes three wings of Government, i.e. Legislature, Executive and Judiciary, the concept of accountability becomes crucial and formulates a system of checks and balances on each other. However, the Legislature and Executive are fairly accountable for the acts they commit, but as far as the Judiciary is concerned, the roads of accountability and transparency are really bumpy and uneven. The Constitution of India provides comprehensive powers to the Judiciary, due to which the Indian Judiciary can be considered as the most powerful organ among all other organs.
The Constitution itself, in its articles, empowered the Judiciary not only as the guardian of fundamental rights of people but also to behave as a watchdog so that both the Legislature and Executive don’t exceed their powers. It can also strike down any law if it violates the provisions of our Constitution. Although the Indian Constitution provides the procedure for removal of Judges of Supreme Court and High Court on the grounds of their misbehavior or incapacity, this process is so complicated that it cannot be exercised easily. Therefore, Judges are protected from being judged or accounted for their acts. People consider Judiciary as their last hope as it the custodian of their fundamental rights and ensures them that Justice will always be done in an impartial and fair manner, but since the last few years, the position of Judiciary is not wholly satisfactory. The position became more crucial after several cases of judicial corruption came before the country, and the prestige of Judiciary was seriously hampered. To prevent it from being further hampered, it’s the need of the hour that Judges should be held accountable for their actions and there must be regulations regarding their code of conduct.
Some well-known legal luminaries including Former Chief Justice of India, Mr S. Venkataramaiah and Former Judge of the Supreme Court, Mr D.A. Desai and another Former Judge of the Supreme Court, Mr 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, Mr 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 the task of enforcing the rule of law, but that 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.
In a democratic establishment, the legislative wing is accountable for its actions to the public at large and faces several criticism in elections. The executive wing is accountable to the legislature and ultimately to the electorate. In both the cases, the Courts have the power to invalidate the laws passed by the executive and overturn the decisions made by the executive which are not in consonance with the Constitution. On the other hand, Judges are neither subject to periodic elections nor censure. No authority hovers on their shoulder to check whether they are performing their functions properly or not.
Thomas Jefferson once said: In truth, man is not made to be trusted for life if secured against all liability to account.
The critical question remains the same: Who will Judge the Judges?
To think that Judicial Accountability is not achievable is wrong, it can be manifested in several ways. Judges resolve disputes and their decisions should be published with full decisions. Thus, public hearing and reasoning underlying these judicial decisions increases the judicial accountability. It’s a given, that the decision of the highest court of appeal must not be subject to criticism but the decision of appeal courts should be criticised without limitation and academic lawyers must be free to criticize judicial reasoning. The media must be provided with the opportunity to attend the hearings and to conduct trial by media in a free manner.. The Constitution itself should provide punishment and procedure for wrongs conducted by the Judges. To err is human, why do we rule out the possibility that the Judges might commit mistakes too; of course they are humans, right?
Comments
3 responses to “An Analysis of Judicial Accountability in India”
hi,
some good issues have been raised in this article. i just wanted to add one more point that whenever there is any law which is not in favour of this Judicial Business, the issue of Independence if Judiciary comes into the picture. As we have seen in the case of National Judicial Commission Appointment bill, the whole judiciary was opposed to this bill. Because this bill was supposed to bring some kind of judicial accountability. At the same time, the provision of contempt of court just adds up to this judicial unaccountability because when someone tries to point out this judicial incapacity, Contempt of Court is used as a safe-guard.
Definitely independence and contempt of court are two powerful instruments which are used by the Indian Judiciary to protect itself from issues which are not in favour of it. But as far as NJAC is concerned, what I feel is although this commission brings accountability but such accountability must not be totally subject to the whims and fancies of politically chaired people as what is presently seen in NJAC.
To add to the points already raised, the judiciary is not answerable to the two other prongs of a democracy. Moreover, arbitrary calls, such as the infamous midnight hearing of the Yakub Memon trial raise questions about whether judicial whim and fancy must be tolerated to this extent.