Lecturer CMR Law School
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Sunday, August 03, 2008
Slowly but certainly we seem to be accepting a new dimension to our individuality, we are beginning to realize all that the system is providing for, are more improvised needs, and catering to such advanced needs and specific demands, are better financial facilities with a diverse but deadly potent of lethal permutation and combination of financial schemes draining the common mans pocket. Loans being provided currently were literally unheard say a decade ago. We are living in a situation where we have begun to accept that our archaic interpretation of sovereignty is dwindling with each inclusion of MNC’s being allowed to operate in our backyards, especially with the advent of SEZ’s and its backing that it acknowledges as a sure step to economic progress. Without regard to the ideological justification that we may continue to nurture, of showing that we yet care for our brethren, we cannot but agree, that we live and thrive in a market economy driven with the exploitation of the poor man. Ironically our socialists yet depend on the poverty, despair and disappointment, all pointing to the inefficiency of the government. We also ironically hail a Muhammed Yunus for bagging the Nobel Peace Prize 2006, for establishing a grameen bank, but choose to turn a blind eye to our own maladies raised to the status of social evils.
However as a nation with billion population and growing, we realize that we can and ably cater to a global requirement of knowledge based solutions extending on to efficient back end services (one just has to take a count of BPO/s and now LPO’s operating in Bangalore to realize the impact of our reliability on foreign resources). Contrastingly these outsourced offer work to lawyers, who many may consider it to be a blessing in disguise. With the available legal awareness, we continue to operate in a desperate scenario where we dream of buying luxury consumables without learning to value what we possess; we confidently assert value for the services or commodities we avail of. We have begun to think and act competitively with the advent of a new purchasing power, financial confidences, we have begun to draw out issues of liability for faulty service, deficient commodities, negligence to all that we consider as bearing an impact to our lives, for instance the requirements to ascertain criminal liability in the services of a medical professional being clarified in case of Dr. Jacob Mathews v. State of Punjab, there is also debate to include rash and negligent driving to be included as an offence committed under the auspices of Sec. 304 of IPC, we are beginning to awake slowly but certainly to demand for better services and facilities
Legally speaking the Indian Constitution lays out elaborately the value behind liberty, freedoms and socio-economic laws as eloquently articulated in Part III and Part IV. With the advent of judicial consciousness overpowering hitherto unacted upon, leading on to ushering in reform in the prison system, treatment of under-trials, apart from a dynamic interpretation being provided to concepts of ‘life’, ‘liberty’, ‘personality’ and much more. The judiciary has been hailed for its activist approach in upholding rule of law and consequently expanding the dynamics of locus by allowing for public interest litigations (safeguarded and regulated by parameters, placed within the ruling Ajay Hasia v. Khalid Mujeeb, etc.).
“In upholding law and justice, judges have a vital function in a pluralist society to make sure that diversity is respected and the rights of all are protected”, (Hon Justice Michael Kirby, ‘Challenges to Justice in a Pluralist Society’: Judges and Judicial Accountability, 2005). However, the fact remains that judges are affirmed of the fact that what they seek to do and achieve is essential for the reservation of liberty and for dispensation of justice. Read along with the concept of judicial accountability, which surely takes into account judicial power it signifies both a judicial duty and a public law duty, the visible result is for a public accountability of those who exercise such functions. This aspect of transparency and accountability is ingrained within the text of the constitution, and cannot be sidelined through interpretive or other oblique motive to absolve or preclude any authority statutory or constitutional from owing up to its deeds and facing the people of India.
As a characteristic feature within an organized judicial system catering to the fundamental requirement of accountability also forms the feature articulated in the Beijing Statement of Principles of the Independence of the Judiciary. The Indian constitution proficiently asserts the aspect of accountability to the extent of removal from office by clarifying the process and method vides Art. 124 (4) which inter alia provides that “A Judge of the Supreme Court shall not be removed from his office except 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 that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity” and further to provide for in in Art 124 (5) that “the Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge under clause (4). The provision however remains silent on the aspect of inefficiency, willful obstruction of justice, failure to take account of facts or failure to exercise judicial notice in imparting full and final justice or discharge of function in a manner as expected by written and unwritten principles.
