Thursday, June 17, 2010
Gautam Jayasurya (Rajiv Gandhi National University of Law) has posted "Judicial Accountability and Judicial Transparency: Challenges to Indian Judiciary" on SSRN.
The abstract states:
Indian polity is under severe strain. Faith of the people in the quality, integrity and efficiency of governmental institutions stands seriously eroded. They turn to the judiciary as the last bastion of hope. But of late, even here things are getting increasingly disturbing and one is unfortunately no more in a position to say that all is well with the judiciary. The independence and impartiality of the judiciary is one of the hallmarks of the democratic system of the government. Only an impartial and independent judiciary can protect the rights of the individual and can provide equal justice without fear and favor. The constitution of India provides many privileges to maintain the independence of judiciary. If the Preamble to our Constitution be regarded as the reflection of the aspirations and spirit of the people, then one thing that even a layman will note is that among the various goals that the Constitution-makers intended to secure for the citizens, “JUSTICE- Social, Economic & Political” has been mentioned before the rest.”
Judge Jerome frank wrote, “In a democracy, it can never be unwise to acquaint the public with the truth about the workings of any branch of government. It is wholly undemocratic to treat the public as children who are unable to accept the inescapable shortcomings of manmade institutions….The best way to bring about those eliminations of our judicial system which are capable of being eliminated is to have all our citizens informed as to how that system now functions. It is a mistake, therefore, to try to establish and maintain, through ignorance, public esteem for our courts.” Judicial independence ensures that powerful people must conform to law. Need of judicial independence is not for the judges, but for the people. Judges have important social role in the preservation of the liberty. However, independence of judiciary is not absolute it should not be construed in the manner to confer immunity from the demands of justice for misdeeds or to protect a judge from investigation and censure for a valid charge. Independence emphasizes institutional autonomy, not any claims to similar autonomy by actors within the institutional structure. Nevertheless the advocates of independence observe the judges should not be held accountable for following the rule of law. This canvasses a picture of conflict between judicial independence and judicial accountability but they are inseparable and not inconsistent with each other in fact, they nourish each other.
India is said to have the most powerful and independent judiciary in the world. Unlike many countries with Federal Constitution, India has a single integrated, hierarchical judicial system, and it owes its origin to the British India. What we seek to do in this project is to focus on the question-“What is the need for judicial accountability and transparency?” analyzing it in the light of various factors and recent instances.