Both Independence And Accountability Needed For An Effective Judiciary: Dr. Arghya Sengupta In Conversation With Alok Prasanna Kumar And Akshat Agarwal On His New Book

Arghya Sen Gupta is a legal scholar and the Founder of The Vidhi Centre for Legal Policy . He is an alumnus of National Law School of India University Bangalore and the University of Oxford where he was a Rhodes Scholar. While, at Oxford, he completed his D.Phil. on Independence and Accountability of the Indian Higher Judiciary and was a Lecturer in Administrative Law. His areas of specialisation are constitutional and administrative law. He has a number of academic publications on the Supreme Court, Parliament, fundamental rights and federalism and writes regularly for The Hindu, The Times of India and the Economic and Political Weekly.Here he speaks about his new book 'Independence And Accountability Of The Indian Higher Judiciary' With Alok Prasanna Kumar And Akshat Agarwal .Let's start with your book. In 'Independence and Accountability of the Indian Higher Judiciary' you argue that both independence and accountability are necessary for what you call 'an effective judiciary. Do you think that the manner in which the Supreme Court ('SC') has handled the sexual harassment allegations against the Chief Justice of India promotes an effective judiciary? Thanks very much. Didn't expect the book to come out in such a pivotal moment in the history of the Indian judiciary; would be happier if it hadn't, but here we are. The current controversy is emblematic of how the SC as an institution today faces a mismatch between the power it wields over people's lives and the accountability it owes to the people. We live in an age of accountability where Lord Hewart's statement that justice should not only be done but should also be seen to be done has become even more relevant. In this case, whether justice has been done or not we are not in a position to know, but it has certainly not been seen to be done. The Court as an institution has always been bred on convention and has therefore relied upon the intrinsic integrity of its judges to secure public confidence. We live in an age where partly because of the publicity that the SC has and partly because of some well-publicized cases of alleged judicial indiscretion, this intrinsic integrity is not enough. I had a lot of hope form the SC in-house committee that it will restore institutional dignity but it appears that the age of accountability that we're living in expected more of them. So as a follow-up, who does the SC really owe accountability to? From Indira Jaising's case cited by the SC in its press release, it seems that falling short of impeachment they do not want to answer any questions. We need to locate accountability in a wider context. In my book I try to answer five questions that I think are key to judicial accountability. First, who is accountable? – judges as individuals and the institution of the judiciary, second, what are they accountable for? – this could be in terms of decisions, behaviour and administration, third, who is this accountability addressed to? – which is what you asked, fourth, how is this accountability to be enforced, and fifth, why do we want this accountability? – which in some sense is a foundational question. These questions have to be viewed holistically. In answer to your specific question, who is accountability owed to, I don't want to get into the weighty legal debate of whether it is owed to the law which in some sense is a pure conception of accountability or whether it is owed to the people. But in our Constitution, ultimate sovereignty (including the source of all judicial power) rests with the people. This accountability to the people can be mediated by several intermediaries, including academics, the media etc. It would, however, be wrong for any court in the world, especially our SC to say that it does not owe any accountability to the people. Especially in liberal democracies such as ours, all power is exercised in the name of 'We the People'. Coming to your foundational question then, why should judges and courts be held accountable? There are two reasons. First, there is an intrinsic reason that any holder of public office should be accountable. No further justification is required. Second, with regard to the judiciary specifically, we want responsible decision-making. We want a Court in the first place because we want an impartial arbiter of disputes, who should act responsibly in making decisions. The main method to ensure that decisions are made responsibly is through well-reasoned judgements which are a basic tool of accountability. Courts speak through their reasons and not through hectoring or their opinions. But it is also critical to note that judiciaries in recent decades have become extremely powerful. Concomitant with this great power, to quote the US Supreme Court, comes great responsibility. The more the power, more the accountability that will be sought. Giving reasons for judgements which are only accessible to ...

Both Independence And Accountability Needed For An Effective Judiciary: Dr. Arghya Sengupta In Conversation With Alok Prasanna Kumar And Akshat Agarwal On His New Book

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