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Relevance:

GS-2 Judiciary.

Context:

• In a rare exhibition of transparency, at least by the standards of the Indian judiciary, the Orissa High Court has published an annual report taking stock of its performance in a difficult year that was punctuated by the resurgence of the pandemic. By subjecting itself to the scrutiny of the common citizen, the court has shown exceptional humility.
• In this article we will explore various dimensions of judicial accountability in India.

Judicial System of India:

• The Indian Constitution establishes a judicial system that is integrated as well as independent.
• The Supreme Court stands at the top of the integrated judicial system in the country. Below it, there are high courts at the state level. Under a high court, there is a hierarchy of subordinate
  courts, that is, district courts and other lower courts. This single system of courts enforces both the central laws as well as the state laws, unlike in USA, where the federal laws are enforced by the federal judiciary and the state laws are enforced by the state judiciary.
• The Supreme Court is a federal court, the highest court of appeal, the guarantor of the fundamental rights of the citizens and the guardian of the Constitution. Hence, the Constitution has made various provisions to ensure its independence–security of tenure of the judges, fixed service conditions for the judges, all the expenses of the Supreme Court charged on the Consolidated Fund of India, prohibition on discussion on the conduct of judges in the legislatures, ban on practice after retirement, power to punish for its contempt vested in the Supreme Court, separation of the judiciary from the executive, and so on.

Supreme Court:

• The Supreme Court is the apex court of the country. It consists of a Chief Justice and 30 other judges. The Chief Justice of India is appointed by the President and all other judges are appointed by the President after consulting various other judges of supreme courts and high courts. Article 124 of the constitution talks about the establishment and constitution of the Supreme Court. Once appointed the judges can hold office until the age of 65.

• Jurisdictions of SC:

  • Original Jurisdiction: Article 131 lays down the original jurisdiction of Supreme Court, under which, the Supreme Court has authority to decide disputes between the Government of India and one or more states, between two or more states, between Government of India and State(s) on one side and State(s) on the other side. The proviso of this Article excludes any treaty, agreement, covenant etc.
  • Writ Jurisdiction: Article 32 of the constitution guarantees constitutional remedies in the form of writs. These writs are mandamus, prohibition, certiorari, habeas corpus, and quo warranto.
  • Appellate Jurisdiction: Supreme Court is the highest court of appeal. It can entertain any criminal or civil matter passed on as an appeal from the High Court.
  • Advisory Jurisdiction: The Supreme Court can advise the President on any question of law or fact of public importance, or cases belonging to disputes arising out of pre-constitution treaties and agreements which are excluded from its original jurisdiction.
  • Review Jurisdiction: Supreme Court can review its own orders or judgments, subject to any law made by the parliament.
• Under Article 129, Supreme Court is declared as a Court of record with the power to punish for contempt of itself. Under Article 137, it has the power to review a judgment pronounced or order made by itself (curative petition).

High Courts:

• The High Court is the only court apart from Supreme Court, vested with the power to review the constitution. The High Courts are consist of a Chief Justice and other judges appointed by the President of India. A judge of the High Court holds office up until the age of 62. The High Court, under Article 227 has the power of superintendence over all courts and tribunals except those of Armed Forces. This also includes revisional powers in case of any gross violation of rights or abuse of jurisdiction.
• Under Article 228, if the High Court is satisfied that a pending case before a subordinate court has a substantial question of law, it can transfer the case to itself.

Subordinate Courts:

• Courts that are subordinate to the High Court are called subordinate courts. Every district has a district court, with appellate jurisdiction. Moreover, each district also has some lower, subordinate courts that are under the administrative control of the High Court. These are:
  • Civil Courts
  • Criminal Courts
  • Revenue Courts

Judicial Accountability in India

Nature And Meaning Of Judicial Accountability:

• The word ‘accountable’ as defined in the Oxford Dictionary means ‘responsible for your own decisions or actions and expected to explain them when you are asked’.
• Accountability is the sine qua non of democracy. Transparency facilitates accountability. No public institution or public functionary is exempt from accountability although the manner of enforcing accountability may vary depending upon the nature of the office and the functions discharged by the office holder.
• The judiciary, an essential wing of the State, is also accountable. Judicial accountability, however, is not on the same plane as the accountability of the executive or the legislature or any other public institution.
• The independence and impartiality of the judiciary is one of the hallmarks of the democratic system of the government. Only an impartial and independent judiciary can protect the rights of the individual and can provide equal justice without fear and favor. The constitution of India provides many privileges to maintain the independence of judiciary.
• If the Preamble to our Constitution be regarded as the reflection of the aspirations and spirit of the people, then one thing that even a layman will note is that among the various goals that the Constitution-makers intended to secure for the citizens, “JUSTICE- Social, Economic & Political” has been mentioned before the rest.”
• No person, however high, is above the law. No institution is exempt from accountability, including the judiciary. Accountability of the judiciary in respect of its judicial functions and orders is vouchsafed by provisions for appeal, reversion and review of orders.
• What is the mechanism for accountability for serious judicial misconduct, for disciplining errant judges?
  • Our Constitution provides for removal of a judge of the Supreme Court or the High Court for proved misbehaviour or proved incapacity, by what is popularly called the process of impeachment, whereunder two thirds of the members of each House of Parliament can vote for the removal of the judge.
  • So far, only one impeachment proceeding has been initiated against a Supreme Court judge. It failed because Congress abstained from voting and consequently two-thirds majority was not available.

