India: Judicial transparency and accountability – the nation has a right to know

Asian Human Rights Commission *

Supreme Court : Highest seat of justice in India :: Pix - TSE

A Statement by the Asian Human Rights Commission on January 22, 2018

The press conference held by Justices Jasti Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph on 12 January 2018 is a watershed event in Indian judicial history. Four of the five most senior judges of the Supreme Court of India, appealed to the conscience of the nation, to intervene, failing which the judges cautioned that "… democracy can't be protected in this country."

Since then, jurists, politicians, former and siting judges have commented in favour of and against the judges speaking to the media. However, all assert that no effort should be spared so that the 'confidence of the public' in the judiciary is restored. The Indian judiciary is not free from controversies. Most of this is due to the suspicious conduct of judges, of all ranks, particularly concerning questions of transparency in court proceedings and allegations of corruption. Today it is public knowledge.

The incumbent chief justice too is facing his share of such accusations. The hurried manner in which the chief justice formed a constitutional bench, and then dismissed with heavy costs, two petitions that sought the court's intervention to investigate a corruption case, in which a former high court judge from Orissa is already in detention, is an example. These two petitions were earlier heard by a two-judge bench led by Chelameswar, who referred the case to a five-judge constitutional bench to decide the matter.

The chief justice quashed the order issued by Chelameswar, held that he cannot be 'ordered' to form a constitutional bench, as he is the master of the roster, and formed a bench with judges of his choice and dismissed the petitions.

The problem in doing this was the allegations by Prashant Bhushan, the advocate for one of the petitioners, the Campaign for Judicial Accountability and Reforms(CJAR), that strongly suggested that the chief justice himself could be one of the accused in the corruption accusations made. The statements made by the four judges in the press conference should be viewed also in this context.

There are other instances from the recent past where the chief justice intervened to form benches of his choice, wherein none of the four judges who called for the press conference, who are known for their integrity and professional expertise, were asked to join. It is in this context that the statement made by the four judges that "… there have been instances where cases having far-reaching consequences for the nation and the institution had been assigned by the chief justice of this court selectively to the benches 'of their preference' without any rationale …" must be examined.

By holding the press conference, and appealing to the conscience of the nation, four of the five senior-most judges in India have called for the attention of the country to ensure transparency in procedures and accountability of the judiciary. At the moment, there are no independent mechanisms to ensure this.

A solution to the issue is not easy to formulate. There is an increasing demand in India, mostly fuelled by the political parties, to setup new procedures to decide on appointments, transfer, promotion, and disciplinary actions against judges.

The problem with this demand is that, in the procedures so far suggested, political parties is pitched to play the key role. Given that the judiciary being the only instrument with which corrupt politicians are to a certain degree made accountable in India, a process wherein the politicians play a key role regarding the fate of the country's judiciary will be the last day of an independent judiciary in India.

The roles of the judiciary and the legislature though equally important in a democracy, are widely different. That is precisely the reason why the selection process of judges and legislators are different in India. The maturity of democratic institutions and their political and procedural history also plays a significant role in this.

Accountability and transparency within an institution, is also a culture that has to be aggressively promoted and painstakingly ensured. With respect to the judiciary, this is an excruciatingly challenging task, particularly in countries where independent procedures do not exist, and in places like India, where every other state institution, other than the judiciary, is widely perceived to be deeply corrupt.

That said, an alarmingly high number of former senior judges in India, including many former chief justices are accused of nepotism and corruption. The fact that none of these accusations have ever faced an independent investigation, has left these judicial officers not being able to clear their name from the controversies, or punished if they were guilty. Over time, this has led to a highly diminished public image about the country's judiciary.

In addition to the diminished perception that the common person has of the Indian judiciary, there are issues of enormous delays in the country's justice process while at the same time the fast pace with which the judiciary has often intervened in matters not necessarily important to the public cause, sticks out. The fast pace and intense interest with which the Supreme Court intervened in the case relating to the administration of the Board of Cricket Control, while thousands of other cases of the ordinary people but of national importance are yet to be decided, is an example among many. One cannot therefore find fault with the ordinary person should there be an allegation that the Indian judiciary functions in one manner concerning the rich and influential and in a completely opposite manner for the rest.

The issue that the four most senior judges in India have raised before the nation is important. Through the unprecedented act of holding the press conference, and by appealing to the nation, they have chosen to follow Judge Jerome Frank's advice in his book Courts on Trial: Myth and Reality in American Justice.

Judge Frank had said: "It is wholly undemocratic to treat public as children, who are unable to accept the inescapable shortcomings of man-made institutions. The public I think can "take it". Our people need not be coddled, and should not be deluded. It is the essence of democracy that citizens are entitled to know what all their public servants, judges included, are doing, and how well they are doing it. The best way to bring about the elimination of those shortcomings of our judicial system that are capable of being eliminated is to have all our citizens informed as to how that system now functions. It is a mistake therefore to try to establish and maintain, through ignorance, public esteem for our courts."

Ensuring accountability and transparency to the judicial process is not an easy task. This must not be left exclusively for the judges of the Supreme Court to decide, as the chief justice is now trying to do, literally over closed-door sessions of tea or lunch. This issue is of national importance. The nation has a right to know whether the concerns expressed by the four senior judges are true and how they would be answered. Failing to do so is the ultimate threat to India's democracy.


** The Asian Human Rights Commission (AHRC) works towards the radical rethinking and fundamental redesigning of justice institutions in order to protect and promote human rights in Asia. Established in 1984, the Hong Kong based organisation is a Laureate of the Right Livelihood Award, 2014.