In recent history, India’s constitutional adjudication has been amongst the most active in the world. Following its shameful capitulation before Indira Gandhi during the Indian emergency, the Supreme Court of India developed the tool of Public Interest Litigation (whereby a court can deliver prompt social justice, at times by taking up a matter suo motu) and has come to be noted for its interventionist and creative style of functioning.[i] Its activism and accessibility have earned it monikers such as the “people’s court”, “last resort for the oppressed” and “the most powerful court in the world.”[ii] The High Courts have not been far behind in promoting social interest either, judicially inventing rights not explicitly envisaged in the constitution such as those of privacy and dignity, resulting in judgments such as the one in the Naz Foundation case, which decriminalized homosexuality.[iii] Indeed the view in some quarters is that barring a few, Indian apex justices have shown great fidelity to their role of custodians of the constitutional state, much to the country’s good fortune.[iv]
The credit for the judiciary’s pro-active role in securing social justice for the masses is due in large part to the degree of judicial independence that it enjoys. In the current collegium system only judges appoint judges, in theory greatly reducing the effect of the executive in the selection process.[v] The salary and other benefits of a Constitutional court judge cannot be altered to his detriment after his appointment.[vi] Moreover, once a High court or Supreme Court judge has been appointed, he or she will continue to serve till the mandatory retirement age and can only be removed from office on both the Houses of Parliament passing a resolution by special majority for such removal on grounds of proven misbehavior or incapacity.[vii]
All this may however change very soon.
The Judicial Standards and Accountability Bill, 2010, pending in the Rajya Sabha (the upper house), which tries to lay down enforceable standards of conduct for judges, contains many provisions designed to curtail judicial independence.[viii] Apart from mandating that judges compulsorily declare not only their assets and liabilities but also those of their spouse and children, the Bill establishes a National Judicial Oversight Committee to which any person can complain against a judge for misbehavior. This Committee can issue advisories or warnings to judges and can also recommend their removal to the President. Peculiarly but not surprisingly, the Oversight Committee has non-judicial members i.e. a retired Chief Justice of India, and an ‘eminent person’ both appointed by the President as well as the Attorney General of India (a person whose appointment is of a highly political nature). The non-judicial members in the Committee outnumber the judicial members 3 to 2. This has the potential to impinge on the independence of the Judiciary.[ix]
Moreover, the bill does not mention if a judge has the right to appeal to the Supreme Court against an order of removal issued by the president after the Parliament finds him guilty of ‘misbehavior’.[x]
The bill also has a highly contentious clause that seeks to stop judges from commenting against constitutional or statutory bodies or officials in open court. This is a virtual muzzle upon the judiciary and the government has done well by signaling that this ‘gag’ clause (along with other such controversial clauses) will be revisited.[xi]
In spite of all the above mentioned factors, is the Judicial Standards and Accountability Bill a proper device to maintain a check on the courts?
There is at least some belief that the judiciary may be guilty of overreach[xii] and some eminent jurists also think that corruption has seeped into the judicial edifice, noted lawyer Prashant Bhushan going so far as to claim that there was “considerable corruption” in the institution and half of the last 16 chief justices were corrupt.[xiii]In this backdrop, the Bill might do some good.
However the threat to judicial independence is credible enough that the former Chief Justice of India, Mr. S. H. Kapadia, when still in office, highlighted the fact that while judicial overreach can adversely affect the harmonious functioning of the three pillars of democracy, judicial independence should not be dented.[xiv] “The government may make law for making judges accountable. We are not afraid of that. But it should not tinker with the very constitutional principle of judicial independence,” he said.[xv]
While the government has tried to emphasize the fact that accountability will not take away independence but will add to it and re-emphasize it, the days of emergency are a stark reminder of the excesses of governmental power.
Interesting times lie ahead for democracy in India.
[i] Nick Robinson, “Structure Matters: The Impact of Court Structures on the U.S. and Indian Supreme Courts” forthcoming in American Journal of Comparative Law Vol. 61 No. 1 2013, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2061061
[iii] Upendra Baxi, The Judiciary as a resource for Indian Democracy” available at http://www.india-seminar.com/2010/615/615_upendra_baxi.htm
[vi] Justice S.S. Sandhawalia V. Union of India AIR 1990 P & H 198
[vii] Articles 217(1)(b) and 124(4) and (5) of the Constitution of India
[xi] Supra f. 5
[xiv] Supra f.5
[xv] Supra f.12