Strengthening accountability

In a significant judgment, the Supreme Court recently quashed a “two-judge committee” set up by the Chief Justice of the Madhya Pradesh High Court to probe allegations of sexual harassment against a judge of the court. By insisting on the strict implementation of in-house procedures in cases of complaints against judges, this judgment marks a step towards greater transparency and certainty in proceedings relating to judges. In this case, the charges of harassment were levelled by a former Additional District and Sessions Judge of the Madhya Pradesh Higher Judicial Service. Her writ petition claimed that the in-house procedure envisaged by the Supreme Court was ignored by the High Court. Looking at how the judiciary addressed her complaint, the Supreme Court concluded that the prescribed procedures were not followed, and ordered a fresh probe. This commendable move reasserts the Court’s seriousness of purpose in ensuring a gender-sensitive process of internal investigation on sexual harassment complaints.

One of the first investigations into judicial misconduct was the impeachment process against Justice V. Ramaswami of the Supreme Court, in 1991. That case brought to the fore the inadequacies of the impeachment process under the Constitution and made evident the absence of legal authority in the Chief Justice of India to take any action in such situations. In a subsequent case of allegations against Chief Justice A.M. Bhattacharjee of the Bombay High Court, the Supreme Court for the first time laid down an in-house peer review procedure for “correcting [the] misbehaviour” of judges. In 2008, these in-house procedures were employed in investigating allegations against Justice Soumitra Sen, leading to impeachment proceedings. The Supreme Court has now taken this prescription further by declaring that these procedures be widely publicised and made available on the judiciary’s websites. However, it has to be noted that apart from the far-fetched impeachment process prescribed under the Constitution, there is as yet no institutional design or statutory law that can adequately support a transparent process of judicial inquiry, so as to enhance the accountability and legitimacy of the institution. The courts continue to be insular, oblivious to the principle of open justice — a stand justified on the ground of safeguarding judicial dignity and independence. Be it over criticism against judicial appointments or judgments like Swatanter Kumar (2014) that prohibited media reporting of sexual harassment allegations made by an intern against a judge, the judiciary has often been too defensive, deflecting criticism and hardly acknowledging the need for transparent accountability.