Varied views have been expressed about the viability of having a specific law on judicial accountability, its advantages and disadvantages, the debate surely but definitely stays clear of the process of passing a judgment, apart from the natural requirement that there shall be reasons adduced for a decision reached at by a judge in his/her judgment. It has led to the acceptance that judges cannot be held accountable for making ‘wrong’ decisions and as such there can be no civil or criminal liability for wrong decisions made bona fide by judges. Such an approach has been accepted so as to enable the judges to discharge their responsibility in a fearless, effective and proper fashion. However the aim is and always has been to bring within fold a crucial function of a State. Holding a person discharging public law function is the aim in any organized system based on upholding rule of law. Considering the attempts being made world over as for instance by Representative Ronald Branson a representative of the house of Congress who has drafted a bill titled “Judicial Accountability and Integrity” which aims to deprive judges of immunity for deliberate violation of law, fraud or conspiracy, intentional violation of due process of law, deliberate disregard of material facts, judicial acts without jurisdiction, blocking which is defined as any act that impedes the lawful conclusion of a case including unreasonable delay and willful rendering of void judgments or order, of a lawful conclusion of a case or any deliberate violation of the Constitution, all violations to constitute bad behavior”. What chages can be brought about by such a bill if made law by the congress is yet to be judged on the parameters of reason, proximity to the limitations imposed by the constitution and public opinion. We certainly cannot deny that we are slowly emerging into a more conscious atmosphere of living. Without any prejudice or disrespect to the nobility and impartiality of the judicial institution, perhaps it is time to bring into accountability a function which touches our daily lives and the future generations with the approach of bringing enhancing the prevailing transparency and efficiency. To cater to the present need and to correspondingly plan and prepare for the future has become our guiding light in all our efforts. Each endeavor we as human being seek to undertake, wish to bring within the fold of efficiency and accountability. Notwithstanding the prevalence or rather an alarming growth of a parallel judicial structure within certain communities in Bombay as regards of settling disputes in personal law issues, silently evokes a discord of failure somewhere within our ‘efficient’ and structurised judicial institution.
As human beings we constantly subscribe to prescriptive requirements, World over people are waking up to efficiency, transparency and accountability. Ushering in a defined system to ensure better service albeit legal and including of the judiciary within its fold is not about questioning the credibility of the institution, but rather is acknowledging that the institution that guards the fundamental fabric of our society is living up to its ideals in a fair manner. Ultimately the nature of duty imparted by the Judiciary is relief oriented-justice and there is no compoundable reason why it need not be accounted for what it has achieved or failed to. Bringing about standardization in the method and manner of dispensing justice is the next global requirement after universalizing our intellectual property requirements and there ought to be a conscious debate at all fora to ensure that we do not end up trampling our own safety. Accountability within any system imparting a crucial function of the State is an imperative requirement to define our identity as an organized society that seeks to lead by example.
However as a nation with billion population and growing, we realize that we can and ably cater to a global requirement of knowledge based solutions extending on to efficient back end services (one just has to take a count of BPO/s and now LPO’s operating in Bangalore to realize the impact of our reliability on foreign resources). Contrastingly these outsourced offer work to lawyers, who many may consider it to be a blessing in disguise. With the available legal awareness, we continue to operate in a desperate scenario where we dream of buying luxury consumables without learning to value what we possess; we confidently assert value for the services or commodities we avail of. We have begun to think and act competitively with the advent of a new purchasing power, financial confidences, we have begun to draw out issues of liability for faulty service, deficient commodities, negligence to all that we consider as bearing an impact to our lives, for instance the requirements to ascertain criminal liability in the services of a medical professional being clarified in case of Dr. Jacob Mathews v. State of Punjab, there is also debate to include rash and negligent driving to be included as an offence committed under the auspices of Sec. 304 of IPC, we are beginning to awake slowly but certainly to demand for better services and facilities
Legally speaking the Indian Constitution lays out elaborately the value behind liberty, freedoms and socio-economic laws as eloquently articulated in Part III and Part IV. With the advent of judicial consciousness overpowering hitherto unacted upon, leading on to ushering in reform in the prison system, treatment of under-trials, apart from a dynamic interpretation being provided to concepts of ‘life’, ‘liberty’, ‘personality’ and much more. The judiciary has been hailed for its activist approach in upholding rule of law and consequently expanding the dynamics of locus by allowing for public interest litigations (safeguarded and regulated by parameters, placed within the ruling Ajay Hasia v. Khalid Mujeeb, etc.).
