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In light of recent events, former Chief Justice of the Delhi High Court Justice AP Shah has highlighted the need for accountability in the Judiciary.
Justice AP Shah delivered a speech on the topic Judging the Judges: Need for Accountability and Transparency during the Rosalind Wilson Memorial Lecture held at India International Centre in Delhi on Sunday.
Over the course of his speech, Justice Shah spoke about the relationship between accountability and judicial independence, the existing mechanism for evaluating judges in India, and a roadmap for how the system can be changed so as to ensure a more transparent and accountable Judiciary.
At the outset, Justice Shah referred to the allegations of sexual harassment against Chief Justice of India Ranjan Gogoi as the trigger for choosing the topic. He highlighted the various discrepancies that cropped up in the course of addressing the allegations.
A Committee headed by retired Supreme Court judge, Justice AK Patnaik was eventually constituted to inquire into the possibility of a conspiracy against CJI Gogoi. As Justice Shah pointed out in his speech, nothing has come out of the probe thus far.
An In-House Special Panel of Judges was constituted to look into the sexual harassment allegations against CJI Gogoi. The panel eventually concluded that there was no substance in the sexual harassment allegations levelled by the staffer after four days of sitting.
In reference to the chain of events, Justice Shah noted,
“The issue still remains unanswered, and the incidents that took place especially reveal the many weaknesses in the in-house mechanism that is employed for resolving such matters.”
Speaking about the need for a judicial conduct, Justice Shah stated in his speech,
“We do not have clarity on so many aspects of judicial behaviour, last year’s controversial press conference being a case in point. Even behaviour regarding bias or conflict of interest is not clear. Depending on how you look at it, the last three successive Chief Justices violated the principle of no man being a judge in his own case. Matters like these cannot be left to ad hoc interpretation, and must be clarified through rules and guidelines.”
Accountability vis-a-vis Judicial Independence
While broaching the topic, Shah J pointed out that the CJI had, during the course of hearing a matter on the applicability of the Right to Information Act to the Chief Justice, said that in the name of transparency, you cannot destroy the judiciary. Expressing his astonishment at this statement, the former judge said,
“The purpose of judicial independence, either of the judiciary as an institution or of an individual judge, is never an end in itself. Its purpose is always to secure judicial impartiality. If a judiciary cannot administer the law fairly and fearlessly, then nothing else is of any consequence. Impartiality is a central and necessary feature of judicial independence.”
Complaints against judges
Justice Shah went on to address the shortcomings of the in-house procedure by which the higher judiciary deals with complaints against judges.
“There are many shortcomings of the in-house mechanism. The biggest of these is that there is no statutory basis for the procedure, and certainly no constitutional blessing. More importantly, it appears to have limited sanctity within the judiciary itself – no judge has agreed to resign because there was an adverse report by the committee. Soumitra Sen is a case in point, being a judge who defied the report and its advice.”
On the topic of the complaints themselves, Justice Shah said that they are often not dealt with in serious manner.
“I have come across a few cases where it was evident that there were serious allegations against a judge, which clearly required further investigation. Specific applications were made to the CJI to set up the in-house committee. None of these applications were even acknowledged. No one knows whether complaints are looked into. At no point does a complaint go to a full court. Indeed, I would go out on a limb and say that most of the time, forwarded complaints are not even acknowledged, and most certainly, no inquiry takes place.”
Punishment for lesser instances of misbehaviour
Shah J also batted for introducing a mechanism to address less major instances of judicial misbehaviour, as opposed to impeachment, which is the sole punishment on the books as of today. He made reference to the procedure followed to the US and the UK in this regard.
…judges indulge in dozens of other kinds of misbehaviour, both inside and outside courts. Such actions may not be adequate to commence impeachment proceedings, but require some action. Perhaps a warning needs to be given. Judicial work must be taken away. Even suspension may be an option. It negates the idea of the rule of law if the judge in question is allowed to continue to function during the course of inquiry into any serious allegations.”
Disciplinary Committee for complaints against judges
Justice Shah batted for the formation of a permanent disciplinary committee at the central level to handle complaints made against judges.
“No one from the executive should be a part of this committee. This permanent set-up must have a secretariat that is also drawn from the judiciary. If that committee finds that there is a lesser or minor instance of misbehaviour, they may give a warning, reprimand or advisory. If it finds that some major misconduct has occurred, then it may request for the setting up and appointment of a Judicial Inquiry Committee under the Judges Inquiry Act…
…At present, impeachment can be initiated only on the basis of a motion in Parliament. Under this new law, an adverse report from the committee against a judge should be sufficient to immediately commence impeachment proceedings.”
Chief Justice not exempt
AP Shah J also stated that Chief Justices cannot be immune from such a procedure. He went on to note,
Any accountability mechanism must apply to all judges, regardless of status or rank. The law and the procedure must also engage with how the Vishakha guidelines can be made applicable to the judiciary, the extent to which the right to information is allowed, and so on…”
Performance Evaluation system for judges
Noting that there exists no system by which the performance of judges of the higher judiciary is evaluated, Justice Shah said,
“Unless a judge receives regular constructive feedback on their performance, it is unlikely that they will consciously make efforts to improve. A continuous performance evaluation mechanism is one where lapses in standards, or questionable conduct by individual judges immediately come to light. Patterns of behaviour and conduct and performance should inform remedial measures, such as mandatory attendance of training programmes.”
He also linked the lack of such a system to the opaque manner by which judges are deemed suitable for elevation.
“When there are elevations to the Supreme Court, the performance of prospective candidates is never taken into account, because there is no material to make an informed decision!! Decisions for elevations tend to be arbitrary; often names are bartered between members of the collegium. There is a complete lack of transparency, and perhaps names are even finalised over a cup of tea, as a judge of the Allahabad High Court said.”
Code of Conduct
Justice AP Shah noted that although the Restatement of Judicial Values issued in 1997 regulates the conduct of judges, the same was inadequate.
“Judges do not have any pre-set moral codes embedded in their brains that dictate their behaviour the moment they sit on the bench. Indeed, they are as human as the lawyers, plaintiffs, defendants, criminals, witnesses and police before them. To attribute a greater morality to them merely because of the nature of their office is false and dangerous. They must be constantly reminded of what is appropriate behaviour throughout their career…”
All the same, he called for restraint while levelling allegations against judges, and frowned upon judge bashing.
“At some point in this entire process, it becomes essential to also trust the judges. I believe that the tendency of judge bashing or constantly attacking the judges is harmful to the judiciary. Everyone has to work together, and some trust among judicial peers is essential.”
Read the full text of Justice AP Shah speech