INTRODUCTION

The judicial system of the country, far from being an instrument for protecting the rights of the weak and oppressed, has become an instrument of harassment of the common people of the country. In fact it has become the leading edge of the ruling establishment for pushing through neo liberal policies by which the resources such as land, water and public spaces left with the poor are being increasingly appropriated by the rich and the powerful. While the system remains dysfunctional for the weak and the poor when it comes to protecting their rights, it functions with great speed and alacrity when invoked by the rich and powerful, especially when it is for appropriating the land and public spaces from the poor. The courts are increasingly displaying their elitist bias and it appears that they have seceded from the principles of the Constitution which set up a republic of the people who were guaranteed "Justice- social, economic and political"1.

The problems with the judicial system begin with the lack of access to the system for the weak and the poor, partly because of the procedurally complex nature of the system, which can only be accessed through lawyers who are unaffordable to the common people. On top of this is the delays and lethargy of the system, which makes justice a distant dream even for people who can afford access to the system.

Compounding this further is the problem of corruption in the system exacerbated by a total lack of accountability of the higher judiciary. The layers of protection from accountability afforded to judges include the lack of any effective disciplinary mechanism, the self acquired protection from even being investigated for criminal offences, the virtual immunity from public criticism due to the law of contempt, and finally by the immunity from public scrutiny by another judicially created insulation from the Right to Information Act.

The most serious problem has however been created by the elitist and anti poor bias of the judiciary. It has essentially become an instrument for protecting and furthering the interests of the rich and powerful, both Indian and foreign. Thus judges who have taken the Oath to defend the Constitutional principles of Justice-Social, economic and political have ordered the bulldozing of the homes of lakhs of jhuggi dwellers, leaving them homeless on the streets. They have ordered the removal of lakhs of street vendors and rickshaw pullers from the streets of Delhi and Bombay, thus effectively depriving them of their livelihood. By their "creative reinterpretation" of labour laws they have effectively deprived citizens of the protection afforded by the laws. They have thus accomplished the corporate friendly "labour reforms" which successive governments have not had the political mandate to do.

It is clear that the judicial system needs to be reclaimed and reinvented by the people of the country, so that it can come to function in accordance with the philosophy of the Constitution. The system will need to be cleared of procedural complexities and cobwebs so that it can be accessed by the common citizens without professional lawyers, who have become a part of the exploitative judicial system. It will need to be strengthened to deliver justice quickly, efficiently and honestly. Whatever, additional financial allocation or additional judges are required for this must be done. For this, the various layers of protection created to shield the judges from accountability would have to be peeled away. To begin with, the clause relating to scandalizing the judiciary would have to be deleted from the Contempt of Courts Act.

The system of appointments of judges would have to be made transparent and such that the proposed appointees can also be scrutinized from the point of view of their sensitivity to the ideals of the Constitution. An independent Judicial Commission would be needed to examine complaints against judges and hold them accountable. The immunity from criminal investigation would need to be withdrawn. The Right to Information Act would need to be strictly enforced particularly for the judiciary. In fact, every judicial proceeding must be video-taped and its record made accessible to the people.

None of these changes would however be made by the ruling establishment of the country without sustained public pressure from below. Both the executive and the judiciary are obviously happy with the existing state of affairs. The judiciary enjoys enormous power without accountability and the government is happy with a judiciary which enthusiastically promotes its neo liberal policies. The only judicial reforms that the government appears to be interested in is market oriented reforms such as increasing arbitration which is a form of privatized system of justice for the wealthy.

The judiciary has long been regarded as a holy cow that was considered out of bounds for people outside the select circle of lawyers, judges and government Commissions. It is increasingly clear that it would be suicidal for the common people to ignore it any longer. That is why several organisations, which work with common people came together to organize this convention. We hope and expect that this convention will kick start a people's campaign and movement on this important issue2. The contours and strategies of this campaign will be worked out, but one element would definitely be a concerted effort to keep a close watch on the actions and judgments of judges particularly from the point of view of class and communal bias, arrogance, corruption and non-adherence to Constitutional principles. The threat of contempt must be ignored and mass contempt will have be committed if any attempt is made by the judiciary to use the contempt law to discourage this scrutiny.

