‘ Judicial Accountability – The Present Contours and the Way Forward’
My poignant thesis may well be set down in the beginning itself. Judicial accountability is now a catchphrase in many countries. The word ‘ Judicial’ , as defined in the Black’s Law Dictionary, means ‘belonging to the office of a judge’ and the word ‘accountable’ means ‘responsible’. It is thus known that ‘ Judge is responsible for his own judicial act.’ Accountability is the sine qua non of democracy. The concepts of judicial review and judicial accountability, which are similar, and both emanate from the basic premise that power corrupts and absolute power corrupts absolutely. Judicial objectivity should not be taken to mean value neutrality. Generally, in our country, the attitude towards a Judge can aptly be termed as ‘reverential’. Karl Marx said, ‘man is made by his environment’ . Judges like other human beings are not above these traits. Justice Cardozo rightly pointed out, “the decisions of a judge are consideration of social philosophy. He is influenced by inherited instincts, traditional beliefs, acquired convictions and conceptions of social needs. He must balance his analogies, his sense of right and all the rest and adding a little here and taking a little out there must determine as wisely as he can which weight shall tip the scales”. Lord Atkin said, ” justice is not a cloistered virtue, she must be allowed to suffer the scrutiny and respectful, even through outspoken comments of ordinary men”. I am reminded of story of the British Lord Chancellor of long ago who is alleged to have said, in speaking of his power to appoint judges- ‘ I like my judges to be gentlemen. If they know a little law, so much the better.’ Now-a-days, we might say ‘ I like my judges to be people of integrity. If they know a little law, so much the better.’ Judicial philosophy which is to be adapted by the entire judicial community is reflected in the famous quotation of Ravindra Nath Tagore ;
In to the mouths of these
Dumb, Pale and meek
We have to infuse the language of the soul. Sorts of
In to the hearts of these
Weary and worn, dry and forlorn
We have to minstrel the language of humanity.
A fortiori, a bare perusal of our preamble of the Constitution, it suggests that securing ‘Justice’ to all the citizens is the foremost important task of the State. It is not out of scope to say a few words about power, because in a sense the concept of judicial accountability is one promoted by politicians in their constant struggle to free themselves from what they perceive as the shackles imposed upon them by the judiciary.
The Concept Of Judicial Accountability:
Judicial accountability is not the same as the accountability of the Executive or the Legislature or any other public institution. This is because the independence and impartiality expected of the judicial organ is different from other agencies.” To say about judicial power to ordinary citizens, it is seminal to reminisce the old analogy of the motor car. The three-way division of power between the Executive, the legislature and the judiciary like this – “The Executive controls the steering wheel. It decides which way the country will go.’’ The Legislature controls the fuel supply. It votes the money to fund the policies which the Executive proposes. The judiciary controls the brakes. It has the power to say no, when it believes that the Executive and/or the Legislature have over stepped their powers under the Constitution.” It is a useful analogy though it is not a perfect one. The important thing is, that it stresses the fact that by and large the judiciary’s power is a negative one. It should not be seen as a threat to the Executive but simply as a cautionary presence. The judges are the guardians of the Constitution. I should also make an observation that primarily when one speaks about accountability another is speaking about money. “Money is the root of all evil”. And judges really do not have much to do with money. Judicial power is not power over money. It is essentially a power of restraint. Thus in a very real sense judicial accountability is a very different concept from the accountability of Ministers, legislators and Public servants. But, to be fair, this does not mean that judges should not be accountable. As was said by his lordship Justice Verma, the former Chief Jusitice of Indian, “It’s long overdue. With the increase in judicial activism, there has been a corresponding increase in the need for judicial accountability.
The Cycle of Judicial Accountability can succinctly be understood from the following diagram.
As shown in the above diagram, the accountability of Judiciary mainly revolves within above said three parameters.
Mechanisms Of Judicial Accountability.
