A succession of scandals involving members of the higher judiciary in the recent past has ensured that the issue of judicial accountability remains in public focus. These cases have served to underline the inefficacy of the mechanisms for appointment of judges of the Supreme Court and the High Courts and sanctioning judicial misconduct, instances of which are being brought to light all too frequently by campaigners for judicial reforms and a vigilant media.
The unexceptionable principle of independence of the judiciary has been invoked to thwart the attempts to bring a measure of accountability and transparency in the working of the judiciary’s arcane in-house mechanisms, which, through a process of incremental judicial interpretation, have been vested with near absolute powers in matters of appointment and discipline. The untenability of the Supreme Court’s position in the matter has been highlighted by the unedifying spectacle of the apex court of the country appealing to itself against the order of the Delhi High Court for divulging information regarding compliance by judges of the Supreme Court of the provision of a voluntarily adopted code of conduct, which requires them to disclose their assets to the Chief Justice.
Meanwhile, public repudiation of the Supreme Court’s position by a section of the higher judiciary has forced the former to post the assets declared by the judges on its website. This does not, however, signify any change in the mindset which tends to equate arbitrary exercise of power and unaccountability with independence. Also in evidence is a reluctance to learn from past mistakes in appointments and transfers of judges and in dealing with the transgressions committed by members of the higher judiciary.
There have been numerous instances of lack of due diligence, cronyism and nepotism in initial appointment, confirmation, promotion and transfer of judges, functions for which the judiciary has arrogated full powers to itself. There have also been cases of wilful disregard of overwhelming evidence of personal impropriety and professional misconduct by judges. The Ghaziabad Provident Fund Scam furnishes the most glaring example of the undue protection extended to judges whose conduct has come under a cloud. The Supreme Court collegium is even reported to have recommended that the judges, who were transferred to other High Courts in the wake of the exposé, should be brought back to their original High Courts. In contrast to such indulgence and accommodation shown to judges accused of misdemeanor and worse, many an outstanding
judge has been ignored for elevation to the Supreme Court. The non-elevation of Justice A. P. Shah, who was allowed to retire as Chief Justice of the Delhi High Court, is a case in point. Evidently, the present systems of judicial appointments and dealing with complaints of judicial misconduct are in the need of a complete overhaul. After much procrastination, the government has come round to the view that a new law needs to be enacted to make the judiciary more accountable. Unfortunately, the draft bill on the anvil betrays a certain timidity and lack of ambition in defining the scope and modalities of judicial accountability. Instead of opting for a broadbased, independent constitutional authority empowered to investigate and punish cases of judicial misconduct, the bill seeks to give a statutory status to the in-house disciplinary mechanism developed by the judiciary.
Likewise, there is no attempt to institutionalise objectivity and transparency in judicial appointments. We have a number of institutional models in the democratic world to choose from and adapt to our circumstances. The government must seek a wider debate on this issue of great public importance and take into account the considered views of eminent jurists, civil society organizations and activists. It will be a great tragedy if the government misses this historic opportunity to create an effective legal framework for curing the systemic disorders of the judiciary and restoring its prestige and credibility, so that it may discharge its constitutional mandate.