Final paper-judicial standards

ITGD Bureau, New Delhi Indiatoday, Rajya Sabha approves impeachment of Calcutta High Court Judge Soumitra Sen ,IndiToday.in , August 18, 2011.
JUDICIAL ACCOUNTIBILITY
Topic – "Who is to Judge the Judge: Knocking on Accountability's Doors"
"We are strange, and wonderful people, trust us"
- Justice V.R. Krishna Iyer
INTRODUCTION
Judiciary is thought to be an institution with aspiration of public interest along with the public support. In this paper I would try to examine, whether the judges are accountable towards the people in its truest sense. Here through the word accountable I intend to signify in the manner, judiciary justifies their decision making. To a normal person judges are the interpreter of law, so are they justifying the law legitimately?
The concept of judge implies a historical and a sociological evolution. Therefore judiciary has acquired an independent meaning because of its self-governing style, function and working environment. Judges are the protector of structural democratic participation. Thus judicial process is seen as ensuring those rights which can fight for their own administratively, legislatively and otherwise through process that are fair and open to all.
There must be a constitutional authority over and above the conduct of the judges whereby a judge may be removed on the grounds of the miscarriage of justice. Therefore to safeguard our justice the Constitution provides an authoritarian method of choosing the judges.
This research paper shall aim at interpreting key questions as to the accountability of Judicial authorities in India.
Identification of the problem.
Accountable – A general interpretation of the term means responsible for your own decisions or actions and expected to explain them when you are asked. This is in context of the paper, because it has been used to denote the manner in which the judiciary justifies its decision making. It is also a part of the power structure for the decision making process and to control the exercise of power. It is sine qua non of democracy and is facilitated by accountability. Independence and impartiality of the judiciary is the hallmarks of democratic system of the Government in order to protect the rights safeguarded by the Constitution. In the Preamble to our Constitution is it mentioned that Justice – Social, Economic and Political has been made secured for the citizens. The popular process of impeachment has been done for misbehavior or proved incapacity of the Supreme Court or the High Court Judges. "All power is a trust; that we are accountable for its exercise; that from the people and for the people all springs, and all must exist." To avert disaster in democratic system, it is necessary to get the power accountable. Fiat Justitia Ruat Caelum is a Latin legal phrase, meaning "Let justice be done though the heavens fall." The maxim signifies the belief that justice must be realized regardless of consequences. 
Hon'ble 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…" The Rt. Hon. Lord Hewart of Bury, Lord Chief Justice of England, said that it is "essential to the proper administration of justice that every party should have an opportunity of being heard, so that he may put forward his own views and support them by argument and answer the views put forward by his opponents". The Hon'ble Supreme Court held that "No mans right should be affected without an opportunity to ventilate his views". In classical language of metaphor, the God of Justice sits on a golden throne, but at his feet sits two lions- law and equity . A Judge will fail to discharge his duty if he disregards their presence and participation. Lord Widgery, Lord Chief Justice of England since 1971 to 1980, said that "the best judge is the man who should not court publicity and should work in such a way that they don't catch the eyes of the newsmen.
Though impeachment procedures are laid down in the Constitution but there is always a need for effective alternate measures because democracy is ruled by law and Judiciary has been assigned the task of a sentinel on the qui vive to protect the rights and even to hold the scales of justice between the citizen and the state. Judiciary is based on the public trust for which judges are to be answerable for his conduct. He is a person of high integrity and honesty with moral vigor and impervious to corruption or venal influences.
The presidential commission does not confer any moral superiority and that judicial accountability if properly conceived is essential for judicial independence.
The judiciary wing faces a palling task in enforcing democracy and for codifying the rule of law. The formidable challenges derive in part from structural problems within the judiciary, deviant behavior, and complexities in appointment of the judges for which an accountable judiciary is a necessity.
The Judiciary is totally based on the bedrock of "rule of law" which comes under the western liberal tradition. The society has faith in judges, judicial process and the judiciary whatsoever known as "hegemony of ideas." The legal processes do give a degree of confidence which is going to be vulnerable due to low standards and values, will ruin the faith which seemed to have the status of an ideology. Critical analysis as done by social scientists with regards to the judiciary's work is either limited to jurisprudence and most part lies hidden in legal discussions, surfacing into popular journalism and public controversies leads to a drastic condition of the public support.
The faith in judges extends from a general faith in the judicial process to a personal faith in the judges themselves. Exclusion from judicial review and for cases like corruption in the judiciary will lead occasions for public controversy. There is an establishment of the judiciary which provides management of interests in the operation of fair and efficient institution. Judiciary has an implication in the society as "others abide our question, thou art free." Judiciary is such a dynamic institution where decisions are held to affect the lives of the people, as much the legislative enactments do. Accountability is the only tool used to justify, legitimate, and perhaps the control of the exercise of power.
The primary accountability sets the institution to claim directly accountable seeking to justify its decisions. The secondary accountability exists where an institution claims to be indirectly accountable, justified through some institution. The judges are not the interpreters or creators of all but as Oliver Wendell Holmes asserted that "judges legislate but they do so interstitially." The political realities of the theory of the separation of powers do include the political spectrum among the judges during the time of appointment. Matters of salary of being a judge of higher authority and the policies of transfer gives rise to the syndrome of sycophancy and flattery. But the judges may claim secondary accountability for their work as the law was made by the legislature and they are only the interpreters of it. It barely survives in respect to the interpretation of statutes. Judiciary seeks to justify itself on the basis of sui generis model. The judge may possess discretion along with a unique power filter through which power is exercised, controlled and contained. The judges decide matter neutrally with an independent, fair and reliable status. Justice Krishna Iyer – "We are strange and wonderful people trust us." Judges also seek to arbitrate over conflicting rights or interests which can be justified on the basis of consideration of universally applicable principles. This is rightly claimed as "a noble dream". Yet judges are left with the inevitable task of balancing the competing demands of various principles, exercise judgment and decisions. The legal reasoning of judges are the ultimate choice, thereby not controlled by any such accountability. Judges do protect the democratic participation as per the concerning of the protection of rights by taking decisions about the public affairs where the judiciary will come out transparency and openness by being accountable to the people for which it will occupy the high moral ground to claim the accountability. The judiciary stands between the citizen and the State as a bulwark against the executive excesses and misuse of power and no authority should interfere with the paramount parchment in the exercise of functions.
Judges must act in fair and just manner. Judicial independence reveals that judges do have to conceal the unethical behavior. The judges must be maintained within specific rules of conduct and ethical rules.
There is a need to promote judicial governance and accountable to a enquiry commission so that they can provide the highest quality service to the public. There is a need to develop standard for court performances so that the judiciary can assess their own advancement while comparing with similar situated courts. Judiciary must enhance its fundamental vision of total fairness and impartial justice, free from all sorts of interferences in order to sustain democracy.

