Judicial Transparency in India – Problems, Concerns and Way Forward

With the retirement of Justice Arun Mishra on September 2, not only the strength of the Supreme Court judges will get reduced to 30 from the total 34 but the regional imbalance will get further accentuated. As many as nine high courts are not represented at all in the apex court and with Justice Mishra’s retirement, this will rise to 10. Justice Mishra belongs to the state of Madhya Pradesh and he is currently the only representative from the state. The high courts of Jammu and Kashmir, Himachal Pradesh, Tripura, Chhattisgarh, Jharkhand, Manipur, Meghalaya, Sikkim and Odisha have no judges in the Supreme Court currently. In this context the way in which the system of appointments is currently functioning needs a serious rethinking as advocated by recent survey published in May 2020 by Vidhi Centre for Legal Policy with a majority of the surveyed advocates demanding greater transparency in its operation.

 

In this context, let’s make a detailed analysis on the matter of judicial transparency in India.

What is Transparency?

• Transparency can be seen as a fundamental characteristic of modern democracies.
• Transparency helps to ensure the citizens’ control of and participation in public matters.
• In reality, Transparency should include the ability of citizens to request access to public information and the state’s duty to generate information and make it broadly accessible to citizens.
• Another crucial pillar of transparency is empowering citizens to hold states accountable to these obligations.

Why Transparency is important in judicial institutions?

• Because it promotes accountability, combats corruption, and helps eliminate arbitrariness, Transparency is particularly important in judicial institutions.
• It facilitates greater judicial independence and enhances public confidence in this way.
• The level of trust and the legitimacy of judges and others operating in the justice system can be enhanced by a policy of transparency and access to public information, thereby enabling the society to understand its operation, challenges, and limitations.
• Thus, Transparency fundamentally reassures society that justice is served.

What is mean by Accountability?

• Accountability is a position where the person takes responsibility for its actions and performances by either giving reasons or for avoiding punishment.
• Accountability only arises when you have a certain responsibility towards someone.
• It is a relational term that arises between two individuals.
• An important feature of accountability is that the person held accountable is for some sort of performance, he has done or supposed to be done, basically a task or his duty that he is entitled to.

What is Judicial Accountability?

• It describes the view that judges should be held accountable in some way for their work. This could be public accountability like getting approval from voters in elections or accountability to another political body like a governor or legislature
• A clear example of the judiciary being unaccountable is itself being exempted from the Right to Information Act,2002 till the recent judgement of the Supreme Court by which it brought the office of CJI Under RTI. This was fogging way the transparency till then.
• This Act was a main legislative change to bring in more transparency and accountability to which the higher judiciary did not comply with.
• The Supreme Court in Manohar s/o Manikrao Anchule v. State of Maharashtra & Anr stated that it is undoubted that transparency is important or rather say sine qua non to democracy, and if an authority is made accountable, probability of errors becomes less The protection of Rule of Law in the country has also been assigned to the bold and independent judiciary, for which the judiciary needs to be transparent and constitutionally sound.
• The judiciary when setting down standards of morality and behaviour for others should also make sure that they follow it on their own.
• For example, the Indian judiciary has the power of Contempt of Court if anything said or done to lower the reputation of the judiciary, the courts apply the standard of New York Times Co v. Sullivan standards against public officials in defamation cases.
• This standard was laid down in a decision of the U.S Supreme Court where even a neglected statement said against a public official will not be defamatory unless it has been stated with “actual malice” and completely careless of the truth.
• However, this standard of the New York Times does not apply to the speech implicating judges of the Indian Courts. That is for everybody else, this standard is applied, but when there is an issue regarding a judge the weapon of contempt of court is used without a second thought. For example the recent suo moto proceedings for criminal contempt against Advocate Prashant Bhushan for his tweets against judges of Supreme Court and CJI.
• One of the greatest threats that the independence of the judiciary is the erosion of the credibility of the judiciary from the minds of right-minded people. And like Lord Lanning stated, it’s a sad day when the right-minded people walk away thinking that the judge is biased.

