JAGRAN SCHOOL OF LAW

LLM (CONSTITUTIONAL LAW)

Programme (2013-14)Semester II

RESEARCH DISSERTATION

SYNOPSIS

JUDICIAL ACCOUNTABLITY AND ITS IMPACT ON JUSTICE – A STUDY

SUBMITTED TO SUBMITTED BY

DR. J.P YADAV SUCHINDER

DEAN/PRINCIPAL ROLLNO. 17

JAGRAN SCHOOL OF LAW

Uttarakhand Technical

University Dehradun

Introduction

The concept of judicial accountability in India is considered in two ways.

First aspect is the accountability in higher judiciary in India for its judgments,

i.e. having the judges responsible for their decisions. The second aspect is with

respect to the institutional methods of appointing the Judges, removal of Judges

and the inhibitions to the criticism of their work but the ‘law of contempt of

court’ the judiciary an essential wing of the State, is also accountable. Judicial

accountability however is not on the same plane as the accountability of the

executive or the legislature or any other public institution. Indian polity is under

severe strain. Faith of the people in the quality, efficiency and integrity of

governmental institutions stands seriously eroded.

Legislature, executive and judiciary are said to be the three pillars of

democracy. Some people even believe that judiciary is the protector of

democracy. For the last many years judiciary has upheld the true values of

justice in India. But now, it appears that this strong pillar is shaking.

The fact that the powers of judges are very wide is in itself an indication that

the powers may not be allowed to be absolute. Among the constitutional

limitations on the judges, the most important one is the provision for ‘removal’

of judges of the High Court’s /Supreme Court by address of the Houses of

Parliament to the President on the ground of ‘proved misbehaviour or

incapacity’. This is provided in Constitution of India, art. 124 (2) and (4) in

respect of judges of the Supreme Court and in view of art. 217, that procedure is

attracted to the ‘removal’ of judges of the High Court also.

The guiding principle should always be this: accountability there is and must

be, but let it always be commensurate with judicial independence and

impartiality. Ultimately, the appropriate balance between competing principles

must be found in something that is best suited to our constitutional setup and is,

in that sense, uniquely Indian.

The apex judicial resolution attached to EX-CJI K.G Balakrishnan’s letter

says: “Every judge should make a declaration of his/her or spouse/dependents’

assets within a reasonable time of assuming office.” They are also to give

information about new assets acquired, additional property purchased or further

investments made if they are of “substantial nature”, assuring them that they

would not be for public consumption and that they would remain confidential.

The CJI has also promised to take measures against “black sheep in judicial

robes”.

Problems of Accountability

The people hold a great stake in the administration of justice. Despite the

value of judicial accountability in any free democratic republic, the judiciary in

India is at best completely unaccountable to any institution in the country. Many

factors have contributed to this dire situation and the problem of accountability

is wide and complex.

The Contempt of Courts Act

The main purpose of the Contempt Power has been to enable the court to be

able to enforce its orders and to punish for obstruction in administration in

justice. But over the years this power has been considerably widened and freely

used by the courts. Today, in countries like UK and U.S.A. the concept has been

liberalized. But India still follows the old British-rule norms, which

undoubtedly was not a free democracy.

Appointment and Selection of Judges

The Indian Constitution states that the Supreme Court of India will comprise

of the Chief Justice of India and at the most 7 other judges. This number has

now been increased to 30. The Supreme Court judges are appointed by the

President on the consultation of other judges of Supreme Court and High Court.

Other than in case of the appointment of the Chief Justice of India himself, the

President has to consult the Chief Justice of India when appointing the other

judges. High Court judges are also appointed by the President on the

recommendation of the Chief Justice of India and the Governor of the

concerned state. The Chief Justice of the High Court is also consulted for

appointing the judges, other than for the appointment of the Chief Justice

himself.

In the case of S.P. Gupta vs. Union of India, it was held that the President

has the right to differ from the advice provided by the judges and it can only be

challenged if it is based on mala-fide and irrelevant consideration. This decision

was reversed in SC Advocates on Record Association vs. Union of

India whereby it was held that in the matter of appointment of judges of high

courts and Supreme Court, the Chief Justice should have the primacy and the

appointment of the Chief Justice should be based on seniority.