India is a country where judicial decisions are criticized the Social Scientists, investigative journalism and most importantly by 'We the people of India'.
HIGHLIGHTS OF THE BILL
The Lok Sabha approved the Judicial Standards and Accountability Bill, 2010, which provides for a mechanism for investigation against judges.
The approval came on 30th March 2012 amid din created by some Opposition members on a variety of issues.
The Bill, introduced in December 2010, was brought to the Lok Sabha with fresh amendments in December, 2011. This includes restraining judges from making "unwarranted comments" against the conduct of any constitutional authority.
According to the revised Bill, any judge who makes oral comments against other constitutional authorities and individuals would render himself/herself liable for "judicial misconduct."
Law Minister Salman Khurshid said the Bill seeks to set up a mechanism to enquire into complaints against judges of the Supreme Court or High Courts. It was aimed at striking a "balance" between maximising judicial independence and laying down accountability at the same time for members of the higher judiciary.
The Bill seeks to repeal the Judges Inquiry Act, 1968, but retains some of its key features like power to Parliament to impeach a judge of the Supreme Court or a High Court.
The Judicial Standards and Accountability Bill, 2010 was introduced in the Lok Sabha on December 1, 2010. The Bill was introduced by the Shri M. Veerappa Moily, the Minister of Law and Justice.
.. The Bill seeks to (a) lay down judicial standards, (b) provide for the accountability of judges, and (c) establish mechanisms for investigating individual complaints for misbehaviour or incapacity of a judge of the Supreme Court or High Courts. It also provides a mechanism for the removal of judges.
.. The procedure of removal of judges is presently regulated by the Judges (Inquiry) Act, 1968. The Bill seeks to repeal the Act.
.. The Bill requires judges to practise universally accepted values of judicial life. These include a prohibition on: (a) close association with individual members of the Bar who practise in the same court as the judge, (b) allowing family members who are members of the Bar to use the judge's residence for professional work, (c) hearing or deciding matters in which a member of the judge's family or relative or friend is concerned, (d) entering into public debate on political matters or matters which the judge is likely to decide, and (e) engaging in trade or business and speculation in securities.
.. Judges will also be required to declare their assets and liabilities, and also that of their spouse and children. Such declaration has to take place within 30 days of the judge taking his oath to enter his office. Every judge will also have to file an annual report of his assets and liabilities.
The assets and liabilities of the judge will be displayed on the website of the court to which he belongs.
.. The Bill establishes two authorities to investigate complaints against judges. The Two authorities are:
a. National Judicial Oversight Committee; and
b. Scrutiny Panel.
.. Initial complaints will be made to the Oversight Committee, and they will be referred to the Scrutiny Panel.
.. A Scrutiny Panel will be constituted in the Supreme Court and every High Court. It shall consist of a former Chief Justice and two sitting judges of that court. If the Scrutiny Panel feels there are sufficient grounds for proceeding against the judge, it shall report on its findings to the Oversight Committee. If it finds that the complaint is frivolous, or that there not sufficient grounds for inquiring against into the complaint, it shall submit a report to the Oversight Committee giving its findings for not proceeding with the complaint.
.. Frivolous or vexatious complaints may be penalised by the Oversight Committee.
.. The Oversight Committee will consist a retired Chief Justice of India as the Chairperson, a judge of the Supreme Court nominated by the sitting Chief Justice of India, a Chief Justice of the High Court, the Attorney General for India, and an eminent person appointed by the President.
.. If the Scrutiny Panel recommends investigation into a complaint against a judge, the Oversight Committee will constitute an investigation committee to investigate into the complaint. The inquiry committee will consist of not more than three members. It will have some powers of a civil court and also the power to seize documents and keep them in its custody.
.. The investigation committee will frame definite charges against the judge and shall communicate the same to the judge. The judge shall be given an opportunity to present his case, but if he/ she chooses not be heard, the proceedings may be heard without him present.
.. If the charges against a judge are proved, the Oversight Committee may recommend that judicial work shall not be assigned to the judge. It may also issue advisories and warnings if it feels that the charges proved do not warrant the removal of the judge. If the Committee feels that the charges proved merit the removal of the judge, it shall (a) request the judge to resign voluntarily, and if he fails to do so, (b) advise the president to proceed with the removal of the judge. In such a case, the President shall refer the matter to Parliament.