What is mean by Judicial Independence?

• It is a term that has two distinct meanings as it applies to matters of the judiciary.
• It refers to the idea of separation of powers, called institutional independence in one context, where the judiciary is kept separate from other branches of government.
• The major reason for establishing judicial independence is to avoid improper and unwanted influence on the court from the other branches of government.
• The other context which is commonly used is called Decisional independence
• Decisional independence refers to a situation whereby judicial decision-making is able to exist free of undue influence from outside agents who are acting from partisan or special-interest motivations, rather than being motivated by the demands and ideals of justice.

Conflict between Judicial Accountability and Judicial Independence

• As per the description given on the blog Ratio Juris, “judicial independence and judicial accountability seem to pull in opposite directions.“
• There is a lack of accountability if a judge is completely independent.
• On the other side, a completely accountable judge may feel pressured to rule in ways that please those to whom the judge is accountable.
• For example, some are of the view that the judicial elections are a good tool for keeping judges accountable while others argue that forcing judges to campaign puts undue pressure on them to bend to the will of voters and campaign contributors.
• To strike the correct balance between independence and accountability, many opinions have emerged on the way.

Appointment of judges v. judicial independence

• The Appointment of judges is another controversial topic where the judiciary is resisting transparency for the longest of times.
• The RTI applications that were filed for transparency were also rejected on a confidential basis.

Collegium System

• The appointment of the Supreme Court judges is made by a Collegium system comprised of the Chief justice of India and four other judges, on whose recommendation the President appoints the Supreme Court Judge.
• The Constitution merely states that the President will appoint Supreme Court judges in consultation with the Chief Justice of India and such other judges of the Supreme Court, as he may deem necessary.
• However, the Constitution does not talk about whose opinion will prevail if there’s a difference of opinion or even what is the exact criteria for the selection of judges.
• The judiciary is not only independent of political and executive influences, but also about their vices and So it is very difficult to take away the judicial independence.
• Dr B.R. Ambedkar in The Constitutional Assembly Debates stated that Everybody agrees to the fact that for democracy to sustain, the Judiciary must be kept independent as well as competent in itself. However, the question is how can these two objects be secured”
• The judicial system must be independent, no doubt as it is also the basic structure doctrine, but it shall also be competent in it.
• Judicial independence is not an alibi for misbehaviour or arbitrary nature of decisions.
• Accountability and transparency will only ensure competency and efficacy in this system

The National Judicial Appointments Commission (NJAC)

• The collegium system, however, was challenged and replaced by the NJAC Bill 2014. It was the Constitution (one hundred one Amendment) Act that brought about a change to the appointment of the judiciary.
• Judges appointing judges was a violation of the principle of natural justice and due to which there was no transparency nor accountability nor any criteria for appointment.
• With the NJAC more participation was ensured from the government making it a more transparent process.
• The composition included the Chief Justice of India, with two senior-most judges, the law minister and two eminent persons chosen by the Prime Minister, Chief Justice of India and the leader of the opposition.
• NJAC bill 2014 would regulate the procedure to be followed by the commission.
• The commission had functions to
  • Recommend the chief justice of India and other judges of the Supreme Courts
  • Recommend transfers of Chief Justice and other judges of the High Court
  • Ensure the people who are recommended are of ability and integrity.
• However, The NJAC was challenged because it was harming the independence of the judiciary.
• Independence of the judiciary is the basic structure of the constitution.
• NJAC was struck down as unconstitutional.
• The validity of NJAC was struck down in the case of Supreme Court Advocate-on-Record v. Union of India, where a constitution bench with a majority of 4:1 struck it down stating it to be ultra vires to the Constitution.
• The NJAC was a way to ensure transparency and accountability in the judiciary, but with striking down of this system the judiciary has added yet another controversy to their state of affairs where judiciary once again is looked upon and questioned if it does justice as a foremost Right to People.

