Tag Archives: Judicial Accountability

A chance to score a judicial point

In the Justice Karnan row, the judiciary can demonstrate that they will not flinch on accountability

The controversy is entering unseemly territory. Yet, it has presented a never-before opportunity for the judiciary to score an important point in the scheme of constitutional

 

At every stage of being disciplined, Justice C S Karnan has made society suspend disbelief. He has been purporting to pass unprecedented ex parte orders against of the Supreme Court, among others, directing the Chief Justice of India and other not to travel out of India so as to “prevent them from infecting” territories outside India with their anti-Dalit attitude. Whether Justice Karnan’s conduct is contemptuous of the judiciary, whether he is at all of sound mind, and what, if any, the punishment for contempt should be, may eventually be determined judicially. However, there can be no doubt about one fact — his behaviour is eminently impeachable.

 

At the time of this column going to press, no one in authority has used the i-word. The very thought appears to be far removed from serious consideration.  Reasons vary. Some believe that it would be meaningless to do so with the judge having just weeks left in office. Others feel that a judge being impeached would tarnish the history book. Leaving aside what reasons compete for keeping away from impeachment, here is a simple political thought.

 

Impeaching a judge of a high court or the Supreme Court is, for all the right reasons, a tough task. Misconduct by a judge can be lightly alleged by any party unhappy with a judge’s decision. In every litigation, there is at least one party unhappy with the outcome (at times, all parties can be unhappy, but such is life when differences cannot be resolved mutually). Arms of the state, in particular, governments, government agencies and the bureaucracy are the biggest contributor of litigation in the country. This renders vulnerable, and unless effectively protected under the Constitution, it would be impossible to have a credible and respected judicial arm of the state.

 

The constitutional tension and between the executive arm and the judicial arm of the Indian state has been typically informed in recent times, by the debate on It is no judge’s case that must not be accountable at all for misconduct, but it is vitally important to ensure that misconduct is not lightly alleged. The constitutional amendment to change the manner in which are selected and tested for accountability, and the amendment being struck down, has been the high point of this constitutional political tension in the past two years.

 

Now, presents a fantastic opportunity to the judiciary. No judge in the higher judiciary has presented a stronger case for being impeached. Impeachment requires elected members of Parliament to speak up and act. To impeach a judge, misbehaviour or incapacity has to be proven as grounds for tabling an impeachment resolution in any House of Parliament.  In the Lok Sabha, 100 members have to come together to set the ball in motion while in the Rajya Sabha, 50 members would do.  The Speaker in the Lok Sabha and the Vice-president who chairs the Rajya Sabha have to accept that a motion to impeach a judge may be tabled. Each House of Parliament is required to vote with a majority of not less than two-thirds of the members present and voting.

 

At every stage of being disciplined, Justice C S Karnan has made society suspend disbelief. There can be no doubt about one fact - his behaviour is eminently impeachable

At every stage of being disciplined, Justice C S Karnan has made society suspend disbelief. There can be no doubt about one fact — his behaviour is eminently impeachable

If our politicians are serious about judicial and the need to bring to account, an impeachment motion for should be a sitter. Reality is different. The political system will bring into motion the conventional political dynamics for the vote. Justice Karnan’s defence of the indefensible is largely based on one single point — that he is being targeted on caste-based lines because he is a Dalit. Dalit Members of Parliament could call his bluff if they so desire. A government that is said to be committed to finishing off caste-based — with a beginning having been made in the Uttar Pradesh elections —and indeed, said to be committed to bringing in an era of judicial accountability, should easily find 100 members in the treasury benches of the Lok Sabha or 50 members in the treasury benches of the Rajya Sabha to do the task of setting the ball in motion.

 

If Supreme Court were to transparently (read, publicly) ask for such a motion to be passed, it would set the cat among the pigeons.  Parliamentarians would have to deal with having been called upon to play their constitutional role — something they say they are keen to see do properly. And, if Parliament flounders, whether on caste lines, linguistic lines, or indeed any political lines (the nuanced and intense floor management in the 1990s when Justice Ramaswami’s impeachment motion was considered by Parliament comes to mind), the judiciary would have proven its point — that the judiciary will not flinch from taking to the logical and ultimate end, and it is the political system that is unable to handle it. It would prove to Indian society that the legislative obsession with how are appointed, while important, is not founded on outcomes but on the of who may occupy high judicial office.

