Judiciary: Accountability & Independence

The Hindu and TOI

Accountability be balanced with judicial independence.” In enacting laws, the concept of judicial independence should not be lost sight of. For, “decisional independence and structural independence are more important when you are required to balance accountability and judicial independence,”

Justice Kapadia was apparently referring to the Judicial Standards and Accountability Bill, which has already been passed by the Lok Sabha and is pending in the Rajya Sabha

A controversial clause states: “No judge shall make unwarranted comments against the conduct of any constitutional or statutory institution or officials at the time of hearing matters in open court.”

The question is in that process constitutional tinkering should be done very carefully

Therefore, “be it a collegial system, be it accountability or whatever laws you bring, please take the opinion of eminent jurists, please consider the comparative juridical aspects all over the world. Everywhere we find some drawbacks. We need to make a detailed study before we tinker with the constitution and particularly with judicial independence

Urging the government not to lose sight of the concept of judicial independence in enacting laws to make judges accountable, Chief Justice of India S.H. Kapadia also called for judicial restraint among judges while delivering judgments

While interpreting the Article of a fundamental right, “we must also keep in mind that there is [an] institutional structure and architecture of the Constitution which provides for checks and balances. Sometimes in our anxiety to do justice we give an interpretation which may disturb the constitutional balance between the three branches [executive, legislature and judiciary] of the government,”

“We the people,” “Rule of law,” all these have very wide concepts. They have to be interpreted keeping in mind the checks and balances within the system. Sometimes these balances are getting disturbed by our judgements and the judges should be very careful when they draft the judgments. If there is judicial overreach, the legitimacy of judicial review will be obliterated.”

“Justice is like oxygen. There is no reason to notice it if you have it in abundance. However, if you restrict the flow, it becomes more and more important until a point is reached when nothing else matters at all.”

S H Kapadia has highlighted the importance of checks and balances in a democracy

He cautions the government against denting judicial independence

He also acknowledges judicial overreach can upset the harmonious functioning of three pillars of the state

Institutions must have well-defined turfs, and so not step on one another’s toes

But they must also act as checks to keep one another on their toes.

Since it alters the entire mechanism for investigating allegations of misbehaviour against members of the higher judiciary and simplifies the procedure for their removal, the Judicial Standards and Accountability Bill is a hugely significant piece of legislation

The proposed law, which seeks to replace the outmoded Judges Inquiry Act 1968, under which cumbersome impeachment trials are necessary to dismiss erring judges, lays down enforceable norms for their conduct and enables a wider range of disciplinary action for proven misbehavior

There is no doubt about the need for an alternative and more effective statutory framework to address complaints against judges

How difficult the impeachment process was that led to the unabashed show of defiance by Chief Justice P.D. Dinakaran of the Sikkim High Court and Justice Soumitra Sen of the Calcutta High Court

Justice Kapadia has suggested, that any new law maintains a sensitive balance between holding judges accountable and preserving the independence of the judiciary

It is no secret that some provisions of the Judicial Standards and Accountability Bill, passed by the Lok Sabha

The so-called gag clause, which prevented judges from making “unwarranted” oral observations against constitutional authorities, has raised judicial hackles — and quite rightly so.

Questions have been raised about the propriety, indeed constitutionality, of having non-judicial members in the Oversight Committee, which deals with complaints about judges.

There have been doubts raised about the effectiveness of Scrutiny Panels, which vet and filter out frivolous complaints, peopled by members of the same court as the one complained about

However, judicial accountability can’t be fully delivered without addressing a key issue not covered by this Bill: judicial appointments

Judiciary exercising democratic power must enjoy independence of a high order. But independence could become dangerous and undemocratic unless there is a constitutional discipline with rules of good conduct and accountability

Chief Justice S.H. Kapadia’s observations, at an event at the Supreme Court of India on Independence Day, underlining the need for the government to balance judicial accountability with judicial independence, have to be reconciled with what Law Minister Salman Khurshid observed about judicial propriety

The Constitution has three instrumentalities — executive, legislative and judicative. The implementation of the state’s laws and policies is the responsibility of the executive. The Cabinet headed by the Prime Minister at the Centre and the Cabinet led by the Chief Minister in the States, are its principal agencies. The rule of law governs the administration

Parliament consisting of two Houses and legislatures at the State level make law. When the executive and the legislature do anything that is arbitrary, or contrary to the constitutional provisions, the judiciary has the power to correct them by issuing directions under Article 143. The Constitution lays down the fundamental rights, and if the States do not safeguard them, any citizen can approach the Supreme Court for the issue of a writ to defend his or her fundamental rights

Thus, among the three instrumentalities, the judiciary has pre-eminence. But the judiciary itself has to act according to the Constitution and work within the framework of the Constitution

Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions

Therefore judges must be kept mindful of their limitations and of their ultimate public responsibility

Judges are the ultimate authority in the interpretation of the Constitution, and so must be learned in the law

They play a vital role in the working of the Constitution and the laws

The Preamble to the Constitution lays down as the fundamentals of the paramount law that India shall be a socialist, secular democratic republic which shall enforce justice — social, economic and political — and ensure liberty of thought, expression, belief, faith and worship, equality of status and of opportunity, and promote among them fraternity, ensuring the individual’s dignity and the nation’s unity and integrity

But who will select the judges, and ascertain their qualifications and class character?

In the current collegium system, only judges appoint judges. So, the judiciary’s been perceived as a club with opaque membership processes. As controversies surrounding judges like Soumitra Sen and P D Dinakaran made clear, far greater transparency is required

An independent commission with a broad-based composition – including bipartisan political representatives as well as eminent citizens – can help ensure selection on merit rather than by patronage

A Constitution amendment would be required to make this possible, underlining the need for institutional cooperation on the issue

Like ministers or lawmakers, judges too are service providers who should be open to external scrutiny, whether vis-a-vis appointments and transfers, conduct on the job or accumulation of assets

Also, while judicial activism has rendered many benefits, judicial overreach can go against public interests

For instance, the directive on auction of resources like spectrum could take mobile telephony out of the reach of many. Ultimately, independence and accountability are two sides of the same coin


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