There are, I mull over, three categories on which one has to consider judicial accountability –
1. Accountability for personal conduct .
2. The personal decision-making .
3. Accountability of the Judiciary as a whole.
Accountability for personal conduct: A judge needs to update himself with not only the changes in the law but also constantly keep abreast with judicial ethics. According to Professor Tarr of Rutgers University in a paper presented in 2007, behavioral accountability seldom raises concerns about judicial independence. In South Africa, where the “transformation” of the judiciary is a major talking point, President Zuma in a speech to the Second Judicial Conference said , “The transformation of the judiciary should be advanced and undertaken without interfering with the principle of judicial independence.” And later – “Transformation means the promotion of a culture of judicial accountability.” It should not occur too often when judges are selected properly that they turn out to be drunkards, fraudsters or high-profile misbehavers. Yet if they do, there must be machinery by which they can be disciplined. There are two conflicting principles involved. The one is that judges must not be seen to be above the law like diplomats with their parking tickets. The other is that the judiciary as a whole should not be brought into disrepute, by the misbehavior of one of its members. Even more so, of course, when the alleged misbehavior turns out to be a spurious charge specifically designed to bring the judiciary into disrepute. This kind of Judicial accountability is usually achieved through the internal mechanisms of the judiciary.
Decisional accountability: Judges should not be forced to resign because of making a decision which is perceived to be wrong. This is a fundamental aspect of judicial independence. There is a general and necessary conflict, or at least tension, between the two principles of judicial independence and judicial accountability. But it is broadly accepted that judges must make their decisions without fear or favour. It necessarily follows that they cannot be disciplined for making a particular decision. But there is a whole built in system to ensure that judges are held accountable for their decisions. Now-a-days the old fashioned protection of “contempt of court” proceedings is frowned upon by the courts. We must face these public criticisms. It is part of our public decisional accountability. And finally, there is the system of appeals and reviews which is designed in an appropriate judicial way to hold individual judges accountable for their decisions. With respect to judicial decision-making the object of judicial independence is to ensure judicial fairness – that judicial decisions are based solely on evidence and law and not influenced by any improper consideration. With respect to judicial decision-making, judicial independence is the freedom to be fair.” In Andra Pradesh State Road Corporation vs. Satyanarayan Transporters the Supreme Court propounded the concept of judicial or quasi-judicial bias in the following words, “it is an elementary rule of natural justice that a person who tried a case should be able to deal with the, matter objectively, fairly and impartially”.
The accountability of the judiciary as a whole: This is sometimes known as the Judiciary’s Institutional Accountability. It is a somewhat shadowy concept because it is essentially an accountability to the public at large. Dato Param Cumaraswamy, former UN Special Rapporteur on the independence of judges and lawyers said in October 2003 – “Judicial accountability is today a catchphrase in many countries. Judges can no longer oppose calls for greater accountability on the grounds that it will impinge on their independence. Judicial independence and judicial accountability must be sufficiently balanced so as to strengthen judicial integrity for effective judicial impartiality. The establishment of a formal judicial complaint mechanism is therefore not inconsistent with judicial independence under international and regional standards.” The judiciary needs to be held in respect by the general public and indeed by the Legislature and the Executive if it is to function adequately. The duty to explain is a major part of the duty to account. Associate Justice Stephen Breyer of the US Supreme Court, at a conference on Judicial Independence in September 2006 put it this way – “The judiciary is, in at least some measure, dependent on the public’s fundamental acceptance of its legitimacy. And when a large segment of the population believes that judges are not deciding cases according to the Rule of Law, much is at stake. As Chief Justice Marshall warned “The people have made the Constitution, and they can unmake it.” And the society around us can undermine the judicial independence that is the rock upon which the judicial institution rests.” Out-of-control judges must be held accountable for their over-reaching, so that self-government and the rule of law can be restored and “judicial dictatorship” ended. As the chief of staff of Oklahoma Senator Tom Coburn declared – “I don’t want to impeach judges. I want to impale them.”” In England, in August 2005, Michael Howard, a former leader of the Conservative Party, launched a strong attack on the Law Lords for what he called their “aggressive judicial activism.” The reason for his attack was their decision that the indefinite detention without trial of foreign terror suspects contravened the Human Rights Act. Shri M.C. Setalvad said, “The powers of the courts in India in controlling arbitrary action by the administration were more far-reaching than in England, and perhaps he invoked at lesser cost and with greater expedition.”