.. A motion for removal of a judge can also be introduced in Parliament by members of Parliament. In such a case, the Speaker or the Chairman can either admit the notice, or refuse to admit it. If the notice is admitted, the matter shall be referred to the Oversight Committee for inquiry.
.. The Bill exempts documents and records of proceedings related to a complaint from the purview of the Right to Information Act, 2005. The reports of the investigation committee and the order of the Oversight Committee shall be made public.
The Judiciary is totally based on the bedrock of the "rule of law" which is the Western liberal tradition seems where general people have faith in judges, judicial process and the judiciary, also known as "hegemony of ideas." The legal processes do give a degree of confidence which is going to be vulnerable due to low standards and values which will ruin the faith which seemed to have the status of an ideology. Critical analysis as done by social scientists with regards to the judiciary's work is either limited to jurisprudence and most part lies hidden in legal discussions which are to be located in the legal journals, surfacing into popular journalism and public controversies leads to a drastic condition of the public support.
The faith in judges extends from a general faith in the judicial process to a personal faith in the judges themselves. Exclusion from judicial review and for cases like corruption in the judiciary will lead occasions for public controversy. There is an establishment of the judiciary which provides management of interest in the operation in a fair and efficient institution. Judiciary has an implication in the society as "others abide our question, thou art free." Judiciary is such a dynamic institution where decisions are held to affect the lives of the people, as much the legislative enactments do. Accountability is the only tool used to justify, legitimate, and perhaps the control of the exercise of power.
The primary accountability sets the institution to claim directly accountable seeking to justify its decisions. The secondary accountability exists where an institution claims to be indirectly accountable, justified through some institution. The judges are not the interpreters or creators of all but as Oliver Wendell Holmes asserted that "judges legislate but they do so interstitially." The political realities of the theory of the separation of powers do include the political spectrum among the judges during the time of appointment. Matters of salary of being a judge of higher authority and the policies of transfer gives rise to the syndrome of sycophancy and flattery. But the judges may claim secondary accountability for their work as the law was made by the legislature and they are only the interpreters of it. It barely survives in respect to the interpretation of statutes. Judiciary seeks to justify itself on the basis of sui generis model. The judge may possess discretion along with an unique power filter through which power is exercised, controlled and contained. The judges decide matter neutrally with an independent, fair and reliable status. Justice Krishna Iyer – "We are strange and wonderful people trust us." Judges also seek to arbitrate over conflicting rights or interests which can be justified on the basis of consideration of universally applicable principles. This is rightly claimed as "a noble dream". Yet judges are left with the inevitable task of balancing the competing demands of various principles, exercise judgment and decisions. The legal reasoning of judges are the ultimate choice, thereby not controlled by any such accountability. Judges do protect the democratic participation as per the concerning of the protection of rights by taking decisions about the public affairs where the judiciary will come out transparency and openness by being accountable to the people for which it will occupy the high moral ground to claim the accountability. The judiciary stands between the citizen and the State as a bulwark against the executive excesses and misuse of power and no authority should interfere with the paramount parchment in the exercise of functions.
Judges must act in fair and just manner. Judicial independence reveals that judges do have to conceal the unethical behavior. The judges must be maintained within specific rules of conduct and ethical rules.
There is a need to promote judicial governance and accountable to an enquiry commission so that they can provide the highest quality service to the public. There is a need to develop standard for court performances so that the judiciary can assess their own advancement while comparing with similar situated courts. Judiciary must enhance its fundamental vision of total fairness and impartial justice, free from all sorts of interferences in order to sustain democracy.