Impeachment

The first time ever impeachment proceedings were initiated against a sitting

judge of Supreme Court was in K. Veeraswamy vs. Union of India. The motion

for impeachment in this instance failed and was defeated in the Lok Sabha. This

was not so because any member of the house was against the motion, but only

because they all abstained from voting. The controversy enraging today is how

can the ministers who are the major litigants in the court be trusted to select or

remove the judges?

The whole scheme of impeachment is frustrating and time-consuming and its

utility is non-existent. In addition, it is depended upon a corruption ridden

government and is highly susceptible to political pressure.

Disciplinary Mechanism

The Judges Inquiry Bill, 2006, recommended the constitution of a National

Judicial Council with powers to investigate complaints against the judges and

recommend suitable actions. It suggested that the complaint be allowed to be

made by anyone against any judge of the Supreme Court or the High Court

except for the Chief Justice of India. The members of the council would be the

Chief Justice of India, two senior most Supreme Court Judges and two High

Court Judges. In case of a complaint brought forward against a Supreme Court

Judge it would comprise of the Chief Justice of India and four senior most

judges of the Supreme Court.

Statement of the Problem

The problem with judicial reforms in India is that we lack clarity as to who is

ultimately responsible to the citizens. But, with experience, the collegium

system has invited so much criticism and the executive do not bother to address

the issue showing judicial independence and they will say that they can do

nothing given the legal position in this regard. Likewise, the problem is where

to start and whose responsibility it is to address the issue of delay in disposal of

cases before various courts in this country. It is for sure that we can certainly

curtail the delay in justice delivery and can ensure speedy justice to the citizens.

For which what we need is commitment from Government and the concerned

ministry. We have so many eminent judges with vast experience who also

command great respect among the professionals and people. We need to utilize

their services and get their guidance as to how to cure the system and make the

speedy disposal of cases a reality. Judicial reforms will transform this country to

a great extent and we can see lot of change in the things in the society if we are

able to bring the judicial reforms. There will not be any illegality in the society

or at least we can see substantial reduction in illegal activities in the society if

there is an effective judicial system in place. This is the impact of effective

judicial system in the Country.

Alleged corruption in Judiciary and particularly lower judiciary is a matter of

grave concern. We need to address the issue of corruption in Higher Judiciary

first and we need to concentrate on the issue of judicial appointments. The

judge’s accountability is a serious issue as options are less to deal with the judge

who is not accountable or who is corrupt. So, the responsibility of appointing

efficient and clean judges is to be given to executive and they should not be

allowed to take a defence that they are not concerned with the appointments and

as such they can do nothing when it comes to corruption in judiciary. Our

country is really facing a serious problem with the allegations of corruption in

judiciary and the public are slowly losing their faith in judiciary or finding the

ways to get relief by adopting unethical means. When we make the system very

transparent, then, there is a chance of reducing the corruption to a great extent

and such the executive should concentrate as to how to make the entire judicial

system in the country transparent.

Objective of the Study

The present work of the research dissertation is related with the problem

Judicial Accountability & its Impact on Justice, so to find out the impact of the

result of the problem I’ve started my dissertation work with following

objectives. Discussed below:

1. What is the meaning of judicial accountability?

2. Whether the judiciary of India is free from the burden of accountability

3. How Judiciary Accountability can be determine and with what

parameters?

4. How Judicial Accountability is enforced? Whether there is any

Independent Institution, Authority, Tribunal, Commission, etc. is

constituted and available to enforce Accountability against the

Independence of Judiciary?

5. To study the Judicial Accountability under the Indian Constitution? 

6. It is to be taken into consideration that the Judicial Accountability is

different from the Accountability of the Judicial System. 

7. The principles and standards are to be laid down for ascertainment of

Judicial Accountability. 

8. Whether the Constitution of India provides any safeguards regarding

Accountability of Judiciary or not?

Here after the consideration of the above points we’ll discuses one by

one-

Hypothesis of Judicial Accountability Project

Hypothesis is the tentative statement made while doing the research work or

it is also called as predictive statement made by the researcher.

