Judicial Accountability

Held. A judge of the High Court or the Supreme Court is a public servant within the Act and can be prosecuted, so a judge is not above the criminal law. To protect independence the Court laid down a safeguard: no criminal case shall be registered against a judge of a superior court without first consulting the Chief Justice of India, and if the Chief Justice is himself the person concerned, the President is to be consulted.

Why it matters here. It is the leading Indian authority that judges are not immune, and it is also an example of the Court constructing the safeguard itself, which is the pattern of the whole subject.

5. The in-house procedure. C. Ravichandran Iyer v. Justice A.M. Bhattacharjee, (1995) 5 SCC 457.

Facts. The Bombay Bar Association passed resolutions demanding the resignation of the Chief Justice of the Bombay High Court over royalties received for a book. An advocate moved the Supreme Court complaining that agitation by the Bar against a sitting judge threatened judicial independence, and the Court had to decide how allegations short of proved misbehaviour may properly be dealt with.

Held. The Bar may not agitate for the removal of a judge, since the only constitutional route is the address of Parliament under Article 124(4). The yawning gap between proved misbehaviour, which alone justifies removal, and bad conduct inconsistent with the high office is to be filled by self-regulation through an in-house procedure operated by the Chief Justice of India, who may counsel, advise or withdraw judicial work from the judge concerned.

Why it matters here. It identifies the real problem in one phrase, the gap between proved misbehaviour and bad conduct, and it supplies the answer most students never find. Note also what it forbids: the profession may not organise against a judge.

6. Contempt, and the limit on it. The power to punish for contempt protects the administration of justice and can also shield judges from criticism. Section 13 of the Contempt of Courts Act 1971, as amended in 2006, permits truth as a defence where it is in the public interest and the request for invoking it is bona fide, which is the statutory correction of the older position.

7. Transparency. Declaration of assets by judges, resolved upon by the Supreme Court itself; and the application of the Right to Information Act to the office of the Chief Justice.

8. Accountability in appointments. The collegium's opacity has been the standing criticism, and the NJAC decision of 16 October 2015 preserved it while acknowledging the need for improvement.

The criticisms

Removal is unusable. A threshold requiring two thirds of those present and voting in both Houses means that removal depends on political consensus, which is precisely what a judge who has displeased a government will not attract, and precisely what a judge who has pleased it will not need.

The in-house procedure has no legal sanction. Ravichandran Iyer itself noted the absence of legal sanction as a reason the procedure had not been used in that case. Its outcomes are not published and its findings are not enforceable.

Contempt chills criticism. Even with the truth defence, the risk deters.

The collegium is not accountable to anybody. Its deliberations are not recorded in a form open to scrutiny, and the criticism is made across the political spectrum.

Accountability and independence are traded, not reconciled. Every strengthening of one weakens the other, and the Indian arrangement has consistently preferred independence.

The relation to independence, which MU's question assumes

Krishna Iyer J.'s proposition, quoted by MU, is that judicial independence is the soul of democracy. The point of the question is that independence is a means and not an end: it exists so that judges decide according to law rather than according to pressure. Accountability serves the same end from the other side, by ensuring that the freedom is used for its purpose. An answer that treats them as enemies has missed the question; they are two conditions of the same thing.

A worked example

Credible allegations circulate that a High Court judge has decided cases in favour of a company in which his relative holds an interest.

Removal? Only if the conduct amounts to proved misbehaviour, and only if both Houses will act. In practice this route is unavailable unless the evidence is overwhelming and the political will exists.

Prosecution? Possible under Veeraswami, but only after consultation with the Chief Justice of India.

The in-house procedure? Available and appropriate: the Chief Justice may cause an inquiry, and may counsel the judge, advise him to resign, or withdraw judicial work from him.

Agitation by the Bar? Forbidden by Ravichandran Iyer.

Publication of the allegations? Permissible, and contempt would be met by the truth defence under section 13 of the Contempt of Courts Act 1971 if the publication is true and in the public interest and the plea is bona fide.

Quick revision

1. Judicial accountability: the requirement that judges answer for the exercise of their power, in tension with independence.
2. Mechanisms: reasoned judgments, appeal and larger benches, removal under Article 124(4) with the Judges (Inquiry) Act 1968, criminal law under Veeraswami, the in-house procedure under Ravichandran Iyer, contempt limited by the truth defence in section 13 of the 1971 Act as amended in 2006, and transparency measures.
3. Veeraswami: a superior court judge is a public servant and can be prosecuted, but only after consultation with the Chief Justice of India.
4. Ravichandran Iyer: the Bar may not agitate for removal; the gap between proved misbehaviour and bad conduct is filled by an in-house procedure operated by the Chief Justice.
5. Criticisms: removal is unusable, the in-house procedure has no legal sanction, contempt chills criticism, and the collegium is not accountable.
6. Independence and accountability are two conditions of the same thing: decision according to law rather than to pressure.

Test yourself

1. List the Indian mechanisms of judicial accountability. Reasoned judgments open to criticism; correction on appeal and by larger benches; removal by an address of both Houses under Article 124(4) with the Judges (Inquiry) Act 1968; prosecution under the criminal law following K. Veeraswami; the in-house procedure of the Chief Justice under C. Ravichandran Iyer; contempt jurisdiction limited by the truth defence in section 13 of the Contempt of Courts Act 1971 as amended in 2006; and transparency measures including asset declaration and the right to information.

2. What safeguard did Veeraswami attach to the prosecution of a judge, and why? That no criminal case shall be registered against a judge of a superior court without first consulting the Chief Justice of India, and that where the Chief Justice is himself concerned the President is to be consulted. The safeguard exists because a power to register cases against judges, exercisable by an executive agency without any filter, would itself be a means of pressure and would defeat independence.

3. What gap did Ravichandran Iyer identify, and how did it propose to fill it? The gap between proved misbehaviour, which alone justifies removal under Article 124(4), and bad conduct inconsistent with the high office, for which the Constitution provides nothing. It proposed to fill it by self-regulation through an in-house procedure operated by the Chief Justice of India, who may counsel or advise the judge or withdraw judicial work from him, while forbidding the Bar to agitate for removal.

4. Why is it wrong to treat independence and accountability as opposites? Because both exist to secure the same thing, that a judge decides according to law rather than according to pressure or interest. Independence removes external pressure; accountability ensures the resulting freedom is used for its purpose. They are traded against each other in the design of particular mechanisms, but they are two conditions of one objective rather than rival objectives.