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Judicial Accountability - Who will Judge the Judges?

Introduction
Everything Secret Degenerates, Even the Administration of Justice; Nothing is Safe That does not show It can bear Discussion and Publicity.

J.R. Wiggins Judiciary is emerging as a powerful institution of governance in many democratic countries around the world. The Indian Supreme Court is admittedly the most powerful judiciary in the world today. It is more so because of the faith and esteem it enjoys among a billion people. With power comes responsibility and the need to insulate it from corrupting influences both from within and outside the judiciary.1 It is often remarked, Power Corrupts and absolute power tends to corrupt absolutely. Hence the compelling circumstances call for the need for judicial accountability.

Judges have from time immemorial been held in the highest esteem and revered as super humans. But of late there have been instances of corruption infecting the judicial system. 2 In recent years, however, evidence has steadily and increasingly surfaced that many people believe that the judicial system, in several countries is corrupt. These are public perceptions revealed in service delivery surveys conducted by the World Bank, Transparency International and other institutions, in Latin America, Eastern and Central Europe, Africa and Asia. For Example, a national household survey on corruption in Bangladesh revealed that 88.5% of those surveyed thought it was impossible to obtain a quick and fair judgment from the judicial system without
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Das Cyrus, Chandra K. Judges And Judicial Accountability. Universal Law Publishing Company Ltd.

Judicial Accountability as proposed Under Judges Inquiry Bill, 2006, http://www.indlawnews.com/display.aspx?4684, visited on 1-6-2011 at 11.00 a.m.

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money or influence. Similarly, in one district in Uganda, 100% of the people surveyed reported that they had paid bribes to the judiciary. These surveys indicate that in many countries public confidence in the judicial system is rapidly declining.3 There is definitely a need to make the judiciary accountable, as derogation of values in the Judiciary is far more dangerous than in any other wing of the government as the judiciary has to act as the guardian of our Constitution. Judicial accountability or answerability of the judges is not a new concept. Several countries in their Constitutions have already provided for ensuring accountability of the Judiciary. This is 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 domains of the other organs). But at the same time conventional wisdom requires that the independence of the judiciary be secured. Accordingly, the emphasis, both at the international and national levels, has been on securing and strengthening judicial independence by such measures as security of tenure, immunity from removal except for proved misbehavior or incapacity, immunity from reduction in salaries and immunity from being sued. In 1985, the United Nations responded by adopting the Basic Principles on the Independence of the Judiciary, recognizing the importance of enabling a judge to be free to decide matters before him or her without improper influences, inducements or pressures whether direct or indirect, from the executive, the legislature, fellow judges or parties to litigation. Judicial Independence is a pre-requisite for every judge whose oath of office requires him to act without fear or favour, affection or ill-will and to uphold the Constitution and laws of the Country.

Judicial Accountability The concept of judicial accountability is old as the independence of judiciary. In India, independence and impartiality have always been considered to be essential qualities of a judge from earliest times. It is with this spirit in mind that the wise founding fathers of our Constitution
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Dr. Nihal Jayawickrama, Drafting A Code of Judicial Conduct, Reproduced in Cyrus Das and K. Chandra, Judges and Judicial Accountability, Universal Law Publishing Co. Pvt. Ltd. Delhi, 2005