 

On the other hand, if Parliament indeed acts to impeach Justice Karnan, that would in itself be a milestone in India’s constitutional history. Not one judge having been impeached in the Republic’s seven-decade history is not a nice sign. It is a pointer to the checks and balances built in by the founding fathers of the nation not having been put to use at all. If politicians play the usual card of convincing the judge to resign midway during impeachment proceedings, the judiciary would have still made its point that it is unflinching in calling upon the system to work towards So, the situation presents a win-win opportunity that is waiting to be seized.
This piece appeared in the column titled Without Contempt in the editions dated May 25, 2017 of the Business Standard

HARNESSING ACCOUNTABILITY

Whether judges are punctual or should walk in corridors in a burqa to know their popularity are hardly pointers to whether a selection system is constitutionally valid.  Accountability and independence are always in conflict

By Somasekhar Sundaresan

The United States Supreme Court is no stranger to controversy. The latest debate in the US is about how the US Supreme Court judges are steadfast against recusing (staying off participation in a hearing) from cases affecting companies in which they have substantial financial interests.

A code of conduct that governs federal judges requires them to recuse but the Supreme Court judges refuse to abide by it. They argue that the Supreme Court was directly created by the Constitution while other courts are created by lawmakers using powers given to them by the Constitution. What this practically means is that the US Supreme Court judges have been merrily refusing to stay away from cases where they have conflicts of interest.

The New Yorker recently carried an article that analysed what this means. Last year, the Supreme Court ruled that a television streaming service was illegal since it violated copyright of broadcasters. The Chief Justice who ruled in favour of broadcasters was learnt to hold shares worth USD 500,000 (about Rs 3.25 crore) in a broadcasting company that had intervened in the proceedings and supported the broadcasting industry.

Two other judges Stephen Breyer and Samuel Alito too directly own shares in individual companies. The other judges only held investments in mutual funds, retirement funds and pension plans, which meant they did not have direct holdings in securities of companies. The three judges who hold shares directly are known to have ruled, between 2009 and 2014, in 37 cases where companies in which they held shares had been represented before them. Of these, their rulings went to the benefit of such companies in 27 cases. In no single case did they recuse. Indeed Justice Antonin Scalia is notorious for refusing to recuse himself from a case involving a determination of whether former US Vice-President Dick Cheney had lied in office, even while having gone on a duck-hunting holiday with Cheney, and bumming rides in Cheney’s jets in the process of getting his hunting vacation.

What is the situation in India? Many an Indian judge is known to have simply recused from a hearing on discovery that he holds even pitiful financial interests in shares of companies involving in proceedings before them. There have indeed been cases of judges declaring such shareholding and all parties involved in the case requesting the judge not to recuse and expressing faith in the judge’s independence. That approach too landed some honest judges in trouble. A judge well known for his sterling integrity was accused of being “dishonest” by an activist lawyer in an interview. After contempt proceedings were initiated the accusing lawyer clarified that he did not mean financial dishonesty but intellectual dishonesty. Meanwhile, a doyen of the profession suggested in open court that the judge ought to have recused himself.

A recent constitutional amendment enabled the National Judicial Appointments Commission to be set up, taking away the judiciary’s practice of self-selection of judges. A challenge to the constitutional validity of this law has been heard. Judgement is awaited. Sadly, the proceedings had degenerated into prime-time-television type discourse where the parties arguing went into the quality of work ethic of individual judges rather than focus on whether our Constitution outlawed the creation of a body like the NJAC. Whether a selected judge is punctual or whether the judges are popular in the court’s corridors (a lawyer exhorted them to walk around in a burqa to know what people really thought) are hardly pointers to whether a system of selection is constitutionally valid.

More recently, a committee (Disclosure: I was part of it) appointed by India’s capital market regulator recommended that public servants including judges should be brought within the ambit of insider trading laws if they traded in securities ahead of announcing their decisions that could impact the market price of these securities. Insider trading law only covers insiders of companies that issue shares while judges and bureaucrats, by definition, are outsiders. The reform did not get accepted. Harnessing accountability and financial transparency of public servants is never an easy task anywhere in the world.

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This article was published in the Mumbai Mirror and allied publications on August 21, 2015