Transparency and Accountability in the Judiciary
Transparency, in its real essence, is a lead driver to the accountability of any institution in a democratic country. The emergence of the Indian Constitution brought, with itself, a series of fundamental developments, that are required in a democratic country. Three major institutions - Legislature, Executive, and Judiciary - got the mandate from the Constitution as to what will be their structure, composition, powers, and functions. While the three institutions have been conferred with certain powers and functions to perform, Judiciary enjoys, to a great extent, exclusive powers as it can check the validity of actions performed by the legislature and executive and subsequently, declare those actions, if not found in consonance with constitutional provisions, as unconstitutional. Constitutionalism seeks to keep checks and balances on the legislature and the executive because these two institutions are conferred with powers to make the law and implement the law, which could have both positive and negative effects on the citizens of this country. Consistent efforts, though not sufficient, have been made to bring a greater degree of transparency in the legislature and Executive. Because of existing and evolving transparency in the actions of legislature and executive, both have been made accountable for their actions from time to time. But the same cannot be said about the Judiciary. The judiciary, being the custodian of the Indian Constitution, separates itself from the other two organs in terms of power and supervisory mechanism. In that case, the Independence of the Judiciary becomes highly important and crucial so much so it does not get influenced by the other two organs. Independence, undoubtedly, is important yet crucial for any institution. However, should that make an institution immune from transparency and accountability in the garb of maintaining independence? The answer would be negative. The judiciary should be no exception here. In a democratic country, every institution is supposed to be held accountable for its actions notwithstanding what its role and powers are. Non-transparency leads to non-accountability. Therefore, can accountability be imposed upon Judiciary, assuming that there is no transparency in its choices and actions? The answer would again be negative. Courts, at times, are referred to as the temples of justice but does that make judges the gods, who ought not to be questioned or held accountable? Certainly, not. Questions, concerning the lack of transparency in the Judiciary, have always been raised. However, in recent times, it has gained more significance as far as the matter of appointment and transfer of judges, allocation of cases, live-streaming of court proceedings, and political affiliations are concerned. The Law Commission of India, in its fourteenth report on Judicial Administration, observed that “It is obvious that the selection of the Judges constituting a court of such pivotal importance to the progress of the nation must be a responsibility to be exercised with great care.” It further observed that “Such a result can be achieved and maintained only by the exercise of courage, vision, and imagination in the selection of judges made with an eye solely to their efficiency and capacity.” Retd. Justice Ranjan Gogoi, during his tenure as Chief Justice of India, was part of the bench, which gave many remarkable and historic verdicts, and among them, one such was the Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal, which was related to the transparency, accountability, and independence of the judiciary. The judgment serves as a guiding light as far as questions related to judicial transparency are concerned. In Supreme Court, three appeals were filed challenging the 2010 judgment of the Delhi high court in Secretary General, Supreme Court of India v Subhash Chandra Agarwal, which was subsequently affirmed by the Supreme Court in 2019. One important substantial question of law was as to whether the concept of independence of the judiciary requires and demands the prohibition of furnishing the information sought. This question deals with the concept of judicial independence and judicial transparency, and whether the securement of judicial independence could be an exception to the non-maintainability of judicial transparency. The answer, per curiam, was negative. While the court was of the opinion that judicial independence is based on constitutional safeguards and non-interference of legislature and executive, the same is not immune from checks and balances and transparency is important in the functioning of the judiciary in matters of judicial appointments or selection. Non-disclosure of information cannot be one of the means to achieve judicial independence so much so it forms part of the basic structure of the Indian Constitution. The judiciary must understand that it only enjoys such powers as the Constitution of India confers upon it. As it was remarked by the Supreme Court in Raja Ram Pal v. Hon’ble Speaker, Lok Sabha, 2007 that “The Constitution is the suprema lex in this country and is beyond the pale of any controversy. This includes the Supreme Court also which represents the judicial organ.” Every organ has to understand that it is the Constitution that is supreme and sovereign and must adhere to the principles of constitutional morality. It is time for the judiciary to introspect and do away with the mindset of having conferred with unfettered powers and must aim towards bringing transparency and accountability to the institution.