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have intended to uphold the principle of accountability of courts in India which is evident from the reading of the third schedule which imposes in the judge a duty to preserve the sovereignty and national integrity. The Constitution provides that due to the nature of the functions of the judges, it is not desirable to make judges directly accountable to the people for their functions. The independence of the judiciary is not to be determined in all its ramifications as some apriori concept but it has to be determined within the framework of the Constitution. One need not too much idolize the independence of judiciary so as to become counter-productive. The concept of public accountability of the judicial review is, a matter of vital importance and without accountability, the concept and claim of independence becomes merely a hollow concept.4 The framers of the Constitution intended to introduce a comprehensive system of checks and balances in order to safeguard the interest of the individual citizen and in order to prevent any of the organs of the State from apportioning excessive or unreasonable powers. The Constitution established the High Courts and the Supreme Court as watchdog institutions, independent of the executive and the legislature, to not merely dispense justice, but also to ensure that the executive and the legislature, to not merely dispense justice, but also to ensure that the executive and the legislature did not exceed the authority conferred upon them by the Constitution. Thus, the Judiciary was given the powers to integrate the laws of the Constitution, and also to strike down executive action which violated any law or the fundamental rights of citizens. It was also the authority to examine whether the laws framed by Parliament conformed to the Constitution and declare them void if they violated it.5 In keeping with the spirit of the Constitution and the intent of its framers, it was only natural and correct that the courts in India should arm themselves with powers to implement their mandate. In 1973 in the case of Keshvananda Bharti v. State of Kerela6 the Supreme Court held that the Parliament in the exercise of its amending powers under Article 368 could not alter the basic

See Dr. Sunil Deshta & Kamal Jeet Kaur Sooch, Philosophy of Judicial Accountability: An Introspection: Civil and Military Law Journal, Vol. 45, NO. 1-2, 2009, pp. 54-61.
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The Lack of Judicial Accountability in India, http://www.scribd.com/doc/18368554 on 3/6/2011 at 12.00 noon A.I.R 1973 SC 1461

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structure or framework of the Constitution.7 Many laws and some constitutional amendments have been struck down by the Courts in pursuance of the basic structure doctrine. However, there is always the lurking danger that the vast powers available to the courts will be missed and that the purpose for which they have been granted will be defeated. Doctrine of Judicial Independence The U.S. Supreme Court stated in the case of Bradely v. Fisher8 more than a century ago that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself.9 Judicial independence ensures that powerful people must conform to law. Need of judicial independence is not for the judges, but for the people. Judges have important social role in the preservation of the liberty. However, independence of judiciary is not absolute it should not be construed in the manner to confer immunity from the demands of Justice for misdeeds or to protect a judge from investigation and censure for a valid charge.10 Independence emphasizes institutional autonomy, not any claims to similar autonomy by actors within the institutional structure. 11 Nevertheless the advocates of independence observe that judges should not be held accountable for following the rule of law. This canvasses a picture of conflict between judicial independence and judicial accountability but they are inseparable and not inconsistent with each other in fact, they nourish each other. Obstacles to Judicial Accountability The Worldwide trend to make judges accountable encounters two obstacles which, no doubt, are unacceptable in our time- the first, because it is incompatible with a civil-libertarian, democratic conception of government, and second, because it is rooted in a principle which is wrongly taken as if it were an absolute.

(a) The King Can Do No Wrong


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Prof. Narendra Kumar, Constitutional Law of India, Allahabad Law Agency: Haryana, 2008, P. 957. 80 US (Iwall) 335 (1871) 9 Article 10, United Nation Declaration on Human Right Everyone is Entitled in Full Equality To A Fair and Public Hearing BY An Independent And Impartial Tribunal. 10 See Cyrus Das and K. Chandra (Editors), Judges and Judicial Accountability, Universal Law Publishing Co. Pvt. Ltd., P. 89. 11 See Stanford Levinson, Identifying Independence Boston Univ. Law Review Vol. 86 (1297) 1300, 2006.