Judicial Accountability – The Present Contours
The concepts of ‘Judicial Review and ‘Judicial Accountability’ are the two arms of our Judiciary with which it strikes out laws that threaten the integrity of the Constitution, which is the only rope holding together a country, in a state of anarchy, religious fanaticism, death, economic and poverty shambles. These concepts along with the Constitution prevent the law from turning into a rope of sand. That which is bought dearly must be dearly kept. The garden is a delicate structure, it needs care, and constant vigilance. Any amount of negligence can cause irreparable damage to the whole institution.
The procedure for impeachment, as the only method of accountability that the Constitution-makers created for the accountability of the Judges, states in Article 124 (4), ” a judge of Supreme Court shall not be removed from office except by an order of the president, after address to each house of the Parliament supported by a majority of not less than two-thirds of the members of that house present and voting has been presented to the president in the same session for such removal on the ground of proved misbehavior or incapacity”. By virtue of Article 128, Article 214 (4) applies to the Judges of High Court also. The expression misbehavior has not been defined in the Constitution. The case Of Justice V. Ramaswami, there is some criticism in public that May 11, 1993 will be remembered as a black day for Parliament and for the judiciary in our country. A fortiori, although the motion for removal of Justice V.Ramaswami being passed unanimously by the members who voted, it failed, bringing to a close the more-than-two-year old proceedings for the removal of Ramaswami. Furthermore, the Case Of Justice Ashok Kumar, in the case of Justice Ashok Kumar, who was appointed an additional judge in April 2003, the Collegium of three senior judges of the Supreme Court unanimously decided not to confirm him as a permanent judge in August 2005 because of adverse reports regarding his integrity. In our fifty-four years of judicial history the only actual impeachment process that took place was that of Justice V.Ramaswamy sitting judge of the Supreme Court, in which he was not impeached as members of the house abstained from voting. Ever since independence, no judge of High Court or Supreme Court has been removed from office.
Judicial power:- Judicial power is increasing primarily in four areas –
1. Judicial Review of Administrative Action;
2. Judicial Overview of the Constitutionality of Legislation;
3. Judicial Protection of Human Rights;
4. Judicial Protection of Minorities.
All of these four functions lead the courts into areas of government where Ministers and Legislators would prefer that they did not pry. Hence the accusations of judicial activism. In many other instances, the Supreme Court has risen to the changing needs of society and taken proactive steps to address these needs. It was therefore the extensive liber alization of the rule of locus standi which gave birth to a flexible public interest litigation system. A powerful thrust to public interest litigation was given by a 7-judge bench in the case of S.P. Gupta v. Union of India. (1981) Supp. SCC 87. The judgment recognized the locus standi of bar associations to file writs by way of public interest litigation. In this particular case, it was accepted that they had a le gitimate interest in questioning the executive’s policy of arbitrarily tran sferring High Court judges, which
threatened the independence of the judi ciary. Explaining the liberalization of the concept of locus standi , the court opined: “It must now be regarded as well- settled law where a person who has suffered a legal wrong or a legal injury or whose legal right or legally protected interest is violated, is unable to approach the court on account of some disability or it is not practicable for him to move the court for some other sufficient re asons, such as his socially or economically disadvantaged position, some other person can invoke the assistance of the court for the purpose of providing judicial redress to the person wronged or inju red, so that the legal wrong or injury caused to such person does not go unredressed and justice is done to him.” In People’s Union for Democratic Rights v. Union of India, AIR 1982 SC 1473 , a petition was brought against governmental agencies which questioned the employment of underage labourers and the payment of wages below the prescribed statutory minimum wage-levels to those involved in the construction of facilities for the then upcoming Asian Games in New Delhi. The Court took serious exception to these practices and ruled that they violated constitutional guarantees. The employment of children in construction-related jobs clearly fell foul of the constitutional prohibition on child labour. In Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161, the Supreme Court’s attention was drawn to the widespread incidence of the age-old practice of bonded labour which persists despite the constitutional prohibition. Among other interventions, one can refer to the Shriram Food & Fertilizer case, (1986) 2 SCC 176, where the Court issued directions to employers to check the production of hazardous chemicals and gases that endangered the life and health of workmen.
