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.
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