DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE

JUDICIAL ACCOUNTABILITY

SUBJECT
POLTICAL SCIENCE

NAME OF THE FACULTY

Prof.T.Y.Nirmala devi

Name of the Candidate

Roll No. & Semester

Shaik MD Umar Abdullah

2017084

I SEMESTER
 JUDICIAL ACCOUNTABILITY 2017

ACKNOWLEDGMENT

I would sincerely like to put forward my heartfelt appreciation to our respected Political science
professor, Miss. T.Y.Nirmala Devi for giving me a golden opportunity to take up this project
regarding ―Judicial accountability. I have tried my best to collect information about the
project in various possible ways to depict clear picture about the given project topic.
 JUDICIAL ACCOUNTABILITY 2017

CONTENTS

1. ABSTARCT ………………………………………………………………………..4
2. INTRODUCTION…………………………………………………………………..5
3. INDEPENDENCE OF JUDICIARY………………………………………………6

4. JUDICIAL ACCOUNTABILITY …………………………………………………8

5. PROBLEMS IN REGARD TO MAKING JUDICIARY ACCOUNTABLE

1. IMPEACHMENT ………………………………………………………………….9
2. THE VEERASWAMY CASE ……………………………………………………..11
3. CONTEMPT OF COURT …………………………………………………………12
4. EXEMPTION FROM THE RTI …………………………………………………..13
5. JUDGES INQUIRY ACT ………………………………………………………….14
6. JUDICIAL ACTIVISM …………………………………………………………….15
7. OTHER CAUSES …………………………………………………………………15

6. SOLUTIONS

1. RESTATEMENT OF VALUES OF JUDICIAL LIFE…………………………….16

2. THE NATIONAL JUDICIAL COMMISSION ……………………………………17
3. JUDICIAL STANDARD AND ACCOUNTABILITY BILL ……………………..17
4. JUDICIAL RESTRAINT …………………………………………………………..18
5. AMENDMENT OF THE CONTEMPT OF COURTS ACT ………………………19
6. ROLE OF MEDIA AND NGO’s…………………………………………………..19
7. LOKPAL BILL ……………………………………………………………………20
8. PRIVATE ARBITRATION ……………………………………………………….20
9. LAW COMMISSION REPORT NO. 230 …………………………………………20
10. INTERNATIONAL EFFORTS……………………………………………………21

7. CONCLUSION………………………………………………………………….22
 JUDICIAL ACCOUNTABILITY 2017

ABSTRACT

Indian judiciary system is the most powerful judiciary in the world after USA. Judiciary in India
being a democratic country vested with the highest power by the people and is considered as the
strongest pillar of the democracy. Judiciary in India has been given supreme powers by the
legislature which has lead to the non accountability of judiciary to anyone. Judiciary in India
enjoys judicial independence but this independence sometimes results in the misuse of powers
and privileges by the judges. One cannot practically take any disciplinary or criminal action
against misconduct or crimes committed by judges. If you expose them publicly, you run the risk
of contempt. And with the effective blocking of the RTI Act in its application to the judiciary,
they remain ensconced in their citadels safe in the Knowledge that no one can even peer into
their affairs. This lack of accountability coupled with the enormous unchecked powers that the
courts have acquired and are exercising make the judiciary a very dangerous institution and
indeed a serious threat to Indian democracy.
“Power corrupts, and absolute power corrupts absolutely”- John emerich Acton.
 JUDICIAL ACCOUNTABILITY 2017

INTRODUCTION

The three organs of the Indian government – Legislature, Executive and Judiciary perform
three essential functions of rulemaking, rule application and rule adjudication respectively. The
main principle behind this formulation is separation of powers: which brings accountability,
keeps the government restrained and in this way our rights and liberties are safeguarded. In fact
the main driving force behind this is based on the simple saying that ‘power corrupts man and
absolute power corrupts absolutely’. In the words of Montesquieu, “Constant experience has
shown us that every man invested with power is apt to abuse it, and to carry his authority until he
is confronted with limits’.
In short absolute power without accountability leads to corruption. Corruption in India is always
in limelight. In his foreword to the UN Convention against Corruption, the then Secretary
General of the United Nations, Mr. Kofi Annan wrote, “Corruption is an insidious plague that
has a wide range of corrosive effects on society. It undermines democracy and the rule of law,
leads to violations of human rights, distorts markets, erodes the quality of life and it allows
organized crime, terrorism and other threats to human security to flourish.”1 However recently
what has caught our attention is the corruption charges levied against judges; examples being a
Calcutta High Court Judge Soumitra Sen guilty of misappropriating large sums of money and
making false statements regarding it and Chief Justice of Karnataka High Court P D Dinakaran,
alleged for land grabbing and corruption. It is nevertheless to be noted that the word ‘recently’
should not mislead us to think that corruption in Judiciary is a new thing, it has always been
there, only less talked about. But given the increase in the rate of corruption charges one can’t
help but ask the question ‘who is judging the judges?’

