Unaccountability In Higher Indian Judiciary: A Proposal For A Judicial Ombudsman

-Subham Kumar Agarwal*

The former Chief Justice of India (“CJI”) Hon’ble Justice Sanjiv Khanna, in accordance with the report of the in-house committee formed to inquire into the Justice Yashwant Varma cash row has recommended the impeachment of Justice Varma. Will this end in the impeachment of the concerned judge? The Indian experience suggests it will not. Nevertheless, such an instance raises well-established, yet, important questions on the accountability of the judges of the higher judiciary in India. The judiciary directs everyone but who directs the judiciary? Who judges the judges and who are they accountable to? 

This article seeks to address the status of accountability in the higher Indian judiciary as it stands today. In the process, the author will delve into (i) the ‘what’ and ‘how’ question, and (ii) the ‘whom’ question. The ‘what’ question purports to explore what the judges are held accountable for along with the ‘how’ question which throws light on the frameworks established to enforce such accountability. Simultaneously, the ‘whom’ question seeks to understand who are the judges accountable to under the established framework. Having explored the status of judicial accountability with the assistance of the aforementioned questions, the author will propose a model that has the potential to address the challenges of accountability in the higher Indian judiciary. 

The ‘What’ and ‘How’ Question

In the Indian scheme of democracy, separation of powers and independence of the judiciary has been held to be of paramount importance. This is very well justified considering the executive attempts in the past to trample the vibrant democracy of the country. However, a democratic state is characterized not only by independent organs of the state but also accountable organs of the state. 

The ‘what’ question explores the status of accountability in the higher Indian judiciary limiting itself to what one is accountable for. Accompanying the ‘what’ question, the ‘how’ question throws light on the process of how one is made accountable for what they are supposed to be held accountable for. 

Accountability of the judiciary in terms of the ‘what’ question has two aspects to it. First, accountability for judicial decisions. Second, accountability for judicial conduct or conduct of the judges. It is pertinent to note while dealing with the ‘what’ question that criminal proceedings cannot be initiated against any sitting judge without prior approval of the CJI. Accountability for judicial decisions is fairly dealt with under the regime of hierarchical appellate mechanism where every decision of a bench or the court can be appealed to a bench or the court higher in the hierarchy having the authority to account for the flaws in such decisions. The problem thus lies in the way accountability for judicial conduct is dealt with. The conduct of the judges goes a long way in affirming people’s faith in the impartiality of the judiciary. 

The importance of proper judicial conduct is highlighted by the adoption and worldwide recognition of the Bangalore Principles of Judicial Conduct by the United Nations Economic and Social Council. The Bangalore Principles emphasise that judges must maintain conduct both inside and outside the court to such standards that maintains and enhances the confidence of the people and the legal fraternity in the judiciary. It becomes quite obvious then that maintenance of an appropriate judicial conduct of the required standards requires a strong structure of accountability. The ‘how’ question uses lived examples to throw light on how Indians have been denied a fair share of judicial accountability by virtue of the existence and exercise of this structure.

The Constitution of India under Article 235 fixes the hierarchical accountability of the trial courts by making them accountable to the Constitutional Courts. On the other hand, the judges of the higher judiciary are made constitutionally accountable in just one way and that is by means of impeachment enshrined under Article 124 of the Constitution, concerning the Supreme Court (“SC”) of India & Article 218 of the Constitution concerning the several High Courts (“HC”) of the respective states. Impeachment is a procedure under which the judges can be removed on grounds of (a) incapacity and (b) proved misbehaviour. To ensure independence of the judiciary from possible encroachments by other organs of the government, the process of impeachment has been made very arduous. 

The stringency of the impeachment provisions has made it almost impossible to impeach a judge, which is warranted by the fact that no judge has ever been impeached. The absence of successful judicial impeachment should not create a presumption of judicial infallibility. Judges do have a history of committing acts unsuited to the position they hold and the power they command. Notable examples include Justice V. Ramaswami and Justice Soumitra Sen. Both of these judges were held guilty of misuse of public funds; however, they could not be impeached. 

