Justice Shah Talks About Need For Accountability And Transparency In Judiciary: Key Highlights [Read Full Text]

Justice Shah commenced his speech by highlighting the recent sexual harassment allegation against the Chief Justice of India and how the same was addressed through an internal committee having the Chief Justice himself as one of the three judges. He also pointed out that the entire process was shrouded in secrecy in the name of the protection of judicial independence.

Justice Shah had divided his speech in three sections. Firstly, he revisited the tensions between the concepts of judicial independence and accountability. Secondly, he discussed existing means used in India for judging judges, which are limited, and few and far between. Finally, he envisaged a roadmap to bring about the required change.

Here are some of the notable quotes and key highlights from his speech:

1. The purpose of judicial independence, either of the judiciary as an institution or of an individual judge, is never an end in itself. Its purpose is always to secure judicial impartiality. If a judiciary cannot administer the law fairly and fearlessly, then nothing else is of any consequence.
2. Even though the fundamentals must remain in place, notions of judicial independence and accountability need to be revisited. The judiciary as an institution that merely adjudicates upon disputes between parties is long gone.
3. Perhaps we need to think about softer tools for the judiciary, to tackle circumstances that do not warrant impeachment, but do require some kind of disciplinary action. Soft accountability tools could include warning systems tied to regular performance evaluation, or pre-defined codes of conduct that guide judicial officers on how they should behave in the professional and personal lives.
4. Keeping judges accountable is not a peculiarly Indian conundrum. Many democracies across the world have managed to successfully balance the independence of the judiciary, along with devising a mechanism to deal with judicial misconduct of varying degrees.
5. (Commenting on Judicial Standards and Accountability Bill) If judicial independence is to be protected, accountability measures must be restricted to a judgement by peers. The proposed law surprisingly entrusted the task of framing the code of conduct of judges to Parliament. The whole mechanism was clumsy and not at all satisfactory
6. A new bill on setting judicial standards is necessary, but this must avoid the tropes that the old draft fell into, especially of giving excessive control to the legislature or the executive. Any committee set up under this law must have only members of the judiciary, and no one else.
7. Ideally, a permanent disciplinary committee should be set up at the central level to deal with complaints against judges.
8. No one from the executive should be a part of this committee. This permanent set-up must have a secretariat that is also drawn from the judiciary. If that committee finds that there is a lesser or minor instance of misbehaviour, they may give a warning, reprimand or advisory. If it finds that some major misconduct has occurred, then it may request for the setting up and appointment of a Judicial Inquiry Committee under the Judges Inquiry Act. If the report of such a committee is adverse, then it should be sufficient to proceed against the judge, by going to Parliament.
9. Chief Justice cannot be made an exception to the procedure, as unfortunately is the case today. Any accountability mechanism must apply to all judges, regardless of status or rank. The law and the procedure must also engage with how the Vishakha guidelines can be made applicable to the judiciary, the extent to which the right to information is allowed, and so on.
10. The act of judging is an art and a science that must be constantly honed, practiced and improved upon. Unless a judge receives regular constructive feedback on their performance, it is unlikely that they will consciously make efforts to improve. Patterns of behaviour and conduct and performance should inform remedial measures, such as mandatory attendance of training programmes.
11. When there are elevations to the Supreme Court, the performance of prospective candidates is never taken into account, because there is no material to make an informed decision! Decisions for elevations tend to be arbitrary; often names are bartered between members of the collegium. There is a complete lack of transparency, and perhaps names are even finalised over a cup of tea, as a judge of the Allahabad High Court said.
12. NITI Aayog is reportedly working on a design for this, and that is very well, but I maintain and believe that any such design must come from the judiciary itself, rather than being something externally imposed.
13. In India, I can think of many instances of questionable behaviour that could be brought under this umbrella of judicial conduct. I have often wondered, for example, about the political class that is invited or attends weddings in judges' families. Indeed, very powerful politicians have been seen at events hosted by the same judges who are handling their cases. Similarly, judges attending parties hosted by lawyers is troubling.
14. Judges do not have any pre-set moral codes embedded in their brains that dictate their behaviour the moment they sit on the bench. Indeed, they are as human as the lawyers, plaintiffs, defendants, criminals, witnesses and police before them. To attribute a greater morality to them merely because of the nature of their office is false and dangerous.

Justice Shah concluded his address by citing a famous quote by United Nations Special Rapporteur on the Independence of Judges and Lawyers, Leandro Despouy : "what is at stake is the trust that the courts must inspire in those who are brought before them in a democratic society"

Read the Full Text Here

Full View