Is there a Conflict Between Judiciary’s Independence and It’s Accountability?

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Judiciary is one of the wings of the government which exists as an independent entity. India follows the principle of Separation of Powers which brings in accountability and keeps the government restrained and thus, our rights and liberties are safeguarded. Accountability is considered the sine qua non of democracy[1] but the Judiciary is barely accountable to any other organ or the people as well.

Though this is to safeguard the judiciary from interference but it also provides a pedestal over the other organs. Keeping in mind that the judges are humans as well and do not always keep off from favouritism, corruption, etc. There’s a need for some level of transparency and accountability but only to the extent that it doesn’t tax on the independence.

Judiciary Evading Accountability?

An attempt to bring in transparency in appointments of the judiciary was done by initiating NJAC Act 2015. Judiciary’s issue with NJAC was veto parity of the eminent persons and the judges in the committee. The say of CJI could be countered if two members veto the appointment and therefore it was struck down. NJAC can be appreciated on the point that the eminent persons were chosen on the consensus of Prime Minister, Chief Justice of India and the leader of the opposition. This way any chance of favours can be avoided because all three are present to keep a check on the other.

Under Article 124(4), the process of removal is carried out only on the grounds of proven misbehaviour or incapacity and clause (5) led to the founding of The Judges Inquiry Act, 1968. The three-member committee comprising two judges & Chief Justice of India has the dominance in the investigation and recommending to the houses. This procedure is so complicated that not even once it has been completed. A resolution has to be passed by 2/3 majority in both houses in a single session which requires the initiation of proceedings and investigation as well. It is barely possible to complete these lengthy proceedings and usually, the judges resign before in order to keep their perks and benefits. Thus, the pressure of accountability is really less.

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In the K. Veerswamy case, it was held that no FIR can be filed against a sitting judge of the High Court and Supreme Court under Section 154 of CrPC. Section 3 of the Judges (Protection) Act, 1985 protects judges and former judges of the Supreme Court and the High Courts from “any civil or criminal proceedings” for any act, thing or word committed, done or spoken by him in the course of their judicial duty or function along with Section 77 of IPC which exempts judges from criminal proceedings for something said or done during judicial duties. The sole authority to allocate cases is given to the Chief Justice of India. There is no proper protocol or method that is followed when it comes to allocating these cases to certain judicial officials. The judiciary is guided by a set of moral conduct under Restatement of Values of Judicial Life and has bare minimum legal backing. This all depicts that there is bare minimum accountability of the Higher judiciary and there has been an avoidance for so as well.

Conflict of Independence and Accountability

Usually, accountability is considered to impose a barrier on the way of independence. Before 1993, it can be seen that judges were held accountable for their actions when giving a decision against the Government and were penalised by transfers or superseding them in appointments of CJI by the executive. In SP Gupta v. Union of India,[2] the situation as mentioned above could be seen and the President, basically who is guided by the council of ministers controlled the transfers. This was the situation when there was no provision of accountability. Due to the give and take nexus established between the executive and judiciary, we have seen a compromise on independence and ignorance of accountability. In an impeachment proceeding against Justice Bhalla, the BJP declined to sign because L.K. Advani had been acquitted by him in the Babri Masjid demolition case.[3] Along with it, Congress restrained from voting in the Justice Ramaswami’s removal proceedings since he didn’t grant bail to the Khalistani terrorists. Therefore, the idea of accountability towards executive will invite unnecessary interference & corruption.

Giving all the powers to Judiciary isn’t the solution either, the accountability should be towards the people. We talk about Judiciary’s independence being harmed but we need to understand that its independence is not only from political and executive influences but also, Judiciary being independent of their inner politics.[4] Favouritism can be seen in such circumstances. The problem lies in the understanding of independence; it should be understood as independence from executive and legislature and not independence from accountability. Independence and accountability can go hand in hand and are not a juxtaposition.

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Keeping independence intact, the concept of accountability has to be dealt in the context of untimely decisions or judicial performance. In Denmark, 58% of the civil cases should be disposed within 1 year, 63% of the criminal cases should be disposed within 2 months and 95% within 6 months.[5] Similarly, a timeline can be set within our country to deal with the tremendous delay in the cases which can be prioritized in accordance with the urgency of the matter.

Accountability is an aspect of independence which the Constitution has provided under Article 235, for the ‘control’ of the High Court over the Subordinate Judiciary clearly indicating the provision of an effective mechanism to enforce accountability.[6] High Courts assess the state of functioning of the subordinate judiciary under their administrative jurisdiction and supervise the recording of Annual Confidential Reports (ACRs). ACRs are annual performance appraisal reports that record balanced information of a judicial officer’s performance in the evaluation period, to periodically judge the work, conduct, integrity and capabilities of the officer.[7]

Self-assessment reports ensure transparency regarding parameters for assessment of judges being evaluated. The concept of the reporting and reviewing authority under this system keeps a check on any malice involved. In All India Judges Association & Ors. v. Union of India, it was also recommended that the procedure prescribed for writing Confidential Reports by the self-assessment process should be adopted by High Courts for Judicial Officers. As this system works on hierarchy, a similar system can be introduced for the higher judiciary in which, in the end, the Supreme Court judges report to a committee of retired judges of the Supreme Court who can evaluate the performance and suggest for further training in case the performance is not satisfactory. The promotions can be based on the grade achieved. By this way, a certain level of accountability is instilled in context to the efficiency in work as well as the general conduct.

Conclusions

Judiciary has avoided the involvement of any other organ in the appointment as well as maintains dominance in the removal process. The executive interference is avoided but the independence should not be dissolved by the nepotism or favouritism within the judiciary as well. The bare minimum moral conduct is not enough and a provision with legal accountability should be present for the performance and conduct. Looking into the complex procedure of Judges Inquiry Act, punitive action for misbehaviour and incapacity is difficult, therefore, there should be checks and balances in the course of employment itself to avoid such behaviour. Adopting the patterns of ACRs in the higher judiciary can ensure Judiciary’s independence along with accountability and transparency which can also deal with issues of piles of pending cases.

References

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[1] Dr. Jetling Yellosa, Judicial accountability in India: A myth or reality, International Journal of Law, Volume 3; Issue 3; May 2017; Page No. 48-51, http://www.lawjournals.org/archives/2017/vol3/issue3/3-3-18.

[2] 1981 Supp SCC 87.

[3] Shoma Chaudhury, ‘Half of the last 16 Chief Justices were corrupt’, p.1, in

http://www.judicialreforms.org/files/Tehelka%20interview%20with%20Prashant%20Bhushan.pdf accessed on 4th of July, 2011.

[4] Gayatri Rokade, Transparency and Accountability in the Indian Judicial System, Journal of Critical Reviews Vol 6, Issue 6, 2019, http://www.jcreview.com/fulltext/197-1578480534.pdf.

[5] https://fra.europa.eu/sites/default/files/fra_uploads/1547-access-to-justice-2011-country-DK.pdf

[6] J.S. Verma , ‘Mechanism for judicial accountability’ ,p.1,in http://www.judicialreforms.org/files/mechanism_jud_acc_verma.pdf, accessed on 7th December 2020.

[7] https://doj.gov.in/sites/default/files/document%282%29.pdf – vidhi report.


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