There is another principle working together with the separation or balance of power i.e., checks
and balances. Simply put the theory of checks and balances holds that no organ should be given
unchecked powers. The power of one organ should be checked and restrained by the other two,
thus a balance is secured. After all ‘power alone can be the antidote to power’. So we see in
India how the executive is individually and collectively responsible to the legislature, although
here the accountability has decreased because of anti-defection law, whereby if there is any
amount of dissent from the legislator, he is threatened with removal which can cost his
1
“Draft Lokpal Bill- Civil Society Version”, The Hindu, in
 JUDICIAL ACCOUNTABILITY 2017

constituency being unrepresented. Thus all decisions of party leaders are now just rubber-
stamped by Parliament. The laws passed by the legislature are checked by the judiciary, if it goes
against the Constitution the latter declares it null and void. Moreover the legislature is
accountable to the people who elect them for five years. Given this it becomes clear that the
judiciary is the guardian of the Constitution and protector of fundamental rights. In spite of this
there is a sudden spate of judiciary corruption which is proving to be self-defeating and is
indicating towards the lack of accountability in the institution, this is what I will be discussing in
my project. This is important because in the preamble we give to ourselves JUSTICE- Social,
Economic and Political.
Any authority that has some amount of public power must be responsible to the people. The fact
is that in a ‘democratic republic’, power with accountability of the individuals enjoying it, is
essential to avert disaster for any democratic system. But before moving into the concept of
accountability, what is important to note and understand is another concept i.e. ‘independence’
of judiciary. Both these concepts have to be studied together to understand any one.

INDEPENDENT JUDICIARY

Independence is a bulwark of rule of law. If law is to be applied equally to all citizens in the
country, then it is equally important that the judges should be independent in applying law and
rendering judicial decisions. Judges can be subject to threats and pressures from litigants,
including society’s criminal element. Independence of judiciary is a recognized principle
adopted by most of the democratic countries. Mona Shukla has provided us with the history of
judicial independence in United Kingdom, United States and India.
United Kingdom: The concept first began from here. There had been a long struggle between
the parliament and monarchy to control judiciary. In the 17th century, the parliament passed a
settlement act, which stipulated that the tenure of the judges would be subject to good behavior
and their removal after an address to both houses of parliament.2

2
Mona Shukla, ‘Judicial Accountability: an aspect of judicial independence’ in Judicial Accountability, Regal
Publications, New Delhi, 2010, p. 24
 JUDICIAL ACCOUNTABILITY 2017

United States: Attempt for independence was seen in the 1985 Basic Principles on the
Independence of Judiciary which states “the Judiciary shall decide matters before them…
without any restrictions, improper influence, inducement, pressures, threats or interference,
direct or indirect, from any quarter or for any reason”.

India: Before independence, judges were appointed by the Crown, yet they had
independence from it. After independence, this principle was taken seriously and it
became a part of the Basic Structure of the Constitution, which cannot be amended.
The independence is guaranteed by the Constitution which holds that the judges of the
Supreme Court and the High Court hold office till he attains 653 and 624 years of age.
The parliament is authorized to prescribe the privileges, allowance, leave and pension
of the judges of the SC.5 The Constitution prescribes for high qualifications for the
judges.6

Further no judge can be removed from his office by the President except upon the presentation of
him of an address by each house of the parliament for such removal on the grounds of
misbehavior and incapacity.7 A judge of the SC and HC is appointed by the President of India
in consultation with the CJ of India and such judges of SC and HC as he may deem necessary. 8
The SC is also treated as the court of record.9 However this independence has been misused by
many and it has also been the reason for the growth of enormous power. The problem actually
lies in the understanding of independence; it should be understood as independence from
executive and legislature and not independence from accountability. The spirit of independence
has been captured very aptly by Lord Woolf, “the independence of the Judiciary is not the
property of the Judiciary, but a commodity to be held by the Judiciary in trust for the public.”

