JUDICIAL ACCOUNTABILITY AND ETHICS OF JUDGES

Sasi K.G.

01. Introduction

For long, the judiciary had cast a spell around it, considering them as quasi-kings or demi-gods who could not commit any wrong legally and their decisions were final and unquestionable after due process. Ever since the functional school of Roscoe Pound, the realist movement of Oliver Wendell Holmes and the Critical Legal Studies of Duncan Kennedy and others, Judiciary and Judges were considered by scholars as similar to any other system and functionary capable of making error willfully, negligently or otherwise and were subjected to severe critical scrutiny. However the legal judicial system remained in the precolonial spirit and upheld its supremacy and infallibility except by its own judicial pronouncements. This contradiction has been the centre point of all legal controversies on judicial accountability and ethics of Judges.

02. Growing Corrupt Practices in Judiciary

The old saying that ‘power corrupts man and absolute power corrupts absolutely’ is held by the Court not to be applied in appeals etc as it would undermine the proper discharge of the due administration of justice. Recently Calcutta High Court Judge Soumitra Sen was found guilty of misappropriating large sums of money and making false statements regarding it. Chief Justice of Karnataka High Court P D Dinakaran was alleged for land grabbing and corruption. Calcutta Justice C.S. Karnan was punished by the Supreme Court for Contempt of Court. Thus it is high time to have a mechanism for judging the judges.

03. Independence of the Judiciary

Independence is a fortification of rule of law. Judges shall not be subjected to threats and pressures from litigants, and Government. The pre-independent judges were appointed by the Crown, yet they had independence from it. After independence, this principle was taken seriously and it became a part of the Basic Structure of the Constitution, which cannot be amended. The independence is guaranteed by the Constitution which holds that the judges of the Supreme Court and the High Court hold office till he attains 65 and 62 years of age respectively. A judge can be removed from his office only by the President after following the impeachment procedure.

04.  Judicial Accountability

Constitution has provided in Article 235 that the High Courts have control over the Subordinate Judiciary. Hence lower judiciary is accountable to High Courts.  But the higher forums of High Courts and Supreme Courts are not so controlled. 

In Ram Chandra Yadav v. State Of U.P. And Others WRIT - A No. - 53896 of 2011 Allahabad High Court has held that the standards of judicial behaviour, both on and off the Bench, are normally extremely high. For a Judge to deviate from such standards of honesty and impartiality is to betray the trust reposed on him. No excuse or no legal relativity can condone such betrayal. A single dishonest judge not only dishonours himself and disgraces his office but jeopardizes the integrity of the entire judicial system.

05. Transparency

Transparency is facilitated through the process of accountability. The existing systems have failed in bringing adequate transparency to matters of judicial accountability.

06. Impeachment and Judicial Accountability

Impeachment under Article 124 is too impractical. The Judges Inquiry Act, 1968 states that a complaint against a judge is to be made through a resolution signed either by 100 members of the Lok Sabha or 50 members of the Rajya Sabha to their respective presiding officers. The procedure following that formality is also very complex, so that very few of the alleged judges have to face an enquiry, which may give a chance to the corrupt to continue with his corruption. The provision of impeachment has never been successfully implemented in India, though Justice Soumitra Sen and Justice P.D. Dinakaran opted to resign during the pendency of impeachment proceedings. However these Justices after being found guilty continued to receive their pensionary benefits.

07. Contempt of Court

As contempt of Court can be used against Judges as in the Case of Justice C.S. Karnan, it can also be used as a tool for judicial accountability. But it is used more as a means to protect the interests of Court rather than to curtail the maladministration in judiciary.  For example, Mid-Day journalists had published documentary evidences against Justice Sabharwal. Yet no action was taken against him. But four Mid-Day journalists who brought out the news were punished for contempt by Delhi HC.

08. Right to Information and Judicial Transparency

In Raj Narain v. Indira Gandhi [1976] 2 SCR 347, SC had observed, “the people of the country have the right to know about every public act … this is derived from the concept of freedom of speech… To cover it with the veil of secrecy the common routine business is not in the interest of the public.”

The SC filed a writ petition in the Delhi HC, claiming that asset disclosure was exempted under RTI act on the basis that this information was disclosed by the judges to the Chief Justice under “fiduciary relationship”. Thus High Court Rules may be functioning as contrary to the Supreme Court decision in Raj Narain v. Indira Gandhi case.

09. The Judges Inquiry Act Amendment Bill 2006 and the Judicial Standards and Accountability Bill, 2010

The Judges Inquiry Act Amendment Bill 2006 and The Judicial Standards and Accountability Bill, 2010 provided for a National Judicial Council to enquire allegations against Judges. These were toothless attempts of legislation and were dropped in due course.  

10. Judicial activism

In 2006, SC issued guidelines to reform the police administration which is completely a state subject. Supreme Court had directed to appoint two former justices to superintend the Special Investigating Team (SIT) on black money issue of the government. The SC was right in holding the government accountable, but imposing such a judgment is in a way encroaching in the spheres which is not allocated to it by the Constitution. But Judiciary dislikes even suggestions from the other two organs of the State.

11. Judges’ Appointment system

In 1993, a nine judge bench of SC laid down enormous powers to the collegium of senior judges of the SC to select and make recommendation to the government for the appointments of Judges. It was a law making by judges. The whole process was entirely ad hoc and arbitraryand without procedure.

12. Long Pendency of Cases

HC in Delhi calculated that 464 years will be required to clear the arrears with the present strength of the judges in that High Court. There is similar queue in other HCs and SC.

