A Court of the Future: There Is Need to Fine Tune Mechanisms of Accountability Within Judiciary

Why in news?

• The article put emphasis upon various aspects of judicial governance and strengthening its accountability to maintain the confidence of the public in the established courts.

 

Judges accountability in India

• Legislative removal: The Indian Constitution-makers only provided for the removal of Supreme Court and High Court judges by means of joint action by the two Houses of Parliament, for proved misbehaviour or incapacity (Article 124 and 218).
• Changed circumstances: The winds of falling standards of public life have not avoided the judges of the superior courts. Charges of misconduct against judges of superior courts are now being frequently made.
  • In the only instance in which impeachment was tried in 1993, in the case of Justice V. Ramaswamy of the Supreme Court, the method proved to be cumbersome, dilatory and political.
  • Hence, the Indian citizens need the reassurance of a system of judicial accountability and faith in judicial governance for the country.

 

Present scheme to discipline judges

• Current practice: To deal with problems of delinquency the Chief Justice of India appoints a committee of judges to enquire into allegations of impropriety by judges of High Courts.
• Limited authority: Such committees, which do not have any authority of law to enquire into charges or summon evidence and effectively investigate the matter, have not inspired confidence in lawyers.
  • Even if the committee finds a judge guilty of misconduct, he or she cannot be removed from office by the Chief Justice or even suspended.
• Minimal resistance: A convenient way to avoid disciplinary action being taken against a judge who has come under a cloud has been for the Chief Justice of India to transfer him or her to another High Court.
  • This sometimes results in protests from the Bar of the High Court to which he or she is transferred, which does not want to have a delinquent judge in their court.
• No public scrutiny: Another problem is that at times public criticism of the conduct of a judge by the media runs the risk of action for contempt of the court as happened in Karnataka a few years back.
• Few steps forward: So long as the Constitution is not amended to delete the method of removal of judges by Parliament, there cannot be an alternative method for their removal.
  • But short of removal of judges of the superior courts, there can be a law to investigate misconduct by judges and take appropriate action.

 

Supreme Court directives

• Case flow mangement: A SC bench in Salem Advocate Bar Association case 2005, had drawn up a fine blueprint on case-management, on how to make recent amendments in our procedural laws work on the ground, and how to get more cases moving along.
  • For instance, on three different tracks, i.e. fast track, normal track and slow track.
• Requesting High courts: It also suggested that detailed case flow management rules ought to be put in place in High Courts for monitoring the progress of cases, but most of them have not.
  • This is because the SC could not direct the high courts to do so. Under our constitutional scheme the latter are autonomous constitutional bodies not subject to administrative directions of the Supreme Court.
• Poor administration: In their administrative functioning the high courts are answerable to no one but themselves. This often enables the Supreme Court to plead helplessness, hardly a good sign for integrated court-management.

 

Oversight of judges in US model

• Complementary Act: The U.S. Constitution has the method of removal by impeachment of federal judges, but there is a supplemental law to consider complaints of misbehaviour by federal court judges and discipline them, short of their removal.
  • The Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 which was made by Congress in consultation with the U.S. Supreme Court, provides a method by which federal judges can be effectively disciplined by their own peers.
  • The most important benefit of the 1980 Act was the impetus it gave to the informal resolution by the judiciary itself of the problem of judicial misconduct.
• Course of action: Under this 1980 U.S. Act, complaints that a judge “has engaged in conduct prejudicial to the effective and expeditious administration of the business of courts” can be made to the Chief Judge of a Judicial Council of Judges.
• Proceedings: If the complaint is frivolous it is dismissed. If not, it is investigated by a special committee of judges. Upon receiving their report, the Judicial Council may take one of five steps.
  • It may direct the judge under investigation to take such action as the Judicial Council may deem fit.
  • It may request the judge to retire voluntarily.
  • It may order that no further cases be assigned to him for the time being.
  • It may censure or reprimand such a judge publicly or privately.
  • Or, if the judge deserves removal, his or her case is reported to the House of Representatives for impeachment.
• Remedy for accused judge: The judge has a full opportunity to defend himself or herself and he or she has a right of review by a higher Federal Judicial Conference. The proceedings of the Judicial Council are confidential.
  • Experience shows that a judge who is found guilty resigns on an adverse report being made by the Judicial Council.

 

Corrective measures

• De-facto topmost authority: It is time that the Supreme Court be entrusted with direct responsibility for the functioning of the high courts. Only then can the highest court be an effective apex court and be made answerable, as it should be, for judicial governance for the entire country.
• Public disclosures: The judges must make annual financial disclosure statements, not privately to their respective chief justices, but publicly as done by justices of the Supreme Court in U.S.
• Credible mechanism: A credible statutory machinery is needed for investigating charges against judges so that responsible criticism of the conduct of judges is immediately looked into and action taken, and at the same time unfounded allegations against them are nipped in the bud.
• Emulating US model: So far, there is no law in India to guide our judges, only “guidelines”. There is a felt need for a law which can be guided through the U.S. Judicial Councils Act, 1980.

 

Conclusion

Judicial governance means that all judges who are constitutionally entrusted with the responsibility of protecting the rights of citizens must also be seen to be persons of rectitude. They must set an example for ministers, central and state, for members of Parliament and of state legislatures, and for all high officials of government, to follow.