“In upholding law and justice, judges have a vital function in a pluralist society to make sure that diversity is respected and the rights of all are protected”, (Hon Justice Michael Kirby, ‘Challenges to Justice in a Pluralist Society’: Judges and Judicial Accountability, 2005). However, the fact remains that judges are affirmed of the fact that what they seek to do and achieve is essential for the reservation of liberty and for dispensation of justice. Read along with the concept of judicial accountability, which surely takes into account judicial power it signifies both a judicial duty and a public law duty, the visible result is for a public accountability of those who exercise such functions. This aspect of transparency and accountability is ingrained within the text of the constitution, and cannot be sidelined through interpretive or other oblique motive to absolve or preclude any authority statutory or constitutional from owing up to its deeds and facing the people of India.
As a characteristic feature within an organized judicial system catering to the fundamental requirement of accountability also forms the feature articulated in the Beijing Statement of Principles of the Independence of the Judiciary. The Indian constitution proficiently asserts the aspect of accountability to the extent of removal from office by clarifying the process and method vides Art. 124 (4) which inter alia provides that “A Judge of the Supreme Court shall not be removed from his office except 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 that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity” and further to provide for in in Art 124 (5) that “the Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge under clause (4). The provision however remains silent on the aspect of inefficiency, willful obstruction of justice, failure to take account of facts or failure to exercise judicial notice in imparting full and final justice or discharge of function in a manner as expected by written and unwritten principles.
Varied views have been expressed about the viability of having a specific law on judicial accountability, its advantages and disadvantages, the debate surely but definitely stays clear of the process of passing a judgment, apart from the natural requirement that there shall be reasons adduced for a decision reached at by a judge in his/her judgment. It has led to the acceptance that judges cannot be held accountable for making ‘wrong’ decisions and as such there can be no civil or criminal liability for wrong decisions made bona fide by judges. Such an approach has been accepted so as to enable the judges to discharge their responsibility in a fearless, effective and proper fashion. However the aim is and always has been to bring within fold a crucial function of a State. Holding a person discharging public law function is the aim in any organized system based on upholding rule of law. Considering the attempts being made world over as for instance by Representative Ronald Branson a representative of the house of Congress who has drafted a bill titled “Judicial Accountability and Integrity” which aims to deprive judges of immunity for deliberate violation of law, fraud or conspiracy, intentional violation of due process of law, deliberate disregard of material facts, judicial acts without jurisdiction, blocking which is defined as any act that impedes the lawful conclusion of a case including unreasonable delay and willful rendering of void judgments or order, of a lawful conclusion of a case or any deliberate violation of the Constitution, all violations to constitute bad behavior”. What chages can be brought about by such a bill if made law by the congress is yet to be judged on the parameters of reason, proximity to the limitations imposed by the constitution and public opinion. We certainly cannot deny that we are slowly emerging into a more conscious atmosphere of living. Without any prejudice or disrespect to the nobility and impartiality of the judicial institution, perhaps it is time to bring into accountability a function which touches our daily lives and the future generations with the approach of bringing enhancing the prevailing transparency and efficiency. To cater to the present need and to correspondingly plan and prepare for the future has become our guiding light in all our efforts. Each endeavor we as human being seek to undertake, wish to bring within the fold of efficiency and accountability. Notwithstanding the prevalence or rather an alarming growth of a parallel judicial structure within certain communities in Bombay as regards of settling disputes in personal law issues, silently evokes a discord of failure somewhere within our ‘efficient’ and structurised judicial institution.
As human beings we constantly subscribe to prescriptive requirements, World over people are waking up to efficiency, transparency and accountability. Ushering in a defined system to ensure better service albeit legal and including of the judiciary within its fold is not about questioning the credibility of the institution, but rather is acknowledging that the institution that guards the fundamental fabric of our society is living up to its ideals in a fair manner. Ultimately the nature of duty imparted by the Judiciary is relief oriented-justice and there is no compoundable reason why it need not be accounted for what it has achieved or failed to. Bringing about standardization in the method and manner of dispensing justice is the next global requirement after universalizing our intellectual property requirements and there ought to be a conscious debate at all fora to ensure that we do not end up trampling our own safety. Accountability within any system imparting a crucial function of the State is an imperative requirement to define our identity as an organized society that seeks to lead by example.
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Font is uncomfortably tiny...
will do something about it soon!
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