JUDICIAL
ACCOUNTABILITY
BY JUSTICE
D.V.SHYLENDRA KUMAR
Judicial
accountability is a phrase, which sounds incongruous and can convey
conflicting messages.
The
phrase has assumed importance in the wake of the improper, irregular,
incorrect manner of functioning of judicial officers, which was not
an unknown phenomenon earlier but has assumed greater significance and
importance in the present context, particularly in the wake of the incidents
of misconduct on the part of the judges, even amongst the judges in
the superior courts, being on the rise, attracting adverse public attention,
media attention and conveying an impression to the people of the country
that the members of judiciary are not behaving in a proper manner, are
not behaving in a responsive manner are even indulging in acts of misconduct,
have even misused and abused their offices for non-judicial purposes
and are virtually abusing their position and powers for personal gains.
The
irony is that such misconduct, improper or irregular acts and even illegal
acts can never be said to be judicial acts, as such, but as things are
taking place in the name of exercise of judicial functions, it has become
inevitable for the people outside the judiciary to wonder as to whether
there is any judicial accountability and if there should be judicial
accountability, in what manner it can be ensured and enforced.
In
the true sense of the phrase ‘judicial accountability’, an order
passed on the judicial side can be made accountable only before a higher
appellate forum and if the order or judgment is incorrect in law, it
can be corrected by higher judicial body in accordance with law and
as enabled in law through appeals, revisions etc. Other than this method,
there is no other way of correcting an improper, irregular or even illegal
judicial order.
While
judges of the subordinate judiciary, which is judiciary up to the level
of district courts in a state, i.e. on the civil side, civil judge (junior
division), civil judge (Senior Division) and district judge and on the
criminal side, comprising of judicial magistrates of first class, chief
judicial magistrates and sessions judges, are all made accountable in
respect of their acts, judicial or non-judicial, as they are amenable
to the disciplinary control enforced and supervised by the respective
high courts of the states within which the subordinate courts are located,
and that can definitely, to a great extent, take care of the need for
ensuring judicial accountability of the judges in the subordinate judiciary.
However,
the position insofar as judges of the superior courts i.e. the judges
of the high courts and the supreme court, are concerned, it is strictly
governed by the provisions of the Constitution of India and in so far
as the judges of the superior courts are concerned, the only way of
disciplining an errant judge of a High Court or the Supreme Court is
by way of impeachment by the Parliament as provided in Article 124 of
the Constitution of India, particularly, sub-articles (4) and (5) of
Article 124, reads as under:
124.
Establishment and constitution of Supreme Court.—
(1)
There shall be a Supreme Court of India consisting of a Chief Justice
of India and, until Parliament by law prescribes a large number, of
not more than twenty –five other Judges
(2)
...
(3)
...
(4)
A Judge of the Supreme Court shall not be removed from his office except
by an order of the President passed after an address by each House of
Parliament supported by a majority of the total membership of that House
and by a majority of not less than two-thirds of the members of that
House present and voting has been presented to the President in the
same session for such removal on the ground of proved misbehaviour or
incapacity.
(5)
Parliament may by law regulate the procedure for the presentation of
an address and for the investigation and proof of the misbehaviour or
incapacity of a Judge under clause (4).
In
respect of the Judges of the High Courts, the provisions of Article
217 of the Constitution of India, particularly, as indicated in clause
(b) of sub-article (1) of Article 217, is the procedure envisaged for
the removal of a judge of a High Court, which in turn is again as provided
in Article 124(4), for the removal of a Judge of the Supreme Court.
(1) Every Judge of a High Court
shall be appointed by the President by warrant under his hand and seal
after consultation with the Chief Justice of India, the Governor of
the State, and, in the case of appointment of a Judge other than the
Chief Justice, the Chief Justice of the High Court, and shall hold office,
in the case of an additional or acting Judge, as provided in Article
224, and in any other case, until he attains the age of sixty-two years:
- a Judge may,
by writing under his hand addressed to the President, resign his office;
- a Judge may be
removed from his office by the President in the manner provided in clause
(4) of article 124 for the removal of a Judge of the Supreme Court;
or
- the office of
a Judge shall be vacated by his being appointed by the President to
be a Judge of the Supreme Court or by his being transferred by the President
to any other High Court within the territory of India.
