Judicial Accountability

In one line

If judges check everybody else, something has to check the judges, and in India the machinery for that is thinner than the machinery they apply to others.

In the wording a student can write in an exam: judicial accountability is the requirement that judges answer for the exercise of their power. It is in tension with judicial independence, which requires that they be free from pressure, and the constitutional problem is to secure enough of each. The Indian mechanisms are: reasoned judgments open to criticism; appeal and reconsideration by larger benches; removal by an address of Parliament under Article 124(4); the criminal law, following K. Veeraswami v. Union of India, (1991) 3 SCR 189; the in-house procedure laid down in C. Ravichandran Iyer v. Justice A.M. Bhattacharjee, (1995) 5 SCC 457; contempt jurisdiction restrained by the truth defence; and transparency measures including the declaration of assets and the application of the right to information.

Why the problem is hard

Independence and accountability pull against each other. A judge who may be punished for a decision is not independent. A judge who may never be questioned is unaccountable. Every mechanism has to be designed so that it reaches misconduct without reaching adjudication.

The ordinary checks do not apply. Judges are not elected, cannot be dismissed by an employer, and are protected from discussion in Parliament by Article 121 except on a motion for removal.

The judiciary controls the mechanisms that would check it. Appointments are made by the collegium; contempt is decided by the courts; and the in-house procedure is operated by the Chief Justice of India.

The mechanisms, one by one

1. Reasoned judgments. The primary accountability of a judge is that the reasons are published and can be shown to be wrong. This is weaker than it sounds when judgments are long and the profession dependent, but it is real.

2. Appeal and larger benches. An erroneous decision can be corrected, which is accountability for the decision rather than for the judge.

3. Removal under Article 124(4). A judge of the Supreme Court may be removed by an order of the President after an address by each House supported by a majority of the total membership and by not less than two thirds of those present and voting, on the ground of proved misbehaviour or incapacity. The Judges (Inquiry) Act 1968 provides the procedure. The threshold is very high and no judge of the Supreme Court has been removed under it.

4. The criminal law. K. Veeraswami v. Union of India, (1991) 3 SCR 189.

Facts. A former Chief Justice of the Madras High Court was prosecuted under the Prevention of Corruption Act 1947 for possessing assets disproportionate to his known sources of income. He contended that a judge of a superior court is not a public servant under the Act and that criminal prosecution would compromise the independence of the judiciary, the Constitution having provided only for removal by Parliament.