Judicial review:- In India the proper position of the Judiciary and its power of judicial review appears to be a via media between the American concept of judicial supremacy and the British system of Parliamentary sovereignty. As was held by American Supreme Court in Marbury.v. Madison in 1803, ” Constitution is what the Judges say it is”. We have developed principles like “fairness” and “legitimate expectation” to justify our probing, and they do not always like it. That however, is not to say that it is wrong. It does mean that we must be cautious and prudent when exercising that power, more particularly when it leads us to tell the government not just what not to do, but what they must do. We must be wary. We must be conscious of the danger of judicial activism in alienating the good will of the public and the executive. It is thus known that the Judiciary in India was endowed with the power of judicial review through which it was a watch dog on the Parliaments powers to make laws and to see that it is kept within the bounds of the Constitution.
Protection of the Constitution:- There is nothing more provoking to the legislature than the striking down by the courts of a legislative enactment on the grounds of unconstitutionality. It is not something we should do without profound thought. We must always be aware of the danger that, if pushed too far, the Executive can introduce a Constitutional Amendment to nullify our action. But fundamentally it is our duty rather than merely our power to do so, and we cannot shirk our responsibilities.
Protection of Human Rights:- Since 1948, the concept of Human Rights, and the concept of the duty of the Courts to protect these rights, if necessary against the power of the state, has expanded enormously. Most countries have a Bill of Rights entrenched in their Constitution. There is usually considerable scope for interpretation, and thus scope for judicial activism, in enforcing these rights. Over and above this, we introduce norms and conventions from International Conventions and Agreements, and concepts from other jurisdictions, giving the impression that we are subjecting our state authorities to external precepts. I remember once telling a meeting of American judges in Washington that there was a danger that the concept of Human Rights had been hi-jacked by the Radical left. I do not however think this is a significant problem for India. Here again, we lay ourselves open to accusations of judicial activism and of interfering with the functions of the other two branches of government. Our defence has to be that that is the very role which has been made for us. As the “braking mechanism” we play that role. You cannot apply the brakes without affecting the movement of the vehicle.
Protection of Minorities:- Democracies are not good at protecting minorities. Somebody once described democracy as – “A very bad system of government, which we use because we have not been able to find a better one.” One of the weaknesses of democracy is that it gives expression, inevitably, to the will of the majority, and may tend to trample on, or overlook, the rights of minority groups. We are the ones who must protect these minorities. It sometimes happens therefore, that we must go against the will of the majority. James Madison, in 1788, set out the problem in this way – “Wherever the real power in a government is, there is the danger of oppression. In our Government the real power is in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the constituents.”
Financial Accountability to the Legislature: This is one of the most aspects to consider as to the subject matter. Sometimes a problem can arise over the budget of the judiciary, which of course has to be approved by the Treasury and incorporated in the Estimates of Expenditure. We cannot usually complain if we do not get everything we want. By the same token, we can legitimately complain if Government seeks to control our activities by putting a strangle-hold on our finances. There has to be a degree of give and take between judicial independence and judicial financial accountability. Different countries will find different ways of solving the problem if it should arise.