Though
the procedure for appointment of a judge of the High Court and a judge
of the Supreme Court may slightly vary, having regard to the very nature
of appointment, the manner of removal of a judge of a high court or
the supreme court is the same, as is obvious by a reading of the relevant
provisions of the articles of the Constitution extracted above, and
therefore, the powers and the duties enjoined on judges of the High
Court and the supreme court are almost the same and the service conditions
are also identical.
For
the present, there is no other mechanism or procedure to discipline
an errant judge of a superior court and if the past experience is any
indication, the impeachment procedure does not work in reality and in
practice. More so in the present political system in our country with
fragmented political parties, diverse political views and principles
[if there are any] and politics of survival, politics of grabbing power,
clinging to office and remaining in power being the uppermost object
of the elected representatives, whether in the assembly or in the parliament,
and motions in the parliament and even debates in the parliament of
late being not necessarily merit based and on objective evaluation,
but only on political considerations, impeachment mechanism may never
be a practical methodology of disciplining an errant judge of a superior
court, unless there is consensus amongst the political parties. That
virtually leaves the judges of the superior courts immune from any accountability
and that is why the phrase ‘judicial accountability’ assumes importance
and significance.
It
is rather unfortunate that an external agency is required to discipline
an erring judge of a superior court. Our forefathers, who framed our
Constitution, could not even imagine that judges of the superior courts
will stoop to err in this way day in and day out and though in their
wisdom, have provided a mechanism for the impeachment of an intolerable
judge, even they did not bargain for, or visualize a situation like
the one prevailing in the present days.
Every
judge of this country is a public servant and every public servant is,
without any second opinion, accountable to the people of this country.
Every judge, who holds office, whether at the lowest tier or uppermost
tier, is always accountable to the people of this country in the discharge
of his judicial duties and also during his/her conduct outside his office.
There is no way of any judge seeking immunity or protection for his
misconduct or follies in the name of such acts having taken place while
not functioning as a judge in the court or as it is said to be not in
the course of judicial functioning.
While
there cannot be any two opinions that judicial functioning should always
be in accordance with the laws and the Constitution and a decision and
judgment should always be merit-based and on an objective analysis of
facts, circumstances and on applying the relevant statutory provisions,
even in so far as the conduct of a judge outside his office is concerned,
that should also be one which can pass muster in the eyes of the people
and withstand the scrutiny of public gaze. There is no escape from this
scrutiny for any judge.
While
the supervisory jurisdiction bestowed on the high court over the subordinate
judiciary as in Article 235 of the Constitution of India:
Art.235. Control over subordinate
courts—
The control over district courts
and courts subordinate thereto including the posting and promotion of,
and the grant of leave to, persons belonging to the judicial service
of a State and holding any post inferior to the post of district judge
shall be vested in the High Court, but nothing in this article shall
be construed as taking away from any such person any right of appeal
which he may have under the law regulating the conditions of his service
or as authorising the High Court to deal with him otherwise than in
accordance with the conditions of his service prescribed under such
law.
takes care
of this phenomenon of judicial accountability, in so far as the judges
of the subordinate courts are concerned, in the scheme of our Constitution,
a high court being not a court subordinate to the supreme court, supreme
court cannot have any say in the matter of the functioning of the high
courts and the only authority of the supreme court vis-a-vis high
courts is on the appellate side, as provided under the laws and under
the Constitution.
The concept that the Chief Justice of India, being the head of judiciary
in the country, and therefore, can exercise his moral authority
to ensure that erring judges fall in place and behave themselves, is
a misnomer and misconception, for the reason that every judge, particularly,
judges of the superior courts, is assumed to have the moral courage
and conviction to behave properly and if a judge of the superior court
is not so functioning, the mere moral authority of the Chief Justice
of India, is of no value or significance, unless it can have some binding
effect, which is not so provided under the Constitution.