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This diehard principle has played for centuries a decisive role in many countries (England, 12 France,13 Germany,14 and Italy15) in excluding, or very seriously, limiting, liability of the State and its officials, including the judges, vis--vis the persons injured by state action. The very idea of sovereignty was considered irreconcilable with that of state responsibility. Although historical research demonstrates that there have been other epochs when the opposite approach prevailed,16 comparative analysis indicates that in modern times a powerful trend has been reemerging in a growing number of countries to abandon the state immunity principle not only in its general meaning, but also, in part at least, insofar as it refers to judicial action.17 The state and its organs, either (as in Italy and Spain) in concurrence with, or as in (Germany and France) in substitution for, the individual officials who acted for the state, are liable, in principle, to the persons injured by a wrong committed in the name of the state. (b) Res Judicata Facit Jus Even after the principle of state irresponsibility in its application to all governmental functions was generally abandoned, one bastion of it was, and in many countries is still to a large extent, hard to destroy: the irresponsibility of the state and its officials for damages to the parties caused by wrong judicial decisions. Judicial decisions- so the reasoning goes- are normally subject to appeal, which is the regular and sufficient way for aggrieved parties to protect themselves against judicial wrong-doing. Once a judicial decision becomes final, however, it assumes the authority of res judicata and, as the
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See, e.g., Holdsworth, A History of English Law, Vol. III at 462-469 (1942); Vol. IV at 202-203 (195); Vol. VI at 101 (1937); Vol. IX at 4-6 (1944); Vol. X at 651-52 (1938). The Judicial approach is perhaps best illustrated in the judgment of Cockburn, C.J., in Feather v. Reg., (1865) 6. B. & S. 257, 295-6.
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See the French Report See, e.g. Peruguia Vol. supra n. 1. P. 527-528. Ibid See Perugia Vol., supra n. 1 p. 7-14, 24-27 et passim.

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In addition to various of the national reports, the French, and the Spanish, see Giuliani & Picardi, in Perugia vol., supra n. 1 p. 570 and 600 (n. 63). This philosophy is reflected, for instance, in Art. 28 of the Constitution of the Republic of Italy, setting out personal liability of state officials and employees; and comparably in Art. 34 of the Constitution of Bonn of 1949- which, like the Italian text, applies to state officials generally and, among them, to the judges as well; and Art. 11 of the French Law No. 72-626 of 1972- which applies specifically to the judicial function, the same is true for the recent democratic Constitution of Spain.

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medieval doctores picturesquely proclaimed, res judicata facti de albo nigrum et de quadrato rotundum. The argument concludes that, since legal liability is based on tort, how could an act which creates the law cause a result that is against the law?18 Not a few scholars, judges and legislators in many countries19 still consider it almost unthinkable to extend to the judicial function the modern idea that the state is called to answer for damages caused to its citizens. There is, of course, a certain degree of what can be called theoretical absolutism in the way the res judicata principle is conceived in certain countries, especially in the civil law area. 20 After all, the kind of stern logic which lies in the reasoning that, since res judicata creates the law of the case, it cannot be against the law, is no more stringent than the logic lying in the principle that, since the King- or the State- is the exclusive source of the law, no Kings or state action can be against the law. Judicial review of legislation, of course, is the historical confutation of the stringency of such logic. Comparativists have certainly learned that legal principles are not absolutes. The force of the res judicata principle, in particular, does not lie in abstract logic, but only in the goal or value that legal systems want to pursue through that principle. It is generally recognized that such goal or value in peace, and certainty: whether or not a judicial decision is right, there is a need to put an end to litigation. Justice, however, is yet another value which may suffer from a stern application of the res judicata principle. It would, of course, be unreasonable, indeed utopian, for a legal system to place justice always above certainty, but reasonableness, as usual, lies in the middle of the road- in medio stat virtus, as Aristotle warned. And the conflccit of values has to be reconciled not by the rigour of artificial logic, but by a flexible and pragmatic recognition that both values are, indeed, valuable, and that a compromise solution has to be formed. Returning, then, to our particular problem, it seems clear how untenable it would be to deny a priori that lawmakers should be allowed to affirm state liability for wrong judicial decisions- the principle of res judicata notwithstanding. This is not to say that prudence and circumspection are
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As Judge Fabre says of France, la force de verite legale qui est attach a une decision juridictionnelle a paru toujours faire obstacle a lamenagement dun systeme de responsible. This helps explain why such a principle continued to prevail in france until very recently (1972/1979), long after the principle of state irresponsibility for administrative action had been abandoned. For an historical illustration of the existence of this obstacle cf. Flyod v. Barker, 77 Eng. Rep. 1305, and the Judgment of Coke in 1607 cited in U.S.A report.
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For reference to modern continental authorities see, e.g., Perugia Vol. Supra n. 1 p. 528, 535-536, 570, 590. See. E.g., Cappelletti, Merryman & Perillo, The Italian Legal System 156-157 (1967).