Assisting the procedure of impeachment, and to plug the gap between the high threshold provided under Article 124 and the low threshold of mere misconduct which also warrants scrutiny, the Indian judiciary building upon its ruling in C. Ravichandran Iyer v. A. M. Bhattacharjee, developed an in-house mechanism for reviewing complaints against judges. Although the CJI looks into these complaints, yet the procedure has largely been a failure. This is evident from the approach of the SC in dealing with complaints of sexual harassment wherein the judges have themselves failed the litmus test propounded by them in Vishaka. In a series of such cases, Additional District Judge and Session Judge ‘X’ v. High Court of M.P, the approach of the Supreme Court has been largely feeble and the in-house committee have mostly favoured the judiciary. Former Law Minister of India, Mr. Kiren Rijiju in his parliamentary speech in 2022 stated that over sixteen hundred complaints were received against the judiciary through the in-house mechanism and that these complaints included those pertaining to corruption within the judiciary. However, it has not been very often that we have heard these complaints fructifying into some proceedings. These statistics speak volumes about the reality of the in-house mechanism.

The judiciary also attempted to bind itself to certain principles of judicial conduct by adopting the “Restatement of Values of Judicial Life” in 1999. They set out certain guidelines to discipline the conduct of the judges and maintain the integrity of the judiciary. A lacuna in the same has been its non-binding nature making it easily escapable for the judges. A commendable step taken through the adoption was the requirement of judges to declare their assets. Unfortunately, it was not until very recently when the declaration of assets of the judges of the SC was made mandatory, that the judges of the SC made their assets public. Despite 25 years of the adoption having been made, merely 12% of the judges of the HC have disclosed their assets. Parallelly, there have been other notable instances such as Justice Abhijit Gangopadhyay of the Calcutta HC who publicly resigned and joined a political party within two days, clearly overstepping the bounds of these principles. 

The ‘Who’ Question

In the process of addressing the ‘how’ question, the author cited facts to create an understanding about the failure of the structure of accountability. The ‘who’ question will set in context the focal reason for such failure. It will primarily deal with the ‘accountability to’ aspect of judicial accountability.

As mentioned previously, the trial courts are made accountable to the Constitutional courts by virtue of Article 235 of the Constitution. But this mechanism of vertical accountability cannot be applied to the Higher Courts because of two reasons. Firstly, there is no authority above the SC to put a check on it and secondly, the SC has laid down in Tirupati Balaji Developers (P) Ltd v. State of Bihar that the HCs are not subordinate to the SC.

So, the question lies, who are the judges of the SC and HC accountable to? Unlike the other organs of the government which are accountable to one another and are simultaneously accountable to the people, the higher judiciary in India is accountable to the Supreme Law of the land which is the Constitution of India and to themselves. In essence, the peer accountability that the judiciary has developed in the form of the in-house mechanism lacks any constitutional backing and its efficacy has been questionable. While there can be multiple reasons for the same, it is definitely true that the system of judges being made accountable to fellow judges has not given the desired results. It is safe to assume that the sense of fraternity arising out of the peer-accountability mechanism has undermined the effective functioning of the structure. Simultaneously, it is pertinent to note that there have been instances such as Justice Soumitra Sen initially defying the report and recommendations of the in-house committee and on a similar note, Justice Yashwant Varma declining to voluntarily retire despite there being credible evidence against him. 

The legislature has made multiple attempts to fix the accountability of the judges. It drafted the Judges (Inquiry) Bill, 2006 but the parliament lapsed. The Parliament also came up with the Judicial Standards and Accountability Bill, 2010, but even this could not be passed through both the Houses of the Parliament and eventually lapsed. Based on the recommendations of the Law Commission of India, the Parliament through both of the aforementioned legislations had attempted to establish a National Judicial Commission for overseeing the complaints against the judiciary. There were concerns raised about the structure and functioning of this Commission but nothing concretised as the bill lapsed on account of the dissolution of the 14^th Lok Sabha. 

