Defining “Judicial Accountability”
Judicial Accountability is now generally accepted as an important value of judiciary, even though some instruments explicitly mention it. The problem with judicial accountability is that little attention is paid to what is meant by this notion. Most authors primarily focus on the notion of judicial accountability only in relation to judicial independence. As a result they tend to leave the notion of judicial accountability undefined. This fact in turn increases the danger that judicial accountability “can be co-opted and misused easily”.
Furthermore, the phrase” judicial accountability” consists of a noun (accountability) and an adjective (judicial); it suggests that we need to understand the concept of accountability before we can understand judicial accountability. Accountability is a complex and amorphous notion, which, in turn, increases the danger that it can be “co-opted and misused easily”. The definition of accountability should provide answers to two fundamental questions, namely (1) must accountability mechanisms must entail a power of principal to impose sanctions? And (2) does accountability encompass only negative actions? The answers to these questions are yes and no.
In order to define this notion “judicial accountability” six questions must be answered:
(1) Who is a “judge”?
(2) To whom are judges accountable?
(3) For what are judges accountable?
(4) Through what processes are judges accountable?
(5) By what standards are judges accountable?
(6) With what effects are judges accountable?
The answer to first question is judges here are the full time professional judges of the courts i.e. the district courts, session’s courts, High courts and Supreme Courts, who are designated to be a judge by a due process and hold the capacity to be judges.
The answer to the second question is; judges can be accountable to four different actors
(1) to the executive
(2) to the legislature
(3) to the public
(4) to their fellow judges
Some of these mechanisms are specific to particular accounting agent e.g. impeachment is only available to legislature, some of them can be employed by all accounting agents like criticism of judges, and some can be designed in various ways in order to encompass one or more accounting agents e.g. disciplinary proceedings.
As to accountability for what question, it can be distinguished between decisional accountability and behavioural accountability. Decisional accountability means holding judges responsible for their judicial decisions. Answerability for judicial decisions should be considered broadly so as to so as to encompass not only substantive content of a decision but also its form, layout and legibility. Behavioural accountability means holding judges responsible both for their “on-the-bench” and off-the-bench” record.
The remaining three questions- through what process?, with what effect? And by what standards? Are closely interrelated. Even though the definition of judicial accountability is very narrow, there is still a plethora of mechanisms that fall within the ambit of this definition like impeachment which is a constitutional provision in India to the latest judicial accountability bill, 2010.
Finally by what standards question, these standards vary from mechanism to mechanism. However we may broadly define two standards (1) political standards and (2) legal standards. A specific feature of accountability of judges is a significant degree of “legalization” of judicial accountability. This means that the political accountability of judges that allows greater discretion has been eroded and to a large extent and replaced by legal accountability that rests strictly on legal standards.
After answering abovementioned questions, the following definition judicial accountability emerges. Judicial accountability is “the cost that a judge expects to incur or profit that he expects to gain in case his behaviour/ or his decisions deviate too much from a generally recognized standard.