The 27th Rosalind Wilson Memorial Lecture, in New Delhi, was delivered by Justice A. P. Shah on the 28th July, 2019.
Justice Ajit Prakash Shah was the Chief Justice of the Delhi and Madras High Courts. He was also the Chairperson of the 20th Law Commission (2013-2015).
At the lecture, he talked about the pertinent issues that the current judiciary in India faces: accountability of judges. He commenced by speech by talking about the recent sexual harassment allegations on the present Chief Justice of India and the accountability mechanisms that exist to monitor these allegations. The issue was addressed through an internal committee having the Chief Justice himself as one of the three judges.
He divided his speech into three sections. In the first section, he revisited the tensions between the concepts of judicial independence and accountability. In the second section, he discussed the existing means used in India for judging judges, which are limited. Finally, he says what he believes needs to change for the better, and a roadmap as to how this change will come about.
Some of the key highlights of Justice Shah’s speech are as follows:
1. The purpose of judicial independence is to secure judicial impartiality. If a judiciary cannot administer the law fairly and fearlessly, then nothing else is of consequence. Impartiality is an essential feature of judicial independence.
2. Maintaining the equilibrium between accountability and impartiality is the real task at hand. The means of accountability adopted can determine the extent of independence granted to the judiciary.
3. Even though the fundamentals must remain in place, notions of judicial independence and accountability need to be revisited. Today, due to the increasing questions of social importance and political issues and the tool of public interest litigation taking over the court’s time, scholars have termed this as the “new judiciary”, a judiciary that acts like an activist.
4. The strongest means of judicial accountability is that of impeachment, or outright removal of a judge, but this involves the executive and the legislative.
5. There is an in-house mechanism, in which when a complaint is filed against a judge, the CJI decides whether it is serious or not, and if it is, then a three-member committee of either the High Court or the Supreme Court examines the complaint. There are many shortcomings of the in-house mechanism. The biggest of these is that there is no statutory basis for the procedure, and certainly no constitutional blessing.
6. Many democracies around the world have managed to successfully manage the balance of independence and accountability of the judiciary, while devising a mechanism to deal with judicial misconducts.
7. In India, the judicial standards and accountability bill was floated in 2011, but eventually lapsed. That draft law had many flaws. 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.
8. 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.
9. A new law should deal with judicial accountability slightly differently. If there is misconduct of any kind, then surely and undeniably, the next obvious process is removal. But judges indulge in dozens of other kinds of misbehaviour, both inside and outside courts. Such actions may not be adequate to commence impeachment proceedings, but require some action. Perhaps a warning needs to be given. Judicial work must be taken away. Even suspension may be an option.
10. Ideally, a permanent disciplinary committee should be set up at the central level to deal with the complaints against judges. The committee must not include any members of the executive. The Secretariat must be drawn from the judiciary. The Secretariat must be capable of filtering the frivolous complaints from the serious ones.
11. In all of this, the Chief Justice cannot be made an exception, as is, unfortunately, the case today. Any accountability mechanism must apply equally to all judges, regardless of rank.
12. Instead of relying on the complaints mechanism, there should be a performance evaluation of the judges on regular intervals. Unless a judge receives regular constructive feedback on their performance, it is unlikely that they will consciously make efforts to improve.
13. “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. They must be constantly reminded of what is appropriate behaviour throughout their career, so that the role that is cast upon them — of administering impartial justice — is never compromised. For that is the only and ultimate goal of the judiciary,” he said.
In conclusion, Justice Shah quoted the 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”. He also said, “a lack of trust in justice is lethal for democracy and development and encourages the perpetuation of corruption.”