1. The present study is limited to understand the nature of Indian Judiciary

and its accountability. 

2. The present study is limited to constitutional frame work of Judiciary

relating to appointments, powers, functions, Independent Nature and

Accountability. 

3. The independent Indian Judiciary is protecting fundamental rights,

Federal Character, supremacy of the constitution.

4. The concept of Judicial Activism and Judicial overreach and Judicial

Restraint

5. The Indian Judiciary with its Independent nature projects the constitution

supremacy through its active role.

Research Methodology

Doctrinal Research: The Data Collection in this research is basically

primary in nature based on detail analysis of various documents and studies in

various books, articles & websites. This includes materials from books,

magazines, articles, websites ant juristic writings, where facts are critically

analyzed & conclusions are drawn from them. Legal principle can be framed

these conclusion. Further the current reportings of television and views of the

Senior Advocates have also been taken assistance in discussing the problem of

Judicial Accountability.

Tentative Chapterization:

Introduction

In India, the judiciary is separate and independent organ of the state.

The legislature and the executive do not interfere in the functioning of the

judiciary. The functioning of the judiciary is independent but it doesn’t

mean that it is not accountable to anyone. In a democracy the power lies

with the people. The judiciary must concern with this fact while

functioning. The high courts have the power of control over the

subordinate courts under article 227 of the constitution. The CJ of High

courts/ India have no power to control or make accountable other judges

of the Court.

Chapter-1-

Meaning and definition of the judicial accountability

The word ‘Accountable’, as defined in the Oxford Dictionary, means

‘responsible for your own decisions or actions and expected to explain

them when you are asked. Clearly, the concept of ‘judicial accountability

‘refers to making the judges answerable for their decisions in the court of

law.

What exactly is Indian judiciary? Is it accountable to anyone? These

are certain questions which require immediate and remedial answers.

Peeved at judiciary donning the role of Executive in several cases,

Somnath Chatterjee warned of ‘serious implications’ if this trend

continued, asserting no one should behave as a ‘super organ’ of the State.

Chatterjee said ‘nowadays’ there have been ‘umpteen’ cases where

judiciary had "intervened in the matters entirely within the domain of the

executive, including policy decisions despite the Constitution according

pre-eminent position to the Legislature. The judiciary, the principal

system present in all the societies created, mainly to fight injustice,

lawlessness and uphold what is just, right and fair. This system if

personified as a human being tends to become corrupt and decay or like

any normal human being is born with some imperfections.

Chapter-2-

Concept of Independent of Judiciary under the Indian

Constitution

In the context of Separation of Power, judicial review is crucial

and important. We have three wings of the state- Judiciary,

Legislature and Executive (not necessarily in that order) with their

function clearly chalked out in our constitution. Article 13 of the

constitution mandates that the ‘State shall make no law, which

violates, abridges or takes away rights conferred under Part III’. This

implies that both the Legislature and the Judiciary in the spirit of the

words can make a Law. But under the theory of checks and balances,

the judiciary is also vested with the power to keep a check on the

laws made by the legislature.

a) First with regard to separation of powers

b) Second Judicial Legislation

Chapter-3-

Problems regard to making judiciary accountable

a. Judicial Accountability and Judicial Independence-

Judicial accountability helps safeguard the independence and integrity

of the judges. Sometimes judicial accountability can be misconstrued as it

is context- based. It is very difficult to define judicial accountability and

it has to be appreciated from the view of its objectives. The function of

independence is to let the judges decide according to the rule of law and

not be influenced by any other agency of the government or any private

interests or the interests of any individual.

b. Problems of Accountability

The people hold a great stake in the administration of justice. Despite the

value of judicial accountability in any free democratic republic, the judiciary in

India is at best completely unaccountable to any institution in the country. Many

factors have contributed to this dire situation and the problem of accountability

is wide and complex.

c. Contempt of the Court

The main purpose of the Contempt Power has been to enable the court to be

able to enforce its orders and to punish for obstruction in administration in

justice. But over the years this power has been considerably widened and freely

used by the courts. Today, in countries like UK and U.S.A. the concept has been

liberalized.

d. Appointment and Selection of Judges

The Indian Constitution states that the Supreme Court of India will comprise

of the Chief Justice of India and at the most 7 other judges. This number has

now been increased to 30. The Supreme Court judges are appointed by the

President on the consultation of other judges of Supreme Court and High Court.