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not to be recommended in this area.21 The ratio of such prudence and circumspection, however, should not be dictated by the res judicata principle per se, but rather by the values that principle encapsulates peace and certainty- as well as by the further value- judicial independence which lies at the very roots of the limits of judicial responsibility (accountability) in general.

Judiciary Accountability Need and Advantage Lack of Accountability coupled with the enormous unchecked powers that the courts have acquired and are exercising make the judiciary a very dangerous institution and indeed a serious threat to Indian Democracy. This lack of accountability has led to considerable corruption of the higher judiciary which is evident from the recent spate of judicial scandals which have erupted in India. the recent report of Transparency International on corruption perception index shows that the judiciary is perceived to be the second most corrupt institution in India after the Police. The RTI has turned out to be a great check on the executive. Consequently, there is a strong case for extending the Act to sectors like the judiciary that remain insulated from it. While there is rationale behind exempting areas like national security, military deployment, international relations and the like from the RTI ambit, the judiciary has no valid reason to claim such from public gaze. If judges support the RTI, like voluntary asset disclosures, it would enhance their moral stature, empower the people and give a fillip to the movement for the right to know.22 Disclosure is all the more important now because we hardly have any weapon to fight judicial corruption. There is no specific forum to complain to, and no investigation machinery. Te police cannot register an FIR against a judge on charges of corruption without the CJIs Permission. Corruption within the judiciary is no small matter, it grows horizontally and vertically. In 2001, a former CJI said 20 percent of the judges across the board were corrupt, that figure would have to be indexed for inflation. Recent horror stories involve touting for appointments to High Courts, cash delivery to a judges house, and gifts to judges from employees provident funds. The Judges implicated continue to sit on the seat of justice. The only existing remedy is impeachment by Parliament. This is illusory, no judge has ever been impeached. The CJI did recommend in
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For instance, the German provision (old and new) which excludes state liability if the injured party intentionally or negligently omitted to make use of the normal appellate system available against a wrong judgment is reasonable. 22 The Right to Know, Judges Cant Claim Immunity from RTI, The Tribune, September 4, 2009

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vain impeachment of a Calcutta High Court Judge for misdemeanors; a resolution has not even been tabled in the House. But if questions are raised about assets, then the public process of transparency may overcome institutional secrecy, and accountability may begin to replace inertia. After all, it is said, sunlight is the best disinfectant.23 A section of the judiciary fears that this will open other information- for example, communications relating to appointments and promotions- pertaining to the functioning of the Court to public security. In most cases, holding back information from the public domain is not really justified and greater transparency will only boost the peoples confidence in the judiciary, while opposing it will only strengthen the impression there is something to hide. The concern that bears examination is : will greater scrutiny of judges affect their judicial independence, or will scrutiny become a tool of harassment by the public or by vested interest? The SC and the High Courts already enjoy numerous protections to ensure that they are not unduly pressured, whether by other branches of government or by the public. The Constitution provides that the CJI will be consulted in judicial appointments, that judges will have guaranteed tenure, their salaries are not voted upon, their conduct be discussed in legislatures, and they have absolute immunity from civil and criminal proceedings for acts done in discharge of their official duties. They also hold the power of contempt of court to protect themselves from any malicious criticism and to enforce implementation of their decrees. All these provisions make the higher judiciary immune from interference from legislative or executive organs of the state and also from any individual. Therefore any apprehension that judges would be harassed if their assets and liabilities are made public is only superfluous. All these provisions make the higher judiciary immune from interference from legislative or executive organs of the state and also from any individual. Therefore any apprehension that judges would be harassed if their assets and liabilities are made public is only superfluous. N. Vittal, former Central Vigilance Commissioner analyzed that the corruption in our system flourishes because of five factors. These are: 1. Scarcity of goods and services

