The Search for balance between Judicial Accountability and Judicial Independence in the Indian context
The problem of balancing judicial independence and judicial accountability has been a classic source of much debate but usually it takes place without taking into consideration the specific legal cultures and traditions involved. Determining the correct balance between the two may be dependent on the society involved. The dual concepts of judicial independence and judicial accountability are not ends in themselves. Instead, they are the means to the common end of dispensing effective, fair and impartial justice.
Deciding how to accommodate both these principles is problematic because the more independent a judiciary is, the less accountable it will be and the more accountable it is, the less independent it will be. Too much independence and suddenly, the judges are above the law. Similarly, too much accountability and the judges are under the thumb of the other branches of government which are non-judicial in nature. This paper attempts to explore the balance between these two constitutional ideals.
Constitution – Judiciary – Separation of Powers – Judicial Independence – Judicial Accountability – Appointment of Judges – Political Question Doctrine.
Independence essentially instills in judges a kind of “judicial courage” that they can rely upon to engage in honest, impartial and fair adjudication while deciding tough cases. On the other hand, accountability helps to instill a sense of integrity in judges which is then demonstrated in their judgments.
The same institutional protections that enable judges to be insulated and deliver independent judgements also insulate them from accountability because nobody can ever challenge a judge to explain themselves for a judgement. Therefore, the search for the balance between these two equally important values is of paramount importance in order to institute the best possible functioning judiciary.
Issues of Judicial Independence And Judicial Accountability:
In today’s age, the position of the judiciary in India has vastly improved from how it used to be before 1973 as its attention has turned towards civil rights, community rights and human rights. There is a plethora of issues that raise concerns regarding the accountability of judges today in India.
It is important to analyze these issues as they have sturdy implications on the idea of judicial independence. Firstly, the method of appointments to the hon’ble Supreme Court of India and secondly, the lack of disciplinary control over the judges, including the possibility of removal of judges from the Supreme Court seem to be the primary ones.
There is no clear method to discipline a Supreme Court judge if his allegedly deviant behavior does not amount to misbehavior. Then there is the Contempt of Court law which is desperately in the need for reformulation as it simply acts as a deterrent against the criticism of a judge’s conduct.
Finally, there is the issue of avoidance of political questions as the Supreme Court of India has never declined to exercise its jurisdiction and powers on a legal question merely because it contains political overtones, as evidenced by the Supreme Court’s recent verdict on the Ram Janmabhoomi – Babri Masjid dispute.
Appointment Of Judges:
In the case of Supreme Court’s Advocates on Record Association v. Union of India, also known as the Second Judge’s case, the apex court held that there was no basis for the assumption that the Executive is accountable to the people of India with regard to the appointment of Supreme Court judges and thus, the Chief Justice’s opinion should be binding as he was responsible for the functioning of the court. The same went for the opinion of the High Court’s Chief Justice with regard to the appointment of judges of that High Court.
A similar judgement followed in the Third Judge’s case (In Re: Presidential Reference of 1998), where the Supreme Court established the collegium system whereby the Chief Justice would make a recommendation after consultation with the four senior most judges of the Supreme Court and this recommendation would be binding on the Executive.
The effect of these judgements was unprecedented. The Constituent Assembly debates regarding the final appointing authority had been blatantly disregarded and the constitutional provisions regarding appointment of judges were essentially amended under the garb of securing independence of the judiciary. The reasoning behind these judgments was very limited and the judgments resembled a promulgation of policy rather than an exercise of juridical reasoning.
The apex court doubled down on its opinion by stating that no judicial review could be entertained by any person aggrieved by the actions of the Chief Justice. This seems highly hypocritical as the Supreme Court has opined multiple times that all the powers under the Constitution is limited and subject to judicial review, however, this limitation does not seem to apply to this newly acquired power of the Supreme Court and the collegiums.
The issue was brought up again with the formation of the National Judicial Appointments Commission (NJAC) by the 99th Amendment. The core idea behind the formation of the NJAC was that it was within the power of the Parliament to amend the manner of the appointment. The amendment and the formation of the NJAC were challenged in the case of Supreme Court Advocates-On-Record Association v. Union of India.
