Case for Judicial Accountability

By Prabhakar Timble
10 December 2013 10:56 IST

Judicial activism has made judiciary vibrant and relevant. This judicial effervescence has contributed to the growing confidence in judiciary as the provider of justice and promoter of equity.  People seem to be gaining faith in judiciary at the cost of the legislature and executive. Unbothered of concrete outcomes, the satisfaction levels are high if reference is made to sitting and retired judges on all public issues. Judiciary is winning the race of confidence defeating legislature and executive. This is not a positive indicator for deepening and widening of democracy or participative governance.  The signs would be positive if the three organs stand equally poised in the confidence relay.

The Indian Constitution has enshrined provisions for the independence of the judiciary and rightly so the same is the ‘sin qua non’ of the Rule of Law. However, the judiciary has not fixed for itself a code or norms of accountability. Any initiative on the part of the legislature or executive to bring in standards of judicial accountability has come for severe criticism from the Bench and the Bar as invading the autonomy of judiciary.

The Judicial Standards and Accountability bill 2010 passed by Lok Sabha is pending before the Rajya Sabha.  The current status on this bill is unclear.  Recently, the Rajya Sabha has passed a new bill called as the Judicial Appointments Commission bIll 2013 and sent the same to the Lok Sabha for consideration. This is indirectly suggestive that the earlier bill is either dead or in cold storage. The new bill speaks only of a procedure for judicial appointments and setting up of Judicial Appointments Commission. Some standards of accountability involving judges to declare the assets and liabilities of the self, spouse and children; rules of conduct for judges; establishment of Complaints Authority with provision for minor and major penalties do not find a place in the 2013 bill. There is also complete silence on the accountability of judiciary in terms of “judicial services” to be provided to litigants in both the bills.  

Independence without accountability

The stark reality can be succinctly described. Independence of the Indian judiciary is undeniable but the same cannot be concluded about the judges.  On the ground, the independence of the judiciary depends on the independence of the judge.  Whatever free, frank and fearless judiciary we experience is because of few judges who celebrate independence and function accordingly. Judiciary and judges are respected and judicial decisions are honoured by the executive and legislature. This is what makes it independent and a strong pillar of democracy. As a contrast, politicians are adored and worshipped, many times bordering to stinking levels. Hence, their conduct is looked at with suspicion and integrity questioned. Bureaucrats are perceived as interrupters of development and one lacking commitment to causes.  The roots of the power and independence of the judiciary are not only in the constitutional provisions but equally in the esteem with which it is held by the people. Hence, the judiciary should not take the doctrine of independence as an elastic screen to cover up accountability like ‘official secrecy’ shield   in defence establishments.

The standards of accountability are needed to check and curb misbehavior and shady conduct.  The floors of the court rooms are also slippery and an incumbent in robes could slip on notes, coins, shares and real estate conveyance deeds. Exceptions to this are few but compliance and surrender exceeds. Judges compromising on independence cannot be ruled out for the lure of post-retirement appointments and consultancy. With all laws governing protection to women, children, consumers, environment, minorities, SC/ST, prisoners, bureaucracy and statutes promising transparency and accountability in public administration needing retired judges, the field is evergreen.  Added to this, are Investigations and commissions of inquiry, which people perceive to be fair only if done by retired judges. Actually, the demand for retired judges far exceeds the supply and under such market conditions there is no need to compromise. But, the corridors of the courts echo the voices of the nexus between senior government pleaders and the judges.

Standards & Values

The judicial standards of accountability need to cover specific areas to curb the mischief and orient the judiciary to be responsive to the litigants and the aggrieved. Judicial services today are lawyer-friendly and litigant-hostile. A litigant is almost like a “judicial hostage” hijacked by a system which is highly oppressive to the aggrieved. Needless to say that in terms of the legal fees today, the ransom is pretty out of reach. In the modern age of stay slim to stay fit, the judgements are invariably lengthy and obese.

Standards of accountability should also introspect on the need to respect the independence of legislature and executive. Judges are also turning populist by expressing opinions contrary to the judgements delivered whilst in office creating not only confusion but lowering the esteem and confidence in the judiciary. Borrowing a phrase from the financial sector, let me say with emphasis that judicial accountability also lies in not turning litigation into “non-performing assets” (NPAs). Time limits need to be set, adhered to with pecuniary punishment for gross violations.

Judicial courage overflows but there is drought of judicial integrity.  We need the judicial accountability law or an enforceable code to meet the integrity deficit. Independence without accountability opens up judicial anarchy. If the regulation by enacted law is an intrusion into independence, then the Bar Councils, Bar associations and the Supreme Court should propose measures for accountability and create the independent mechanism for its enforcement. The judiciary should also appreciate that non-judicial officials also worship logic and are capable of ‘fair, just and reasonable’ approach. The men in robes are also vulnerable to bias, prejudice and subjectivity. Pliant and compliant officers could be anywhere.  We cannot have a situation where there is neither independence nor accountability.

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Prabhakar Timble

Mr Prabhakar Timble is an educationist and a legal expert. He has served several educational institutions, especially as the Principal of Government College at Quepem, Kare College of Law in Madgao as well as couple of Management Institutes. He was also the State Election Commissioner of Goa.

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