The recent case of Justice Yashvant Verma has taken the country through awe and shock. The topic of Judicial accountability and transparency is seasonal. The topic is discussed and debated for several days when any case of Judicial corruption gets light or the Judiciary and executive are in a stand-off with one another. Before the case of Justice Yashvant Verma, the cases of Justice S.N. Shukla and the suicide note of the Former Arunachal Pradesh Chief Minister Kalikho Pul, implicating CJI and his successor, Justice Nirmal Yadav, have brought a bad name to the institution.
In India, the Indian Judiciary is cherished as the guardian of constitutional democracy. It is perceived as a bulwark against executive excesses and legislative arbitrariness. The allegations of Judicial Corruption, opacity, and elite favouritism have cast a shadow over institutional integrity and credibility. When the institution tasked with the responsibility of being guardian of the constitution is under suspicion of misconduct, the constitution’s values are at risk. In this situation, the serious question of Judicial reform and transparency stands tall.
The Specter of Judicial Corruption
The allegations of favouritism and incidents of corruption through the collegium system in appointment of Judges at the constitutional court erodes the public trust in the Judiciary. These allegations are also not baseless.
Justice SN Shukla was charged by the CBI for allegedly accumulating assets worth Rs 2.45 crore that are out of proportion to his known income during his time serving as a High Court judge from 2014 to 2019. The case of Justice Nirmal Yadav is another horrendous example. The cash was delivered at the residence of Justice Nirmaljit Kaur, which was to be delivered at the residence of Justice Nirmal Yadav (retd) in a property deal. Justice IM Quddusi (retd.) Judge Orissa High Court was accused of trying to influence court proceedings in a private medical college admission case.
The administrative power of the Chief Justice to assign cases without set parameters or rules has also brought criticism to the institution. People should indeed believe in the integrity and wisdom of the chair, but the institution itself is suspicious of the discretionary power. In January 2018 four senior supreme court judges did a press meeting
Opacity in Appointments and Accountability
India’s Collegium System, a Judicial Construct, is alleged to be an opaque mechanism for judicial appointments. The Collegium System operates without statutory backing or transparent criteria. The system has been criticized for favouring familial and professional connections over merit. The public perception is that the Collegium System guards the gate against first-generation entrants in the professions.
The parliamentary endeavours to bring the National Judicial Appointments Commission, through inserting Article 124-A, by the 99th Constitutional Amendment Act, 2014 and National Judicial Appointments Commission (NJAC) Act, 2014 was struck down by the Supreme Court citing the ‘Judicial Independence’ flowing from Article 50 in the judgement of Supreme Court Advocates-On-Record Association and Anr. v. Union of India, 2015 by 4:1 majority. The critics of the judgement argued that this judgement reinforces the judicial oligarchy.
Moreover, the Judges are shielded from public scrutiny under the Judges (Inquiry) Act, 1968. The Judges (Inquiry) Act of 1968 makes impeachment motions, consequently resulting in the removal of the only way to remove the judge of the constitutional court. The process of removing a judge from the constitutional courts is so cumbersome that no judge has been impeached in India to date. In India, the judges of the constitutional courts are not bound to make the asset declaration by the Lokpal and Lokayuktas Act, 2013 and the judicial interpretation of the same.
Global Lessons: How Other Democracies Ensure Transparency
The Vedic teaching says, “A no bhadrah kratavo yantu visavato ‘dabhdhaso apariitas’udbhidah’ (Rig_Veda 1.89.1) (May good concepts come to us from every side, un-beguiling, unhindered, and beneficial). Giving a Lesson that we can learn from all jurisdictions to ensure judicial accountability to keep intact the integrity associated with the institution.
In the United States, federal judges go through the Senate confirmation hearing vis-à-vis the mandate of financial disclosure by the Ethics in Government Act of 1978, a federal law of the USA. In the United Kingdom, the Judicial Conduct Investigations Office (JCIO) investigates complaints against judges independently. The JCIO of the UK deals with complaints against court judges, judges, and non-legal members of tribunals and coroners. In South Africa, there is a rule for mandatory asset declaration for judges. By the effect of South Korea’s Public Service Ethics Act of 1993, in South Korea, high-ranking public officials, including judges, are required to mandatorily disclose their assets.
The Way Forward
To ensure the integrity and the trust of people associated with the judiciary of India, the judiciary needs to step ahead in order to further judicial transparency and judicial accountability.
The NJAC was an appreciable initiative by the parliament. It comprised the Chief Justice of India (as the chairperson ex officio), along with two other senior judges of the Supreme Court, the Union Minister in charge of Law and Justice, and two eminent persons nominated by the committee comprising the Prime Minister, Chief Justice of India, and Leader of Opposition (Lok-Sabha) or Leader of the single largest party in the house. The NJAC needs to be reinstated for the appointment of Judges of the Constitutional Court.
The Public Asset Declaration is essential to maintain judicial transparency and bring judges under public scrutiny. There should be annual disclosures of judges’ assets and liabilities. The clear Case Allocation Rules should be framed to prevent bench-fixing, vis-à-vis the Judicial Performance & Misconduct Commission, along with fast-tracking high-impact cases dealing with judicial officers, which are the need of the hour.
Sunlight is the Best Disinfectant
The Indian judiciary and the constitutional courts are not supposed to be an ivory tower, insulated from public scrutiny. The Supreme Court is the court of last resort. The people approach the judiciary when they have exploited all alternate options, with open eyes looking for justice. If the citizens of India start perceiving the courts as bastions of privilege rather than justice, the very foundation of democracy weakens. Judicial transparency is not an affront to independence but rather a safeguard. The time for introspection is now—before silence becomes complicity.
Pranjal Chaturvedi is a Doctoral Research Fellow at Bennett University, and Dr Suhasini is an Assistant Professor at the School of Law at Bennett University (Times of India, Group)