The Supreme Court duly struck down the amendment as well as the NJAC by a 5-judge bench citing violation of the basic structure of judicial independence. Despite not establishing the relationship between the two, the apex court held that judicial independence could not be secured without judicial primacy. The Supreme Court clearly committed a blunder here by using its position to unreasonably strengthen the judiciary.
The apex court should have clearly established how a violation of judicial primacy would lead to the violation of judicial independence apart from citing concerns regarding the exchange of political favors. There are many ways whereby politicians can influence judges without being involved in the appointment process directly. Further, since all the four cases, the petitioners have either been Bar Associations or senior lawyers, therefore this whole issue has just developed into a conversation between the Bar and the Bench, thereby excluding the wider society and more importantly, the other branches of Government who are interested parties as well.
Finally, in light of the massive backlog of cases piling up in the courts of India, one has to ask if diverting time from the judicial duties of the judges is absolutely necessary.
Moving on to the issue of disciplining judges, again the judiciary enjoys a high degree of independence which leads to a lack of accountability. This is evidenced by the recent inquiry by the inhouse committee of the Supreme Court into the allegations of sexual harassment against Chief Justice Ranjan Gogoi and the subsequent clean chit given to him. The proceedings came under intense criticism by the media and general public due to the apparent severe procedural lapses such as not allowing the complainant a lawyer or not making a copy of the committee report available to her.
However, the surprise was yet to come because the committee had followed the proper in-house procedure devised to take action against errant judges. It is not at all surprising to note that the procedure was devised by the Supreme Court itself.
This is hardly an outcome of lack of enforcement powers or poor drafting but simply a product of the mindset that the judiciary cannot be accountable in order to ensure independence. Secondly, the Constitution has provided that a judge can only be removed for “proved misbehavior” in order to ensure independence but this has never been defined. This combined with stringent procedures has ensured that the idea of disciplining judges is a far cry from reality.
Contempt of Court and Political Question Doctrine:
The next aspect is the Contempt of Court Act, 1971 which provides for punishment for scandalizing the court. In another act of hypocrisy to ensure independence, the fundamental right of citizens to free speech and expression guaranteed under Article 19 of the Constitution has no relevance when it comes to criticism of judgments. More than 50 journalists and publishers were issued contempt of court notices by the Karnataka High Court because they had covered a sex scandal regarding three of the judges of the court.
The Supreme Court has failed to strike a balance between maintaining the integrity of the court from unjustified attacks and legitimate criticism of judges and courts in a democratic society. Finally, on the issue of political questions, the judiciary has extended its jurisdiction to hear legal cases which have political overtones instead of letting the politically accountable branches of the government from dealing with them in a bid to increase its own independence.
With such an emphatic increase in the power of the judiciary, trying to avoid accountability and transparency is not feasible. The Indian Supreme Court is undoubtedly one of the most powerful judiciaries in the world and as Voltaire said, “With great power, comes great responsibility.” The power-hungry actions of the judiciary have amounted to an attempt to shirk that responsibility which has led the balance between judicial independence and judicial accountability to become greatly skewed. The Supreme Court has to accept that parliamentary reform of the judiciary is both legitimate, as well as necessary.
There already exists a long history of the legislature circumventing the decisions of the Judiciary by reframing the conditions existing prior to the judgement on the basis of which certain provisions have been declared ultra vires. However, there is a need to undertake specific legislative or policy reforms in order to regulate the actions of the Supreme Court, including but not limited to, revisions to the Contempt of Court Act.
It has to learn to relinquish its controlling tendencies, be more transparent in its activities, set up more neutral procedures to have checks and balances and accept criticism. These are the first steps towards that presently distant dream of achieving the balance between judicial independence and judicial accountability in India.
These mutually incompatible values of judicial independence and judicial accountability, although seemingly pulling in opposite directions, should be seen as complementary and indispensable to each other. Finding the right balance between the two is the key issue faced by any polity that wishes to create a well-functioning judiciary. This view is influenced by Justice RD Nicholson, a judge of the Supreme Court of Western Australia, who said: “the two values of independence and accountability should be perceived as complementary rather than antithetical.”
This research paper is written by Aditya Bhadra Ray, 4th Year B.A. LL.B., Jindal Global Law School, O.P. Jindal Global University (JGU) and this research paper is in the field on Constitutional Law titled ‘The Search for Balance between Judicial Accountability and Judicial Independence in the Indian Context.