“Power corrupts, and absolute power corrupts absolutely.” – John Emerich Edward Dalberg Acton.
“Corruption is like a hidden tiger in the bushes, waiting to pounce on the deer (rule of law), catch it by the neck and finally strangulate it to death. Unless the tiger is caged it will continue to wreak havoc.”
Indian Judiciary system is the most powerful judiciary in the world after USA. Judiciary in India being a democratic country is vested with the highest power by the people and is considered as strongest pillar of the democracy. Judiciary in India has been given Supreme powers by the Legislature which has lead to the non-accountability of the judiciary to anyone. Judiciary in India enjoys judicial independence but this independence sometimes results in misuse of the powers and privileges by the Judges. Thus, the concept of Judicial Accountability is nowadays is in question. All over the world various conferences and discussions are going on as to whether judiciary can be held accountable for actions. The author of this paper would deal with the need for judicial accountability and meaning of ethics in context with the judges. The author would like to discuss the Judicial Standard and Accountability Bill, 2010 in detail and would like to suggest some measures along with conclusion which can be used to improve standard of judicial accountability in India. The author would also deal with the fact as to how corruption is hampering the judicial system in India. The author would throw some light on the status of judicial accountability in other nations of the world like USA, Australia etc.
Judicial Accountability: Why there is a need?
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.
Associated with the higher cause of truth and justice, judiciary and the judges have been accorded a distinct position. What the Constitutional provisions provide for is that “there should be an impartial and independent judicial body to adjudicate upon the matters and to act as the interpreter and guardian of the Constitution.” It is also a well settled principle of modern day governance that an authority deriving its existence from same source cannot claim to be absolute and unaccountable. It must be accountable either to the source of its origin, to the institution and more importantly to the people. All wings of Government belong to the people, when the legislature and the executive both are accountable, the judiciary cannot remain unaccountable and absolute. No person, howsoever high is above the law similarly, no institution howsoever sanctified can claim to be unaccountable. Ultimately, every institution is accountable to the people in every democratic polity like ours. 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. Thus, here arises a tension between Judicial Independence and Judicial Accountability.
Ethics of 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 basic code of ethics is the principle that no man can be judge in his own cause; it means that a judge should not adjudicate those cases in which he has any kind of interest. A judge should follow the motto of “Fiat justitia, ruat caelum” that is “let justice be done though the heavens fall”. A judge should guard against intimidation of powerful outside interests, which often threatened the impartial administration of justice and keep himself free from application of crude pressure, which may result in manipulation of the law for political purposes at the behest of the government in power or anybody else.
A judge is the judge of all people. He does not belong to any person or any section of society. A judge must follow the principle of equity in treating the parties to the dispute. The Supreme Court said in the celebrated case “No man’s right should be affected without an opportunity to ventilate his views” . 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 lines . 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”
Constitutional provisions for making the Judiciary Accountable
Definition of “misbehaviour”: According to Black’s Law Dictionary: Ill-conduct; improper or unlawful behavior.
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. Among the constitutional limitations on the judges, the most important one is the provision for ‘removal’ of judges of the High Courts /Supreme Court by address of the Houses of Parliament to the President on the ground of ‘proved misbehavior or incapacity’. This is provided in Constitution of India, art. 124 (2) and (4) in respect of judges of the Supreme Court and in view of art. 217, that procedure is attracted to the ‘removal’ of judges of the High Court also.
In pursuance of the provisions of Article 124(5) of the Constitution the Judges (Inquiry) Act, 1968 was enacted to regulate the procedure for investigation and proof of the “misbehavior” 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.
Judicial Standards and Accountability Bill, 2010
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.
Questions raised against the Bill…..
• Whether the balance between independence and accountability is maintained by the proposed mechanism in the Bill?
• It is not clear whether the power of the Oversight Committee to impose minor measures is constitutionally valid?
• 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 “misbehavior”?
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.” Art 124(5) empowers Parliament only to make laws to regulate the procedure for presentation of address of impeachment, and for the investigation and proof for the “mis-behaviour” 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.
Loopholes in the Bill
• The Bill seeks to provide a straight definition of “mis-behaviour” in Clause 2(j), but by laying down a strict definition, the concept loses its elasticity and becomes both under-inclusive and over-inclusive.
• The Bill also provides a list of standards of judicial conduct to which all judges are expected to adhere. The very idea of statutorily providing for judicial standards, irrespective of their content, is violative of judicial independence.
• Under the Bill, “any” person may file a complaint in a prescribed format. This is likely to lead to a multiplicity of complaints and even though the Bill proscribes false and vexatious complaints under Clause 53, this is unlikely to prove much of a deterrent, and since each of them will have to be checked by the Scrutiny Panel, it is also likely to result in a huge waste of time.
