TRANSPARENCY, ACCOUNTABILITY AND INDEPENDENCE IN THE INDIAN JUDICIAL SYSTEM
In the words of Dr.B.R.Ambedkar,
“There can be no opinion in the house that our judiciary must be both independent of the executive and must also competent in itself . and the question is how these two objects can be secured.’’
The makers of our Constitution realized that the fundamental rights granted by our Constitution could be guaranteed only if the judiciary was independent of Legislature and executive in order to uphold the democratic pillars of our country.
The Indian Judicial System occupies among the trinity , the highest place in people’s conscience and confidence ,the trust and faith of the people of India is a sine quo non for the judiciary to be running successfully. the judicial organ of our country is the guardian of our constitution .however the richness of the system infringed as over the years favouritism, Nepotism ,Corruption and bribery have crept their way into the judicial system and have slowly made a permanent home , which is protected by a weapon of contempt of court and unaccountability.
JUDICIAL ACCOUNTABILITY: WHY THERE IS NEED?
The Cambridge dictionary states that accountability is a state of fact of being responsible for what you do able to give a satisfactory reason for it or the degree to which this happens.
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’’. All the wings of government belong to the people , when the legislature and the executive both are accountable ,the judiciary cannot remain unaccountable and absolute .
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.
There have been some shameful instances of judiciary being corrupt. A report by Transparency of International (TI) called the Global Corruption Report 2007 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.The estimated amount paid in bribes in a 12-month period it found was around 580 million dollars.
CONSTITUTIONAL PROVISIONS FOR ACCOUNTABILITY
Among the constitutional limitations on the judges , the most important one is the provision for ‘removal’ of judges of High Courts/Supreme Court by address of the House of Parliament to the president on the ground of ‘proved misbehavior or incapacity’.this is provided in Constitution of India, Article 124(2) and (4) in respect of judges of Supreme Court and in view of Article 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 Supreme Court or of a High Court and for the presentation of an address by Parliament to the President and for matters connected therein.
INDEPENDENCE OF JUDICIARY
The principles of judicial independence and accountability are sometimes regarded as fundamentally opposed to one another,and constantly in tension. Judicial Independence is “an essential pillar of liberty and the rule of law”.
The basic need for independence of rests upon the following points:
1.To check the functioning of the organs: Judiciary acts as a watchdog by ensuring that all the organs of the state function within their respective areas . Judiciary acts as a guardian of the Constitution and also helps in securing the doctrine of separation of powers.
2.Interpretating the provisions of the Constitution: the makers of our Constitution had envisaged that ambiguities with the provisions of the Constitution were bound to arise and only an independent judiciary could make an unbiased interpretation.
3.Disputes referred to the Judiciary: the Judiciary is expected to deliver impartial justice which is only possible if the judiciary is free from all pressures.
1.Security of tenure : The judges of the Supreme Court and the High Courts have been given the security of the tenure . once appointed ,they continue to remain in office till they reach the age of retirement which is 65 years in the case of judges of Supreme Court Article 124(2) and 62 years in the case of judges of High Courts Article 217(1).
2.Salaries and Allowances :the salaries and allowances are fixed and are not subject to the vote of legislature.except,in event of grave financial emergency.
3.Powers and Jurisdiction of Supreme Court:Parliament can only add to the powers and jurisdiction of the Supreme Court but cannot curtail them.
4.Power to punish for contempt : Article 129 provides that the Supreme Court shall have the power to punish for contempt of itself. likewise ,Article 214 lays down that every High Court shall have the power to punish for contempt of itself.
5.Separation of the Judiciary from the Executive: Article 59 of Directive Principles of State Policy lays down that there shall be separate judicial service free from executive control.
“Power tends to corrupt,and absolute power corrupts absolutely’’,said Lord Acton.
ALLOCATION OF CASES V. TRANSPARENCY IN JUDICIARY
The sole authority to allocate cases given to Chief justice of India. the chief justice puts together benches as well as transfers cases whenever he feels alike, there is no proper protocol or method or criteria that are followed when it comes to allocating these cases to certain judicial officials .
The entire system cannot be termed corrupt ,there will be certain group of people that do their work diligently and loyally to their nature . we cannot term this as purely corrupt and there’s a vacuum created here as no judge knows where and how he will be transferred or which cases will be allotted . lack of transparency and accountability gives rise to such situations .
JUDICIAL INDEPENDENCE: PROBLEMS AND CONCERNS
There exists lack of transparency in the working of Judicial system. There exists no sense of accountability as well because the judges are judging themselves . the principle of Natural alw states that ‘no man can be a judge in his own cause’ but in judiciary we see the judges appointing themselves as well as adjudicating themselves .
The Supreme Court, in a ruling of the Constitution Bench in K.Veeraswami v. Union of India , held that : “Judges are under the law , not above it . Your public life , and even private life to the extent it influences your judicial role should be accountable and transparent to the public.”
There is direct and drastic accountability in India that is the impractical way of impeachment proceedings.
Lord Cook, “ Judicial Accountability has to be mainly a matter of self – policing otherwise , the very purpose of entrusting some decisions to judge is jeopardized”.
Judges in India shall follow more of self-restraint policy and self-policing , even independency is well maintained but it have to formulate inner rules and guidelines to empower judicial code of conduct .
Judicial Accountability is asked or more over demanded because it is the most powerful branch to deliver the justice as the first human right to the people . Judicial Accountability as a concept comes with lot of responsiblity and judiciary must be responsible to the people . having a more transparent system when it comes to appointment can take care of nepotism and favouritisn and not can return hamper efficiency in law . the road to securing judicial accountability is still long and need effective perception to enroll its code of conduct but with taking a few and gradual steps towards a more transparent Judiciary we can soon have an efficient and accountable judicial system where Rule of law prevails , all work under the umbrella of law as law is supreme .
“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 CONSTITUTION , Article 124(2)
Author: Kiran Mai,
INVERTIS UNIVERSITY/BALLB 2ND YEAR/LAW STUDENT