Allocation of Cases V. Transparency in Judiciary

• The sole authority to allocate cases is given to the chief justice of India.
• The chief justice puts together benches as well as transfer cases whenever he feels like.
• There is no proper protocol or method or criteria that are followed when it comes to allocating these cases to certain judicial officials.
• On January 12, 2018, a rebellion against the then chief justice of India, Deepak Misra was in the news. Justice Chalameshwar, Justice Rajan Gogoi, Justice Madan B Lokur and Justice Kurian Joseph had written to the judge expressing their concerns and asking for an explanation for the allocation of cases.
• It was for the first time in the constitutional history of India that judges were conducting press meet to express their concerns.
• There was hardly any transparency and the judge would allocate the cases as per his preference. This becomes a cause of concern among the judges and it lacked transparency.
• The entire system cannot be termed corrupt, there will be a certain group of people that do their work diligently and loyally to their nature. They uphold the rule of law and deliver justices impartially and with utmost fairness.
• However, having no power in the allocation of cases, they all do have a similar school of thought or philosophy with which they write their judgments.
• Many a time one sees in a bench, even if the judges are coming to the same conclusion their reasons for arriving so are completely different.
• The chief justice, knowing and predicted who will give what kind of justice can also use this to his advantage and allocate cases accordingly.
• One cannot term this as purely corrupt, but there’s a vacuum created here as no judge knows where and how he will be transferred or which cases will be allotted.
• Lack of transparency and accountability gives rise to such situations.

Sexual Harassment and Judicial System

• Another growing concern in the Indian Judicial System is the sexual harassment that takes place in the judicial office.
• The Former Chief Justice of India Justice Ranjan Gogoi was accused of sexually harassing a woman employee in the Supreme Court.
• This event has brought limelight on showing the seriousness of the prevailing issues existing at the Apex Court.
• This is not the first case in which the accused culprit is a judge. Sexual harassment has a history in the judicial office
• Judges have themselves put in guidelines in the Vishaka judgment about how a sexual harassment matter needs to be handled, but nor have they followed it themselves, nor is there any matter in public about how the issues have been dealt with.

What are the problems and concerns related to Judicial Independence?

• There exists a lack of transparency in the working of the judicial system.
• There exists no sense of accountability as well because the judges are judging themselves.
• The principle of Natural Law states that ‘no man can be a judge in his own cause’ but in the judiciary, we see the judges appointing themselves as well as adjudicating upon themselves.
• Guidelines created by the judiciary apply to the judicial office as well, but in reality, we do not see that happening.
• Judicial independence is taken as a blanket over all the issues and used against being accountable for the problems faced.
• With judicial independence, the winners are everyone.” The Supreme Court, in a ruling of the Constitution Bench in K. Veeraswami V. Union of India, held that: Judges are under the law, not above it. Your public life, and even private life to the extent it influences your judicial role should be accountable and transparent to the public.
• There is direct and drastic accountability in India that is the impractical way of impeachment proceedings.
• A proper check and discussion on the way the judges behaved would help us to have more careful judges and a safety check on them without hampering their independence.
• The process of impeachment has also not been drafted with a sense of pragmatism.
• The impeachment process is a very impractical process to go through.
• For the impeachment process to take place a minimum of 100 Lok Sabha signatures and 50 Rajya Sabha signatures are needed.
• This will only happen if two conditions are fulfilled, one that there should be strong documentary evidence against the misconduct of a judge and two that it must have reached a level of a public scandal where evidence and charges are publicized.
• The important point to be noted here is that not even a single alleged judge has been impeached in the constitutional history of India till now. Either It will not get the required majority to pass the resolution in either house of parliament or the judge will resign before it gets passed and because of the judicial immunity, no investigation can be done against that judge after his resignation.
• For the judges to be investigated to find the evidence you need the permission of the Chief justice of India for which the ordinary police are already scared to ask.
• The Chief justice of India would also ask for strong evidence or proof to grant permission which cannot happen till the permission is given hence a vicious cycle continues.
• The media as well is scared to publish any material found against any judge as they might be slapped with charges of contempt of court.