HISTORICAL BACKGROUND OF THE ANGLO-AMERICAN CONCEPT

The early English judiciary was an extension of the king’s authority1 or that they dispensed the king’s justice and they served at the king’s pleasure, their appointment terminating with the death of the king. The phrase that has been used to describe them – lions under the throne which indicated that they posed no threat to the king from such a position; they roared not at, but for, the throne. Though it is not that they had no such thing as autonomy, for they exercised considerable discretion in the modeling of the common law and they were appointed from the ranks of a relatively autonomous legal profession, they were however kept on a very short leash when it came to anything that might encroach upon the monarchy itself2. The power they exercise was basically non-threatening to the status and interests of the monarchy.

During the 17th century the monarchy was twice undermined, first by the English Civil War which demonstrated that kings could be executed, whereafter by the Restoration (The Glorious Revolution) which showed that royal authority was something that could be offered conditionally. In the 18th century when the monarchy was on a steady retreat from administrative functions, the judiciary too was extricated therefrom and placed in a sui generis demarcation bereft of both parliamentary authority and transformation into a bureaucratic one itself. In this twilight stature of the judiciary the concept of Anglo-American judicial independence developed.

In 1701 the Act of Settlement established that judges could be removed only for cause and only by Parliament, i.e. they no longer served during the king’s life or his pleasure, but till their conduct breached expected norms of judicial behaviour on or off the bench. When they were to be removed such, it was not by a unilateral action of the king, but by resolution of both Houses of Parliament3.

This step might be understood fully in analogy to the situation envisioned under the Indian Constitution. The role of the 1701 Act is subject to misinterpretation on grounds that it heaved the judiciary from under the direct control of the king, to place it in direct control of the parliament. The real effect of the Act however was to preclude effective royal control without placing it in direct parliamentary control. The Act of Settlement created an almost magical balance-point; parliament could remove judges, but the process was so difficult, so almost-but-not-quite-impossible, that it never did4. The logical process was completed later in the century with the guarantee of life tenure and with the guarantee of security of salary though there remained some unsolved issues with the interpretation thereof concerning whether the latter implied guarantee as to a salary set by Parliament or whether it prevented reduction of salary for the bench as a whole5. Thus serving long terms with no effective mechanisms of accountability, and freed from either the stick of reduced salary or the carrot of special bonuses, the English judge had no institutional reason not to be as impartial as his professional values required; or,no accountability.

The objective of judicial independence is to make the judges as independent of the government as possible, but should not undermine their dependence, for legitimacy’s sake, on the legal profession itself. Judges must not only be drawn from the ranks of lawyers, but they must be lawyers in good standing who enjoy a reputation among their peers which effectively remains their reference group, and the people to whom they justify their decisions, the community with which they identify and whose respect they value and pursue. Thus it is this dual endeavour to conform to the standard of expectations heaped upon them that effectively keeps the individual judges in restraint from over-reaching of their powers.

HISTORY OF JUDICIAL ACCOUNTABILITY IN INDIA AND ABROAD

A procedure for removal of judges of the high court and Supreme Court by way of address of the Houses of Parliament to the President is contained in Constitution of India, art. 124(4) read with proviso (b) to art. 124(2) and proviso (b) to art. 217(1), for proved misbehavior or incapacity.

Earlier, the Judges (Inquiry) Bill, 1964 was formulated laying down the procedure as contemplated by Art. 124(5) and the Bill was referred to a joint committee of the houses. After elaborate discussion before the committee in which eminent Members of Parliament and the then Attorney General, C.K. Daphtary and M.C. Setalvad, former Attorney General, gave their evidence, the joint committee gave its report on 13 May 1966. The recommendations of the committee were taken into account and the Judges (Inquiry) Act, 1968 was passed providing for procedure for the investigation and proof of misbehavior and incapacity of judges of the Supreme Court (including the Chief Justice of India), the Chief Justices and judges of the high courts, where reference is made by the Speaker or the Chairman to a three- member committee after admitting a motion initiated by a specified number of Members. This is the ‘reference procedure’.