Judicial Accountability – The Way Forward
The problem of judicial accountability has been compounded by the Hon’ble Supreme Court of India in the Veeraswami case, in which it declared that no judge of the High Court or the Supreme Court could be subjected to even investigation in any Criminal offence of corruption or otherwise, unless one obtains the prior written consent of the Chief Justice of India. This has resulted in a situation whereby no sitting judge has been subjected to even investigation in the last 15 years since that judgement, despite public knowledge and complaints of widespread corruption in the judiciary. The police does not dare approach the Chief Justice for permission to investigate, unless they already have clincing evidence, which they cannot get unless they investigate. It is a classic catch 22 situation which the judiciary is obviously happy to live with. The recent years witnessed a vigorous debate about the working of our judiciary, including the higher judiciary. At one level, serious charges of corruption, nepotism and acquisition of assets disproportionate to known sources of income have been levelled against some members of the judiciary, raising concerns about the integrity and impartiality of our judicial system and processes. While these have undoubtedly damaged the high regard in which the judiciary is usually held, there is simultaneous appreciation that the judiciary is not only the last bastion for the citizen against state excess, arbitrary behaviour and apathy but also the ultimate guarantor and upholder of the Constitution and democracy. Many recent judgements of both the High Courts and the Supreme Court have enhanced the regard of the judiciary, paving the way for citizen-friendly legislation and protection of human rights. It is increasingly realized that the fearlessness of these judicial pronouncements is predicated on the constitutionally mandated judicial independence from the executive, which should in no instance be undermined. As was observed by the U.S. Supreme Court in Caperton v. A.T. Massey Coal, Co., Inc., in which a shared dissent of Chief Justice Roberts, Justices Scalia, Thomas, and Alito emphasizes that ‘ there is a ‗presumption of honesty and integrity in those serving as adjudicators.‘ All judges take an oath to uphold the Constitution and apply the law impartially, and we trust that they will live up to this promise. We should not, even by inadvertence, impute to judges a lack of firmness, wisdom, or honor ‘.
The Judicial Accountability and Standards Bill – Basic Features of the Bill :- The Bill replaces the Judges (Inquiry) Act, 1968. It seeks to: (1) create enforceable standards for the conduct of judges of High Courts and the Supreme Court, (2) change the existing mechanism for investigation into allegations of misbehaviour or incapacity of judges of High Courts and the Supreme Court, (3) change the process of removal of judges, (4) enable minor disciplinary measures to be taken against judges, and (5) require the declaration of assets of judges.
Judicial Standards:- 1. The Bill requires judges to follow certain standards of conduct. Complaints against judges can be made on grounds of non-compliance with these standards or certain activities such as corruption, willful abuse of power or persistent failure to perform duties. 2. Some activities prohibited under the Bill are: (a) close association with individual members of the Bar who practise in the same court, (b) allowing family members who are members of the Bar to use the judge’s residence for professional work, (c) hearing or deciding matters in which a member of the judge’s family or relative or friend is concerned, (d) entering into public debate on political matters or matters which the judge is likely to decide, and (e) engaging in trade or business and speculation in securities.
A Historic Constitutional Jurisprudence
During the trend of first fifteen years after independence, which was an era of strict and literal judicial interpretation was initiated by the Gopalan cases, there was no confrontation between the Judiciary and the Executive. In 1967, when the Constitutionality of the 17th Amendment was challenged in the Golaknath case, some confrontation was started between Judiciary and Executive. It is not out of scope of this article to discuss some landmark rulings of Indian Judiciary.
• In 1951, in the case State of Madras Vs. Smt. Champakam Dorairanjan, the Hon’ble Supreme Court of India held that caste based reservations as per Communal Award violates Article 15 (1). Yet, First constitutional amendment as to Art. 15 (4) was brought forward. In consequence of this Amendment, the ruling of Supreme Court was made invalid.
• Venkataramana Vs State of Madras,AIR 1951 SC 229, in this case, it was t held that “reservation of posts in favour of any backward class of citizens cannot, therefore, be regarded as unconstitutional”.
• General Manager, S. Rly v. Rangachari AIR 1962 SC 36 , in this case, the majority decision of the Supreme Court held that the power of reservation which is conferred on the State under Article 16(4) can be exercised by the State in a proper case not only by providing for reservation of appointments, but also by providing for reservation of selection posts.
• M R Balaji v. State of Mysore AIR 1963 SC 649, in this case, it was held that the backwardness under Article 15 (4) must be social and educational. In M.R. Balaji v. State of Mysore 1963 (Suppl.) 1 SCR 439 at page 454 The Hon’ble Gajendragadkar. J observed that “economic backwardness might have contributed to social backwardness….” This observation tends to show that Gajendragadkar, J was of the view that economic backwardness may contribute to social backwardness. With respect to the learned Judge, I am unable to agree with his view.
• Chitralekha Vs State of Mysore,AIR 1964 SC 1823, The order of Govt making a classification of socially and educationally backward classes based on economic condition only was held to be justified.
