Explainer: Is judges’ assets declaration enough to ensure judicial accountability?

The Supreme Court’s Full Court decision by all 33 judges to declare their assets has been welcomed as a step towards judicial accountability.

Coming in the wake of controversy surrounding the alleged recovery of a huge amount of cash at Justice Yashwant Varma’s house in the national capital, the move is being seen as an attempt to restore public confidence in the judiciary.

Full court decision

In a departure from the current practice, under which the top court judges submit details of their assets to the Chief Justice of India, making the same public voluntarily, the April 1 Full Court decision does not leave it to the judges’ discretion. It will be applicable to both current and future judges.

Background

A 1997 resolution adopted by the Supreme Court Full Court said, “Every judge should make a declaration of all assets in the form of real estate or investment held in their names, in the name of their spouses or any other person dependent on them, to the Chief Justice.”

Following public pressure generated by RTI activists, the Supreme Court judges for the first time decided to make public their assets on the court’s website in 2009. However, the September 2009 Full Court resolution made it voluntary. Even today, only 30 judges, including the CJI, have declared their assets which remain unavailable for public scrutiny.

ICJ practitioners’ guide on judicial accountability

A Practitioners’ Guide on Judicial Accountability prepared by the International Court of Justice (ICJ) provides for mechanisms and procedures to ensure accountability for serious judicial misconduct, such as corruption or complicity in human rights violations, while preserving the independence of the judiciary. “While judicial independence forms an important guarantee, it also has the potential to act as a shield behind which judges have the opportunity to conceal possible unethical behaviour. For this reason, judges must conduct themselves according to ethical guidelines,” it emphasises.

Bangalore principles of judicial conduct

The ICJ Practitioners’ Guide on Judicial Accountability says that “In the international sphere, the Bangalore Principles of Judicial Conduct contain the set of values that should determine judicial behaviour. These values, which are reflected in most codes of conduct, are: independence, impartiality, integrity, propriety, equality, competence and diligence. Grounds for removal based on a judge’s conduct will normally be based on these principles.” It says, “As a general rule, judges can only be removed for serious misconduct, disciplinary or criminal offence or incapacity that renders them unable to discharge their functions. This should only occur after the conduct of a fair procedure. Judges cannot be removed or punished for bona fide errors or for disagreeing with a particular interpretation of the law.”

The problem

Article 124 and Article 218 provide for the removal of a Supreme Court judge and a High Court judge, respectively, for “proved misbehaviour or incapacity”. A judge can be removed from office by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of the House present and voting.  The procedure for removal of judges is provided for in the Judges Inquiry Act, 1968.  But there is no provision to deal with a judge’s misconduct falling short of misbehaviour.

In-house mechanism

In C Ravichandran Iyer versus Justice AM Bhattacharjee (1995), the Supreme Court introduced an in-house inquiry procedure – an internal mechanism to deal with judicial conduct, maintain discipline and uphold ethical standards.

On receipt of a credible complaint against a judge by the CJI, a High Court Chief Justice, or the President, the CJI may ask the Chief Justice concerned to conduct a preliminary inquiry. If the CJ’s report highlights the need for a deeper investigation, the CJI may constitute a three-member committee of two CJs and an HC judge.

If the three-member panel indicts the judge in question, the CJI can advise him to resign or to seek voluntary retirement. However, if the judge ignores his advice, the CJI can intimate the President and the Prime Minister of the committee’s findings, warranting initiation of proceedings for his removal. However, in case of a minor misconduct, the judge may be warned or advised and let off, and the report may be kept confidential.

Way forward

The issue of judicial accountability has been troubling the Judiciary for quite long. What’s needed is a law to address the concerns raised in the wake of Justice Varma controversy. The government may consider reviving the Judicial Standards and Accountability Bill, 2010, which proposed declaration of assets and liabilities by judges, provided for judicial standards, and processes for removal of judges of the Supreme Court and high courts.  It also proposed an Oversight Committee to issue advisories or warnings to judges and recommend their removal to the President.

Delhi