The two essential elements of judicial accountability in India (or wherever else) are ensurance of veracity of judicial proceedings and scrutiny of judiciary. If these two elements are ensured, there is hardly much judicary can do to do corruption. I am concisely commenting on the two elements of judicial accountability in India below.

Records of Judicial Proceedings

Ideally, all proceedings of the courts should be broadcasted live to the public. However, even if such is not possible, the proceedings need to be recorded comprehensively. Presently, the judges record the proceedings in their orders, and the orders carry the presumption of their veracity. The same can, of course, be challenged by rebutting the presumption by productions of contradictory evidence.

That’s not enough. Neither lawyers nor judges are worthy of any fiduciary trust. Both are human beings susceptible to corruption. The only way to curb corruption is to allow a level playing field to the sincere participants. A good judge can’t pass an honest order under the fear of protest from the bar. And a bad judge can’t be stopped from passing a corrupt order unless he can be challenged by an ordinary individual irrespective of his status and political standing. The sincere individuals need to be given power.

Transparency of judicial proceedings can transfer the power to sincere, ordinary individuals. I don’t see any contempt of court in a litigant digitally recording the proceedings of a court privately for the sole purpose of using it as an evidence in a judicial forum against the judge. However, the better would be an official digital recording of the court proceedings, made available to litigants like certified copies of court records.

Scrutiny of Judiciary

The judiciary can be divided into two parts: the subordinate judiciary and the higher judiciary. The subordinate judiciary works under the supervison of the respective high courts and is headed by a district and session judge. Whereas the higher judiciary officers hold constitutional offices as supreme court and high court judges. The most practical way of exposing the subordinate judicary to scrutiny is by invoking the supervisory jurisdiction of high courts, which is available both on judicial and administrative side. But, of course, subordinate judiciary can also be scrutinized directly under the anti-corruption law.

However, since the higher judiciary is the constitutional organ of the state, it can’t be scrutinized like the subordinate judiciary. The high court and supreme court judges are immune to any kind of supervision and can be removed from office only through an impeachment motion in the parliament. The only organ which can probabaly scrutinize them is the fourth organ, i.e. the media.

However, ironically, there is more corruption in the subordinate judiciary than the higher judiciary, which, I say, is because of the political interference by lawyers-politicians through the bar — every second lawyer in the subordinate judiciary is a politician. I am certain the only way to keep the judicary, both subordinate and higher, under scrutiny is by criticizing their bad orders without worrying about contempt of court.

©2011-2012 Ankur Mutreja