Saturday, December 26, 2009

Justice D V Shylendra Kumar on judicial accountability through power to the people

Justice Kumar writes this article on Judicial Accountability on his official website, where he talks about judicial accountability, appointment of judges, constitution's protection to judges, role and authority of Chief Justice of India etc:

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Some of the important highlights of the article followed by my comments:

I have contributed an article titled Judicial Accountability, at the request of the organizers of IX Conference of Karnataka State Advocates, sponsored by the Karnataka State Bar Council, Bangalore and cosponsored by the Bar Association, Hubli, which is being inaugurated on 27th December, 2009 at Hubli, on which occasion, a souvenir containing my said article will be released.

I am herewith posting the article in advance for information and the benefit of all viewers of my web-site, particularly for the benefit of the advocate viewers, who can, on reading the article, debate the contents in the conference in a meaningful way.

Comment: It is heartening that the spirit of discussion, openness, debate is being fostered in the judicial and legal community. Without support from within, it will be difficult to act against entrenched interests that hold judiciary in a inactive, inert state.

While judges of the subordinate judiciary, which is judiciary up to the level of district courts in a state, i.e. on the civil side, civil judge (junior division), civil judge (Senior Division) and district judge and on the criminal side, comprising of judicial magistrates of first class, chief judicial magistrates and sessions judges, are all made accountable in respect of their acts, judicial or non-judicial, as they are amenable to the disciplinary control enforced and supervised by the respective high courts of the states within which the subordinate courts are located, and that can definitely, to a great extent, take care of the need for ensuring judicial accountability of the judges in the subordinate judiciary.

However, the position insofar as judges of the superior courts i.e. the judges of the high courts and the supreme court, are concerned, it is strictly governed by the provisions of the Constitution of India and in so far as the judges of the superior courts are concerned, the only way of disciplining an errant judge of a High Court or the Supreme Court is by way of impeachment by the Parliament as provided in Article 124 of the Constitution of India, particularly, sub-articles (4) and (5) of Article 124, reads as under:

Comment: So this exposes the flaws of the system. Citizens can approach High Court in appeal against order of lower courts, and that may lay to rest any sense of injustice if they have had from the lower courts. However when it comes to incentives and dis-incentives present for judges of superior courts, they are all governed only by constitution and not answerable for misconduct to another authority except by an impeachment procedure which is more difficult to execute than pulling rabbit out of a hat.

...a high court being not a court subordinate to the supreme court, supreme court cannot have any say in the matter of the functioning of the high courts and the only authority of the supreme court vis-a-vis high courts is on the appellate side, as provided under the laws and under the Constitution.
The Chief Justice of India, in so far as the relative position for such purpose is concerned, is more like a serpent without fangs, who can only hiss, but not bite, which will be an open secret in no time and the serpent will not be feared by any one, however manacing it may look, however loud it may hiss! Unfortunately, that is the reality. ...

With the constitutional mechanism and the inside mechanism failing to usher in any measure of judicial accountability, the only alternative is by taking the issue to the people who are the masters in our polity.

It is so, as we are a federal system governed by a written Constitution, which proclaims that our country is a SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC REPUBLIC, as envisaged in the preamble of our Constitution, reading as under:

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:

Comment: It is clear that Justice Kumar believes situation to be serious enough that the existing mechanisms of control, good sense, moral authority etc within judiciary are not going to work! So the mechanism left is for common citizens to raise their voice and shape the emergence of new standards of judicial accountability.

The first persons who come to know that a judge is not conducting properly while functioning on the judicial side are the lawyers who are appearing in the case the moment an order is passed by the Judge in the court hall ! Of course, a judgment reserved and rendered later may also send signals as to the manner in which the judgment is produced, whether the judge was guided by the merits of the matter and on the submissions made in the course of hearing and on a proper evaluation of the whole thing, or on other considerations. This will be obvious to the lawyers the moment they go through the judgment.
It is for the lawyers of this state/country to ensure that the judges behave and conduct themselves in a proper manner in the course of discharge of their judicial functions. That alone can ensure a degree of judicial accountability and as a result we can have an independent, responsible and effective judiciary, with the help and assistance of the enlightened, responsive, vigilant members of the Bar and not otherwise.

Comment: It is commendable that Justice Kumar is trying to involve the legal community into reforms on judicial accountability. However a suspicion in public remains, and this is by no means due to the low trust public has of lawyers in general, that if legal community makes its living by functioning in courts; can they retain their sense of independence and raise voice against judicial misconduct?

It is the duty and the responsibility of the members of the Bar to ensure that the judiciary not only remains fiercely independent, upright, effective and useful for the people of the country, but also that the members of the judiciary do not go astray, do not deviate from their duties and responsibilities, do not misuse or abuse their powers and achieve this objective by boldly and openly bringing to the notice of the judge himself/herself, if there are such instances or signs of deviations. This is a very onerous responsibility bestowed on the members of the Bar in our legal system and unless the lawyers fulfill this obligation towards the society, they will be failing in their professional duty !

Our courts are open courts and the functioning of judges is in open courts and to the glare and visibility of members of the public. That is the greatest safety and assurance of an upright quality judiciary...

Comment: Indeed, this seems to me the greatest safeguard against usurpation of control by self-seeking authorative powers in a democracy. This can work provided a critical mass of judiciary is seen to be non-corrupt and of high moral authority. There is a critical point of no return which one crossed can destroy all confidence of public in the systems and institutions of democrary.

Following are excerpts from a book JUDGES’ written by Sir David Pannick, quoted by Justice Kumar in the same article:

Unless and until we treat judges as fallible human beings whose official conduct is subject to the same critical analysis as that of other organs of government, judges will remain members of a priesthood who have great powers over the rest of the community, but who are otherwise isolated from them and misunderstood by them, to their mutual disadvantage.
It is wholly undemocratic to treat the public as children who are unable to accept the inescapable shortcomings of man-made institutions … The best way to bring about the elimination of those shortcomings of our judicial system which are capable of being eliminated is to have all our citizens informed as to how that system now functions. It is a mistake, therefore, to try to establish and maintain, through ignorance, public esteem for our courts [Cited in Jerome Frank, Courts on Trial (1949) (1973 Ed.), p.40].
It is unlikely that men and women will ever cease to wound, cheat, and damage each other. There will always be a need for judges to resolve their disputes in an orderly manner. As people grow ever less willing to accept unreservedly the demands of authority, the judiciary, like other public institutions, will be subjected to a growing amount of critical analysis. The way in which ‘Judge & Co.’ [Jeremy Bentham’s term for the judiciary: in The Works of Jeremy Bentham (ed.Bowring, 1843), vol.5, p.396] is run is a matter of public interest and will increasingly become a matter of public debate.”

1 comment:

  1. It is really commendable that Justice Kumar has expressed his views forthright without a hint of hesitation in light of the happenings in Karnataka High Court vis-a-vis Justice Dinakaran's corruption case.

    Judicial Accountability is indeed of atmost importance and CJI's office has to be more responsive in buidling and revamping the legal system for the people to have faith in the judicial process.