The present Bill of 2005 proposes introduction of ‘complaint procedure’ in addition to the earlier ‘reference procedure’ contained in the 1968 Act. In a ‘complaint procedure’ any person may make a complaint to ajudicial council against judges of the Supreme Court (except the Chief Justice of India), chief justices and judges of high courts.

In the place of the three-Member Committee under the 1968 Act, the Bill of 2005 proposes the constitution of a judicial council of five judges consisting of the Chief Justice of India, two senior most judges of the Supreme Court and two senior most chief justices of the high court and they will investigate and inquire into allegations arising out of a complaint or a reference.

Where the allegations are proved, in the case of a ‘complaint procedure’, the council will submit its report to the President of India who has to forward the same to Parliament.

One of the serious omissions in the Bill of 2005 is the absence of a power in the Council to impose ‘minor measures’ under the ‘complaint procedure’, where the charges which have been proved do not warrant removal but amount to ‘deviant or bad behavior’ which warrant only ‘minor measures’.(Of course, in the case of a reference by the Speaker/Chairman on a Motion for removal, the judicial council may not impose or recommend any ‘minor measures’).

In such cases, in UK, USA, Canada and Germany, the judicial council or similar bodies have been empowered to impose a variety of ‘minor measures’ such as issuing advisories, request for retirement, stoppage of assignment of judicial work for a limited time, warning and censure or admonition (public or private).

‘Minor measures’ were also advocated in the Report of 2001 by the National Commission for Review of the Constitution of India headed by former Chief Justice of India, Justice M.N. Venkatachaliah.

The first case which went up to the Supreme Court in connection with an inquiry under that Act was the case of Justice V. Ramaswami, former Judge of the Supreme Court. In that case, there was a Motion in the House of the People (Lok Sabha) on 28 February 1991 and the Speaker of the House appointed Justice P.B. Sawant Committee on 12 March 1991 after admitting the Motion. The committee gave its report on 20 July 1992, holding some charges proved. Before the committee started functioning, the 9th Lok Sabha was dissolved and it was contended that the Motion in the House lapsed. This plea was rejected by the Supreme Court in Sub- Committee of Judicial Accountability vs. Union of India1 , After the committee prepared the report, a plea was raised that the Judge was entitled to a copy of the report before it was submitted to the House. This was rejected by the Supreme Court in Sarojini Ramaswami vs. Union of India2 . It was observed that the judge may question the report only in case an order of removal was passed by the President.

Thereafter, there were two other judgments of the Supreme Court in connection with the same learned Judge as reported in Krishna Swami vs. Union of India and Lily Thomas vs. Speaker, Lok Sabha3 . When the report of the Justice Sawant committee came up finally for discussion and voting in the House of the People (Lok Sabha), the Motion for removal did not secure the requisite majority and,therefore, it failed.

In the case of certain allegations against Justice A.M. Bhattacharjee, the then Chief Justice of Bombay High Court, the Supreme Court observed in a public interest litigation case, that in-house ‘peer review’ procedure may be laid down by the judiciary for correcting misbehavior or deviant behavior and that where the allegations do not warrant removal of a Judge by address of the Houses, it is permissible for the in-house mechanism to impose ‘minor measures’.

In C. Ravichandran Iyer vs. Justice A.M. Bhattacharjee4, the Supreme Court underscored the need for imposition of certain minor measures in the event of the proved misbehavior or incapacity not warranting removal. Law declared by the Supreme Court in its judgments in relation to the Constitution of India, arts. 121,124 and 217.

The federal judiciaries in US and Canada in their judgments have upheld the imposition of such ‘minor measures’ by a judicial council (notwithstanding the absence of any express provision there fore in the US or Canadian Federal Constitutions) as part of a general power of the judiciary for ‘self regulation’. They have also observed that entrustment of such a power to the judicial councils does not amount to abdication of any part of impeachment power of the federal legislature, inasmuch as the judicial councils may impose only ‘minor measures’ but may not directly remove. They may only recommend removal.

In Chandler vs. Judicial Council5, Harlan J. laid the legal foundation for upholding the validity of minor measures (in that case, it was withdrawal of judicial work under the provisions of the US Act of 1939). He laid down that judicial self- regulation or in-house measures were part of the ‘administration of justice’ and derive force from the general power of the judicial branch to improve its efficiency. Any statute permitting such action is therefore valid, though there is no express provision for imposing such minor measures in the US Constitution.

