Judicial Accountability in Contemporary India
“We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our property and our liberty and our property under the Constitution.”
-Charles Evans Hughes
Judiciary is one of the pillars on which democracy stands. It is the body that interprets the laws and ensures their application is done in the appropriate way. It stands as the protector or guardian of the rights of the people of the country as doing justice is its primary function. This adjudicatory body stands responsible as well as accountable to the people who approach it seeking justice. Each and every judgement, act or even a word is a reflection of what and how the judiciary is working. This article will focus on how and to what extent our Honourable Judges are accountable to us.
What is Judicial Accountability?
The term ‘judicial accountability’ has a broad and multidimensional meaning. But going through the literal terms as explained in Black’s Law Dictionary ‘judicial’ means ‘relating to the acts of judges’ and ‘accountability’ means ‘the responsibility of the acts of judges done in their judicial capacity’. So in a nutshell the term means that the judges should be held responsible or accountable for the acts done by them while holding their judgeship.
Judicial accountability can be read as a corollary of judicial independence. Although they may seem to be synonymous but are quite different. Both the terms to some point coincide being the derivative of ‘impartiality’. For being accountable, it’s necessary to be independent.
Need of Judicial Accountability
As mentioned earlier also, being accountable means being answerable for the acts done and this undertaking is necessary for ensuring the transparency and quality of judgements delivered. The Preamble of our Constitution contains the word ‘justice’. This word covers a very large ambit of what we call fairness, equity, unbiasedness, good conscience, righteousness, integrity, propriety, etc.
Every person who sits in the chair as a judge to hear the matter and do justice should be held accountable for each and every word he speaks. Currently the judiciary handles issues from every sect of the society. It includes a wide range of cases starting from high profile cases to cases of public importance or political matters.
With an increase of activities in the political sphere the interference can be seen in the judicial processes. The influence of such activities make the vision of justice appear blurry. There is an urgent need to consider this matter as it is regarding the judicial system of a mega country like India which has one of the world’s most remarkable judiciary.
Existing tools to ensure judicial accountability
Impeachment of judges
Currently, the only measure available to ensure accountability is the impeachment of the judge. Article 124(4) of the Constitution of India deals with the impeachment of judges. The motion can be brought to the Parliament on proven misconduct or incapacity of the judge.
A judge can be removed only through a motion in parliament, which must have a minimum of two-thirds support in each House. The motion itself can be brought in either house of parliament only with the support of a requisite number of parliamentarians. If the motion is admitted, an inquiry committee is set up, comprising a Supreme Court judge, a High Court Chief Justice and an eminent jurist. The inquiry committee examines the charges. It is not a proper judicial trial, but the judge can provide a written response and examine witnesses. The committee submits its report to the Parliament on whether the charges can stand or not. If the committee holds the judge not guilty, the process ends there.
But if the inquiry committee finds the judge guilty, the motion for removal must be put to vote in both houses of parliament. The judge has the right to be represented. To be successful, the motion must be supported by a majority of the total membership of that house and by a majority of not less than two-thirds(2/3) of members present and voting. If these hurdles are crossed, the Parliament asks the President of India for removal of the judge.
This provision of the Constitution to some extent acts as a supervising force on the judges but it is not a proper mechanism.
It is more of the kind of watchdog activity that keeps an eye on judicial acts and criticises them as well. It creates some kind of pressure. This attracts the attention of people and responsible authorities to matters which are of public interest and welfare.
Right to Information
Right to Information is one among the strongest weapons in the hands of people of India to fetch information regarding what the authorities are doing and in what way. This ensures transparency. Right to get the information regarding judicial matters leaving the exempted one gives people a chance to check the work being carried out.
A recent judgement delivered by Honourable Supreme Court in the case of Central Public Information Officer, Supreme Court v Subhash Chandra Agarwal (2019) has laid down that Office of Chief Justice of India is a public authority and comes under RTI.
Media and other Social Platforms
Media and other Social platforms give the stage to the voices of people. Here, every common person can put their grievances in front of people and authorities at large and get them addressed. This is one of the weapons for social change and judiciary being part of the society can not remain untouched or unaffected by it.
Where do we lack?
In spite of having a magnificent judiciary we somewhere lack in making it function that efficiently. Or judicial system which was formed by our Constitution makers has gone through reforms but still there are some lacunas such as:
Slow and Complicated Processes
The working of Indian judiciary is a bit slow which affects the delivery of justice to the people. Court proceedings are too complicated to be understood by a layman. So, even if there is delay in their proceedings a common person can not understand the complications behind it. Also, our laws are so time-consuming that they completely ruin the philosophy of justice.
Old and Outdated System
The current system of our judiciary to some extent still works on the old precedents which disables it to get up to the standards of the current situations.
For example the trial of convicts for heinous offences. In such kinds of cases we need to change our system to make it more productive and to establish benchmark precedents.
No Law for Accountability
Till date there are no laws made for accountability of the Judiciary in India. Some laws were brought into the legislature but every effort went into vain. Such a law was Judicial Standards and Accountability Bill 2010. But the same lapsed due to some shortcomings. There are minimal tools to ensure accountability but those are not sufficient.
Misuse of Laws
Now-a-days it can be seen very commonly that laws are being used for threatening people who raise their voices. They are being booked for charges like sedition, unlawful activities, contempt etc. This suppression of freedom of expression is not at all acceptable.
Judicial accountability can be called one of the most debatable topics now-a-days. Questions rise again and again on judicial accountability. The thing to be kept in mind while discussing this topic is that judicial accountability is not just about the verdicts which are penned down rather it concerns a much bigger area than this.