• The Attorney-General has the responsibility of regularly appearing on behalf of the government before the court. The possibility of his appearing before a judge against whom a complaint has been filed cannot be ruled out. In such a circumstance, there is clearly a conflict of interest since the Attorney-General will be a member of the Oversight Committee to look into the complaints made against the former.
• The Scrutiny Panel is to consist of three members, two of whom will be judges sitting in the same court as the judge against whom the complaint is made. Since these judges would be colleagues sitting in the same court, it is likely that this will, either way, influence their conduct.
• The idea of “minor” punishments is unworkable and has the potential to seriously undermine judicial status.
• The Bill completely excludes the operation of the RTI. This establishes an atmosphere of total secrecy more regressive than the present system, and for which, there does not appear to be any rational reason to make a change.
• The Bill makes no mention of whether a judge who has been removed has a right to appeal to the Supreme Court. The Standing Committee had stated that there should not be any provision for appeal as the finality of a Presidential order should not be challenged.
Thus, it is totally impermissible for the legislature to strike upon the independence and fearlessness of the judiciary. A judge of a superior court cannot be treated as an employee of the government. The present Bill is incapable of salvage and must be rejected in totality. In a system where half the litigants must necessarily lose their cases, and where most of the complaints against judges are frivolous and made by disgruntled litigants, this bill, if implemented, would mark the beginning of the end of the judiciary.
Judicial Accountability in Other Nations of the World
South Africa is currently in the process of adopting new laws on judicial ethics and discipline, financial disclosure, judicial codes of conduct and training for judges. Issues of judicial accountability have been on the legislative agenda since the late 1990’s the subject of wide public debate. During the current parliamentary term (January to May 2007) Parliament’s Portfolio Committee on Justice and Constitutional Development will be deliberating the latest versions of two judiciary bills- the Judicial Services Commission Amendment Bill B-2007 (dealing with judicial discipline and ethics) and the South Africa Judicial Education Institute Bill B 4-2007 (dealing with judicial education).
Australia: The federal judiciary enjoys constitutional protection in terms of appointment and removal of judges by virtue of section 72 of the Federal Court of Australia Act Removal can only occur through proved misbehavior or incapacity. Removal must be effected by the Governor General on an address from both houses of parliament in the same sitting on either of the two grounds listed above. A more formal mechanism for considering complaints was established to address the Judicial Commission of New South Wales. The New South Wales statute requires the Commission to dismiss complaints in a number of specified circumstances: including where there is a right of appeal, where the complaint is frivolous or trivial, or where further consideration is unnecessary or unjustifiable
Canada: In Canada the independence of the federally appointed judiciary is guaranteed by the Canadian Constitution (namely sections 96 to 100 of the Constitution Act, 1867) which provides for the appointment, security of tenure and financial security of superior court judges. This provision aims to ensure judicial independence by making it extremely difficult to remove judges from office for political or other reasons. The 1971 amendments to the Judges Act created the Canadian Judicial Council and gave it statutory authority to investigate complaints against federally appointed judges. Judicial Independence in also guaranteed by the Canadian Charter of Rights and Freedoms, Schedule B to the Constitution Act, 1982. Under section 63(2) of the Judges Act, any member of the public (including a provincial attorney general or the federal Minister of Justice) may make a complaint about a federally appointed judge by writing to the Canadian Judicial Council.
United States: Article III of the US Constitution establishes the judiciary as an independent third branch of government. Article III gives the judiciary the power to hear and adjudicate all cases arising out of the constitution and laws of the USA with impartiality. Article III also states that federal judges can only be removed through impeachment by the House of Representatives and conviction by the US Senate for “treason, bribery or other high crimes or misdemeanours”. Short of removal, federal judges can be disciplined for violations of the Code of Conduct for United States Judges- a set of ethical principles and guidelines adopted by the Judicial Conference of the United States .
Most states have adopted the Model Code of Judicial Conduct compiled by the American Bar Association in 1990, which governs judges’ conduct during judicial proceedings, as well as speech, business activities, civic, charitable, political and other associations. The detail of the actual complaints procedure at federal district level is set out in the Judicial Councils Reform and Judicial Conduct and Disability Act.
To bring a complaint, individuals submit written statements to the clerk for the chief judge of the relevant court. A chief judge can also initiate a proceeding based on informal complaints received. Complaints about the behavior of state court judges can be filed as a grievance with the state’s judicial conduct organization referred to above.
Corruption-Hampering the Rule of Law in India
Democracy means rule of law and it is the primary duty of the government to ensure that the rule of law is obeyed. Wherever rule of law is broken, corruption and injustice will flourish. Every unpunished crime will give birth to a thousand new crimes, creating conditions of anarchy. Corruption corrodes the values people cherish and projects the State as predatory and unjust. Corruption tends to undercut the legitimacy of the State and make a mockery of the rule of law.. Corruption, which springs from the basic human tendency of greed, distorts the whole process of law.
