Judicial Accountability

No person, however high, is above the law. No institution is exempt from accountability, including the judiciary. Accountability of the judi...

No person, however high, is above the law. No institution is exempt from accountability, including the judiciary. Accountability of the judiciary in respect of its judicial functions and orders is vouchsafed by provisions for appeal, reversion and review of orders. 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 or the High Court for proved misbehaviour or proved incapacity, by what is popularly called the process of impeachment, whereunder two thirds of the members of each House of Parliament can vote for the removal of the judge. So far, only one impeachment proceeding has been initiated against a Supreme Court judge. It failed because Congress abstained from voting and consequently two-thirds majority was not available. It is now generally accepted that the present impeachment process is cumbersome, time consuming and tends to get politicised. It needs to be reformed urgently.

The National Commission to Review the Working of the Constitution NCRWC has made certain worthwhile recommendations in the matter:

8226; A committee comprising the Chief Justice of India and two senior-most judges of the Supreme Court be exclusively empowered to examine complaints of misbehaviour and incapacity and deviant behaviour of all kinds against Supreme Court and High Court judges.

8226; The Committee will examine whether there is any substance in the complaints. If there is a prima facie case calling for a fuller investigation and enquiry, the matter will be referred to a Permanent Committee consisting of three judges to be constituted by the President in consultation with the Chief Justice of India. The report of the Committee will be submitted to the CJI who shall place the same before a committee of seven senior-most judges of the Supreme Court. The seven-judge Committee shall take a decision as to whether any charges are established and if so, whether they are serious enough to warrant the judge8217;s removal, or whether a warning to him or other directions with respect to allotment or withholding of work to him by the concerned Chief Justice would be sufficient. If the said seven-judge committee recommends removal, it shall be a convention that the judge promptly demits office. If he fails to do so, the matter will be processed for being placed before Parliament.

It is understood that legislation in this connection is on the anvil. Variations to NCRWC8217;s recommendations may be suggested. What is crucial is the composition of the Committee. It should be exclusively judicial unlike a Commission for appointment of judges which may well include a member of the executive or a distinguished jurist or an academic. In the anxiety to enforce judicial accountability, judicial independence should not in any manner be impaired.

Dissenting Judgments

Under our Constitution, the law declared by the Supreme Court is the law of the land and is binding on all persons and authorities. Unanimity in the Court8217;s pronouncements on significant constitutional issues is eminently desirable. Dissents however are inevitable. Are they also desirable? One judicial view is that dissents tend to weaken the effect of the opinion of the majority and thus engender want of confidence in the conclusions of courts of last resort. A contrary view is that dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day.

The celebrated Justice Holmes was the Great Dissenter in the US Supreme Court. Some of his dissents are gems of literary style and legal scholarship. In our Supreme Court, Justice Subba Rao was the Great Dissenter, invariably in favour of vindicating the fundamental rights of our people. Interestingly, dissents both in the US Supreme Court and our Supreme Court have over time become majority opinions. A notable instance is the dissent of Justice Fazl Ali in 1950 in A K Gopalan case in which he held that the procedure contemplated by Article 21 is not any procedure but one which conforms to principles of natural justice. Twenty-eight years later, the dissenting view of Justice Fazl Ali was adopted by the Supreme Court which ruled that the procedure must be fair, just and reasonable.

Story continues below this ad

Unanimity has eluded our Supreme Court in every seminal case dealing with Articles 29 and 30 which guarantee cultural and educational rights to the minorities. Beginning with its advisory opinion in the Kerala Education Bill through its judgments in St. Xavier8217;s College, St. Stephens and ending with TMA Pai there have been sharp dissents. The issue has recently been again addressed by the Court. Its judgment is keenly awaited. The likelihood of an unanimous judgment is remote. However, one hopes that despite lack of unanimity the judgment will not lack clarity necessitating manifold subsequent applications for its clarification.