The US Act of 1939 was replaced by US Act of 1980 and this was again replaced by the US Act of 2002. The 1980 and 2002 statutes of US contain express provisions for imposing ‘minor measures’. So far as removal is concerned, the judicial council of the circuit and the judicial conference of US may only make a recommendation.

The UK Act of 2005 and the Canadian Bye laws issued under the Canadian Act of 1985 and the German Constitution, also provide for imposing minor measures.

In John H. McBryde vs. Committee to Review Circuit Council Conduct and Disability Orders of the Judicial Conference of US6 , in a very elaborate judgment, it was observed by the US Court of Appeals that, in spite of absence of express provisions in the Constitution,such in-house or intra-judicial correctional mechanisms for imposition of ‘minor measures’ were valid and might be imposed by a judicial council, even though there is no such provision for imposing ‘minor measures’ in the US Constitution.

Such minor measures would include (1) issuing advisories, (2) request for retirement, (3) stoppage of assignment of judicial work for a limited time (4) warning, (5) censure or admonition (public or private). In this connection, the Law Commission has referred in this report to the fact that such judicial councils or similar bodies consisting only of judges have been constituted in several countries such as USA, UK, Canada (federal) and States, Hong Kong, Germany, Sweden, Pakistan, Bangladesh, Malaysia, Singapore, Israel, Zambia, Trinidad and Tobago, New South Wales, Victoria.

JUDICIAL ACCOUNTABILITY AND LIMITATIONS ON JUDICIAL INDEPENDENCE

 

Judicial independence, correctly understood, is not an end in itself. Although it is sometimes characterised as such in the flowery speeches of public officials, most thoughtful scholars recognise that judicial independence is an instrumental value - a means to achieve other ends7. As an instrumental value, judicial independence has limits, defined by the purposes it serves. Disagreement persists as to what those purposes are, but most would accept some variation on the theme that judicial independence enables judges to follow the facts and law without fear or favor, so as to uphold the rule of law, preserve the separation of governmental powers, and promote due process8. Given these objectives, one may fairly conclude that judges who are subject to intimidation from outsiders interested in the outcomes of cases the judges decide lack the independence necessary to follow the facts and law. At the same time, one may just as fairly conclude that judges who are so independent that they may disregard the law altogether without fear of reprisal likewise undermine the rule of law values that judicial independence is supposed to further.

Although some trumpet judicial accountability as if it were an end in itself, Accountability like independence is better characterized as an instrumental value that promotes three discrete ends: the rule of law, public confidence in the courts, and institutional responsibility.

First, judicial accountability promotes the rule of law by deterring conduct that might compromise judicial independence, integrity, and impartiality. To say that judicial accountability promotes judicial independence seems counterintuitive. Accountability does, after all, diminish a judge's literal independence; the judge who is made accountable to an impeachment process, for instance, loses her ‘independence’ to take bribes with impunity. But properly employed, Accountability merely diminishes a judge's freedom to make herself dependant on inappropriate internal or external influences that might interfere with his capacity to follow the rule of law. By deterring bribery, favoritism, bias and so on, Accountability promotes the kind of independence needed for judges to adhere to the rule of law.

Second, judicial accountability promotes public confidence in judges and the judiciary. Regardless of whether independent judges follow the law, if the public's perception is otherwise, reforms calculated to render judicial decision-making subject to popular or political branch control are sure to follow, to the ultimate detriment of the rule of law itself. A system of judicial accountability that reassures a sometimes- skeptical public that judges are doing their jobs properly and yet respects the judiciary's independence may forestall resort to more draconian and counter- productive forms of court control.

Third, judicial accountability promotes institutional responsibility by rendering the judiciary responsive to the needs of the public it serves as a separate branch of government. The public is entitled to courts that administer justice effectively, efficiently, and expeditiously. The judiciary spends taxpayer money just like the other branches of government and, just like the other branches, the judiciary must be subject to regulation aimed at making its operations more streamlined and cost effective9.

