Sunday, November 11, 2007

Accountability of the judiciary

How to make the judiciary accountable is undoubtedly one of the most important questions in governance today. Whether it is the media or the IIMs or the medical fraternity or the judiciary, one key principle should be upheld: self-regulation is simply not the answer. The merchant bankers used to say the same thing: leave it to us, we will set standards. Stock exchanges used to say that. Accountants in the US claimed it worked for them. Every body of professionals would rather not have somebody from outside looking closely into what they are upto. Sorry, this cannot be permitted.

In an article in EPW, Prashant Bhushan lays out the case for judicial accountability. Today, the only recourse against an errant judge is the process of impeachment. To initiate this requires the signature of 50 MPs. For this, in turn, to happen, there must be conclusive evidence against a judge; and the evidence must be published so that it assumes the proportions of a scandal. But because the media is afraid of publicising charges against a judge and politicians do not wish to invite the wrath of the judiciary, these conditions are almost impossible to satisfy. Bhushan adds that it is virtually impossible to register an FIR against a sitting judge because, under a 1991 Supreme Court judgement, no judge can be prosecuted without the written consent of the CJI.

On top of this, Bhushant points out, courts have been trying to insulate themselves from the Right to Information Act. The application fee in many courts is Rs 500 instead of the Rs 10 that is normally required. Many courts have framed rules that prohibit the disclosure of information on administrative and financial matters. They have done this in the knowledge that any petition that challenges these rules will have to come up before the judges themselves!

The response to the rising clamour for accountability is the Judges Inquiry Act Amendment Bill 2006 under which an in-house procedure will be created for taking cognisance of charges against errant judges. Bhushan argues this won't work because it requires complainants to disclose the source of information for charges and it also provides for action against complaints that the judges believe are mala fide.

Bhushan argues in favour of a National Judicial Commission. The chairman will be selected by the judges of the Supreme Court. Other members will be selected by each of several groups: judges of high courts; the cabinet; a committee comprising the speaker of the Lok Sabha and the leaders of the Opposition in the two houses of parliament; and a fifth member selected by the chairman of the National Human Rights Commission, the CVC and the CAG.

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