3
Art 124(2) of the Indian Constitution
4
Art 217(1) of the Indian Constitution
5
Art. 125 of the Indian Constitution
6
Art. 124(3) of the Indian Constitution
7
Art 124(4) of the Indian Constitution
8
Art. 124(2) of the Indian Constitution
9
Art 129 of the Indian Constitution
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JUDICIAL ACOUNTABILITY

Judicial accountability is in fact a corollary of the independence of the judiciary. Simply put,
accountability refers to taking responsibilities for your actions and decisions. It generally means
being responsible to any external body; some may insist accountability to principles or to oneself
rather than to any authority with the power of punishment or correction. Since accountability is a
facet of independence the Constitution has provided in Article 235, for the ‘control’ of the High
Court over the Subordinate Judiciary clearly indicating the provision of an effective mechanism
to enforce accountability. Thus entrustment of power over subordinate judiciary to the High
Court preserves independence as it is neither accountable to the executive or the legislature. The
provision of the difficult process of impeachment has also been directed towards this goal. The
absence of any mechanism for the higher judiciary except for extreme cases is because the
framers of the Constitution had thought that ‘settled norms’ and ‘peer pressure’ would act as
adequate checks. However it hasn’t happened completely in that manner. The main problem is
that the judiciary is neither democratically accountable to the people nor to the other two organs.
The Supreme Court had rightly asserted that “A single dishonest judge not only dishonors
himself and disgraces his office but jeopardizes the integrity of the entire judicial system.” This
brings us the section on why do we need accountability. A campaign issued by the people’s
convention on Judicial Accountability and Reforms had mentioned, “ The judicial system of the
country far from being an instrument for protecting the rights of the weak and the oppressed has
become an instrument of harassment of the common people of the country…. The system
remains dysfunctional for the weak and the poor… (and has been) displaying their elitist bias.”10

Mona Shukla has listed down three promotions done by Judicial Accountability:
1. It promotes the rule of law by deterring conduct that might compromise judicial
independence, integrity and impartiality.

2. It promotes public confidence in judges and judiciary.

10
Mona Shukla, ‘Judicial Accountability: an aspect of judicial independence’ in Judicial Accountability, Regal
Publications, New Delhi, 2010, p. 4
 JUDICIAL ACCOUNTABILITY 2017

3. It promotes institutional responsibility by rendering the judiciary responsive to the needs of

the public it serves as a separate branch of the government.11

Transparency is facilitated through the process of accountability. It is best achieved when one is
accountable to law. The existing systems of accountability have failed, and the growing
corruption is eating away the vitals of this branch of democracy. This lack of accountability has
been best put forward by Pt. Nehru in a diatribe, “judges of the Supreme Court sit on ivory
towers far removed from ordinary men and know nothing about them.” The demi god’s image
has to be replaced, after all judges are also humans capable of making mistakes and committing
vices. But what has gone wrong? The problem in making the judiciary accountable is discussed
below which will help us in understanding the issue and later find solutions to achieve it.

PROBLEMS IN REGARD TO MAKING JUDICIARY ACCOUNTABLE

1. Impeachment:
The only available mechanism is too impractical. According to the Indian Constitution, the only
way through which the members of the higher judiciary that is the Chief Justices and Judges of
Supreme Court (SC) and High Courts (HC) are accountable or can be removed is through
impeachment. Many regard impeachment as a failure, but before moving into that it is important
to see the constitutional provisions. Under Article 124(4), the process of impeachment is carried
out only on the grounds of proven misbehavior or incapacity. The Judges Inquiry Act, 1968
states that a complaint against a judge is to be made through a resolution signed either by 100
members of the Lok Sabha or 50 members of the Rajya Sabha to their respective presiding
officers. There is a three member committee comprising two judges one from SC and the other
Chief Justice of India if it is against a HC judge; and two SC judges if it is against a sitting judge
at the apex court. Investigations are carried out before making a recommendation to the house. If

