Judicial Accountability in India: Key Issues

Judicial Accountability in India: Key Issues

Question: Judicial accountability is of prime importance in any nation. The AG recently objected to the selection of a judge by collegium on grounds of having delivered just 7 decisions. Discuss the key issues underlying judicial accountability in India.

• Judicial performance without scrutiny is like liberty without accountability

• Constitution of India protects judges against the will of the masses, Parliament and Central Government

• It does not provide for accountability of judges

• Furthermore, judge can only be impeached by the Parliament on grounds of proved misbehaviour or incapacity

• Many cases of judges escaping impeachment despite questionable conduct are there: For example CJI of Sikkim HC P.D. Dinakaran, Justice Soumitra Sen, of the Kolkata HC and CJI of Madras HC Justice k. Veeraswami

• Judges hold office during good behaviour in India as well as the UK and the US

Concept of Misconduct

• Misconduct according to the apex court is a relative term connoting wrong or improper conduct

• Judges Enquiry Bill holds that persistent and wilful failure to engage in performance of duties is within the definition of misconduct

• Writing fewer judgements does not imply misconduct

• However, besides impeachment, there is no mechanism in India to assess judges accountability or evaluate their performance

• Historically, during the Roman era, judges were liable for damages due to failure to do any one of the following:

- Hear both sides equally
- Adjourn for just cause
- Appear in court at appointed time
- Give judgement in good faith

• In Sweden till 1976, judges were subjected to mild criminal sanctions and ombudsmen could initiate action and prosecute them

• Denmark even has a Special Court of Complaints since 1939 for hearing complaints against judges

Importance of Judicial Accountability

• Judicial accountability is as crucial as accountability of executive or legislature

• Judicial accountability promotes 3 discrete values:

- Rule of law
- Public Confidence in Judiciary
- Institutional responsibility

• While judicial independence is the fundamental structure of the Constitution, it is not an end in itself

• It is the quality of judgements and not the quantity which determines the competence of the judge

• For instance, key US states have a merit plan under which judges are not only appointed on merit, but their continuance in service hinges on non partisan elections

• Some states such as Arizona and Utah also have Judicial Performance Review Commissions or Councils comprising judges, lawyers and citizens

• NY and Alaska have trained court observers who make unscheduled court visits

• Judges should be evaluated on the following:

- Knowledge of Law
- Integrity and Sincerity
- Communication Skills
- Sentencing impartiality

• Regular evaluation of judicial performance ensures greater accountability yet there is no institutional mechanism for this

• No performance evaluation is done for judges in India’s SC

• National law universities should publish a critical evaluation of judgements in journals for promoting judicial accountability

Facts and Stats

• Most judges have written judgements in lower than 50% of the cases they have hear

• Many have written opinions in less than 30% of the cases
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