The
Chief Justice of India, in so far as the relative position for such
purpose is concerned, is more like a serpent without fangs, who can
only hiss, but not bite, which will be an open secret in no time and
the serpent will not be feared by any one, however manacing it may look,
however loud it may hiss! Unfortunately, that is the reality. I say
so, for the reason that an errant judge is a person who has breached
the moral code of conduct, is a brazen person on whom no moral authority
binds, nor does he respect moral authority and therefore the so-called
moral authority of the Chief Justice of India as the figure-head of
the judicial family, has virtually no effect on such errant judges,
whereas it is only all other judges, who behave themselves properly
and whose conduct is quite in order, may, even otherwise, respect the
Chief Justice of India, as is the norm and not necessarily because the
Chief Justice of India is the head of the judicial family and has a
moral authority over all other Judges in the country.
But, that is no solution to the problem, as one who is required to correct
himself or reform himself and behave himself, while may not do so, others
respecting him is of no significance, as even otherwise every member
of the superior judiciary in the country is expected to respect his
brother/sister judges, chief justice of the high court brother/sister
judges of the supreme court and also the Chief Justice of India and
such showing of respect is reciprocal and not one-sided.
With
the constitutional mechanism and the inside mechanism failing to usher
in any measure of judicial accountability, the only alternative is by
taking the issue to the people who are the masters in our polity.
It
is so, as we are a federal system governed by a written Constitution,
which proclaims that our country is a SOVEREIGN, SOCIALIST, SECULAR,
DEMOCRATIC REPUBLIC, as envisaged in the preamble of our Constitution,
reading as under:
WE,
THE PEOPLE OF INDIA, having solemnly resolved to constitute India into
a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all
its citizens:
JUSTICE,
social, economic and political;
LIBERTY
of thought, expression, belief, faith and worship;
EQUALITY
of status and of opportunity;
and
to promote among them all
FRATERNITY
assuring the dignity of the individual and the unity and integrity
of the Nation;
IN
OUR CONSTITUTENT ASSEMBLY this twenty-sixth day of November, 1949, do
HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
judicial accountability
can be ensured by the people of this country, who are the masters and
by a strong and alert judicious public opinion. In moulding such public
opinion, legal fraternity has a most important role to play.
The
Bar is said to be the watchdog of the Bench. Conduct of the judges while
functioning in the courts is watched and judged by lawyers day in and
day out. It is lawyers who educate a judge, who provide him inputs for
satisfactory judgments, who can also understand and point out follies
of a Judge and as to whether judges are rendering their services in
a proper manner or not.
The
first persons who come to know that a judge is not conducting properly
while functioning on the judicial side are the lawyers who are appearing
in the case the moment an order is passed by the Judge in the court
hall ! Of course, a judgment reserved and rendered later may also send
signals as to the manner in which the judgment is produced, whether
the judge was guided by the merits of the matter and on the submissions
made in the course of hearing and on a proper evaluation of the whole
thing, or on other considerations. This will be obvious to the lawyers
the moment they go through the judgment.
It
is for the lawyers of this state/country to ensure that the judges behave
and conduct themselves in a proper manner in the course of discharge
of their judicial functions. That alone can ensure a degree of judicial
accountability and as a result we can have an independent, responsible
and effective judiciary, with the help and assistance of the enlightened,
responsive, vigilant members of the Bar and not otherwise.
It
is the duty and the responsibility of the members of the Bar to ensure
that the judiciary not only remains fiercely independent, upright, effective
and useful for the people of the country, but also that the members
of the judiciary do not go astray, do not deviate from their duties
and responsibilities, do not misuse or abuse their powers and achieve
this objective by boldly and openly bringing to the notice of the judge
himself/herself, if there are such instances or signs of deviations.
This is a very onerous responsibility bestowed on the members of the
Bar in our legal system and unless the lawyers fulfill this obligation
towards the society, they will be failing in their professional duty
!
