amended independence and accopntability

8/3/2019 Amended Independence and Accopntability

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Accountability in

JudiciaryPresentation prepared by

SANJEEV KUMAR CHASWAL(L.L.M 1st year) Mewar University


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Legal institutions play a key role in distribution of power,

rights and in over all development of the society.

They overlook forms and functions of other institutions that

deliver public services and also regulate market practices.

A well functioning judicial system is essential to improve

governance, consolidate the democratic order and fostereconomically sustainable development.

As stable judicial system is key to promoting rule of law,

development and good governance

need of judicial Accountability


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Why we need judicial system There is always a concern about the latent dangers of the

judicial independence and this raises the importance of

JudicialAccountability

[W]hile unconstitutional exercise of power by the

executive and legislative branches of the government is

subject to judicial restraint, the only check upon our ownexercise of power is our own sense of self restraint.

Justice Harlan F.Stone in United States v. Butler 287 US 1

(1936).


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Meaning Judicial Accountability

Accountable Oxford Dictionary defines it responsible

for your own decisions or actions and expected to

explain them when you are asked.

Accountability is the sine qua non of democracy.

No public institution or functionary is exemptedfrom Accountability and enforcing of accountability

depend upon the nature of the office and the functions

discharged by the office holder.


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The judiciary, an essential wing of the State, is also

accountable.

Judicial accountability, however, can not be put

equivalent to executive accountability or of the

legislature or of any other public institution.

The independence, impartiality of the judiciary is one the

hallmarks of the democratic system of the government

and governance.


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Only an impartial and independent judiciary can

protect the rights of the individual and can provide

equal justice without and favor.

The constitution of India provides many

privileges to maintain the independence of

judiciary.

The Independent judiciary regarded as reflection of

the aspirations and spirit of the people.


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What system need to be in place before a judiciary can be said

to be independent andaccountable?

Who is the judiciary accountable to?

What is the judiciary accountable for?

Who will supervise judicial accountability?

Besides judges and other judicial staff, who else can monitor

judicial performance?

Through which system judicial corruption can be curbed and

judges who do not appear to br monitored or can not police

themselves?

FUNDAMENTAL QUESTIONS,JUDICIAL ACCOUNTABILITY


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ec an sm or u c aAccountability

In a democratic republic power with accountability of

the individual enjoying it, is essential to avert disaster for

any democratic system.

What is the mechanism for accountability for serious

judicial misconduct, for disciplining errant judges?

Our Constitution provides for removal of a judge of the

Supreme Court and High Court.


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Need For Judicial Accountability

All power is a trust that we are accountable for itsexercise that from the people and for the people, all

springs and all must exist.

A need definitely is there to make judiciary accountable,

as judiciary has to act as the guardian of our constitution.


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Need For Judicial Accountability

Judicial accountability, answerability of the judges is not

a new concept.

Several countries in their constitutions have already

ensured accountability of judiciary.

For proper implementation of this concept of judicialaccountability, it is necessary that the Judges should

follow a code of conduct which may be broadly called as

ethics for Judges.


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CODE OF CONDUCT FOR JUDGES

Hon'ble Chief Justice S.H. Kapadia said: When we talk of

ethics, the judges normally comment upon ethics among

politicians, students and professors and others. But I would

say that for a judge too, ethics, not only constitutional

morality but even ethical morality, should be the base Former Chief Justice, Verma remarked on one occasion,

These days we (Judges) are telling everyone what they should

do but who is to tell us? We have task of enforcing the rule of

law, but does not exempt and even exonerate us from

following it.


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JUDICIAL DECISION TO BE HONEST: No judicial decision

is honest unless, it is decided in response to an honest opinion

formed in the matrix of the judges proficient of law and fact.

NO MAN CAN BE A JUDGE IN HIS OWN CAUSE: A Judge

should not adjudicate in a case if he has interest therein and

require a degree of detachment in judicial dispensation.

MAINTENANCE OF DISTANCE FROM RELATIVES: :-

The judge must distance himself from the parties to the

dispute and their lawyers during the conduct of the trial.

Code of Ethics of a Judge


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ADMINISTER OF JUSTICE : The Judges must not fear to

administer justice. Fiat justitia, ruat caelum that is let

justice be done though the heavens fall should be followed asa motto by a Judge.