11
Mona Shukla, ‘Judicial Accountability: an aspect of judicial independence’ in Judicial Accountability, Regal
Publications, New Delhi, 2010, p. 4
 JUDICIAL ACCOUNTABILITY 2017

the committee has concluded for the impeachment process to take place, the matter is discussed
in both houses.12 The alleged judge is also given opportunity to rebut the charges. After the
debate is done and the judge is heard, the house decides to put the motion to vote, a resolution
passed by 2/3rds majority in both houses. This whole process has to be completed in a single
session. After the resolution is passed, it is sent to the president who then orders for removal.
Given this provision, the story ends with no one being judge has been impeached till date.
However it will be a misjudgment if one thinks that the judiciary is free from corruption. The
loophole is the entire process of impeachment itself. It is undoubtedly lengthy and cumbersome.
Many have even regarded this as a complete failure.

Reasons:
To begin an impeachment one needs signatures to pass the resolutions. However, that becomes
quite an impossible task since many MPs have their own pending individual or party cases in
these judges court, so they are not willing to risk themselves. Conclusive documentary evidences
are also required before they put their signatures to the motion21. In one of his interviews,
Prashant Bhushan cites an example where in an impeachment proceeding against Justice Bhalla,
the BJP declined to sign because L.K. Advani had been acquitted by him in the Babri Masjid
demolition case13. One can also not forget the Justice Ramaswamy case, which had been charged
with misusing of courts fund, yet the Congress (I) refused to cast their vote.
Few points that definitely proves his misbehavior.
1. “That he is misappropriated some of the furniture, carpets, and some other items purchased
from the court’s funds for his official residence costing more than Rs 1,50,000 and did not
account for the same at all.

2. “That he misused public funds to the extent of Rs 9.10 lakhs by making the court pay for non-
official calls made on his residential telephones at Chandigarh during his 22 months in office as a
Chief Justice of Punjab and Haryana High Court.

3. “That he gave unjustified promotions to several members of subordinate staff of the HC whom
he misused for aiding and abetting his acts done for his personal gain.”

12
Mona Shukla, ‘Judicial Accountability: an aspect of judicial independence’ in Judicial Accountability, Regal
Publications, New Delhi, 2010, p. 7
13
Shoma Chaudhury, ‘Half of the last 16 Chief Justices were corrupt’, p.1, in
 JUDICIAL ACCOUNTABILITY 2017

He was the first judge to face impeachment proceeding but it failed even though there were
conclusive evidences against him.

The Investigating Committee comprising the judges themselves doesn’t seem the correct
mechanism. It has often been said that the judges act together like a ‘trade union’, so they
generally wouldn’t like to charge their fellow colleagues of corruption. A solution to this can be
the National Judicial Commission, an independent institution. Such a commission will have their
own investigating machinery. Thus it will also not harm the independence since the judiciary is
not accountable to either the executive or legislature.

I do agree with the special 2/3rd majority. This will maintain the independence and also adds
the seriousness to the issue. It is important to understand that at the end of the day judiciary is an
important organ with huge responsibilities. An organ with extraordinary functions demands to be
treated differently. A simple majority on the other hand can prove to be detrimental to
independence.

2. VEERASWAMY CASE
The additional immunity with which the judges have cloaked themselves was in the
Justice R. Veeraswamy case, in which it was declared that judges of SC or HC cannot be
subjected to investigation in any criminal offence of corruption, or a FIR be registered
against them without the prior permission of the CJI.14 Again it’s not likely that the CJI
will allow such permission, as it can bring shame to the entire Judiciary.

14Mona Shukla, ‘Judicial Accountability: an aspect of judicial independence’ in Judicial Accountability, Regal
Publications, New Delhi, 2010, p. 8 26
 JUDICIAL ACCOUNTABILITY 2017

3. Contempt of Court:

The contempt of court can be seen as a means to protect the independence of the court, however
it is mostly seen that the court has used this as a means of shielding themselves from any
criticism. Contempt is defined as any act that is offensive and critical to the dignity and the
authority of courts. According to Oswald, “contempt of court is so manifold in its aspect that it is
difficult to lay down the exact definition of the offence.”15 Contempt can be classified into two
groups:
Civil: means willful disobedience of any, judgment, decree, direction, order or any other
processes of court.

Criminal: means publication of any matter or the doing of any other act whatsoever which
scandalizes or tends to lower the authority of any court.