If there is no written Constitution, the constitutional conventions govern. In our country, the Supreme Court of India laid down more than 42 years ago in Keshav Singh’s case10 special reference No.1 of 1964, as follows:

‘…though our legislatures have plenary powers, they function within the limits prescribed by the material and relevant provisions of The Constitution…’

‘In a democratic country governed by a written constitution, it is the Constitution which is supreme and sovereign11’.

In UK, in International Transport Roth Gmbth vs. Home Secretary, Laws J stated that after the coming into force of the (UK) Human Rights Act, 1998, the British system, which was once based on parliamentary supremacy has now moved from that principle to the system of Constitutional supremacy.

Our Constitution contains checks and balances which require all the three wings to work harmoniously. It has created a separation of powers between all the three branches or wings though the separation, it is now well accepted, is not as rigid as it is under the American Constitution.

The Indian judiciary’s powers of judicial review to declare Parliamentary and executive action ultra vires of the Constitution have been recognised ever since 1950, when the Constitution came into force. Constitution of India, art. 50 states that the state will take steps to separate the judiciary from the executive in the public services of the state.

Judicial independence refers to the independence of the judge as well as the independence of the judiciary as an institution. Individual independence means that the judge is free to decide a case according to law and he may not be interfered with by anybody without process. The Indian judiciary is independent and the Constitution has insulated it from interference both by legislature or executive.

Constitution of India, arts. 121 and 211 prohibit any discussion in the Parliament or state legislatures on the conduct of a judge of the Supreme Court or high court in the discharge of their respective duties. The high courts and Supreme Court are courts of record and have powers to punish for contempt. Under the Constitution of India, arts. 144, all authorities, civil and judicial, in the territory of India will act in aid of the Supreme Court.

Judges are also immune under various laws like Judges (Protection) Act, 1985 from civil or criminal action for their acts, speech etc, in the course of or while acting or purporting to act in the discharge of their official or judicial duties or functions. However, judges have to abide by the oath they have taken, namely, that ‘they will bear true faith and allegiance to the Constitution of India as by law established’.

The fact that the powers of judges are very wide is in itself an indication that the powers may not be allowed to be absolute. Among the constitutional limitations on the judges, the most important one is the provision for ‘removal’ of judges of the high courts/Supreme Court by address of the Houses of Parliament to the President on the ground of ‘proved misbehavior or incapacity’. This is provided in Constitution of India, art. 124 (2) and (4) in respect of judges of the Supreme Court and in view of art. 217, that procedure is attracted to the ‘removal’ of judges of the high court also.

Dato ‘Param Cumarasamy as Vice-President of the International Commission of Jurists and as former UN Special Rapporteur on independence of the judiciary, in his speech in November 2004 at Chennai on ‘judicial accountability’ sated that:

‘Accountability and transparency are the very essence of democracy. No one single public institution or for that matter, even a private institution dealing with the public, is exempt from accountability. Hence, the judicial arm of the government too is accountable’.

As Stephen B. Burbank12; says a ‘completely independent court in this sense would also be intolerable because they would render impossible the orderly conduct of the social and economic affairs of a society’, ‘Courts are institutions run by human beings. Human beings are subject to selfish or venal motives and even moral paragons differ in the quality of their mental faculties and in their capacity for judgment and wisdom’. ‘Wholly unaccountable Judges are likely to deviate from what the law might demand’

Thus judicial accountability is an indispensable counterbalance to the judicial independence, for an unaccountable judge would be free to disregard the ends that independence is supposed to serve’.

In the federal system in USA, the legislature enacted an Act in 1980 which is now replaced by the Judicial Improvement Act, 2002, which enables the judicial council, as part of an ‘in house’ mechanism, to pass final orders short of removal, such as, request for retirement, withdrawal of cases, public or private censure or admonition and where the judge is removed, for disqualifying from holding any other public office etc. the UK Act of 2005, the Canadian Bye laws, Federal Germany’s Disciplinary Rules and all the States in US provide for ‘minor measures’.

International Traditions on Judicial Independence and Accountability

‘UN Basic Principles on the Independence of the Judiciary’ is contained in the resolution of the UN General Assembly dated 29 November 1985 which endorsed the proceedings of the 7th UN Congress on the Prevention of Crime and the Treatment of Offenders passed at Milan, Italy during the period 26 August to 6 September 1985. The UN adopted the basic principles on the independence of the judiciary by consensus. The UN General Assembly subs equently welcomed the principles and invited governments ‘to respect them and take them into account within the framework of their national legislation and practice’, by its proceedings dated 13 December 1985.

