The Hindu : Judicial accountability

Online edition of India's National Newspaper
Saturday, May 10, 2003

Opinion

Opinion - Editorials

Judicial accountability

IN RESPONSE TO widespread demands from within and outside the Judiciary to check the steady erosion in the balance of power in regard to selection, appointment and transfer of judges of the higher courts, besides putting in place a mechanism to scrutinise their official conduct, the Union Cabinet has finally given its nod for the establishment of a National Judicial Commission. As per its decision — which broadly reflects the recommendations of the National Commission to Review the Working of the Constitution — the NJC is expected to be broad-based in its composition, comprising the Chief Justice of India (CJI) as its Chairman, two seniormost judges of the Supreme Court, the Union Minister for Law and Company Affairs and one person of eminence to be nominated by the President in consultation with the Prime Minister as members. The clamour for such a commission gained momentum especially after the apex court wrested from the Executive altogether the power pertaining to the selection and appointment of judges of the Supreme Court and the High Courts and the transfer of judges of the High Courts in what is famously known as the Second Judges' case in 1993. The judgment concentrated the power of appointing judges of the apex court solely in the hands of the CJI by interpreting the President's authority in Article 124 of the Constitution to "consult" the latter as to make his opinion binding upon him. A recent ruling of the court also upheld the 1993 judgment, while requiring in addition that the consultation process be guided by the decision of a collegium of judges headed by the CJI. The net result of the above two judgments has been that the process of mutual consultation between the Executive and the Judiciary has been superseded; for "consultation" has come to be confused with concurrence, or still worse, surrender. What is particularly disturbing about this state of affairs is their complete contrariness to Constitutional provisions and the diminution of accountability to Parliament.

If the lack of transparency in judicial appointments has been a matter of growing concern, an almost simultaneous development has been the outcry for evolving effective complaint mechanisms to deal with errant judges. The demand has been articulated with increasing force following charges of alleged misconduct in relation to some High Courts. In view of the near impracticality of impeachment as a procedure to deal with corrupt judges, the viability of an in-house mechanism such as the ones constituted by the CJI to probe the Punjab and Karnataka incidents would be worthy of serious consideration. Another point to be considered could be the existence of disciplinary controls by the High Courts over the lower courts and the absence of a similar mechanism in respect of High Courts and the Supreme Court. The proposed commission would have to address these areas of concern as a matter of utmost priority, for they impinge directly on the Judiciary's larger role in civil society as the custodian of justice and human rights.

The watchdog role enjoined upon the Judiciary in a democracy could hardly be overstated. The Constitutional provisions against encroachments on judicial freedom in Articles 141, 142 and 144 would have to be seen in this light. However, a fundamental prerequisite for it to perform such a role is accountability, no less than autonomy and independence. Clearly, the credibility of the Judiciary as an institution cannot be held hostage to the criminal nexus of a few and transparency at every level should be the objective of its functioning. In this respect, the stakes are equally high for the Judiciary as for the Executive which has been lately exercised over the question of parliamentary proprieties vis-a-vis the jurisdiction of the Judiciary.

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