Accountability begins with transparency

A judge is an angel who should not be made accountable to anybody except to himself, but when the self-discipline is eroded and judicial officer becomes a threat to the judicial system, he ceases to be an angel and ought not escape accountability. Accountability of judiciary is as important as accountability of the executive or legislature

The only way through which the constitutional judges receive consequences for their (mis)conduct is impeachment. Under Article 124(4), the process of impeachment can be initiated only on the grounds of proven misbehavior or incapacity. Neither judicial independence nor accountability is absolute.

However, accountability of judiciary is as important as accountability of the executive or legislature. The judicial accountability promotes three discrete values: the rule of law, public confidence in the judiciary, and institutional responsibility.

Chief Justice of Madras High Court K Veeraswami, his son-in-law and Supreme Court Judge V Ramaswami, Chief Justice of Sikkim High Court PD Dinakaran and Justice Soumitra Sen of Calcutta High Court escaped impeachment provisions. Is the mechanism available is effective?

For negligence or failure of justice, under Roman law, the judge will be liable for damages. In Sweden, even mild criminal sanctions are imposed. In Denmark there are special courts to hear complaints against judges.

The Judges Inquiry Act, 1968, states that a complaint against a judge is to be made through a resolution signed either by 100 members of the Lok Sabha or 50 members of Rajya Sabha to their respective presiding officers.

There is a three-member committee comprising two judges one from SC and the other Chief Justice of India if it is against a HC judge; and two SC judges if it is against a sitting judge at the apex court.

Investigations are carried out before making a recommendation to the House. If the committee has concluded for the impeachment process to take place, the matter is discussed in both the Houses. The alleged judge will also be given opportunity to rebut the charges.

After the debate and judge is heard, if the House decides to put the motion to vote by 2/3rds majority in both Houses, the process of which has to be completed in a single session, President might remove the Judge based on resolution.

Many regard such an impeachment almost impossible and it appears that accountability is also impossible. From the NJAC order and debate it is clear that appointments process is not fool-proof.

And because of impossibility of accountability, the person who enters judiciary somehow remains unquestioned with all immunity which is totally against the rule of law. As far as people are concerned they do not know where primarily the complaint against the judge has to be sent.

Should that be sent to office of President, office of Chief Justice, office of Parliament? Who will register, who acknowledges and who informs him about follow-up? There is right to information at least to this extent, which should have been made known to the public either by Judiciary or Executive, whether any law or MoP provided for it?

Judges Inquiry Act
In furtherance of judicial independence, the Judiciary itself has to set up an “in-house mechanism” to investigate complaints against its functioning. This was proposed in the Judges Inquiry Amendment Bill 2006 providing for a National Judicial Council consisting of the CJI, two senior-most judges of the SC and two CJs of HCs as members to enquire into allegations.

The Section 33 mandates not to disclose any information relating to the complaint to any person in any proceeding except when directed by the Council. The positive feature of the bill is it makes possible to initiate an enquiry into the allegations of misconduct of a judge.

David Pannick, a scholar of this field, had written: “The value of the principle of judicial independence is that it protects the judge from dismissal or other sanctions imposed by the government or by others who disapprove of the contents of his decisions.

But judicial independence was not designed as, and should not be allowed to become, a shield for judicial misbehavior or incompetence or a barrier to examination of complaints about injudicious conduct on apolitical criteria...That a man who has an arguable case that a judge has acted corruptly or maliciously to his detriment should have no cause of action against the judge is quite indefensible” (D Pannick, Judges, Oxford University Press 1987, p 99)

Lord Denning in one of his profound writings (“The Family Story” Page 162) observed: “When a judge sits to try a case, he is himself on trial before his fellow countrymen. It is in his behavior that they will form their opinion on our system of justice….” Lord Donaldson, the former English Master of Rolls, says: “Judges are without constituency and answerable to no one except their consciences and the law.” (Sturges & Chubb, Judging the world, Butterworth’s, 1988 at pg. 18)

Great historian Lord Acton said: “All power tends to corrupt. Absolute power corrupts absolutely” (Acton wrote this in a letter to Bishop Mandell Creighton in 1887). A judge is an angel who should not be made accountable to anybody except to himself, but when the self-discipline is eroded and judicial officer becomes a threat to the judicial system, he ceases to be an angel and ought not escape accountability. (Editorial, ‘Judicial indiscipline and miscarriage of justice’, Excise Law Times Vol 56 A 138).
This was further explained by Supreme Court(in C Ravichandran v AM Bhattacharyajee, 1995 SCC (5) 457 https://indiankanoon.org/doc/686645/): “To keep the stream of justice clean and pure, the judge must be endowed with sterling character, impeccable integrity and upright behavior……

The actual as well as the apparent independence of judiciary would be transparent only when the office holders endow those qualities which would operate as impregnable fortress against surreptitious attempts to undermine the independence of judiciary. In short, the behavior of the judge is the bastion for the people to reap the fruits of the democracy.”

The Supreme Court in case of Re DC Saxena explained [In Re D.C.Saxena AIR (1996) SC 2481]: “...administration of justice and judges are open to public criticism and public scrutiny. Judges have their accountability to the society and their accountability must be judged by the conscience and oath to their office, i.e., to defend and uphold the Constitution and the laws without fear and favour. Thus the judges must do, in the light given to them to determine, what is right.”

Introducing draft of the original Article 124, Dr BR Ambedkar observed: [Constituent Assembly Debates, Tuesday, the 24th May, 1949]: “With regard to the question of the concurrence of the Chief Justice, it seems to me that those who advocate that proposition seems to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent person.

But after all the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to veto in the President or the government of the day. I, therefore, think that is also a dangerous proposition.”

Judicial Standards and Accountability Bill
Judicial Standards and Accountability Bill was proposed to replace the Judges Inquiry Act, wherein a committee was proposed headed by a former Chief Justice of India, comprising the Chief Justice of India and the Chief Justices of the High Courts, where the public can lodge complaints against judges.

The five-member committee will be appointed by the President, who is bound to accept PM’s recommendation. A recommendation is to be made by a three-member committee – two from government and one recommended by the leader of the opposition – which accommodates other view. On receiving a complaint, the committee will forward it to scrutiny panels having the powers of a civil court. 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 also mandates that the judges should not have any close association with the individual members of the bar. This bill contains a proposal for transparency that mandates all the details concerning the investigations to be put up in the SC and the HC websites. The accountability bill was passed by Lok Sabha in 2012 but it lapsed with the dissolution of the 15th House.

The complaints or representations reaching the President of Ministry of Law or any other high office in Union of India will get forwarded to CJI. (Based on decision in Subhash Chandra Agrawal v CPIO, Dept of Justice, CIC/VS/A/2014/000989-SA, on 3.5.2017)