Judicial Accountability And Democracy

A considerable challenge for judicial administration is to ensure that contemporary expectations of accountability and efficiency remain consistent with the imperatives of judicial independence and the maintenance of the quality of justice. In this respect, the measurement of what a court does is a perfectly legitimate and, indeed, desirable activity…

“Without courage, there cannot be truth, and without truth there can be no other virtue” – – Wavell, Viceroy Journal

Article 19(1) (a) envisages freedom of speech and expression. To this freedom, reasonable restrictions had also been added under Art19 (2) to safeguard the functioning of democratic organs. Also, this safeguard is to maintain the independence and integrity of the Judiciary and public confidence in the administration of justice.

Therefore, power has been specifically conferred on the Supreme Court under Art 129 as well as on the High Court under Art 215, to punish for its contempt.
The Contempt of Court Act 1971 punishes scandalizing of the court. The Supreme Court has held that the fundamental right of a citizen to free speech and expression has not abolished the offence of scandalizing the court.

However, of lately, this privilege of contempt orders is used by the court to suppress any voice which is raised against its functioning. Recent orders of contempt of courts highlight this issue. A strong criticism of judgments or a judge’s point of view is being regarded as contempt of court. Recent victim of these contempt orders are social activist Ms. Arundhati Roy and eminent lawyer of Supreme Court Prashant Bhushan. This is just an example of how the fundamental right of citizens and the power of democratic organ are misbalanced.

One of the basic elements of democracy is the accountability. The organs of democratic country are accountable to one another and this maintains a system of checks and balances. However, the system of checks and balances seems to be blurred by the separation of powers. The concept of “separation of power between the legislature, the executive and the judiciary” and “independence of judiciary”, a fundamental concept, have now been elevated to the level of the basic structure of the constitution and are the very heart of the constitutional scheme.

An independent judiciary is the sine qua non for a vibrant democratic system. The judiciary is the protector of the constitution and, as such, it may strike down executive, administrative and legislative act of the government. For Rule of Law to prevail, judicial independence is of prime necessity.

However, under the garb of judicial independence and from the weapon of contempt orders, the judiciary seems to be almost insulated from any kind of accountability and transparency. This has given rise to the presumption that judiciary is one of the most powerful organ having unbridled powers. These perceptions might be one of the reasons of the increasing cases of corruption in judiciary.

Unaccountability of judiciary has been posing a serious threat to the democracy and it leads to corruption. The only remedy, for any offence committed by a judge, is ‘Impeachment’. However, the impeachment process as prescribed in the Constitution has proved as unworkable. Therefore, the recent decision of the government to bring in the Judicial Standards and Accountability Bill provides us with some hope.

We shall further see the need for this bill, under the light of increasing cases of corruption and the drawbacks of the bill and how can it be made more effective.

Corruption In Judiciary :-

Lord Acton, once observed that “Power tends to corrupt, and absolute power corrupts absolutely.”
Judiciary in India is more powerful than any other organs. This is by virtue of its independence, non-accountability to anyone and almost impractical and unworkable mechanism for removal, which the Indian republic has witnessed in Justice Ramaswami impeachment motion.

However, when we claim ourselves to be a democratic republic nation, we do subject ourselves to accountability. The system of government, in India is based on separation of power, and by virtue of that, the organs of republic India is accountable to each other. However, the accountability of judiciary seems to be blurred by its concept of ‘Independence.’

Corruption has rotten the whole system of governance in India. No organ is spared from this menace, and judiciary is no exception to it. Some of the instances which disgraced the judiciary are:

· K. VEERASWAMI: The former judge of the Madras High Court was found guilty under the Prevention of Corruption Act, 1946, but fought his case in 1991 in the Supreme Court. The apex court in a later judgment held that a sanction from the CJI was necessary before a criminal case could be registered against a judge. This judgment was criticized as it contributed to the stiffness with regard to making a Judge liable for corruption.

· V. RAMASWAMY: Son-in-law of Veeraswami, was a judge in the Supreme Court when the Speaker of the ninth Lok Sabha admitted an impeachment motion brought by 108 MPs against him for financial irregularities committed during his term as chief justice of the Punjab and Haryana High Court. The motion was, however, defeated as Congress MPs stayed away in 1993. This first ever, impeachment case provided us the instance of how impractical the impeachment proceedings are. Despite a high-power inquiry committee of three eminent judges having come to the conclusion that Ramaswami was guilty of several acts of gross misbehavior which warranted his removal, the judge was still entitled to discharge judicial functions from the highest court of the land.

