Independence of the judiciary means independence from the executive and legislature, but not independence from accountability

Prashant Bhushan   Delhi

The recent decision of the government to bring a bill to amend the Judges Inquiry Act and provide for the constitution of a National Judicial Council to inquire into complaints against errant judges is being perceived as a long awaited initiative to introduce some accountability for judges of the higher judiciary. But on examining its provisions in the light of past experience we will see that it is designed more to create an illusion of accountability, while in practice it will hardly change the existing position.

There has been growing realisation over the past many years that the system of impeachment created by the Constitution for dealing with judicial misbehaviour is impractical and unworkable. This is partly because, to set the process in motion, one needs to get an impeachment motion signed by 100 MPs, an impossible task, unless one already has unimpeachable documentary evidence to prove the guilt of the judge. In most cases, that is not possible unless some investigation body investigates the charges and collects evidence.

In Justice V Ramaswami’s case, it was possible to do that since the charges pertained to purchases made for the Madras High Court and his official residence and were audited by the accountant general’s office, the audit report of which contained the evidence necessary to frame the charges. He was then tried by a committee of three judges, appointed by the Lok Sabha Speaker, which found him guilty on many charges of misfeasance. Despite this, he escaped removal because the then ruling party decided to abstain from voting on his impeachment motion.

The problem of judicial accountability has been compounded by the Supreme Court’s judgement in Veeraswami case, in which it declared that no judge of the High Court or Supreme Court could even be subject to investigation in any criminal offence of corruption or otherwise, unless one obtains prior written consent of the chief justice of India. This has resulted in a situation whereby no sitting judge has been subject to even investigation in the last 15 years since that judgement, despite public knowledge and complaints of widespread corruption in the judiciary. The police does not dare approach the chief justice for permission to investigate, unless they already have clinching evidence, which they just can’t document unless they investigate. It is a classic case of a catch 22 situation and the judiciary seems reasonably content with the paradox.

Further, the judiciary is insulated from public criticism by the threat of ‘Contempt of Court’, which can be used in a draconian manner by the very judges towards whom the criticism is directed, as we saw in the Arundhati Roy case. The sword of ‘contempt’ has kept the judiciary away from critical public scrutiny, particularly within the mainstream media. The judiciary is obviously happy to live with this situation as well.

The judiciary seems to be effectively seeking to remove itself from the purview of the Right to Information Act. The Supreme Court has recommended amending the Act to remove the jurisdiction of the Central Information Commission over it under the Act, and further, that any information interdicted by the chief justice on the ground of independence of the judiciary will not be given. As if mere transparency in the functioning of the judiciary can compromise its independence!

Taking a cue from the Supreme Court, most high courts have not appointed Public Information Officers under the Act till now and many high courts have framed rules contrary to the Act. The Delhi High Court rules provide that no administrative information, which is not in the public domain, will be given. Thus, information about the appointment of Class Three and Four employees by the high court without any public advertisement is being denied, citing this illegal rule.

To cap it all, the Supreme Court has, by an amazingly creative interpretation of the Constitution, taken over the power of appointing judges. The words “appointed by the government in consultation with the chief justice” in the Constitution were interpreted as “appointed by the government on the advice of the chief justice”. Thus, the judiciary is unaccountable by declaring itself as sui generic. And while its accountability was being whittled away, its powers have been increasing as it moved in to occupy the space vacated by a weak, inefficient and corrupt executive.

It is in this background that one needs to analyse the proposed Judicial Council Bill. It seeks to amend the Judges Inquiry Act to provide for a complaint procedure for an inquiry against erring judges. At present, this inquiry can only be made only on an impeachment motion signed by 100 MPs. Although that is an improvement, it is the

composition of the council and its lack of investigation powers that renders the bill a non-starter.

The council to examine complaints will consist of five senior judges of the Supreme Court in complaints against Supreme Court judges and three senior judges of the Supreme Court with two chief justices of high courts in complaints against high court judges. Firstly, sitting judges, who are already overburdened with judicial work, will not be able to devote adequate time to this job. Secondly, and more importantly, sitting judges would find it difficult and embarrassing to hold their brother judges (sometimes their seniors), with whom they share the bench everyday, guilty of misdemeanous, if such a case may arise. Not impossible, but unlikely.

For any unbiased and realistic enquiry against judges, one needs a full-time body, independent of the government as well as of the judiciary, with an investigative machinery under its control, through which it can get complaints investigated. A view has been propagated by the judiciary that the judiciary cannot be made accountable to any outside body, but only to itself. Anything else they say will compromise the independence of the judiciary. That is why they adopted an “in-house procedure” in 1997 to

enquire into complaints against judges. This also envisaged a committee of judges to enquire into complaints. But there have hardly been any enquiries during the last nine years, though there have been reports and complaints of judicial misbehaviour.

This self-accountability is akin to a judge sitting to decide his own case, something that has been declared by the courts to be violative of the principles of natural justice. Independence of the judiciary means independence from the executive and the legislature, but not independence from accountability. It is a fundamental principle that every institution must be accountable to an authority that is independent of that institution. Yet, somehow, the judiciary has propagated a view that the judiciary can only be accountable to itself.

For all the above reasons, the proposed Judicial Council will not be

able to effectively usher in any real, balanced and impartial judicial accountability— though for some time, till its import is properly understood, it may create an illusion of that. That in fact appears to be its main purpose, judging by the statements of the ministers and judges, who say that this bill will go a long way to restore public confidence in the judiciary. It might end up essentially as a confidence trick.