“We all, judges and lawyers, must restore our old faith and rekindle new hopes. The future is yours; men and women of law, take it and redeem yourselves”
“Justice Sabyaschi Mukharji”
Democracy is the new concept of new lease of life. It is an outcome of wrong result of monarchies system. The main difference between the both is that, in monarchy the monarch holds all the powers viz legislative executive and judicial in his hand. He could make laws, execute then and could punish the violators. Such system was based on hierarchy and only an able monarch could perform the best. Many drawbacks were seen when a week monarch was coroneted. Democracy is free from this problem. In are totally independent and free from any interference. Legislatures is the separates body which is mainly concerned with making laws or legislation, executive implements all laws are legislations made by the legislature whereas judiciary checks whether they are contravening and fundamental right of the people whether they are contravening any fundamental right of the people incorporated in our constitutions, it also checks whether executive implements all these legislations according to determined procedure and in the same fashion as made by the legislative .Judiciary excursive power of judicial review and issues various writs to check the irrelevant actions of executive organ.
Every organized society must have some machinery for adjudication of disputes arising between the people constituting the community. Courts have, therefore, always existed in one form or the other since the birth of society of community- living. However, at no time in the history of human civilization the need for an independent judiciary has been felt as now, as the judiciary has often to adjudicate on constitutional validity of the laws enacted by the legislature and the validity of executive action. The past gospel of laissez fair has given place to the philosophy of welfare state with an emphasis on securing economic and social justice to all citizens by the state. This has given rise to the state regulation of the activities of the individual on a large scale, and consequently, enactment of multitudinous laws and conferment of wide powers on the administration to interfere with individual’s liberty. Naturally there are now many more occasion than in the past when the individual is at loggerheads with the state. An independent and fearless judiciary is the greatest bulwark against executive and legislative. A judiciary independent from the executive and the legislature is a necessary of the present age so that it could dispense proper justice in disputes between an individual and the state and help in the maintenance of rule of law. Not only does the Constitution of India provide for an institutional framework for an independent and accountable judiciary in India .
Where judiciary has power, judiciary has also some duties. In this way judiciary utilizes its power of independence but we should not forget that independence of judiciary is not only the requirement of a true democracy. The true dream of democracy is not recommended only by being independent judiciary but it should also be countable. If judiciary is independence and it is not fulfilling the purpose and requirement of the public, then it cannot be said as accountable. The judiciary must not forget its purposes and duties as allocated by our constitution and public requirement. The accountability of judiciary mostly depends upon the judge and lawyer of the judicial hierarchy. The main motto of the judiciary is to give true justice. If the process of giving to justice it has to adopt the correct procedure and rule of law it has to see the cases objectively without any prejudice. Thus, adhering to the lives and objectively becomes the utmost important to prove the accountability of judiciary. But the accountability to judiciary cannot enjoy its independence for a long time. Thus, independence and accountability both are complimentary to each other and go hand to hand.
There are three organs in the Indian government, Legislature, Executive and Judiciary perform three indispensable functions of rulemaking, rule application and rule adjudication respectively. The main doctrine behind the formulation of it is separation of powers: which brings accountability, keeps the government restrained and in this way our rights and liberties are safeguarded. In fact, the main driving force behind this is based on the word of Acton that, “power corrupts man and absolute power corrupts absolutely”. In the words of Montesquieu, “Constant experience has shown us that every man invested with power is apt to abuse it, and to carry his authority until he is confronted with limits”. We can say that absolute power without accountability leads to corruption. Corruption in India is always in renown. In his prelude to the UN Convention against Corruption, the Secretary General of the United Nations, Mr. Kofi Annan wrote, “Corruption is an insidious plague that has a wide range of corrosive effects on society. It undermines democracy and the rule of law, leads to violations of human rights, distorts markets, erodes the quality of life and it allows organized crime, terrorism and other threats to human security to flourish. However recently what has caught our attention is the corruption charges levied against judges; examples being a Calcutta High Court Judge Soumitra Sen guilty of misappropriating large sums of money and making false statements regarding it and Chief Justice of Karnataka High Court P D Dinakaran, alleged for land grabbing and corruption. It is nevertheless to be noted that the word recently should not mislead us to think that corruption in Judiciary is a new thing, it has always been there, only less talked about. But given the increase in the rate of corruption charges one can’t help but ask the question who is judging the judges?