What is the way forward?

• We can make use of key international best practices for judicial transparency in India.
• The first is to provide access to internal information about the judiciary, including judicial selection and appointment, financial disclosures, and court statistics.
• Second is the importance of publishing judicial decisions
  • It facilitates access to the courts by citizens and the press, promotes adherence to the decisions, and enhances consistency in judicial decision-making.

Access to internal information about the judiciary

1. Judicial selection and appointment
   • Appointment of judges using transparent and open processes helps protect judges from undue external influences that may be exerted by the other branches of government or interest groups.
   • Likewise, transparency helps ensure the selection of candidates that meet the basic international standards for qualifications, including high professional standing and the necessary legal skills and experience.
2. Judicial financial disclosures
   • Includes public officials file asset and income disclosure statements
   • Such disclosures have been a key element of anti-corruption efforts worldwide.
   • Build trust in public administration, including the judiciary
3. Publication of court statistics
   • The gathering, analysis, and sharing of statistical information is another important way of increasing judicial transparency.
   • Such information makes it possible to analyze performance, identify achievements, detect problems and, design strategies to solve them

Access to Substantive Work of the Courts

1. Access to the courts by citizens and the press
   • Public access to the courts, including through the media, is important to publicize the work the judiciary is doing.
   • Such access can include the recording of court sessions by video, audio or transcription.
   • The press also has a significant role to play in informing citizens about the important work of the courts, particularly with respect to cases with broad public significance.
     • Because citizens do not typically go to the courts to attend a trial.
     • Thus, access by the press to courtrooms whether in person or remotely is one way to facilitate public awareness of these processes and their results.

2. Publishing judicial decisions
   • Access to decisions of the Supreme Court of Justice is particularly relevant since those decisions transcend the cases at issue and affect government institutions and actions more broadly.
   • Such decisions may address matters relating to the rights of individuals or the obligations of the state and thus have a critical influence on the ways in which citizens’ rights are understood and protected.
3. Scope for an independent committee and a Public website
   • Having an independent committee that decides over issues such as a judge misbehaving or having no work ethic.
   • The committee can issue warnings in written forms and temporary suspensions or even fine the judges to discipline them and then impeachment as the last procedure can be adapted.
   • Having a website as a platform for aggrieved laymen can file a complaint against any judge misbehaving or ask for sexual favours that can be made accessible to all
   • It can be presided over by the chief justice and president and when the chief justice is involved with senior Supreme Court judges and the president.
   • Such methods adapted will not harm the judicial independence but incur more transparency and accountability in the system

Conclusion

• The Judicial organ of our country is the guardian of our Constitution. When all other government machineries fail to do their jobs, it is the judiciary, which is looked upon.
• The trust and faith of the people of India are a sine qua non for the judiciary to be running successfully.
• However, in the last few years, we have seen that the integrity and dignity of judges have started to deter.
• Over the years Favouritism, Nepotism, Corruption and bribery have crept their way into the judicial system and have slowly made a permanent home, which is protected by the weapon of Contempt of Court and Unaccountability.
• Judicial accountability is asked or more over demanded because it is the most powerful branch to deliver justice as the first human right to the people.
• The road to securing judicial accountability is still long and hard but proper accountability for such a powerful and vital organ like the Indian judiciary is vital for the survival of the Rule of Law and democracy in the Country.
• By taking a few steps towards a more transparent Judiciary we can soon have an efficient and accountable judicial System where the Rule of Law prevails.

Practice Question for Mains

1.“With judicial independence, the winners are everyone.” Critically Comment (250Words)