The case of Vishnu Tiwari who spent 20 years of his life in jail facing the trial for the charges of rape of which he was acquited by Allahbad High Court. He faced imprisonment for an offence which he did not commit. On the day of his release he had attained the age of 43 years, had lost his family members leaving his younger brother, had gone through mental and physical sufferings, he and his family had faced social stigma, he suffered financial losses and many more which he will never be able to recover. He says that “ My body is broken. All my family members died leaving behind my younger brother. I have just 600 rupees which I got from jail administration. What should I do?”. Now the question is who is to be held accountable for this? Who will pay him the losses incurred? Who will give him back those 20 years of his life?
Is this the responsibility of the attorneys who plead these cases whose duty was to present their contention and get another date for hearing? Or its police department which had to perform its duties while investigating well? Or is it the Honourable Judge who presided over this case and was under duty to do justice in a reasonable time?
Now again a question arises: What is a reasonable time? No statute, no dictionary, nothing describes reasonable time. It is upon the discretion of the Honourable Judge to decide the reasonableness of the time involved.
Another instance which led to debate was the case filed against former Honourable Chief Justice of India when he was facing allegations of sexual harassment by an ex-employee of the court. The case was designated as “Matter of Great Public Importance Touching Upon the Independence of the Judiciary”. The hearing of the case was presided over by three judges including the Chief justice of India who himself was facing these charges. Ultimately the case was dismissed, categorising it as a ‘conspiracy’.
The Honourable Chief Justice got the clean chit and that case was taken back. Without deciding the truthfulness of the facts and the validity of the judgement, the immediate question that may come to the mind of any ‘prudent’ person is how did this happen? How can the principles of natural justice be violated as the Honourable Chief Justice who facing these charges himself presided over the hearing? As per the reports evidence and contentions from the victim were not even admitted and those which were admitted were held confined from the one who was presenting them. The entire proceeding remains questionable. Who is to be held accountable for this?
Many such instances can be listed where clear violation of justice can be seen in some or other form. Let it be case of sexual harassment where the definition of physical touch was interpreted in a very vague and unacceptable way or granting protection to the live-in-relationship couple or incarceration of activists and students for unlawful and seditious activities out of whom some are very near to the end of their lives.
How strange it is that people spend time in imprisonment during their trial more than what is stipulated by the laws as a punishment of the offence. Many under trial prisoners are still in jail while some do not have access to their advocates. Many have not got chargesheet filed or have not got investigation started. They remain languishing in overburdened jails with no one bothering their lives. Years pass by, their health deteriorates, some of them even die in jails waiting for justice. Where is the legal assistance which has to be provided by the state under Article 39A of the Constitution? Some arguments state that the judiciary is now also being influenced by politics, money and muscle power. Commenting on the extent of truthfulness of this influence is not possible but in some areas it is very evident as it appears to be.
The conduct of the judges needs to be reformed in a more responsive way to ensure accountability at a larger stage. Following are some of the measures which can be adopted-
Speedy judicial system
A very common principle says that “Justice delayed is justice denied”. It is very important to note that only justice is not enough, the delivery of justice in reasonable or proper time is also substantial. Getting justice is one of the most valuable rights of every individual which cannot be taken away by any means. If that right is infringed by giving justice in more than stipulated time then it is the act of utmost injustice itself.
Efficient code of conduct for judges and reformative laws
The biggest reform which we need is the making or enactment of a uniform and more efficient code of conduct for the judges as well as other members of the judiciary. A law needs to be bought which ensures a proper and structured system to bring about more accountability in the judicial system. Judges should be made aware that their acts or omissions may lend them into the hands of the judicial process which may affect them in severe ways.
Make laws easy for laymen to understand it and get their rights enforced
Many times it is observed that due to lack of knowledge of law and legal system innocent people get befooled and are cheated by many people. The people on whom they trust become the assassinators of their vital right to justice.
There is a need to simplify laws so as to make them comprehensive for the layman. If the people will understand the laws they will understand their application and they will be able to enforce them in a better way with the help of the attorneys who will represent them in the judicial proceedings.
Constructive use of RTI
Right to Information can be used in a more constructive way to bring out the judicial information into the public domain and bring about transparency. By making people more aware of the judicial proceedings and functionings we can make our judicial system more open and reliable.
Strengthening of media, social platforms and judicial activism
Healthy criticism should be promoted. Unnecessarily insisting on contempt cases or dragging people into the charges of sedition or unlawful activities needs to be stopped. These laws should be used in a more productive way rather than suppressing the voices of the people and snatching their right to speech and expression. Media and activists should be given a free hand to bring the malpractices in front of the general masses.
There is an urgent need to make our judicial system more accountable as “Without accountability there exists no responsibility”. Judiciary should be held accountable for every word, every action and every thought as they become the milestone precedents overruling of which is not as easy as falling off a log. People in India have utmost faith in the judiciary which is the strength of it and we need to maintain that. Judges who act as the soul of the judiciary and who are the ones who deliver the justice should be held accountable for their acts as lacking in doing so will lead to decline in credibility of the judiciary in India.
The custodians of our rights should be answerable for what they are doing for the people of this country. If this body will act in unjust ways then where will the people go to seek justice and get their rights? The immediate onus comes on ‘we people of India’ to ensure that no one is left without justice. It is the responsibility of each and every member of the legal fraternity to make justice available to each and every citizen of this country as well as any person who is standing in the territory of India.
i). Man serves 20 years in jail for crime he did not commit: https://www.indiatoday.in/india/story/allahabad-high-court-man-served-years-rape-convict-committed-innocent-1774994-2021-03-03
ii). A Manifesto for Judicial Accountability in India- https://thewire.in/law/cji-ranjan-gogoi-supreme-court-judiciary
Author: Poorva G Chaturvedi,
Modi Law College, Kota