• T. Devadasan v Union AIR 1964 SC 179. (It is to be noted that in Balaji’s case (AIR 1963 SC 649] and Devdasan’s case (1964) 4 SCR 680; (AIR 1964 SC 179) ‘the carry forward’ rule for backward classes far exceeded 50% and was struck down.)
• Jacob Mathew Vs State of Kerala, AIR 1964 Kerala 39, it was held that the classification of socially and educationally beackward classes based on the test of caste,community or religion was inconsistent with the requirements of Article 15 (4).
• Miss Laila Chacko Vs State of Kerala, AIR 1967 Kerala 124, the Hon’ble High Court held that while accepting the means cum caste test for classification of backward classes several factors hav e to be taken into consideration. Classification on the basis of the test of income was rejected.
• Chamaraja v Mysore AIR 1967 Mys 21 , it was observed that ”the guarantee given under Article 29(2) of the Constitution is a guarantee given to individual citizens. That guarantee is not given to any class. Article 15(4) of the Constitution empowers the State to make special provisions for the advancement of any Socially and Educationally Backward Class of citizens or for the Schedule Castes and Schedule Tribes. That Article does not compel the State Government to make any special provision for the advancement of the Classes, Castes, tribes mentioned therein. The State is empowered to make provisions in that regard. But it is not compelled to do so…”
• P. Rajendran Vs. State of Madras AIR 1968 SC 1012, In this case, the Hon’ble Supreme Court justified reservation of seats made caste wise.
• P.Sagar Vs State of AP, AIR 1968 AP 165, In this case, it was observed that Poverty, Caste, Place of habitation, Inferiority of occupation, low standard of education ,low standard of living are considerations for backwardness.
• Periakaruppan Vs State of Tamil Nadu, in this case, the Court held that a classification of the backward classes on the basis of caste is within the permissible limits of Article 15(4), if it is shown to be socially and educationallu backward.
• State of A.P. Vs U.S.V. Balram AIR 1972 SC 1372, In this ruling, following Rajendran and Periakaruppan cases, held that ‘ if a caste as whole was socially and educationally backward, the reservation made of such persons will have to be upheld notwithstanding the fact that a few individuals in that group may be both socially and educationally above the general average”.
• Kesavanand Bharti v State of Kerala, AIR 1973 SC 1461: History may look upon Kesavananda Bharti’s case as the greatest contribution of the republic of India to Constitutional jurisprudence. The Hon’ble Chief Justice Sri Sary Mittra Sikri held that ”the fundamental importance of the freedom of the individual has to be preserved for all times to come and that it could not be amended out of existence. Further held that ”fundamental rights conferred by Part III of the Constitution of Indian cannot be abrogated, though a reasonable abridgement of those rights could be effected in public interest.” The points urged in this famous case are that 1) Golaknath’s case was rightly decided and the Parliament should not have the right to abridge any fundamental right, having regard to Article 13 as it stood before the Amendment. The 24th Amendment, which made Article 13 subject to the provisions of Article 368, is invalid. 2) The whole Article 31C, which abrogates for certain purposes the fundamental rights, is invalid. 3) The Parliament cannot exercise its amending power to alter or destroy the basic structure of the Constitution so as to make the Constitution lose its identity, and the latter part of Article 31C which excluded judicial scrutiny is invalid.
• K.S.Jayasree Vs. State of Kerala AIR 1976 SC 2381 , The Hon’ble Supreme Court observed that in ascertaining the social backwardness of the class of citizens it might not be irrelevant to consider the caste of the group of citizens.
• Minerva Mills Ltd Vs Union (1980) 3 SCC 625 : AIR 1980 SC 1789, In this case, it was observed as : ” I would therefore declare Section 55 of the Constitution (Forty-second Amendment) Act, 1976 which inserted Sub-sections (4) and (5) in Article 368 as unconstitutional and void on the ground that it damages the basic structure of the Constitution and goes beyond the amending power of Parliament. But so far as Section 4 of the Constitution (Forty-second Amendment) Act, 1976 is concerned, I hold that, on the interpretation placed on the amended Article 31C by me, it does not damage or destroy the basic structure of the Constitution and is within the amending power of Parliament and I would therefore declare the amended Article 31C to be constitutional and valid. ”
• Akhil Bharatiya Soshit Karamchari Sangh Vs Union (1981) 1 SCC 246 , In this ruling, it was observed as under:: These forces nurtured the roots of our constitutional values among which must be found the fighting faith in a casteless society, not by obliterating the label but by advancement of the backward..”
