The purpose of this article is to examine our success in holding judges accountable, review our current methods and finally chart a path forward to real, democratic accountability, here we must note accountability does not just mean punishment of misbehaviour but incentivization of good behaviour.

Before we assess what is and what should be let’s think of what our goals are, what an ideal situation looks like. In any democracy public servants, including Judges should be accountable first and foremost to the people (“by the people, for the people, of the people”). Therefore, we must design our systems of accountability in such a way that they allow for public servants to serve exactly that, the public, not politicians. Usually this isn’t a problem, In many cases — such as food distribution or education schemes — the goals of officers, politicians and the people may align but can we say the same for public servants working with corruption, with nationalised media (e.g. DD news), or the judiciary? obviously not. Here we must be more creative with accountability, we cannot simply pass the buck to politicians.

There are currently 650+ district courts, 25 High Courts and The Supreme Court, most cases never reach the High courts let alone the Supreme Court, yet most such discussions centre around the higher judiciary. District courts must be held accountable, in fact more so, since they are the first and often last chance litigants get at justice.

Currently accountability is enforced via promotions and transfers and disciplinary action. As per Article 235 of the Constitution Transfers and Promotions are handled by High Courts. Transfers are not merely administrative; they used to enforce obedience and “judicial discipline” as we saw in the case of Justice Verma. There is no transparency in this process, A honest judge may be heckled by the High Courts and we would be none the wiser. Although promotions are recommended by The SC Collegium (Third Judges Case, 1998) the process can be vetoed by the centre or state govt. due to the role of the governor and the president in appointments. District judges not only have to toe the line of the Higher Judiciary but also governments at both tiers of our federal system. For example, Justice Akil Kureshi who remanded Amit Shah to judicial custody in 2010, was denied elevation to the Supreme Court in spite of the collegium’s repeated recommendations.

Disciplinary action too is taken in a Kafkaesque manner, persons involved have no right to legal representation in judicial inquiries into misconduct, more importantly these are done behind closed doors and are not mandatorily subject to the RTI act. This has severe consequences, for example in the case of Justice Nirmal Yadav, although the inquiry-committee found serious misconduct, the CJI gave him a clean chit. There have been 3 recorded instances of Judges simply resigning after misconduct was found with no criminal action taken[2]. Often times these measures are justified as “protecting public perception of the judiciary”, I look forward to the day that preventing corruption and misconduct is held above preventing the public from knowing about it.

For a truly just justice system, governments should not hold pocket vetoes over judicial appointments. The Collegium must provide transparent criteria for promotion, which may then be implemented by a independent body. Interviews and evaluations must be made available to the public. The unanimously supported NJAC was a step in the right direction in line with international consensus [1], the SC decision to declare it void must be reconsidered. Reform must be instituted at the district level, independent state level authorities must be established to handle inquiries into misconduct in full public view, and when misconduct is found strict criminal action must be taken. Corruption must be a high risk - low reward activity, not the high reward – low risk one it currently is.

Sources:

[1] : (Cape Town Principles on the Role of Independent Commissions in the Selection and Appointment of Judges in the Commonwealth)

[2] : SCO, Judge inquiry: The opacity of the in-house process