The basic defect in the manner in which the candidates are elected to the legislature has its impact on the law making. Corruption distorts not only the composition of the legislatures but also the process of law making and implementation.
Due to corruption, the very constitutional institutions, which are supposed to protect and uphold liberty and rule of law, turn against them. Therefore to the majority of Indians, the only way left is resorting to the local mafia, who are more than willing to dispense rough and ready justice for a price, leading to criminalisation of Indian society. Rule of law and access to justice are the very essence of a modern democracy and without them we cannot call ourselves a great democracy in any sense.
A report by Transparency International (TI) called the “Global Corruption Report 2007″. The report, based on a 2005 countrywide survey of “public perceptions and experiences of corruption in the lower judiciary,” conducted by the Centre for Media Studies, finds that a very high 77 percent of respondents believe the Indian judiciary is corrupt. It says that ‘’bribes seem to be solicited as the price of getting things done”. The estimated amount paid in bribes in a 12-month period it found was around 580 million dollars. ‘’Money was paid to the officials in the following proportions: 61 percent to lawyers; 29 percent to court officials; 5 percent to middlemen.
So, just as predator kills the pray, Corruption kills Rule of Law therefore wherever corruption exists rule of law has no place there.
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.
Sex for Acquittal
In November 2002, Sunita Malviya, a Jodhpur-based doctor, alleged that a deputy registrar of the Rajasthan High Court had sought sexual favours for himself and for Justice Arun Madan to “fix” a case in her favour. A committee set up by former CJI G.B. Pattanaik found prima facie evidence against Madan, who does not attend court anymore. Judge Resigned.
Conclusion with Suggestion for Improving Judiciary System
The author would like to conclude this paper with one line: “If not now than when?”
The legal system in India and the judiciary has reached a stage now where the public openly criticise the judiciary and the News Channels debate even the judgments delivered by the Constitutional Courts. It is an open fact in author’s opinion that the public opinion at the legal system in India and as to how the judiciary is not able to deliver results meeting the expectations of the public, has taken away the caution to be exercised while referring to the judiciary or the legal system. The respect can never forcibly be received and the respect should come voluntarily. The functioning of judiciary or the legal system has a direct impact on the society and the rights of the people. If a criminal could manage a magistrate or court dealing with his case, then, who will protect the society from evil forces? We cannot expect the government to be very clean and responsive given the complications in the Indian political system. As such, the Judiciary or the legal system has a big role to play in protecting the rights of the people, ensuring orderliness in the system and even making a judgment on the executive actions when those are not in conformity with the public interest. There are critics on the allegations of corruption and lack of transparency in the Judiciary. In my opinion, many people talk about the judiciary and the judicial reforms only because people have the hope that Judiciary can protect their rights and ensure ‘right to life’ as guaranteed under Article 21 of Constitution of India and further expanded.
What the author would like to suggest?
The problem with judicial reforms in India is that we lack clarity as to who is ultimately responsible to the citizens. But, with experience, the collegiums system has invited so much criticism and the executive do not bother to address the issue showing judicial independence and they will say that they can do nothing given the legal position in this regard. Likewise, the problem is where to start and whose responsibility it is to address the issue of delay in disposal of cases before various courts in this country. It is for sure that we can certainly curtail the delay in justice delivery and can ensure speedy justice to the citizens. For which what we need is commitment from Government and the concerned ministry. We have so many eminent judges with vast experience who also command great respect among the professionals and people. We need to utilize their services and get their guidance as to how to cure the system and make the speedy disposal of cases a reality. Judicial reforms will transform this country to a great extent and we can see lot of change in the things in the society if we are able to bring the judicial reforms. There will not be any illegality in the society or at least we can see substantial reduction in illegal activities in the society if there is an effective judicial system in place. This is the impact of effective judicial system in the Country.
Alleged corruption in Judiciary and particularly lower judiciary is a matter of grave concern. We need to address the issue of corruption in Higher Judiciary first and we need to concentrate on the issue of judicial appointments. The judge’s accountability is a serious issue as options are less to deal with the judge who is not accountable or who is corrupt. So, the responsibility of appointing efficient and clean judges is to be given to executive and they should not be allowed to take a defence that they are not concerned with the appointments and as such they can do nothing when it comes to corruption in judiciary. Our country is really facing a serious problem with the allegations of corruption in judiciary and the public are slowly losing their faith in judiciary or finding the ways to get relief by adopting unethical means. When we make the system very transparent, then, there is a chance of reducing the corruption to a great extent and such the executive should concentrate as to how to make the entire judicial system in the country transparent.
All that needed is:
1. Speedy justice not amounting to justice buried.
2. Simplistic procedures where even a common man with basic knowledge can directly approach the court.
3. Transparency in the system and reduction of corruption to a great extent.
4. Appointment of efficient and clean professionals as judges.
5. Ensuring the required standards in the legal professional or the person concerned.