• K. C. Vasant Kumar v. Karnataka, AIR 1985 SC 1495, in this ruling, the Court opines that the test of economic backwardness was the only criterion that can be realistically devised to determine social and educational backwardness. The Hon’ble Sri Chief Justice Chandrachud, further added that ” in regard to Schedule castes and Schedule Tribes (SCs & STs), the existing reservations should be continued without the application of means test upto 2000AD The Hon’ble Chinnappa Reddy, J in Vasanth Kumar points out that the social investigator “…may freely perceive those pursuing certain ‘lowly’ occupation as socially and educationally backward classes.
• Indira Sawhney & Ors v. Union of India AIR 1993 SC 477, the question that who are the other backward classes came up for consideration again in this case. Four distinct sets of views are discernible from this ruling. The Hon’ble Sri Justice Jeevan Reddy, held that reservation contemplated under Article 16(4) should not normally exceed 50%. However, certain extraordinary situations inherent in the great diversity of this country and people warrant the state to exceed 50%. ( To know more, see this ruling).
• Unni Krishnan v. State of A.P. and Ors. (1993 (1) SCC 645), Held:Every child/citizen has a tight to free education up to the age of 14 years and thereafter it is subject to limits of economic capacity and development of the State-State obliged to follow directions contained in Article 45-Article 21 to be construed in the light of Articles 41, 45 and 46.
• R K Sabharwal Vs St of Punjab AIR 1995 SC 1371 : (1995) 2 SCC 745, In this case,the Supreme Court observed: “When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said Backward Class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the Backward Class have already been appointed/promoted against the general seats. As mentioned above the roster point which is reserved for a Backward Class has to be filled by way of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the backward Class. The fact that considerable number of members of a Backward Class have been appointed/promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservationfor the said class but so long as the instructions/rules providing certain percentage of reservations for the Backward Classes are operative the same have to be followed. Despite any number of appointees/promotees belonging to the Backward Classes against the general
• NTR University of Health Science Vijaywada v. G Babu Rajendra Prasad (2003) 5 SCC 350, In this case also, it was observed that ”In Indra Sawhney (supra) it has been clearly held that the doctrine of principles of reservations have to be applied having regard to the vacancy position as existing in the entire area, the only exception being the cases,which would be falling under Article 16(4)”.
Mulling over all these judicial pronouncements, it is clearly known that from 1950-67, judicial decisions reflect more of judicial restrain than judicial activism. However, a history may look upon Kesavananda Bharti’s case as the greatest contribution of the republic of India to our Constitutional jurisprudence.
Conclusions And Suggestions:
1. Undoubtedly, Indian Judiciary is the most creditable organ of the government and Judges the high priests that occupy the pedestrial. A fortiori, a Judge like Caesar’s wife should be above suspicion, a Judge is looked upon as an embodiment of justice and thus the slightest suspicion on his professional or personal conduct may cast an ugly shadow on the whole institution.
2. Independence of the judiciary means independence from the Executive and the Legislature, but not independence from accountability. Therefore, The Committee on Judicial Accountability proposed that the Parliament amend the Contempt of Court Act 1971 to make it clear that any criticism of court however severe and imputation against the judge or Judiciary shall not constitute of contempt of court, unless the imputation are both baseless and malafide.
3. The judiciary’s Institutional Accountability lies primarily to the general public. The judiciary needs the support of the public and that support must be earned. The best way of earning that support is by making sure the public understands our decisions. The best way to account to the public is to explain to the public.
4. Judicial activism creates a certain demand for accountability, particularly from the Executive and the Legislators, which we cannot shrug off by reliance on judicial independence.
5. Particularly where we are entrusted with a creative as opposed to a purely protective role we must accept a greater degree of accountability. This will arise usually in four sets of circumstances – (a) Judicial Review of Administrative Action; (b) Protection of the Constitution; (c) Human Rights cases; (d) Protection of Minority Rights.
