Can the judiciary ever be made accountable?

In the case of Nirmal Yadav, she initially got a clean chit from the Supreme Court collegium headed by the then Chief Justice of India (CJI) K.G Balakrishnan. Following that, a closure report was filed by the Central Bureau of Investigation (CBI) in 2009. She was then transferred to Uttarakhand High Court. The alleged graft case would have got a silent burial if Justice S.H. Kapadia (who had become CJI after Justice Balakrishnan’s retirement) had not reviewed the decision of his predecessor and approved the prosecution of Yadav.

The sanction for Yadav’s prosecution was given by the President of India on the day of her retirement in 2011. Fourteen years later, the case is still being heard in the special CBI court. The case is not only reflective of delay in delivering justice, but its entire chronology shows how judicial officers when faced with allegations of corruption and misconduct, use the constitutional safeguards provided to them to evade prosecution and trial.

Cash on fire in Delhi

On March 14, sacks full of currency notes were found at Justice Yashwant Varma’s home by the fire department officials when they were dousing the fire that broke out at his outhouse. As of now, CJI Sanjiv Khanna has constituted a three-member committee to investigate the matter. Separately, Supreme Court collegium has decided to transfer Varma to Allahabad High Court, while saying that the transfer is unrelated to the issue being investigated.

It’s not difficult to connect the dots.

Official misconduct and impropriety are not rare in any branch of the state. What sets the judiciary apart is its lack of accountability. This lack of accountability becomes more disturbing given that the higher judiciary has repeatedly held almost all important offices and departments accountable.

Judges of the lower court are accountable to their respective high courts. Under Articles 227 and 235, High Courts are empowered with superintendence over all courts and tribunals within their jurisdiction, allowing them to ensure proper functioning and adherence to legal procedures. However, the judges of the higher judiciary, that is, the Supreme Court of India and High Courts, are accountable only to Parliament. On paper.

The failed impeachment

In February 2009, 58 members of the Rajya Sabha gave a notice of motion to its chairman under the provisions of the Judges Inquiry Act 1968 for the removal from office of Justice Soumitra Sen, a sitting judge of the High Court of Calcutta. He was accused of misappropriation of funds. The motion was admitted and a three-member Committee of Inquiry was constituted in accordance with the provisions of the Judges (Inquiry) Act, 1968. The committee found the charges framed were duly proved against the judge. Before the motion for removal came to Lok Sabha, Sen chose to resign and get away with his alleged misdoings. The President accepted his resignation and he conveniently avoided the tag of being a judge who was removed from office.

Another issue that shows a lack of accountability in the higher judiciary is complete secrecy about the outcome of the in-house probe conducted against the erring judges.

The late Fali Nariman wrote that two roadblocks in the way of holding erring judges accountable are the ‘unbridled power of contempt' that lies with the court and the lack of intent on the part of judges to hold their ‘brothers’ accountable.

Apart from the Judges (Protection) Act, 1985, higher judiciary's reluctance to adhere to the Right to Information (RTI) Act in full spirit, the constitutional safeguard given to the judiciary to safeguard its independence which is used on multiple occasions to safeguard personal interests, all of it have come in the way of ensuring accountability.

This is not to suggest that these safeguards can be completely removed. The requirement is to adjust them to the needs of accountability. After all, in a democracy how can any individual or an institution be unaccountable?

Justice V. R. Krishna Iyer’ (quoting Justice Warren E. Burger, Chief Justice of the US Supreme Court) rightly pointed out once that a court which is final and unreviewable needs more careful scrutiny than any other. Unreviewable power is the most likely to self-indulge itself and the least likely to engage in dispassionate self-analysis. In a country like ours, no public institution, or the people who operate it, can be above public debate.

Pay without work

Lack of really accountability takes other forms.

Withdrawing judicial work from accused judges is a measure devised by Supreme Court in the J.P Mitter case in 1971. But is this measure a serious deterrent?

Perhaps not. In 1990, in Bombay HC, CJI Chittatosh Mookerjee stopped assigning judicial work to four judges accused of misconduct. While one was transferred and another resigned, the remaining two conveniently stayed on. They received their salary and kept enjoying all perks and privileges till retirement without doing any work.

In this context, the need for a judicial ombudsman and an effective system of judicial accountability has been raised by many eminent lawyers and jurists. Ignoring them any longer will only erode the faith of people in courts and the justice delivery system.

Fixing accountability will not erode independence

Often, the issue of judicial independence is brought in to defend the lack of accountability. It is argued that any outside interference can mar the independence of the judiciary. Independence of the judiciary is sacrosanct. But so is its credibility.

Given the elevated position that is accorded to judges, any allegation of misconduct, if not addressed, will only erode the faith of the public and the institutional credibility of the judiciary. It is rightly said that sunlight is the best disinfectant, the need is to have a window to allow some rays of accountability.