· A.M. BHATTACHARJEE: The chief justice of the Bombay High Court was forced to resign in 1995 after it was found that he had received Rs.70 lakh as book advance from a publishing firm known to have links with the underworld.

· AJIT SENGUPTA: The Calcutta High Court judge made it a routine to issue ex parte, ad interim stay orders on anticipatory bail pleas from smugglers having links with the Mumbai underworld. He was arrested in 1996 for F.E.R.A. violations after retirement.

· A.S. ANAND: As CJI, he was accused of using his position to get the subordinate judiciary to rule in favor of his wife and mother-in-law in a suit that had been barred by limitation for two decades. There was also a CBI probe after a dispute arose over his age in 2000. The investigation report was not made public.

Some of the recent cases, in which the judges are facing corruption charges are:

· Justice Soumitra Sen of Calcutta High Court: He was charged with the allegations of misappropriation of large sums of money, which he had received in his capacity as Receiver appointed by the High Court of Calcutta. He also misappropriated the facts relating to the investigation.

· Justice P. Dinakaran of Sikkim High Court{former CJ Karnataka High Court}: Misappropriation of assets.

· Justice Nirmal Yadav of Uttrakhand High Court { former judge Punjab and Haryana High Court}

· Provident fund scam: one of the biggest judicial scam in the history. More than 15 Judges of Ghaziabad court and also few of them from High Court are charged with embezzlement of more than Rs. 7 crore.
These are only some of the reported cases of corruption in judiciary, many of them still goes unreported. The main reason for this is the sword of contempt, through which judiciary has got unbridled authority without any accountability towards it.

All these cases and increasing demand of transparency in all organs of government, led to the passage of Judicial Standards and Accountability Bill. Now , we shall discuss the need for such law in detail.

Need For Judicial Accountability Bill :-

“Responsibility is the price of freedom.” A freedom or a right always comes with correlative responsibility or duty. Therefore when we argue or advocate for the independence of judiciary, we have to bear in mind that for their independence, they have to be accountable. But again the vital question remains as to whom they should be accountable?

The real need for this law might have felt in year 1991 itself, when the Supreme Court relaxed the investigation of corruption charges against a judge.{Veeraswami case}. It is the effect of this judgment that prevented the investigation and prosecution of many judges against whom there was documentary evidence of corruption, fraud, misappropriation, etc. Further, the constitutional provisions regarding the impeachment of judges, seems to be so inadequate and un practical, that till now not a single judge have been impeached, even after the sufficient evidence against them, in hand.

The growing cases of corruption and indiscipline among the judges seems alarming, in the absence of any workable provisions of any law. Therefore, this bill seeks to make the judges accountable to a certain extent for their acts and conduct in their official capacity. Although there do exists certain loopholes and flaws, which, if amended would make the bill more meaningful. The flaws of the bill are discussed later under this paper.

Transparency in the judicial organization and among the judges was very much demanded in the recent past. A need was felt that the judges should declare their assets. However, many judges of the higher judiciary have declared their asset voluntary, although, its reliability is still questionable.

Another point, to buttress the need of such law, is the response of Judiciary towards, Right to Information Act, 2005. This Act was enacted as a tool to effectively check corruption in our democratic system.
The other wings of our system, namely legislature, executive has been duly brought under the ambit of this act for all the purposes. Any information can be obtained from the departments of both of these organs. However, judiciary has kept itself aloof from RTI, for all the practical purposes.

Also, the Supreme Court has confirmed that decision of the of the Registrar General of the Court should be final and not subject to any independent appeal to the Central Information Commission. The former CJI even went to extent of saying that “any self respecting judge would not like the idea of any layman {third person} probing into the allegations against a judge and imposing punishment”. Therefore, keeping itself outside the purview of RTI, undermines the confidence of the public in judiciary, vis-a-vis the system of justice in the biggest democratic country.

Thus, it is clear that how the judiciary in our country is completely unaccountable to any other organ. It is covered under the layers of protection, and has also self insulated itself from the investigation into any criminal matter without the approval of CJI. This poses a threat to the democratic fabric of our country. In fact, in these conditions, the institution of justice cannot even be considered as democratic and therefore there is a need of a law which makes Judiciary accountable.

Before examining the provisions of the accountability bill, let us see some of the existing provisions of the Constitution and other law, which provides for several judicial processes.

Aishwarya Says:

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