Our
courts are open courts and the functioning of judges is in open courts
and to the glare and visibility of members of the public. That is the
greatest safety and assurance of an upright quality judiciary. Public
opinion should be motivated and guided in this direction and our lawyers
have a definite and great role to play in this regard. On this occasion,
I would like to quote from the book ‘JUDGES’ written by Sir
David Pannick, Barrister; Fellow of All Souls College, Oxford, and
a very eminent Queen’s counsel, published by the Oxford University
Press, 1987, a small part of the conclusion in chapter – 8 of the
book which I would like to reproduce from the last paragraph at page
204 till the end at page 206, though the entire book itself is eminently
quotable, but I cannot possibly do that in the present article nor my
present position permits me and at any rate I would not like to frustrate
the copyright of the learned author as this article is also going to
be posted on the internet and freely accessible to everyone, after its
publication. However, with the permission of the author, I quote
a part of it which reads as under:
“The
judiciary is not the ‘least dangerous branch’ of government [The
Federalist Papers (1788), No.78]. Judges are not mere
‘lions under the throne’ [Francis Bacon,
‘Of Judicature’ in Essays (1625)(Everyman edn., 1973), p.165].
They send people to prison and decide the scope and application of all
manner of rights and duties with important consequences for individuals
and for society. Because the judiciary has such a central role
in the government of society, we should (in the words of Justice Oliver
Wendell Holmes) ‘wash… with cynical acid’ [Oliver Wendell Holmes,
‘The Path of the Law’ in Collected Legal Papers (1920), p.174] this
aspect of public life. Unless and until we treat judges as fallible
human beings whose official conduct is subject to the same critical
analysis as that of other organs of government, judges will remain members
of a priesthood who have great powers over the rest of the community,
but who are otherwise isolated from them and misunderstood by them,
to their mutual disadvantage.
Some
politicians, and a few jurists, urge that it is unwise or even dangerous
to tell the truth about the judiciary. Judge Jerome Frank of the US
Court of Appeals sensibly explained
that he had
little
patience with, or respect for, that suggestion. I am unable to conceive
… that, in a democracy, it can ever be unwise to acquaint the public
with the truth about the workings of any branch of government. It is
wholly undemocratic to treat the public as children who are unable to
accept the inescapable shortcomings of man-made institutions
… The best way to bring about the elimination of those shortcomings
of our judicial system which are capable of being eliminated is to have
all our citizens informed as to how that system now functions. It is
a mistake, therefore, to try to establish and maintain, through ignorance,
public esteem for our courts [Cited in Jerome Frank, Courts on Trial
(1949) (1973 Ed.), p.40].
English
judges have every reason to be proud of the quality of their performance
and no reason to fear more extensive public knowledge and assessment
of their work. Nevertheless, there are aspects of judicial administration
-–appointment, training, discipline, criticism, mysticism,
and publicity – which hinder, or detract from, their ability to serve
society. We need judges who are not appointed by the unassisted efforts
of the Lord Chancellor and solely from the ranks of middle-aged barristers.
We need judges who are trained for the job, whose conduct can be freely
criticized and is subject to investigation by a Judicial Performance
Commission; judges who abandon wigs, gowns, and unnecessary linguistic
legalisms; judges who welcome rather than shun publicity for their activities.
It
is unlikely that men and women will ever cease to wound, cheat, and
damage each other. There will always be a need for judges to resolve
their disputes in an orderly manner. As people grow ever less willing
to accept unreservedly the demands of authority, the judiciary, like
other public institutions, will be subjected to a growing amount of
critical analysis. The way in which
‘Judge & Co.’ [Jeremy Bentham’s term for the judiciary: in
The Works of Jeremy Bentham (ed.Bowring, 1843), vol.5, p.396]
is run is a matter of public interest and will increasingly become
a matter of public debate.”
I
am sure, this is equally so or more so in respect of our judges and
our society, and this message will definitely reach the people of our
country through the members of the Bar and the judiciary in our system
is retained, respected and ensured to function for the purpose for which
it is meant in our Constitution.
I
wish all members participating in the conference very best things, meaningful
deliberations and positive resolutions and conclusions and of course
practical implementation after the conference is over to ensure an independent,
upright and effective judiciary. It is only when such a judiciary remains
in place, professional people like lawyers can practice the legal profession
with purpose and dignity, and not otherwise.
I
conclude with my greetings and regards to all members of the Bar.
Bangalore