Other than in case of the appointment of the Chief Justice of India himself, the

President has to consult the Chief Justice of India when appointing the other

judges. High Court judges are also appointed by the President on the

recommendation of the Chief Justice of India and the Governor of the

concerned state.

e. Impeachment

This is the vicious circle of the impeachment of judges. The unfeasibility and

hopelessness of this law has been seen time and again when impeachment

procedure has been tried to be initiated against corrupt judges.

f. Disciplinary Mechanism

We need a workable mechanism for disciplining erring judges and it should

constitute both corrective and punitive measures. Different types of misconduct

should be dealt with differently.

g. Ethics of Judges

The basic code of ethics is the principle that no man can be judge in his own

cause; it means that a judge should not adjudicate those cases in which he has

any kind of interest. A judge should follow the motto of “Fiat justitia, ruat

caelum” that is “let justice be done though the heavens fall”. A judge should

guard against intimidation of powerful outside interests, which often threatened

the impartial administration of justice and keep him free from application of

crude pressure, which may result in manipulation of the law for political

purposes at the behest of the government in power or anybody else.

Chapter-4-

The concept of Judicial Activism

The term “judicial activism” came into currency sometime in the

twentieth century to describe the act of judicial legislation i.e. Judges

making positive law. Although, the underlying debate on judicial activism

has been around since the days of Blackstone and Bentham, the credit

belongs to a non-lawyer Arthur Schlesinger Jr., for popularising the term

“judicial activism”. His 1947 article in Fortune started the modern debate.

It brought into focus the dichotomy observed in the judicial process:

unelected Judges versus democratically elected legislatures; result-oriented

judging versus principled decision-making; observance versus side-

stepping of precedents; law versus politics and so on. On the basis of their

judicial philosophies, Schlesinger characterised some Judges of the US

Supreme Court as “judicial activists”, some as “champions of self-restraint”

and others as comprising the middle group. Scholars of law, practitioners

as well as the general public have debated, often fractiously, the

correctness or otherwise of this kind of judicial activity, some advocating

John Austin’s deference to restraint and others Justice Benjamin Cardozo’s

views which tended towards activism.

Activism versus restraint

In India, although the activism versus restraint debate existed even in

the pre-Constitution period, it did not vigorously take-off till the 1970s

when the Supreme Court of India itself became very activist. However, the

underlying philosophical issue of the relationship between means and ends

has been long debated in Indian philosophy. In recent times, it was

Mahatma Gandhi who advocated that the means used for achieving a

particular result must also be as acceptable as the result itself. As we shall

see, the saga of judicial decision-making by the highest court in India

indicates that judicial activism or the mere pursuit of ends without regard

to the means has become the dominant approach in judicial thinking.

Judicial restraint - There can be no difficulty in accepting judicial

restraint or legal centrism as a judicial philosophy in itself. But this philosophy

is very different from judicial activism that I have spoken against. Despite the

high-sounding words, “judicial restraint” only means that the Judge shall stick

by the law and decide legal controversies strictly in accordance with established

principles of law without foraging the constitutionally forbidden territories

reserved for another branch of the government. In my view, that precisely is the

role a Judge is called upon to play by reason of the oath that he undertakes. A

Judge is not free to render justice as he thinks, but is required to render “justice

accords to law”.

Chapter-5-

Judicial Accountability Bill –

1. Whether to undermine the independence of Judiciary

The meaning of the independence of the judiciary is still not clear after

years of its existence. Our constitution by the way of the provisions just

talks of the independence of the judiciary but it is no where defined what

actually is the independence of the judiciary.The primary talk on the

independence of the judiciary is based on the doctrine of separation of

powers which holds its existence from several years. The doctrine of

separation of powers talks of the independence of the judiciary as an

institution from the executive and the legislature.