6. It is a fundamental principle that every institution must be accountable to an authority which is independent of that institution. Yet somehow, the judiciary propogated a view that the judiciary can only be accountable to itself.
7. It is true that no public institution can survive in a democratic set up unless it retains public confidence. Judiciary is no exception to it. It, therefore, becomes the primary responsibility of the members of the District judiciary to plan their working and behaviour inside and outside the court room so as to enable them to hold the public expectations of fair, impartial and speedy justice from them. Not only introspection but learning of the codes of ethics is necessary for them.
8. The concepts of ‘Judicial Review and ‘Judicial Accountability’ are the two arms of our Judiciary with which it strikes out laws that threaten the integrity of the Constitution, which is the only rope holding together a country, in a state of anarchy, religious fanaticism, death, economic and poverty shambles. These concepts along with the Constitution prevent the law from turning into a rope of sand. That which is bought dearly must be dearly kept.
9. The garden of Judiciary is a delicate structure, it needs care, and constant vigilance. Any amount of negligence can cause irreparable damage to the whole institution.
10. To cap it all, the Hon’ble Supreme Court has by an amazingly creative interpretation of the Constitution taken over the power of appointing judges in its own hands. The words “appointed by the government in consultation with the Chief Justice” in the Constitution were interpreted as “appointed by the government on the advice of the Chief Justice”! Thus, the judiciary has effectively become a law unto itself, unaccountable to any one by declaring itself as sui generis. I conclude, with profound sense of hope, that Judicial accountability is successfully forwarded through the internal mechanisms of the judiciary.
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9. Raina, S.M.N., Law Judge and Justice, 1979
10. Seervai, H.M., Constitutional Law of India, 1983
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2. Reservations In India. http://www.allindiareporter.in
1. Oxford Dictionary
2. Black’s Law Dictionary
Table of cases.
• State of Madras Vs. Smt. Champakam Dorairanjan, AIR 1951 SC 226
• A.K.Gopalan’s case
• Venkataramana Vs State of Madras,AIR 1951 SC 229,
• General Manager, S. Rly v. Rangachari AIR 1962 SC 36 ,
• M R Balaji v. State of Mysore AIR 1963 SC 649
• Chitralekha Vs State of Mysore,AIR 1964 SC 1823,
• T. Devadasan v Union AIR 1964 SC 179.
• Jacob Mathew Vs State of Kerala, AIR 1964 Kerala 39
• Miss Laila Chacko Vs State of Kerala, AIR 1967 Kerala 124,
• Chamaraja v Mysore AIR 1967 Mys 21
• P. Rajendran Vs. State of Madras AIR 1968 SC 1012
• P.Sagar Vs State of AP, AIR 1968 AP 165,.
• Periakaruppan Vs State of Tamil Nadu
• State of A.P. Vs U.S.V. Balram AIR 1972 SC 1372,
• Kesavanand Bharti v State of Kerala, AIR 1973 SC 1461
• K.S.Jayasree Vs. State of Kerala AIR 1976 SC 2381
• Minerva Mills Ltd Vs Union (1980) 3 SCC 625 : AIR 1980 SC 1789,
• Akhil Bharatiya Soshit Karamchari Sangh Vs Union (1981) 1 SCC 246
• K. C. Vasant Kumar v. Karnataka, AIR 1985 SC 1495
• Indira Sawhney & Ors v. Union of India AIR 1993 SC 477,
• Unni Krishnan v. State of A.P. and Ors. (1993 (1) SCC 645),
• R K Sabharwal Vs St of Punjab AIR 1995 SC 1371 : (1995) 2 SCC 745
• Indira Sawhney Vs. Union of India. AIR 2000 SC 498,
• NTR University of Health Science Vijaywada v. G Babu Rajendra Prasad (2003) 5 SCC 350,
• Caperton v. A.T. Massey Coal, Co.,
• Andra Pradesh State Road Corporation vs. Satyanarayan Transporters
• Shriram Food & Fertilizer case, (1986) 2 SCC 176
• Marbury.v. Madison in 1803.
• Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161
• Menaka Gandhi v. Union of India, 1978 SCR (2) 621