As regards independence of the judiciary, the following seven principles were laid down1:

(1) the independence of the judiciary will be guaranteed by the state and enshrined in the Constitution or the laws of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary;

(2) the judiciary will decide matters before it impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason;

(3) the judiciary will have jurisdiction over all issues of a judicial nature and will have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law;

(4) there will not be any inappropriate or unwarranted interference with the judicial process,nor will judicial decisions by the courts be subject to revision. This principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law;

(5) everyone will have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process will not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals;

(6) the principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected;

My point is that the accountability of the judiciary cannot now be seen in isolation. It must be viewed in the context of a general trend to render governors answerable to the people in ways that are transparent, accessible and effective. Behind this notion is a concept that the wielders of power - legislative, executive and judicial - are entrusted to perform their functions on condition that they account for their stewardship to the people who authorise them to exercise such power.

POSITION OF JUDICIAL INDEPENDENCE IN WESTERN COUNTRIES

An accountable judiciary without any independence is weak and feeble. An independent judiciary without any accountability is dangerous13.

In a learned piece by Cyris Das on "Judicial accountability", public and media criticisms of judges and judgments are examined in the context of the use of contempt powers by courts. He finds a basic difference in the use of contempt power between courts in Asian countries as compared to courts in Western countries and queries whether it is because of the cultural factors and attitude towards criticism generally. He quotes with approval the "Latimer House Guidelines" to establish judicial accountability. The two principles contained therein for good governance as they relate to judiciary are: "Legitimate public criticism of judicial performance is a means of ensuring accountability. The criminal law and contempt proceedings are not appropriate mechanisms for restricting legitimate criticism of the courts."

Accountability of Judges

There is constant reference today to the need for judges to be accountable. It is said that judges have greater security of tenure than most people, yet are the least accountable. I disagree. In my opinion, judges are more accountable than most holders of public office. Everything they do is open to public scrutiny. They sit in court, hear cases, and deliver oral or written judgments – all in public14.

Unsuccessful litigants may appeal from judgments which are not to their liking, frequently within a two (sometimes a three) tier appellate structure. Their judgments are poured over, dissected and scrutinized in minute detail.

If judges are proved to be unfit for office, they are liable to removal. The removal process should not be invoked lightly. In particular, it should not be invoked because the community or some section of it regards a decision as unpopular. The appellate process should take care of this. In the United States during the 1980’s, there were considerable numbers of attempts proposing constitutional amendments to contest judicial tenure. Very little came of them.

There should be an appropriate judicial disciplinary mechanism and a system for handling complaints against judges to safeguard both the judges from undue interference with their independence, and the public from abuse of their right to a free, prompt and efficient hearing of their cases.

There is a growing body of opinion that there should be canons of judicial conduct enunciated either by the Parliament or by the judges themselves to ensure that judges remain free from improper influences, handle their cases expeditiously and efficiently, are fair and impartial to litigants, and that they keep abreast of current developments in the law. There can be benefit in these published codes of judicial behavior, subject to the qualification that they are sometimes an exercise in public relations rather than of substance. Fine judges do not need them and poor judges (mercifully few, one hopes) may not heed them.

The Accountability of the Judiciary according to the Guidance to judges agreed by the Judicial Executive Board in July 2006, which is also available on the judiciary’s website (www.judiciary.gov.uk).

Both individual judges and the judiciary as a branch of the state are subject to a number of forms of accountability which are not incompatible with their individual and institutional independence. These are, however, not always understood: nor are the necessary limits to judicial accountability required to protect that individual and institutional independence.

Individual judges and the position of the judiciary as a branch of the state -

In the past, attention has primarily been focussed on the position of individual judges. There was almost no consideration of the position of the judiciary as an institution. The reason for this was that the Lord Chancellor, as the Head of the Judiciary, was responsible through Parliament to the public for the overall efficiency of the justice system. Accountability was thus achieved through the ordinary channel of ministerial responsibility.

