The growth of this suspicious trend can be checked if practicing lawyers and sitting judges avoid meeting frequently in private. Persons who occupy high public offices must take care to see that those who claim to be close to them are not allowed to exploit that closeness, alleged or real. Too much of activity and participation in social functions be avoided:-It is often said that as a result of a very considerable amount of ordinary social activity, a Judge may become identified with people and points of view, and litigants may think they may not get fair trial.
To repel that feeling, a Judge should avoid too much of social activity. Again, Judges should be very selective in attending social functions. Judges in England and USA generally decline such participation. If they attend even a private function, they ask for the list of invites. The Supreme Court in Ram Pratap Sharma v Daya Nand issued a note of caution to the effect that it is proper for a Judge not to accept any invitation and hospitality of any business or commercial organization or of any political party or of any club or organization run or sectarian, communal or parochial line.
Media Publicity be avoided:-As far as possible a Judge should keep off the media. He should refrain from expressing his views in media on matters either pending before him or likely to appear for judicial consideration. Else he may be accused of prejudging the issue and his neutrality may be questioned thereby. D Lack Of judicial Accountability In India The framers of the Indian Constitution would not have imagined that within 60 years of the framing of the Constitution, the Indian Judiciary would emerge as the most powerful institution of the State.
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 did not exceed the authority conferred upon them by the Constitution. Thus, the Judiciary was given the powers to interpret the laws and 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 laws framed by Parliament conformed to the Constitution and declare them void if they violated it. By a creative interpretation of the provision authorizing the Parliament to amend the Constitution, the Supreme Court in also acquired the power to strike down even constitutional amendments which were held by the Court to violate the basic structure of the Constitution.
Many laws and some constitutional amendments have been struck down by the Courts during this period. While executive action and even legislation could often be struck down by the courts, the directions of the courts, sometimes issued without even notice to the affected parties, were beyond question, and had to be obeyed by all executive officers on pain of contempt of court.
Of course, often these powers were wisely exercised to correct gross executive inaction. While the Court was acquiring these powers, by an even more inventive called purposive interpretation of the provision regarding appointment of judges by the government, it took over the power of appointment of judges. Thus judges of the High Court and Supreme Court are now appointed by a collegium of senior judges of the Supreme Court. The judiciary has thus become like a selfperpetrating oligarchy.
There is no system followed in the selection of judges and there is no transparency in the system. In particular, no regard is given to examining the record or credentials of judges in their ideological adherence to the constitutional ideals of a secular, socialist democratic republic or their understanding of or sensitivity towards the common people of the country who are poor, marginalized and unable to fight for their rights in the courts. Thus, the courts in India enjoy virtually absolute and unchecked power unrivalled by any Court in the world.
In these circumstances, it is absolutely vital that judges of the superior judiciary be accountable for their performance and their conduct — whether it be for corruption or for disregard of constitutional values and the rights of citizens. Unfortunately, neither the Constitution, nor any other law has created any institution or system to examine the performance of judges or examine complaints against them.
The Constitution provides that High Court and Supreme Court judges cannot be removed except by impeachment. If a motion containing charges of serious misconduct with the requisite signatures is submitted, and admitted by the Speaker of the House of People or the Chairperson of the Council of States, an Inquiry Committee of 3 judges is constituted to hold a trial of the judge. Our experience has shown that it is practically impossible to remove a Judge through impeachment even if one is somehow able to get documentary evidence of serious misconduct.
This is because MPs and political parties to which they belong are very reluctant to take on a sitting Judge because virtually all of them have pending cases in courts. The judges often behave like a trade union and do not take kindly to brethren being accused of misconduct. It is, therefore, virtually impossible to get an impeachment off the ground unless the matter has become a big public scandal.
Only in those cases, is it possible to get enough MPs to sign an impeachment motion. The only impeachment of a Judge to have gone far was that of Justice V. After the motion was presented, a Judges Inquiry Committee found him guilty of several charges of misconduct when the matter went up for voting to Parliament.
The ruling Congress Party directed all their MPs to abstain from voting. Thus, though the motion was unanimously passed in the Lok Sabha, it did not get the support of the majority of the total membership of the House and, therefore, failed. The Judge remained in office till he retired, but was not assigned any judicial work by the then Chief Justice. Only last month, we have seen a second motion against a Judge of the Calcutta High Court signed and submitted to the Chairman of the Council of States.
Allegations and charges against a Judge even when supported by documentary evidence, rarely get any coverage in the media because of the widespread fear of contempt of court. Though Parliament has recently amended the Contempt of Courts Act to expressly allow truth as a defence, nothing has been done to prevent judges against whom allegations are made from charging the person with contempt and hauling him to jail. Of course, this demand has been stoutly resisted by the courts who claim that deleting this provision would greatly encourage baseless allegations and abuse of judges by disgruntled litigants and would thereby erode public confidence in the courts.
