Towards a Co-operative Judicial Accountability

ARTICLE 3

TOWARDS A CO-OPERATIVE JUDICIAL ACCOUNTABILITY



































TOWARDS A CO-OPERATIVE JUDICIAL ACCOUNTABILITY
-Ila Sudame

It has been stated earlier in this paper that Judicial
Independence and Judicial Accountability are the corollaries of each other.
Where there is a right, there is a duty; where there is power there is
responsibility and similarly, where there is independence there is
accountability. Thus, Judicial Independence and Judicial Accountability are
the offshoots of each other only aid the development and understanding of
the other concept. The question that now arises for consideration is a more
intricate one and that is whether two corollary concepts are necessarily
conflicting of each other? When two concepts are said to be the corollaries
of each other, are they necessarily perceived as two mutually
irreconcilable concepts? Epistemologically speaking, does there necessarily
arise a conflict between the two or is it just a matter of interpretation
and individual perception?
The concepts of Judicial Independence and Judicial
Accountability function to achieve certain separate ends. One serves to
guarantee the impartiality and a decisional and managerial independence to
this organ while the other serves to maintain a transparency in this organ
and help it stay regulated. The common goal of both is to guarantee the
right to a fair trial and aid in the designing of models of judicial
appointments. At the same time, these two can be secured by adopting the
right models of judicial appointments. Being corollaries of each other,
these concepts overlap. This overlapping only creates some mutual checks
and balances between them. This overlapping of the concepts doesn't really
give rise to any mutual conflict between them. Rather these two concepts
are reconcilable and can most certainly co-exist and aid each other's
development. There is a difference between the overlapping of the concepts
and there being a conflict between them. It is essential to note that the
former doesn't always give rise to the latter. The question of a conflict,
in fact, should be avoided and these two concepts should be rather viewed
as serving each other. The need of the hour specifically is to understand
the reconcilability of these concepts and then work towards the achievement
of an ideal model of Judicial Appointments.


The Judicial organ of the State, amongst the other organs,
indisputably is the one that is required to be conferred a special status
by virtue of being the justice delivery organ of the State. Delivering
justice is essentially a noble function. In order to secure independence to
this organ of the State, it has been very specifically provided by the
framers of our Constitution under Article 50 that measures be taken by the
State to keep the judiciary separate from the executive. It is required to
be appreciated that there is no such specific provision made for any other
organ of the government so expressly by the framers. This goes to show that
judicial independence is of paramount importance and that it can't be
compromised with. The policies of a State are required to be directed
specifically in a fashion so as not to hamper but secure the independence
of judiciary.

The question that arises here is that whether by
mentioning this, did the framers intend to institute an autonomous organ.
Whether the framers have hinted towards creation of a judiciary, an organ
of the government, a public institution that enjoys complete autonomy. The
answer to this is a point blank negative. The rules of interpretation
require a cohesive study of the provisions. The scheme of the provisions in
relation to the judiciary formulated by the framers in consonance with the
preamble of the Constitution aims towards guaranteeing independence to the
judiciary. There is a difference between being independent and being
autonomous. This branch of the government has been given powers of self-
administration and self-governance in order to secure judicial independence
and guarantee a right to a free trial to the citizens. There is no
intention of creation of an autonomous organ. Every public institution is
accountable. So is the judiciary. But the standards of accountability
applicable to the other public institutions and the judiciary are
different. The Judges of the higher judiciary are not "public servants".
They are Constitutional Functionaries. This is done to keep the judiciary
at a completely different pedestal and secure its independence. But the
autonomy of the judiciary is certainly not the scheme of our Constitution.

The Judicial arm of the State is securely independent of
the others. What this term Judicial Independence implies has been pondered
over by elaborating the concepts of institutional, individual, judicial,
decisional, managerial independence, etc. Does this form independence mean
independence from accountability, is a question less answered so far. To
answer this, the purpose of this independence is required to be gathered.
It is very vital to know that the Independence of Judiciary is far from
being an end itself. In the words of Professor Cappelleti, it is nothing
but an instrumental value intended as a means for safeguarding another
value of impartiality of the Judges. The very purpose of having an
independent judiciary is to enable and guarantee the citizens of a State,
their civil, political, etc. rights.
Having understood the true purpose of guaranteeing this
independence to the judiciary, the short answer of a blunt negative to the
question as to whether judicial independence implies independence from
accountability, can now be elaborated. Judicial independence doesn't imply
independence from accountability. Every public institution is subject to an
accountability mechanism. So is the judiciary. The independence given to
the judiciary, rather, does not demand or ask for being excluded from any
kind of accountability. However, as stated earlier, the standards of
judicial accountability are different than any other organ of the State.
The Judicial arm of our State doesn't shy away from being accountable. It
rather welcomes a system of accountability for itself in order to exude
transparency in view of the principle that justice should also be seen to
be done. The Judiciary merely demands a mechanism of accountability which
would also respect its judicial independence for it knows that protecting
this virtue is vital to their function of guarding the Constitution and
protecting the rights of the citizens.


Believing in the harmony of these two concepts, this
article can be further advanced to explore the possibility of having
something that will cement these notions together. The possibility of
having a Co-operative Accountability. This term "Co-operative
Accountability" means and refers to a situation where the actor who shall
be held responsible for his acts, aids in or co-operates in the working of
the system of accountability. In other words, the actor co-operates with
the mechanism of his accountability. The question is whether this can be
achieved. The answer to this is in affirmative. It has been stated earlier,
that the judiciary demands a system of accountability for itself in order
to keep up with the principle that justice must also be seen to be done.
The only requirement of theirs is that it should respect the independence
bestowed upon it by the Constitution as not only are they the guardians of
the Constitution but also the protector of rights. Thus, a mechanism of
accountability which serves this purpose will most certainly co-operated
with by the judiciary. The Judges holding their posts are people held in
high reverence and of solemn qualities. They form this system that
administers justice. They are a part of a noble profession and elevated to
their good offices by virtue of being the people with venerated character.
People of such high virtues shall never shy away from co-operating with a
mechanism of accountability as far as it respects and upholds their
judicial independence. Thus, the idea of achieving a co-operative
accountability is not one that will be faced with a rebellious attitude. It
will be instrumental in harmonizing the functioning of a State and aid good
governance.

To be continued