Justice Soumitra Sen of Calcutta High Court is the first judge of the country to be removed with Rajya Sabha overwhelmingly approving impeachment motion against him. AS many as 189 members voted in favour of the motion to impeach the 53 year old Judge after a two day debate on the issue in the second case in the parliament history and the first ever in upper house. Sen was guilty of misappropriating Rs. 33.23 Lakh which were under his custody as a court appointed receiver in the capacity as a lawyer and misrepresenting the facts before a Calcutta Court. Impeachment proceedings followed by motions moved by Sitaram Yechury and Arun Jaitley after an inquiry committee appointed by Rajya Sabha Chairman and headed by Supreme Court Judge B.Sudershan Reddy , held Sen Guilty of misbehavior . Calling upon members of supporting motion, Jethmalani said, " Let us set a good precedent today so that Judges with similar bent of mind get a message that they cannot get away such things.





















NATIONAL LAW UNIVERSITY DELHI

INTERNATIONAL CONFERENCE ON TRANSPARENCY AND ACCOUNTABILITY IN GOVERNANCE: ISSUES & CHALLENGES
Sub Theme: The Judicial Standards & Accountability
Title: Who is to Judge the Judge: Knocking on Accountability's Doors.

Author's Name: Saurabh Kumar
Designation: 4th Year, B.A. LL.B (Hons.)
Dr. Ram Manohar Lohiya National Law University Lucknow

Co-Author's Name: Abhinav Kumar
Designation: 2nd year .B.A. LL.B (Hons.) KIIT Law School