It has often been referred that contempt of court for much part is a hangover from the British
rule. During the British rule, India was not free and democratic, but today the situation has
changed. Questions therefore arise as to how can laws of those days be applicable today16. There
is also problem with the definition, as there is no definition as to what constitutes scandalizing
the court as what was regarded scandalous earlier may not be regarded today.

The Contempt of Court Act 1952 has also been criticized on the basis that it infringes two
important fundamental rights of the citizen, namely, the right to personal liberty and the right to
freedom of expression. Given this allegation one is reminded of two important cases that took
place:
Arundhati Roy case: The problem arose as a result of the decision of the SC, which ordered
the concerned state governments to raise the height of the Sardar Sarovar Dam up to 90 ft. This
came as a great disappointment to the Narmada Bachao Andolan as it would lead to more
submergence of the nearby villages. This was severely criticized and a notice of contempt was
served against Arundhati Roy, Medha Patkar and advocate Prashant Bhushan. The three however
asserted that they were exercising their freedom enshrined in the Constitution. The court held

15
Mona Shukla, ‘Judicial Accountability: an aspect of judicial independence’ in Judicial Accountability, Regal
Publications, New Delhi, 2010, p. 10
16
Markandey Katju, “ Contempt of Court”,p.1 in
 JUDICIAL ACCOUNTABILITY 2017

Arundhati Roy guilty and sentenced her to one day imprisonment and a fine of Rs. 2000.27 What
was shocking and rather patriarchal was condescendingly referring her as a “woman” whom they
had treated leniently by giving her one day punishment.
Mid-Day journalists had published documentary evidences against Justice Sabharwal, who
passed the orders of sealing commercial properties in residential areas in Delhi, after his sons had
got partnership with leading shopping malls. These orders stood for their benefits. Yet no action
was taken against him. It was only after the convictions of four Mid-Day journalists for
contempt, by Delhi HC, that the news got coverage in the mainstream media. This shows a fear
in the media which has deterred them from investigation against corruption in judiciary. The fact
is that this power is like a Damocles’ sword which hangs over the neck of the people, particularly
the media.

4. Exemption from the Right To Information (RTI):

One of the ways the Judiciary can be held accountable is when the people have the right to know
what exactly they are doing. This comes naturally in a democratic form of government. In the
famous “Raj Narain Vs Indira Gandhi” case, the foundation for the RTI was laid by the SC. It
stated “the people of the country have the right to know about every public act … this is derived
from the concept of freedom of speech… To cover it with the veil of secrecy the common
routine business is not in the interest of the public.” This is chief safeguard against corruption
.
There are in fact, in many countries where public disclosure of asset is required as a measure for
good government. In the US, the Ethics in Government Act 1976 requires the annual disclosure
of financial information by all related to policy making responsibility. This issue of asset
declaration arose when Subhash Agarwal, inquired about the information whether the judges
were complying with the 1997 “Code of Conduct”. The Central Information Commission had
directed the information officer of the court to obtain the information from the CJI’s office and
provide it to the applicant. This prompted the SC to file a writ petition in the Delhi HC, claiming
that asset disclosure was exempted under RTI act on the basis that this information was disclosed
by the judges to the Chief Justice under “fiduciary relationship”. The double standard of the
courts on RTI Act was seen when although the courts were included in the definition of Public
 JUDICIAL ACCOUNTABILITY 2017

Authorities most of the HCs did not even appoint Public Information Officers (PIOs) even
months after this act came to force. Moreover information regarding the appointment of Class 3
and 4 employees by the High Court had been denied under the Delhi HC rules that provide for:
“ Exemption from the disclosure of information- the information specified under section 8 of the
act shall not be disclosed and made available and in particular the following information shall
not be disclosed:-
(a) Such information which is not in the domain or does not relate to Judiciary functions and
duties of the court and matters incidental and ancillary thereto.”17

5. Judges Inquiry Act:

The judiciary claims that any outside body having disciplinary powers over them who
compromise their independence so they have set up an “in-house mechanism” investigating
corruption. This was proposed by the Judges Inquiry Act Amendment Bill 2006 which
provided for a National Judicial Council consisting of the CJI, two senior-most judges of the SC
and two CJ’s of HCs as members to enquire allegations.18 The problem which arises is that in
this in-house procedure the judges regard themselves as a ‘close brotherhood’19 and therefore are
unwilling to take any step against them. What is objectionable is Section 33, which says not to
disclose any information relating to the complaint to any person in any proceeding except when
directed by the Council. This will make it impossible to publicize the charges20. Moreover, even
if it finds a judge guilty of serious misconduct, it can only recommend impeachment which again
goes for voting in the parliament, ultimately failing as we saw in the Ramaswamy case. The only
positive feature of the bill is that it initiates an enquiry into the allegations of misconduct of a
judge.