EQUAL OPPORTUNITY: The Parties to the dispute be

treated equally and in accordance to the principles of law and

equity.

PARTICIPATION IN SOCIAL FUNCTIONS BE

AVOIDED:- it is not proper for a Judge to accept invitation

and hospitality of any person, organisation, commercial or

otherwise during his tenure as judge.

CODE OF ETHICS OF A JUDGE


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CODE OF ETHICS OF A JUDGE MEDIA PUBLICITY BE AVOIDED: As far as possible a

Judge should keep off the media. He should refrain from

expressing his views in media on matters either pendingbefore him or likely to appear for judicial consideration

No APPAEARENCE OF FAMILY MEMBERS IN

SAME COURTS: As far as possible a Judge should keepoff his immediate family members like son daughters or

other immediate family members from appearing in the

same court or courts.


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Lack Of judicial Accountability In India The Indian Judiciary has emerged as the most powerful

institution within 60 years of the framing of the Constitution.

The Constitution established the Supreme and High Court as

watchdog institutions, as also a authority to examine and

declare them void if they violated it, the Supreme Court has

power to strike down even constitutional amendments, whichwere held by the Court to violate the basic structure of the

Constitution.


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Thus, the courts in India enjoy virtually absolute and

unchecked power unrivalled by any Court in the world.

Lack of accountability coupled with the enormous

unchecked powers is making the judiciary a very dangerous

institution and indeed a serious threat to Indian democracy.

The lack of accountability has led to considerable corruptionof the higher judiciary, which is evident from the recent

spate of judicial scandals which have erupted in India.


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Judicial Accountability AndDiscipline it is absolutely vital that judges of the superior judiciary

be accountable for their performance and their conduct

whether it be for corruption or for disregard of

constitutional values and the rights of citizens.

Where judges or court personnel are suspected of

breaching the publics trust, fair measures must be in

place to detect, investigate and sanction corrupt practices.


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Accountability to whom and for what? The judiciary must be accountable to the law, in the sense

that the decisions made are in accordance with the law and

are not arbitrary. Like other branches of government, it

must also be accountable to the general public it serves.

HOW TO ACHIEVE JUDICIAL ACCOUNTABILITY?Fostering of independence, impartiality and accountability

among judges is a vital step towards ensuring the overall

integrity of the judiciary, further developing codes of judicial

conduct can also foster judicial accountability.

DETECTING CORRUPTION IN JUDICIAL SYSTEMS T


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DETECTING CORRUPTION IN JUDICIAL SYSTEMS: T

The Judges are expected to take decisions about breaches of

law by individuals, governments and companies, but what

happens if it is the judge who breaks the law?

That judges have some limited measure of immunity and that

they should be protected from trivial or vexatious complaints,

mechanisms must be in place to ensure that corruption by

judges or court personnel is detected and properly

investigated.

Incorporating whistleblower protection or anti-corruption

telephone hotlines as can help improve detection of

corruption in the judiciary

ENSURING EFFECTIVE JUDICIAL DISCIPLINE


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ENSURING EFFECTIVE JUDICIAL DISCIPLINE

An appellate body or judicial council may be constituted with

disciplinary functions.

As in the case of lower courts, the supreme courts may beresponsible for disciplining lower court judges,

while supreme court judges themselves may be removed by

parliament.

All types of procedures should be balanced to, on the one hand,

protect judicial independence and, on the other, provide

accountability to command public confidence..

RIGHT TO INFORMATION


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RIGHT TO INFORMATION:

The Right to Information Act, at least, as of now, seems

to be a best available tool in dealing with some (if notall) aspects of the demand for a more accountable and

transparent judiciary .

The learned Judges of the SC, on the proposed

amendments in to the RTI Act have observed:-

Transparency or openness is an accepted principle of

democracy and good governance.


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Key recommendations Limited immunity for actions relating to judicial duties

should be in place.

Disciplinary rules should ensure that the judiciary carries

out initial rigorous investigations of all allegations.

An independent body must investigate complaints against

judges and give reasons for its decisions.

Strict and exacting standards should apply to the removal

of a judge. Removal mechanisms for judges must be clear,

transparent and fair.