Therefore, the answers to the ‘what’, ‘how’ & ‘who’ questions tell us a lot about the prevalent scheme of things in the judiciary but leave us with another question of significance. It highlights the need for alternative mechanisms to fix the accountability of the judges. In light of the same, the author in the next part of the article suggests a mechanism based on practices prevalent in similar jurisdictions like Sweden as well as experiences in India.   

Judicial Ombudsman

Over the years, the legislature has failed to fix the accountability of the judges. Parallelly, the judge-to-judge accountability mechanism has not been fruitful. In 2024 itself, Justice Shekhar Kumar Yadav of the Allahabad High Court while delivering a talk on the Uniform Civil Code had made derogatory remarks. Despite uproar, the judiciary turned a blind eye to the statements. In a similar scheme of things, the Madras HC declined to hear petitions against the appointment of Justice Victoria Gowri alleged to have a history of remarks against minority communities. These instances clearly highlight the failure of the peer-accountability mechanism in practise.

The author proposes a model of Judicial Ombudsman to address recurring issues of judicial accountability. In Sweden, the system of Ombudsmen was introduced to establish rule of law after years of autocracy in the country. It was established to monitor compliance of public authorities with law. The Swedish Parliament appoints a Judicial Ombudsman who functions independently and looks into the functioning of the judiciary as well as complaints against the judiciary. This system has given its dividend across decades of its functioning which is evident from the fact that Sweden is among the top ranked democracies in the world. India shares similar democratic principles with Sweden such as parliamentary democracy, rule of law and separation of powers. Inefficiencies of the existing framework, grievances against administrative acts of the government and complaints against public officials, prompted India, like several other democracies sharing a similar political landscape of multi-party system and parliamentary democracy, to borrow the mechanism of Ombudsman from Sweden.

Unlike Sweden, India is a federal state. To reconcile the mechanism of Ombudsman with the requirements of the Indian Federation, India adopted a two-tier structure. The ‘Lokpal’ at the central level and the ‘Lokayukta’ at the state level. In a similar vein, the author proposes a parallel two-tier structure for the Judiciary. The first tier – National Judicial Ombudsman at the central level having jurisdiction over the Supreme Court and, the second tier – State Judicial Ombudsmen at the state level having jurisdiction over the respective High Courts. 

The procedure to appoint the Judicial Ombudsmen plays an imperative role in ensuring an independent functioning of the body. The author proposes that the Judicial Ombudsmen shall be appointed by the President of India on the recommendation of a selection committee, the membership of which shall balance concerns of executive dominance or alternatively judicial dominance. The selection committee shall be a six-member committee comprising the Prime Minister, Law Minister, Leader of the Opposition party with highest seats in the Lower House, the Chief Justice of India along with two other senior-most judges of the Supreme Court. 

It is reasonably expected that the members of this committee shall keep aside considerations of political dividend and judicial dividend and shall work unanimously while appointing such Ombudsmen. Nevertheless, if bottlenecks occur, the CJI being the head of the Judiciary shall have the final say. This framework, in the author’s opinion, shall ensure participation of all stakeholders and independence of the appointee from any form of political or judicial pressure. Additionally, accountability of the judiciary is balanced with independence of the judiciary from possible executive overreach by providing CJI the final say. 

The author suggests that Judicial Ombudsmen must be given constitutional recognition and must be made independent of the other organs of the government. This shall provide appropriate legitimacy and credibility to the body. Any aggrieved person should be afforded an opportunity to approach the Ombudsmen in the capacity of a complainant and register their grievances with the Ombudsmen who shall then investigate all such complaints excluding those pertaining to the decisions made by the judges in discharge of their duties to adjudicate a dispute. Additionally, the Judicial Ombudsmen must be empowered to suo motu register complaints and begin investigation in matters that require urgent attention. 

The present mechanism of judicial accountability suffers from the cardinal problem of limited sanctioning powers. In the worst of cases, the in-house committees can recommend impeachment by submitting a report and leaving it to the legislature to decide upon it. While this is the Constitutional sanction that needs to be followed when precarious grounds exist, we also need to have a set of sanctions that can be imposed in instances of lighter magnitude. A recent example of the same could be the summoning of Justice V. Srishananda of the Karnataka High Court to Delhi for having made certain derogatory remarks. The Hon’ble Judge was made to tender an unconditional apology. The Law Commission of India in its 195^th Report had suggested that sanctions of similar nature such as issuing advisories and warnings, withdrawal of work, voluntary retirement and censure/admonition in public or private should be codified. The Judicial Ombudsmen can be given similar sanctioning powers after having codified them.  