17
Prashant Bhushan , “ Right to Information and the Judiciary”, p.2
18
Mona Shukla, ‘Judicial Accountability: an aspect of judicial independence’ in Judicial Accountability, Regal
Publications, New Delhi, 2010, p. 62.
19
Background paper for the Seminar on Judicial Accountability, ‘Securing Judicial Accountability’ p.4
20
Prashant Bhushan (on behalf of the Committee on Judicial Accountability), ‘Committee on Judicial
Accountability’ , p.6
 JUDICIAL ACCOUNTABILITY 2017

6. Judicial activism

The lack of accountability has been especially egregious when in recent times we see the higher
judiciary making inroads into and passing orders which are within the domain of the executive
and legislature. For instance laying down policy regarding demolition of Jhuggis from Yamuna
Pushta, hawkers, cycle million tons of food grains immediately for distribution, because millions
of tons of food grains were lying in the open for years because of inadequate storage capacity. To
cite another striking example is when the SC issued a notice to the union govt. regarding the
steps taken by it to ameliorate the plight of Indian students who were being racially attacked in
Australia. It is to be noted that foreign policy is non-justifiable, but that did not put a stop to the
court’s action. Another example of interference was when the SC issued a notice questioning the
proliferation of the Mayawati statues, worth crores of rupees, in Uttar Pradesh. Just like foreign
policy, budgetary allocations are non-justifiable. In 2006, SC issued guidelines to reform the
police administration which is completely a state subject. A more recent case being the judgment
given by the Supreme Court in appointing two former justices to superintend the Special
Investigating Team (SIT) on black money issue of the government. The SC is right in holding
the government accountable, but imposing such a judgment is not justified. It is in a way
encroaching in the spheres which is not allocated to it by the Constitution. Second, the SIT
comprising of only judges also doesn’t seem the correct mechanism; the members should belong
from both judicial and non-judicial background. Third, the Supreme Court should have examined
the claim of the charges initiated by the petitioners against the RBI, rather than legitimizing it.
After all it has questioned the integrity of an institution. If someone had alleged the SC in a
similar manner of having close association with any other institution (like the way the RBI has
been associated with the UBS), it would have counter attacked it, with its power of contempt of
court. It is to be noted that although the decisions may be well intentioned but the ‘micro-
managing’ nature of the judges has to be curbed.

7. Other causes:
Appointment system

In 1993, a nine judge bench of SC laid down a new system for making appointments of judges
in HC and SC. This gave enormous powers to the collegiums of senior judges of the SC to select
 JUDICIAL ACCOUNTABILITY 2017

and make recommendation to the government for these appointments. There is no transparency
in the process, no system followed for preparing the shortlists or for choosing among eligible
members. The whole process is entirely ad hoc and arbitrary, which has lead to political
Favoritism when appointments were in the hands of the executive and nepotism when it has been
in the hands of the judiciary

Apart from the above there are other serious loopholes like Inaccessibility- highly expensive
beyond the reach of common man, who can hardly afford the long duration of the entire
procedure.21

Another problem is the Pending of cases: one judge of the HC in Delhi calculated that 464 years
will be required to clear the arrears with the present strength of the judges in that High Court. In
Allahabad HC, more than eight and a half lakh of cases are pending.22
The above problems are evidence of the grave situation in the judiciary and it certainly calls for
accountability. It is important to have accountability that will slightly compromise the judge’s
independence than to have an increase in corruption due to lack of accountability.

