Context:

• The recent public declaration of assets by 21 Supreme Court judges, under the leadership of Chief Justice of India Sanjiv Khanna, marks a significant step towards transparency and accountability in the judiciary.
• This move addresses longstanding concerns about corruption allegations within the judiciary and reaffirms public trust in judicial institutions.

Judicial Immunity and the Need for Accountability:

• Legal framework governing judicial immunity:
  • Judges are granted extensive protection under the -
    • Judicial Officers Protection Act, 1850: Grants immunity for judicial acts done in good faith.
    • Judges (Protection) Act, 1985: Shields judges from civil/criminal proceedings related to their judicial duties.
  • However, these protections are not absolute and do not prevent action against judges for misconduct in their individual capacity.
• Past initiatives:
  • In 2009, the Supreme Court passed a resolution endorsing the publication of the assets of judges. As it was voluntary, the portal for uploading these details has remained dormant ever since.
  • Recent disclosures were prompted by the discovery of unaccounted cash at a Delhi High Court judge's residence.
• Current concerns: The opacity in judicial conduct and prosecution continues to erode public confidence.

Constitutional - Judicial Framework Governing Judicial Accountability:

• Constitutional provisions - Articles 124 and 218 of the Constitution:
  • Lay down the removal process of judges (of SC and HCs respectively) for proven misconduct or incapacity.
  • Requires a special majority in both Houses of Parliament, making impeachment extremely difficult.
• Judicial precedent:
  • K Veeraswamy vs Union of India (1991): No criminal investigation against a sitting judge (of SC or HCs) without the CJI's consent, thereby reinforcing judicial independence but limiting prosecutorial oversight.
  • Financial disclosure: Judges’ financial details could have been asked under the Right to Information (RTI) Act, since the court had already said in the Veeraswamy case (and again in 2019) that judges are public servants.
• Internal inquiry mechanisms:
  • Investigations are conducted by internal committees headed by the CJI or respective High Court CJ.
  • Outcomes are typically not made public.
  • Common actions include transfers, forced resignations, or withholding of case assignments.

Comparative Global Perspective:

• International practices:
  • Mandatory asset declarations: USA, Argentina, South Korea, Russia.
  • Non-mandatory systems (disclosure on request): Canada, UK, India.
  • Institutional mechanisms:
    • Judicial councils/commissions in countries like Canada, Germany, UK.
    • Special legal procedures for trying judges in countries like the US and Germany.
  • Bangalore Principles of Judicial Conduct:
    • Emphasize financial transparency and disclosure of conflicts of interest.
    • Serve as an international ethical benchmark for judicial conduct. 

Key Challenges and Way Ahead in Ensuring Accountability:

• High threshold for impeachment:
  • Rarely used; no sitting judge in India has ever been impeached or convicted.
  • The opaque design of prosecution mechanisms protects judicial independence but also prevents scrutiny.
• Lack of clarity under Lokpal Act:
  • Judges are yet to be explicitly brought under the ambit of the Lokpal.
  • Adds to ambiguity in initiating independent investigations.
• Need for systemic reform:
  • Asset declarations are a symbolic step.
  • Broader institutional reforms and legal clarity are required to establish a robust accountability mechanism.

Conclusion:

• While the public declaration of assets by Supreme Court judges is a commendable step towards transparency, it merely scratches the surface of the deeper issues plaguing judicial accountability in India.
• The need of the hour is a comprehensive framework that ensures independent oversight, timely redressal of misconduct, and public trust in the judiciary.