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Key recommendations A code of judicial conduct serves as a guide to and measure

of judicial conduct, and should be developed and

implemented by the judiciary.

Breaches of the code must be investigated and sanctioned

by a judicial body.

A confidential and rigorous formal complaints procedure isvital so that lawyers, court users, prosecutors, police, media

and civil society organisations can report suspected or

actual breaches of the code of conduct, or corruption by

judges.


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Judging The Judges (Case Laws) A HISTORIC NON-IMPEACHMENT:

The Case Of Justice V. Ramaswami May 11, 1993 will be

remembered as a black day for Parliament and for the

judiciary in this country. For on that day, 205 Lok Sabha

members belonging to the Congress(I) and its allies sabotaged

the impeachment motion against Justice V. Ramaswami of the

Supreme Court by abdicating their constitutional duty ofvoting for or against and thus defeating the motion by

ensuring that it did not receive the support of an absolute

majority of the total membership of the House

Th C Of J i A h k K


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The Case Of Justice Ashok Kumar

In the case of Justice Ashok Kumar, who was appointed an

additional judge in April 2003, the Collegium of three senior

judges of the Supreme Court unanimously decided not toconfirm him as a permanent judge in August 2005 because of

adverse reports regarding his integrity. Despite this, he was

given extensions as additional judge, and finally came to be

confirmed in February 2007 on the Chief Justices

recommendation.


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Arundhati Roys Case The facts were these: After the judgment of the Supreme

Court in the Narmada Dam case, there was a public protest

outside the Supreme Court in which Medha Patkar (theleader of the anti-Dam movement in India) and Arundhati

Roy participated. A couple of lawyers (probably on the hint of

the Court itself) filed a contempt petition against Patkar, Roy

and Mr. Prashant Bhushan alleging that we had raised

abusive slogans against the Court. They eventually held her

guilty of contempt and sent her to jail with Justice Patnaik

sitting as a Judge in his own cause.


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The Case Of Justice Soumitra Sen Justice Sen has been recommended to be removed by

impeachment by the Chief Justice of India, for the offence ofmisappropriating funds received by him as a court receiver

and thereafter for giving false explanations to the High Court.

The Chief Justice made this recommendation after a report of

a committee of three Judges, who after carefully examining

the facts came to the conclusion that he had committed severalacts of serious misconduct. yet he came to be appointed during

that time, due to the lack of transparency in the matter of

appointments


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Judicial Accountability BillApproved

The Judicial Standards and Accountability Bill will set

judicial standards and make judges accountable for their

lapses.

It will also mandate that judges of the high courts and the

Supreme Court declare their assets and liabilities, including

those of their spouses and dependants.

The Union Cabinet has approved the draft Judicial

Standards and Accountability Bill, 2010 that provides for

five-member oversight committee to deal with complaints

against the higher judiciary

OVERSIGHT COMMITTEE


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OVERSIGHT COMMITTEE

Its basic features, contemplates setting up of a national

oversight committee, to be headed by a former ChiefJustice of India, with which the public can lodge

complaints against erring judges, including the Chief

Justice of India and the Chief Justices of the High

Courts. At present, there is no legal mechanism fordealing with complaints against judges, who are

governed by Restatement of Values

SCRUTINY PANELS:


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SCRUTINY PANELS:

In the case of a complaint against a Supreme Court judge,

the scrutiny panel will consist of a former Chief Justice

of India and two sitting Supreme Court judges.

In the case of a complaint against a High Court judge, the

panel will have a former Chief Justice of the High

Court and two of its sitting judges.

The scrutiny panels will have civil court powers and can

call witnesses for evidence and will require to give their

report within three months.


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Conclusion It is well known that REX NON POTEST PECCARE

The King can do no wrong and further POWER

TENDS TO CORRUPT, AND ABSOLUTE POWER

CORRUPTS ABSOLUTELY - LORD ACTON so keeping

in mind of the above, the law has to change so as to meet to

the needs of the changing society, similarly judicial

independence has to be seen with the changing dimension ofthe society. The Judicial Accountability and Judicial

Independence have to work hand in hand to ensure the real

purpose of setting up of the institution of judiciary.


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Sanjeev Kumar Chaswal,

(L.L.M ) Ist year

Mewar University, Study Campus

Sector-4, Vasundhara

amended independence and accopntability

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