2. “ How , why, what and when of the bill”

The judiciary is not untouched by corruption”. As guardians of the

constitution, our judges have admirably protected democratic traditions in our

country; but the question remains, who will guard the guards? The Judicial

Standards and Accountability Bill will set judicial standards and make judges

accountable for their lapses.

Need and Consequences

The judicial accountability and transparency is the need of the hour to

maintain the faith and trust in judiciary and their juries. We should endeavour to

make them a reality in our home territories without hindering to the

independence of the judiciary.

 “Without transparency, there can be no accountability; Secrecy is only the

preserve of dictatorship.”

Chapter-5-

Judicial Accountability in Other Nations of the World

South Africa:

South Africa is currently in the process of adopting new laws on

judicial ethics and discipline, financial disclosure, judicial codes of

conduct and training for judges.

Australia: The federal judiciary enjoys constitutional protection in

terms of appointment and removal of judges by virtue of section 72 of the

Federal Court of Australia Act Removal can only occur through proved

misbehavior or incapacity.

Canada: In Canada the independence of the federally appointed

judiciary is guaranteed by the Canadian Constitution (namely sections 96

to 100 of the Constitution Act, 1867) which provides for the appointment,

security of tenure and financial security of superior court judges.

Canada: In Canada the independence of the federally appointed

judiciary is guaranteed by the Canadian Constitution (namely sections 96

to 100 of the Constitution Act, 1867) which provides for the appointment,

security of tenure and financial security of superior court judges.

Chapter-6-

Impact of judicial Accountability –

The functioning of judiciary or the legal system has a direct impact on the

society and the rights of the people. If a criminal could manage a magistrate or

court dealing with his case, then, who will protect the society from evil forces?

We cannot expect the government to be very clean and responsive given the

complications in the Indian political system. As such, the Judiciary or the legal

system has a big role to play in protecting the rights of the people, ensuring

orderliness in the system and even making a judgment on the executive actions

when those are not in conformity with the public interest. There are critics on

the allegations of corruption and lack of transparency in the Judiciary

Conclusion with Suggestion for Improving Judiciary System

The judicial system serves the people in a democracy and is not above the

Law. And law and morality should not be considered independent of each other.

Integrity, impartiality, high morality, honesty, freedom from bias and influence,

and a keen sense of social responsibility are a few important qualities must in a

Judge.

“Power corrupts and absolute power corrupts absolutely.” No more can the

judges hide behind the cloak of judicial independence and secrecy which is an

allergy to democracy. It is aptly said that independence of judiciary is not the

property of the judiciary, but a commodity to be held by the judiciary in the

trust of the public. 

Bibliography

Books

S.N. NAME OF BOOK NAME OF AUTHOR PUBLICATION YEAR

01 CONSTITUTION OF

INDIA

PANDEY J.N. CENTRAL LAW

AGENCY ALLAHABAD

2008

02 V.N. SHUKLA’ S

CONSTITUTION OF INDIA

M.P.SINGH EASTERN BOOK

COMPANY

2006

03 OUR CONSTITUTION KASHYAP S.C. ------- 2006

04 INTRODUCTION TO

CONSTITUTION

BASU D.D. WADHWA PUB.

NAGPUR

2004

05 CONSTITTUION OF

INDIA

BAXI P.M. UNIVERSAL LAW

AGENCY DELHI

2009

06 INDIAN

CONSTITUTIONAL LAW

JAIN M.P. LEXIS NEXIS PUB. 2005

07 ADMINISTRATIVE LAW DR. J.J. UPADHYA CENTRAL LAW

AGENCY ALLAHABAD

2010

Research Article

1. Judiciary in Constitution Independence and Accountability

* Rajnish Kumar Srivastava ** Dr. R.B . Srivastava

2. Judicial Corruption, Accountability and Democracy * Ronak Karanpuria

3. Judicial Accountability in India

* Kumar Rajendran

Legislation Accountability Bill 2010

The Judges (Inquiry) Bill, 2005

Judges (Inquiry) Act, 1968

Websites

1. legalserviceindia.com2. mylaw.net3. indiankanoon.com4. lawyersclub.com5. loksabha.ac.in