On April 19, a former staff member of the Supreme Court requested an inquiry against the Chief Justice of India, Ranjan Gogoi, accusing him of “sexual harassment and consequent victimization”. Justice Gogoi dismissed the allegations as ‘a part of a larger conspiracy against the judiciary’, and the Registrar-General of the Supreme Court declared the complaint mala fide. The accuser was denied her constitutional rights of due process, and there was a complete dismissal of the Vishaka guidelines.
This case was merely one more in a long line of debacles surrounding the Indian judiciary, which has long been accused of a lack of accountability and transparency, raising the question: ‘Who will judge a judge?’. The judicial proceedings in the Justice Gogoi case have brought the debate between judicial independence and judicial accountability to the fore. Therefore, it is pertinent to reconceptualise both, so that one is not compromised at the expense of the other.
Judicial independence refers to the people’s right ‘to be judged’ by an independent, competent and impartial tribunal. There are several elements which call into question the legitimacy of judicial independence in the Indian legal system.
In December 1999, a Supreme Court resolution adopted an ‘in-house’ tribunal against judges who transgressed institutional norms. However, this mechanism lacks any statutory basis, and the findings of the committee are never made public and are exempted from Right to Information (RTI) requests. Judges also have discretionary powers to define what can be called as the contempt of court, further restricting legitimate criticism of the judiciary.
Another tenet of judicial independence is the ‘separation of powers’, which restrains the executive from interfering in the matters of the judiciary. Initially, the president appointed Supreme Court judges recommended by the union cabinet. However, this led to accusations of conflicts of interest between the executive and the judiciary. Consequently, after the 1993 'three judges case', the Collegium system was created, whereby the President then appoints Supreme Court judges recommended by the four most senior judges of the Supreme court and the senior-most judge from the high court of a prospective appointee.
However, the Collegium has come under public scrutiny for being an opaque and arbitrary body. The judges are accused of promoting their kith and kin in the judicial apparatus, and of blocking any alien interference. It is notable that Jasti Chelameshwar, the second-most senior judge of the Supreme Court, termed the Collegium “a euphemism for nepotism”.
Alongside judicial independence, it is also imperative to tackle issues of judicial accountability. This could be facilitated through the establishment of a National Judicial Commission as an independent watchdog to discipline judges. It would be a five-member commission composed of retired judges or senior advocates with the security of tenure, to ensure their independence both from the government as well as the judiciary.
The chairman would be selected by the Collegium all the Supreme Court Judges; one member would be nominated by Collegium of the Chief Justice of the High Courts; one would be nominated by the leader of opposition in the Lok Sabha and another by the incumbent government; and the last member will be nominated by a Collegium of all the members of the Bar Council. Such a commission, unlike the NJAC (2014), will not be an ex-officio body and could heavily be relied upon to bring about some accountability in the judiciary by putting the judges under strict scrutiny without compromising its independence.
Traditionally, despite its constitutional mandate, the Supreme Court has been manned either by judges elevated from High courts or experienced lawyers, neglecting a core community of jurists. By introducing academics to the apex court, it is possible to bridge the gulf between “law in books” and “law in action”, and widen the representation of the judiciary, bringing fresh perspectives and dimensions to their judgments.
In addition to diverse representation, it is vital that there be a strictly enforced code of conduct. In 1997, the Supreme Court adopted the “Restatement of Values of Judicial Life” charter, which advises judges to refrain from personal association with the members of the bar council of the same court. Judges are expected to refrain from trade and business matters, and cannot hear a matter in which members of their kith and kin are involved. However, these codes require enforcement and punishment for contravention of its principles, which is currently missing.
Thus, judicial independence and judicial accountability are two interrelated and essential components of an impartial, competent judiciary which is truly answerable to the people.
Through the implementation of robust monitoring, regulatory practices, accountability mechanisms, and codes of conduct, the Supreme Court of India can be overhauled to create a more efficient and credible judiciary.
Reference List
Bhushan, P. (2006). Comments of the Committee on Judicial Accountability on the Judges Enquiry Bill, 2006. Retrieved October 31, 2019, from https://web.archive.org/web/20090105201709/http:/www.judicialreforms.org/files/4%20Comments%20of%20COJA.pdf
Huchhanavar, Shivaraj. (2018). Judicial Independence and Accountability in India: The Way Forward. Retrieved November 2, 2019, from https://www.researchgate.net/publication/328021094_JUDICIAL_INDEPENDENCE_AND_ACCOUNTABILITY_IN_INDIA_THE_WAY_FORWARD
Judicial Accountability in India: Issues and Challenges. Retrieved October 31, 2019, from https://shodhganga.inflibnet.ac.in/bitstream/10603/128562/19/13_chapter%206.pdf
Shah, A.P. (2019). A Manifesto for Judicial Accountability in India. Retrieved October 30 2019, from https://thewire.in/law/cji-ranjan-gogoi-supreme-court-judiciary
Tirkey, I. (2011). Judicial Accountability in India: Understanding and Exploring the Failures and Solutions to Accountability. Retrieved November 2, 2019, from https://ccs.in/internship_papers/2011/247_judicial-accountablity-in-india_isha-tirkey.pdf
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