There was little need for the consideration of the position of the judiciary as an institution separately from the position of the Department and Minister responsible for the justice system. This has now changed. The respective responsibilities of the Lord Chancellor and the Lord Chief Justice The present position, as now more clearly demarcated by the CRA and the Concordat, is:

1. The Lord Chancellor remains responsible through Parliament to the public for the funding of and the provision of the administrative system for the courts pursuant to Part 1 of the Courts Act 2003. In particular, pursuant to section 1 the Lord Chancellor is responsible for ensuring “that there is an efficient and effective system to support the carrying on of the business of” the courts, that is the provision and allocation of resources for the court service and the judiciary, and for the education and training of the judiciary. The Lord Chancellor is also responsible for setting the framework for the organisation of the court system, including functional and geographical jurisdictional boundaries.

2. The Lord Chief Justice is responsible for deployment of individual members of the judiciary, the judicial business of the courts (including the allocation of work within the courts), and the well-being, training and provision of guidance for the judiciary.

3. There is concurrent responsibility for some matters, for example appointment of Presiding Judges and discipline. Responsibility for other matters is allocated to either the Lord Chancellor or the Lord Chief Justice, but subject to a duty to consult the other.

Accountability was once seen as part of a command and control relationship. Today, however, the concept is more fluid including a number of practices which explain, justify and open the area in question to public dialogue and scrutiny. The difference is captured by Professor Vernon Bogdanor’s distinction between “sacrificial” and “explanatory” accountability.2 The former involves taking the blame for what goes wrong, and forfeiting one’s job if something goes seriously wrong.

Once there is recognition that some practices which fall within the broad and amorphous meaning now given to the term “accountability” are not incompatible with the independence of individual judges and the judiciary, the question arises as to what these are and for what the judiciary should be accountable.

The institutional accountability of the judiciary -

There are clear links between the features of individual accountability and the question of institutional accountability. It is important to distinguish the accountability of the judiciary as an institution from that of the courts as an institution and that of HMCS. This is because of the responsibility of the Lord Chancellor for the resourcing of the courts. For example, if a lack of resources means there are insufficient courts, court staff or judges and the result of this is delay, it is the Lord Chancellor and not the judiciary who is responsible and accountable.

The responsibility of the judiciary for the deployment of judges , training, pastoral issues, part of the complaints and disciplinary system, and the provision of an effective judicial system within the resources provided mean that it is legitimate for there to be some form of accountability in respect of these matters. In respect of those matters on which the judiciary share responsibility with the Lord Chancellor, it is legitimate for there to be a measure of “explanatory” accountability by the judiciary. The remainder of this section considers existing forms of such accountability.

Accountability to the public and amenity to scrutiny by civil society

Some of the forms of accountability discussed above can be seen as an indirect form of accountability to the public. This is so in the case of the formal processes of court proceedings and the appellate process. These enable scrutiny of the outcomes of cases and comment by the press, interested parties and commentators. In addition, there is also the giving of evidence to Parliamentary Committees by representatives of the judiciary on occasions where this is truly necessary and appropriate.

Interviews and media briefings: The giving of interviews and subjecting oneself to questions by representatives of the press and other media is certainly a form of accountability. From time to time, at any rate since Lord Taylor became Lord Chief Justice in 1993, the holder of that office has given occasional interviews and media briefings, as have other senior members of the judiciary.

As Justice Michael Kirby says14:‘In a pluralist society judges are the essential equalisers. They serve no majority or any minority either. Their duty is to the law and to justice. They do not bend the knee to the governments, to particular religions, to the military, to money, to tabloid media or the screaming mob. In upholding law and justice, judges have a vital function in a pluralist society to make sure that diversity is respected and the rights of all protected’.

The Indian higher judiciary is perhaps the most powerful judiciary in the world today and the societal perception of it is high, accountability mechanisms particularly in the disciplining of the judges of superior court and the representative character of the courts have not matched with its power and esteem.

JUDICIAL INDEPENDENCE IN INDIA

The institutional structure established by the constitution balances protections for individual judges with a judiciary dependent on other branches of the government in order to operate its constitutional functions. This arrangement may be construed as an institutional effort to facilitate realization of the values viz., rule of law, constitutional government and democracy.

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