The 133^rd Report of the Parliamentary Standing Committee on Personnel, Public Grievances and Law and Justice titled “Judicial Processes and their Reform” pushed for the mandatory publication of an annual report by all the courts forming the higher judiciary of the country. Such reports covering wide aspects of the functioning of the courts becomes essential in the endeavour to make the judiciary transparent and thereby increasing its accountability. It started with the Orissa High Court which has been releasing such reports since 2022, however, majority of the HCs have not followed suit. The Judicial Ombudsmen besides examining complaints, can draft and track the annual reports of the HCs. This would not only ease the burden over the judiciary but would also ensure uniformity in the standard of analysis. Such reports can be vital means of ensuring judicial accountability and can assist in the process of appointment of judges. 

Lessons From Justice Varma Case

Justice Varma’s case serves as a glaring example of the failure of the accountability framework in practice. Despite the presence of incriminating evidence, crucial investigative steps were not taken. The in-house inquiry report did find Justice Varma guilty, however, their proceedings are not in complete consonance with the standards of transparency expected in a democracy. The proceedings were largely confidential with limited public access to findings and there was no independent oversight of the inquiry process. Although Justice Varma’s appeal was dismissed, yet, his very ability to challenge the findings underscores the circularity inherent in a system where judges are tasked with investigating and implicating their own peers.

The in-house committee’s only recourse was initiating impeachment. Transfer to Allahabad HC and removal from judicial duties did not take away the privileges that Justice Varma enjoyed nor did it deter him from denying allegations and filing an appeal against the same. It even failed to provoke voluntary retirement. The binary consequences of in-house investigations that are either recommending impeachment or exoneration does not serve the purpose of proportionate sanctioning of judicial misconduct. 

Justice Varma’s case while revealing the inefficiencies and loopholes in the current system gives us the opportunity to re-imagine the case through the lens of the Judicial Ombudsman. The author suggests that the proposed mechanism of Judicial Ombudsman, working independent of the judicial hierarchy and conflict of interest, would have served as a more efficient, effective and transparent system. Unlike the current framework, the Ombudsman being a professional tasked with investigating judicial misconduct would be better equipped to take prompt actions. The proceedings would have been transparent with regular public updates ensuring public confidence in the process. 

Moreover, the graduated sanctioning powers would help the Ombudsman sanction proportionate to the evidence collected. Admonition in public and public revelation of incriminating evidence would not only trigger quicker impeachment if the situation so demands, but would also compel voluntary retirement. Comprehensive investigation would open doors for criminal prosecution for potential financial corruption. 

Thus, a Judicial Ombudsman-led process of investigating judges and their conduct could go a long way in correcting judicial misconduct. It has the potential to work independent of the peers in the judiciary. The efficiency of the framework would ensure misconduct being sanctioned as and when needed and simultaneously its effectiveness would create a deterrence to prevent future misconduct.

Conclusion

The Preamble to the Constitution of India makes it the responsibility of the organs of the state to provide to its citizens justice. Accountability of these organs of the state becomes undoubtedly imperative for securing this constitutional dream of justice. However, the disturbing question that we are bound to ask is whether our justice is safe in the hands of the protectors of justice who themselves are not answerable to the same Goddess of justice. The answer is simple. Make the same protectors of justice answerable to any and every violation of justice committed by them. Through this article the author attempts to suggest a model that could make the protectors of our justice accountable and answerable. The proposed model while answering the needs of accountability shall also secure the independence of the judiciary. In its functioning it shall enforce separation of powers and thereby respect the basic structure of the Constitution.

*Subham Kumar Agarwal is an undergraduate law student at the West Bengal National University of Juridical Sciences (NUJS), Kolkata.

The views expressed above are the author's alone and do not represent the beliefs of Pith & Substance: The CCAL Blog