13. The National judicial Commission (NJC)

The failure of in-house mechanism of the judiciary demanded an independent mechanism like the NJC. The suggestion for a NJC has been made by the 80th Report of the Law Commission of India and the 121st report of the Law Commission of India. For this purpose, the National judicial Appointments Commission Act, 2014 (Act 40 of 2014) was passed by the Parliament and received the assent of the President on 31.12.2014. The Constitution (Ninety-ninth Amendment) Act, 2014 also came into force. But in Supreme Court Advocates-on-Record Association and Anr. v. Union of India 2015 (11) SCALE 1, Supreme Court declared The Constitution (Ninety-ninth Amendment) Act, 2014 and The National Judicial Appointments Commission Act, 2014 as unconstitutional and void and upheld judge made collegium system to be operative on the ground of judicial independence. But there is not much distance to travel from judicial independence to judicial arbitrariness or judicial nepotism.

14. The Lokpal and Lokayukta Act, 2013

Though it was expected that the Lokpal Act may address judicial corruption as well, when the Lokpal and Lokayukta Act, 2013 came into force judiciary was totally exempted from its operation.

15. Law Commission report No. 230 of Aug. 2009

This report has the following recommendations among others.

1. Increase in number of working days

2. Speedy justice

3. Alternative dispute resolution (ADR

4. Technology

No legal action is seen taken in these recommendations, but independent efforts are taken by individual judges.

16. Need of Ethics of Judges

As judiciary is free, and independent, the primary responsibility of its malfunction or misfunction should be attributed to the judiciary itself. Therefore the judges need formulate ethics for themselves and they have done so.

17. Canons of Judicial Ethics in India

Canons of judicial ethics have been made in India in the following three documents

1. Restatement of Values of Judicial Life , 1999

On May 7, 1997, the Full Court of the Supreme Court of India adopted a Charter called the “Restatement of Values of Judicial Life.” This was ratified and adopted by Indian Judiciary in the Chief Justices’ Conference held on 3rd and 4th December, 1999.  All the High Courts in the country have also adopted the same in their respective Full Court Meetings. It is a complete code of the canons of judicial ethics.  It reads as under

 (1) Justice must not merely be done but it must also be seen to be done. 

(2)  A Judge should not contest the election to any office of a Club, society or other association. (3) Close association with individual members of the Bar, particularly those who practice in the same court, shall be eschewed.

(4) A Judge should not permit any member of his immediate family, such as spouse, son, daughter, son-in-law or daughter-in-law or any other close relative, if a member of the Bar, to appear before him or even be associated in any manner with a cause to be dealt with by him.

(5) No member of his family, who is a member of the Bar, shall be permitted to use the residence in which the Judge actually resides or other facilities for professional work.

(6) A Judge should practice a degree of aloofness consistent with the dignity of his office.

(7)  A Judge shall not hear and decide a matter in which a member of his family, a close relation or a friend is concerned.

(8) A Judge shall not enter into public debate or express his views in public on political matters or on matters that are pending or are likely to arise for judicial determination.

(9) A Judge is expected to let his judgments speak for themselves.  He shall not give interviews to the media.

(10)  A Judge shall not accept gifts or hospitality except from his family, close relations and friends.

(11)     A Judge shall not hear and decide a matter in which a company in which he holds shares is concerned unless he has disclosed his interest and no objection to his hearing and deciding the matter is raised.

(12)  A Judge shall not speculate in shares, stocks or the like.

(13) A Judge should not engage directly or indirectly in trade or business, either by himself or in association with any other person. 

(14)     A Judge should not ask for, accept contributions or otherwise actively associate himself with the raising of any fund for any purpose.

(15) A Judge should not seek any financial benefit in the form of a perquisite or privilege attached to his office unless it is clearly available. 

(16)    Every Judge must at all times be conscious that he is under the public gaze and there should be no act or omission by him which is unbecoming of the high office he occupies and the public esteem in which that office is held.

            These are only the “Restatement of the Values of Judicial Life” and are not meant to be exhaustive but illustrative of what is expected of a Judge. 

2.. The Bangalore Principles of Judicial Conduct, 2002

The Bangalore Principles of Judicial Conduct identify six core values of the judiciary.

Value 1: INDEPENDENCE

Value 2: IMPARTIALITY

Value 3: INTEGRITY

Value 4: PROPRIETY

Value 5: EQUALITY

Value 6: COMPETENCE AND DILIGENCE

These values are intended to establish standards of ethical conduct for judges and to better understand the judicial role, and to offer the community a standard by which to measure and evaluate the performance of the judicial sector

3. The Oath of a Judge as contained in the Third Schedule of the Constitution of India

Item IV of the Third Schedule includes the oath of a Judge of the Supreme Court and Item VII that of the Judges of a High Court. As stated therein the primary duty of a judge is to uphold the Constitution and the laws.

18. Conclusion

Judicial independence is only a means to achieve justice, and this should not be an excuse to evade accountability. By no sound reason, it can be said that independence and accountability are antonyms in a democracy. Self-restraint and ethics cannot substitute for or act as a legal bar against the rights of an aggrieved citizen affected by negligence, arrogance, nepotism, malfunction, mis-function or corruption. If accountability is not taken seriously, a dangerous nexus between corrupt judges, litigants and politicians will bring an end to the sacred concept of justice and welfare envisaged in a democracy. If the wrong-headed are permitted to err in the interest of the wide brotherhood of judges, ultimately, it shall result only in the disintegration of the judicial system.