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Make Declaring Judges Assets Mandatory for all Further Appointments Sriram Panchu, The Hindu, September 8, 2009

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2. Red Tape and delay 3. Lack of Transparency 4. Cushions of safety, which have been created by the legal system on the principle that everybody is innocent till, proved guilty. The legal provisions and procedures are effectively exploited by the corrupt to escape punishment. 5. Tribalism or the tendency of the corrupt to defend each other in organizations.24 All this shows that while the courts have been liberal in making pronouncements about the citizens right to information in democracy, and have also in cases implemented it with regard to others, they have been very reluctant to practice what they preach. The dictum appears to be that transparency and accountability is good for others, but the courts and judges are sui generis, and in their case transparency would compromise their independence. The wand of Independence of the Judiciary has always been waved by the judiciary to shield them from accountability, goin g to the extent of saying that not even an FIR can be registered against judges for any offence without the prior written permission of the Chief Justice of India. on top of all this, they enjoy the power of contempt, where they can send any person who accuses any judge to jail. It is not surprising then that the voices to make the judiciary accountable are growing louder and are now beginning to take the shape of a public campaign. The common people are beginning to realize that they are the main stakeholders in the judicial system and they must bring grassroots pressure on the authorities for them to reform the system. Judicial accountability is need of the hour. The people in India repose enormous confidence and trust in judiciary, and thus it is the responsibility of those who man and operate judiciary to retain that trust and it is for the civil society including media to press for developing a workable mechanism to ensure the judicial accountability without compromising on the vital aspect of judicial independence. Conclusion In order to preserve our democracy, it is necessary to safeguard the judiciarys status as an independent institution. However, it must be an accountable institution. Only then will it be able
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N Vittal, Central Vigilance Commissioner, Retd, Keynote Address in the International Seminar on Judiciary in Asia, Legal Prevention and Judicial Control of Corruption, 15 th February 1999, New Delhi.

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to function effectively in delivering Justice and is ensuring that the executive and the legislature function in accordance with the principles of the Constitution.

BOOKS REFERRED: 1. Basu, Durga Das, Shorter Constitution of India, 13th Ed. 2003, Wadhwa & Co. Nagpur. 2. Basu, Durga Das, Case Book on Indian Constitutional Law, 2nd Ed. 2007, Kamal Law House, Kolkata. 3. Basu, Durga Das, Constituitional Remedies and Writs, 1st Ed. 1994, Kamal Law House, Kolkata.

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4. Chaudarys Commentaries on Law of Writs, 5th Ed. 2003, Law Publishers (India) Pvt Ltd., Allahabad. 5. Diwan, Paras, Family Law, 8th Ed. 2008, Allahabad Law Agency. 6. Halsbury, Halsburys Law of India, Vols. 37 & 38, Butterworths, India. 7. Jain, M.P., Indian Constitutional Law, 5th Ed. 2007, Wadhwa & Co., Nagpur. 8. Mallick, M.R., Writs, Law and Practice, 2003, Eastern Law House. 9. Seervai, H.M, Constitutional Law of India, 4th Ed. Vols. 1 & 3, 2002, Universal Book Traders, Delhi. DICTIONARIES AND LAW LEXICONS: 1. Aiyar, Ramanatha P., The Law Lexicon, 2nd Ed., Reprint 2006, Wadhwa & Co., Nagpur. 2. Blacks, Law Dictionary, 7th Ed., 1999, West Group. WEBSITES: 1. www.manupatra.com 2. www.scconline.com 3. www.indiacode.nic.in 4. www.westlaw.com

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