Sunday, December 27, 2009

JUDICIAL ACCOUNTABILITY BY JUSTICE D.V.SHYLENDRA KUMAR


Sourced from here- http://sites.google.com/site/justdvskumar/netizens-1

Justice D V Shylendra Kumar

Judge, High Court of Karnataka



Bangalore,
24th December, 2009

NETIZENS AND CITIZENS,

        I greatly value your tremendous response to my earlier communication dated 17th December, 2009.
        While I will respond in a detailed manner a little later, for the present, I would like to clarify and impress upon you all that as a sitting judge, I will not be able to respond individually or collectively to your reactions.   Your responses are only to create a better awareness and can be circulated.
        I have contributed an article titled Judicial Accountabilityat the request of the organizers of IX Conference of Karnataka State Advocates, sponsored by the Karnataka State Bar Council, Bangalore and cosponsored by the Bar Association, Hubli, which is being inaugurated on 27thDecember, 2009 at Hubli, on which occasion, a souvenir containing my said article will be released. 
I am herewith posting the article in advance for information and the benefit of all viewers of my web-site, particularly for the benefit of the advocate viewers, who can, on reading the article, debate the contents in the conference in a meaningful way.
          With regards and my good wishes for the new year.

By
Justice D V Shylendra Kumar
Judge, High Court of Karnataka




BY JUSTICE D.V.SHYLENDRA KUMAR



      Judicial accountability is a phrase, which sounds incongruous and can convey conflicting messages.

      The phrase has assumed importance in the wake of the improper, irregular, incorrect manner of functioning of judicial officers, which was not an unknown phenomenon earlier but has assumed greater significance and importance in the present context, particularly in the wake of the incidents of misconduct on the part of the judges, even amongst the judges in the superior courts, being on the rise, attracting adverse public attention, media attention and conveying an impression to the people of the country that the members of judiciary are not behaving in a proper manner, are not behaving in a responsive manner are even indulging in acts of misconduct, have even misused and abused their offices for non-judicial purposes and are virtually abusing their position and powers for personal gains.

      The irony is that such misconduct, improper or irregular acts and even illegal acts can never be said to be judicial acts, as such, but as things are taking place in the name of exercise of judicial functions, it has become inevitable for the people outside the judiciary to wonder as to whether there is any judicial accountability and if there should be judicial accountability, in what manner it can be ensured and enforced.
      In the true sense of the phrase ‘judicial accountability’, an order passed on the judicial side can be made accountable only before a higher appellate forum and if the order or judgment is incorrect in law, it can be corrected by higher judicial body in accordance with law and as enabled in law through appeals, revisions etc. Other than this method, there is no other way of correcting an improper, irregular or even illegal judicial order.

   While judges of the subordinate judiciary, which is judiciary up to the level of district courts in a state, i.e. on the civil side, civil judge (junior division), civil judge (Senior Division) and district judge and on the criminal side, comprising of judicial magistrates of first class, chief judicial magistrates and sessions judges, are all made accountable in respect of their acts, judicial or non-judicial, as they are amenable to the disciplinary control enforced and supervised by the respective high courts of the states within which the subordinate courts are located, and that can definitely, to a great extent, take care of the need for ensuring judicial accountability of the judges in the subordinate judiciary.

   However, the position insofar as judges of the superior courts i.e. the judges of the high courts and the supreme court, are concerned, it is strictly governed by the provisions of the Constitution of India and in so far as the judges of the superior courts are concerned, the only way of disciplining an errant judge of a High Court or the Supreme Court is by way of impeachment by the Parliament as provided in Article 124 of the Constitution of India, particularly, sub-articles (4) and (5) of Article 124, reads as under:


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