But then, there is the law of civil and criminal defamation to protect judges against vilification. Moreover, public confidence in the courts as in any person or institution, is generated or eroded by the actions of the courts and not by any baseless allegations by disgruntled litigants. However, with such fierce opposition by the courts, the legislature has not had the courage to delete this provision from the Contempt of Courts Act. In , the Supreme Court by another ingenious judgment, involving Justice Veeraswami the father-in-law of Ramaswami , who was Chief Justice of the Tamil Nadu High Court who was caught with assets, vastly disproportionate to his income, laid down that no judge of a superior court could be subjected to a criminal investigation without the written permission of the Chief Justice of India.
This judgment has been use to prevent the investigation and prosecution of many judges against whom there was documentary evidence of corruption, fraud, misappropriation, etc. This has also increased the impunity of judges who have now got used to the feeling that they can get away with any kind of misconduct or even criminal conduct, without any fear of any criminal action or action for removal. Armed additionally with the power of contempt, they also have little fear of public exposure. All this makes for an alarming picture of lack of accountability of the higher judiciary in India.
You cannot practically take any disciplinary or criminal action against misconduct or crimes committed by judges. If you expose them publicly, you run the risk of contempt. This 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 TI on corruption perception index shows that the judiciary is perceived to be the second most corrupt institution in India after the Police.
E Judicial Accountability And Discipline The judiciary needs to be independent of outside influence, particularly of political and economic entities such as government agencies or industry associations. But judicial independence does not mean that judges and court officials should have free rein to behave as they please.
Indeed, judicial independence is founded on public trust and, to maintain it, judges must uphold the highest standards of integrity and be held accountable to them. Accountability to whom and for what? In everyday terms, accountability is simply the ability to hold an individual or institution responsible for its actions. The question for the judiciary is accountability to whom and for what?
Broadly speaking, the judiciary must be accountable to the law, in the sense that the decisions made are in accordance with the law and are not arbitrary. Like other branches of government, it must also be accountable to the general public it serves.
How to achieve judicial accountability? Fostering a culture of independence, impartiality and accountability among judges is a vital step towards ensuring the overall integrity of the judiciary. Yet, if they are too accountable to the public they can exercise arbitrary power. The chapter describes mechanisms of achieving accountability through various methods of judicial appointment and removal. But, it argues, more important than those methods is the idea of ensuring judicial accountability by insisting that judges be accountable to the law.
That notion, too, is complex. It includes some idea of responsibility to past law-makers, coupled with some idea of accountability to contemporary professionals who define for judges what it means to make decisions according to law. Keywords: Judicial accountability , judicial independence , exercise of arbitrary power , methods of achieving accountability , judicial appointment and removal , accountable to the law , decisions according to law.
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Yes No. Tell us what you were looking for. About the judiciary About the judiciary The judiciary, the government and the constitution The justice system Who are the judiciary? Courts and Tribunals Judiciary About the judiciary The judiciary, the government and the constitution Judicial accountability and independence The principles of judicial accountability.
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The Scottish Courts recognised this in in Starrs v Ruxton [] SCCR This risk is perhaps best demonstrated — albeit as an extreme example — in dictatorships where judges are often appointed specifically because of their loyalty to the regime, and will almost always make decisions in favour of it, regardless of the interests of the individual, the facts and the law. Further reading: Judges on Trial A study of the appointment and accountability of the English Judiciary , a book by Shimon Shetreet North Holland, Independence, Accountability and the Judiciary, a collection of essays edited by Canivet, Andeanas and Fairgrieve BIICL, There is also material on accountability in the lectures, articles and books listed at the end of the section on independence When examining explanatory accountability it is important to distinguish between theinstitutional accountability of the judiciary and the accountability of individual judges.
This section of the website aims to explain the importance of judicial independence and the consequences of that independence on the notion of judicial accountability. It also aims to explain some of the practical arrangements which govern the way the judiciary of England and Wales operates on a day-to-day basis. We are all familiar with media reports of a government minister who is forced to resign or dismissed for behaviour which is or is perceived to be inappropriate or for incompetence in the performance of his or her duties.
Many may wonder why steps are not taken to dismiss such judges or to force them to resign. Why is it that judges and magistrates appear to be unaccountable in the face of such criticism?
Why is it that the way they are treated appears to be different to the treatment of many others, from government ministers and public officials, to the directors and employees of companies? The truth is that the judiciary is accountable, but in a different manner.
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