There is another principle working together with the separation or balance of power i.e., checks and balances. Simply put the theory of checks and balances holds that no organ should be given unchecked powers. The power of one organ should be checked and restrained by the other two, thus a balance is secured. After all, “power alone can be the antidote to power”. So, we see in India how the executive is individually and collectively responsible to the legislature, although here the accountability has decreased because of anti-defection law, whereby if there is any amount of dissent from the legislator, he is threatened with removal which can cost his constituency being unrepresented. Thus, all decisions of party leaders are now just rubber-stamped by Parliament. Judiciary can check all law which was enacted by parliament on the grounds of its constitutionality, if it is against the Constitution; judiciary can declare it null and void. Moreover, the legislature is accountable to the public who elect them for five years. It is well known that Legislative, Executive and Judiciary these are three pillars to a healthy democratic country. Everyone knows that judiciary is the protector of democracy. Some last year judiciary has upheld it, but now judiciary appears that this is shaking. Because judges have exercised very wide powers, it may not be allowed to be absolute so there are many constitutional limitations on the judges, i.e. removal and appointment of judges of Supreme Court and High court. The removal of judges of Supreme Court is mentioned under article 124 (2) & (4), and under Article 217, procedure is in respect of removal of judges of state High Court. Judges can be removed by order of the president of India only on the grounds of misbehavior or incapacity. The order of the president can only be passed after it has been addressed to both houses of parliament in the same session. The address must be support by a majority of total membership of that houses and also by a majority of not less than two third of the members of that house present and voting. It is a craziness to take apart issues of independence and accountability in functioning of the judiciary into split boxes.
Function of independence short accountability is a form of totalitarianism. Challenging accountability without a guarantee of functional independence is identical to challenging servitude. State has no proper machinery for our judiciary affairs. It is tried to strike some balance between independence and accountability by all modern, democratic societies in this way the judiciary is structured. The judiciary is an independent constitutional body in its own right, just as Parliament and executive. Independent, pleasant-sounding functioning with accountable manner is required of all three organs of state. Judicial reforms, especially those concerning the higher judiciary, must therefore be approached holistically “questions of independence and accountability must be grappled with and solutions proposed that will balance all these principles devoid of disheartenment any. Non-negotiable should be a verge level of independence of the judiciary from the executive and Legislative, accountability of judges in their functioning to the public at large to appreciate why the institution works the way it does.
So, it is beyond a shadow of a doubt that the judiciary is the guardian of the Constitution and protector of fundamental rights. In spite of this there is a sudden epidemic of judiciary corruption which is proving to be self-defeating and is indicating towards the lack of accountability in the institution. This is important because in the preamble we give to ourselves “JUSTICE” Social, Economic and Political‖. Any authority that has some amount of public power must be responsible to the people. The fact is that in a “democratic republic” power with accountability of the individuals enjoying it, is essential to turn away disaster for any democratic system. But before moving into the concept of accountability, what is important to note and understand is another concept i.e. independence of judiciary. Both these concepts have to be studied together to understand any one. It is the fact that independence may need some interference shows that there are other ideals i.e. unbiased and fair trials, more important than the former and these ideals can be achieved only through an accountable judiciary. Independence should be used only as a means to achieve this end and not an end in itself. If accountability is not taken seriously we can witness a dangerous nexus between corrupt judges and politicians which will bring an end of democracy.
It is also important to keep in mind that accountability in judiciary is different from the other two organs, the distinctive nature of the office demands separate treatment and this is in view of the nation’s benefit. It was once said by the former President K.R. Narayan that, “it is not an exaggeration to say that the degree of respect and public confidence enjoyed by the SC is not matched by any other institution in the country. This trust can be maintained only when the judiciary is constantly subjected to people’s ombudsmanning. It has to accept that criticism is a way of reinforcing accountability and therefore it must be broadminded. The best judicial reform would be the one where judiciary functions according to the Constitution. An organized public opinion and campaign is required to bring about greater accountability.
Chief Justice Lodha said that appointment in higher judiciary by another body may affect independence of judiciary; judges are best equipped to judge the suitability of a person for being a judge. And chief justice of India and other judges of Supreme Court and judges of all high courts should not accept any constitutional position or assignment with government. That’s why it becomes the cause of corruption, and it disturbs the independence of judiciary and its accountability. Judges will seek to these opportunities and begin to start flattery of government. So, the independence of judiciary and accountability of judiciary is the inevitable requirement of democracy, judiciary at one side protects the right of the people and it also maintains supremacy of the constitution. It also regulates rule of law. It also remains appropriation of legislation and execution works both.