Need For Judicial Accountability:

• “All power is a trust – that we are accountable for its exercise – that from the people and for the people, all springs and all must exist”.
• In a ‘democratic republic’ power with accountability of the individual enjoying it, is essential to avert disaster for any democratic system.
• The accountability must be comprehensive to include not only the politicians, but also the bureaucrats, judges and everyone invested with power. Power and position in a democracy is depicted as attendant with responsibility, and every incumbent of a public office must remain constantly accountable to the people, who are the repository of political sovereignty.
• The judicial system deals with the administration of justice through the agency of courts. Judges are the human stuff which presides over the courts. They are not merely visible symbols of courts; they are actually their representatives in flesh and blood.
• The manners in which judges discharge their duties determine the image of courts and the creditability of judicial system itself. In India from time immemorial judges have been held in high esteem and revered as super humans but coming across recent incidents in Bihar (like killing of an under trial in the court itself and lynching a suspected thief to death) depicts that frustrated by the failure to get justice, people are slowly losing faith in judiciary and are taking law into their hands. This is highly deplorable.
• A need definitely is there to make judiciary accountable, as derogation of values in judiciary is far more dangerous than in any other wing of the government as judiciary has to act as the guardian of our constitution.
• Judicial accountability and answerability of the judges is not a new concept. Several countries in their constitutions have already provided for ensuring accountability of judiciary. This to prevent concentration of power in the hands of a single organ of the state especially in countries where judicial activism interferes with and invades into the domain of other organs. But at the same time Judicial independence is a pre- requisite for every judge whose oath of office requires him to act without fear or favour, affection of ill- will and to uphold the constitution and laws of the country.

Analysis:

• Judicial accountability is a corollary fact of the independence of the judiciary. Simply put, accountability means taking responsibilities for your actions and decisions.
• Generally it means being responsible to any external body; some insist accountability to principles or to oneself rather than to any authority with the power of correction or punishment. Since accountability is one of the aspect of independence which the constitution provided in Article 235.
• The ‘control’ of the High Court over the subordinate judiciary clearly indicates the provision of an effective mechanism to enforce accountability.
  • Thus entrustment of power over subordinate judiciary to the High Court maintains independence as it is neither accountable to the executive or the legislature.
• The provision of the difficult process of impeachment is also directed towards this goal. Except for extreme cases, the absence of any mechanism for the higher judiciary is because the framers of the constitution thought that ‘settled norms’ and ‘peer pressure’ would act as adequate checks. However it didn’t happen completely in that manner because the judiciary is neither democratically accountable to the people nor to the other two organs.
• The Hon’ble Supreme Court rightly asserted that “A single dishonest judge not only dishonours himself and disgraces his office but jeopardizes the integrity of the entire judicial system.” This brings us to think that why do we need accountability.
• A campaign issued by the people’s convention on Judicial Accountability and Reforms had mentioned,
  • “The judicial system of the country far from being an instrument for protecting the rights of the weak and the oppressed has become an instrument of harassment of the common people of thecountry…. The system remains dysfunctional for the weak and the poor… (and has been) displaying their elitist bias.”
• Three promotions done by judicial accountability:
  1. It promotes the rule of law by deterring conduct that might compromise judicial independence, integrity and impartiality.
  2. It promotes public confidence in judges and judiciary.
  3. It promotes institutional responsibility by rendering the judiciary responsive to the needs of the public it serves as a separate branch of the government.
• The process of accountability facilitates transparency.
• It can be best achieved when one is accountable to law. The existing system of accountability is failed, and therefore growing corruption is eating away the vitals of this branch of democracy.
• This lack of accountability is criticized by Pt. Nehru in a diatribe,
  • “Judges of the Supreme Court sit on ivory towers far removed from ordinary men and know nothing about them.”
• Judges are awarded the image of demi god’s. After all judges are also humans capable of making mistakes and committing vices. But what went wrong? The problem in making the judiciary accountable is discussed below which will help us in understanding the issue and later find solutions to achieve it.

Conclusion:

• In India the judiciary is relied upon by the citizen to solve many of their difficulties and therefore consistent standards of accountability that give the Indian judiciary this strength are of utmost importance.
• Lack of judicial accountability reduces the credibility of the judiciary whereas, an accountable judicial institution can only lead to a stable political atmosphere as well as a far more efficient system of governance.
• However, it is also acknowledged that judicial accountability if stretched too far can seriously hamper judicial independence and thus it is essential that we strike the right balance between the two.
• The final outcome of the above discussions is that the importance of the independence of the judiciary was long ago realized by the framers of the constitution which has been accepted by the courts by marking it as one of the basic features of the constitution.
• It is well known that law has to change so as to meet to the expectations of a changing society.
• Similarly judicial independence too has to be seen keeping in mind the changing dimension of society. Judicial Accountability and Judicial Independence have to work hand in hand symbiotically to ensure that the real purpose for setting up of the institution of judiciary is achieved.
• Transparency is facilitated through the process of accountability. It is best achieved when one is accountable to law. Thus, judicial accountability and judicial independence are two most important aspects with the help of which the tension between two wings of the government i.e. legislature and judiciary can be reduced as these two aspects help to facilitate the smooth functioning of the government and prevents to create judicial autocracy.