SOLUTIONS

1. RESTATEMENT OF VALUES OF JUDICIAL LIFE: CODE OF CONDUCT.

The conference of Chief Justices of all HCs was held on 3rd and 4th December, 1999, where all
the Chief Justices unanimously resolved to adopt the “Restatement of Values of Judicial Life”.
This would serve as a guide to be observed by the judges, essentially for an independent, strong
and respected judiciary in the impartial administration of justice. Some of codes that must be
followed are –

21
Prashant Bhushan, “judicial accountability”, Economic and Political Weekly, vol. XLIV No.37, 12th September,
2009 ,p.10
22
Law Commission of India, “Reforms in Judiciary”, Report No. 230, August 2009, p.14
 JUDICIAL ACCOUNTABILITY 2017

1. Judges should not conduct election to any office of club, society or other associations
2. A judge should not hear and decide a matter in which a member of his family, a close
relation or a friend is concerned.
3. A judge should not speculate in shares, stocks or the like.

2. The NATIONAL JUDICIAL COMMISSION (NJC):

Growing dissatisfaction with the failure of in-house mechanism, it has been rightly felt that an
independent mechanism like the NJC would help in achieving the much needed accountability.
The suggestion for a NJC has been made by the 80th Report of the Law Commission of India
and the 121st report of the Law Commission of India.23 This body will consist of five members:-
(i) One member nominated by a collegium of all the judges of Supreme Court.

(ii) One member nominated by collegiums of all Chief Justices of High Court

(iii) One member nominated by the cabinet

(iv) One member nominated by a collegiums of the Speaker, Leader of the Opposition in the
Lok Sabha and the leader of Opposition in the Rajya Sabha

(v) One member nominated by a collegium of Chief Vigilance Commissioner of the Central
Vigilance Commission (CVC), Comptroller and Auditor General (CAG) and the Chairperson of
the National Human Rights Commission (NHRC).

(vi) They will work as full time members. They will have investigating machinery, where
charges against judges will get investigated. According to the committee on judicial
accountability, this commission will also select judges for appointment to HC and SC, which will
be notified for public information. Thus in this way independence, is maintained as they are not
accountable to the Parliament or the Government.

3. JUDICIAL STANDARD AND ACCOUNTABILITY BILL:

This will replace the previous Judges Inquiry Act. It will be headed by a former Chief Justice of
India, where the public can lodge complaints against erring judges, including the Chief Justice of

23
Mona Shukla, ‘Judicial Accountability: an aspect of judicial independence’ in Judicial Accountability, Regal
Publications, New Delhi, 2010, p. 83
 JUDICIAL ACCOUNTABILITY 2017

India and the Chief Justices of the High Courts. The five-member committee will be appointed
by the President. Here the President is bound to accept PM’s recommendation. Now if this
recommendation is done by a three member committee two from government and one
recommended by the leader of the opposition, then the minority dissent will also be addressed.
On receiving a complaint, the committee will forward it to a system of scrutiny panels, which
will have the powers of a civil court. If the charges are serious, the committee can request the
judge concerned to resign. If the judge does not do so, the oversight committee will forward the
case to the President with an advisory for his removal. The bill mandates that the judges should
not have any close association with the individual members of the bar. 24

4. JUDICIAL RESTRAINT AGAINST ACTIVISM:

The above mentioned extreme activism is not justified as the courts should be concerned with the
legality of the law only. It raises accountability question since they are not directly elected by the
people, neither they are answerable to the executive or legislature. Furthermore, on what grounds
are the bench that decides a case selected is also not clear. We can learn from the USA judicial
courts where there is a private meeting of nine judges deciding on a petition, if four justices vote
to grant the petition, the case proceeds, otherwise it ends. Similar clear cut methods are also
desired in our country. This surely calls for the curtailment for activism after all one cannot just
start doing others function, which is against the principle of separation of powers. It may be
argued by the courts that because of incapacity of the other two organs, they are indulging in
activism and this is being proved by the growing number of cases filed in the PIL, however this
explanation does not justify in what the judiciary is doing. There should be suo-moto cognizance
but preferably after some delay and it should be followed by recommending an array of
alternatives. Its role should be more of advisory, accepting or rejecting it would on the other
hand depend on the two organs. What is therefore required is judicial restraint, i.e., limitation
on judicial decision making, other than those explicitly imposed by the Constitution or statutes.

5. AMENDMENT OF THE CONTEMPT OF COURTS ACT:

24
P. Sunderaranjan & J. Venkatesan,“Cabinet nod for judicial accountability bill”
 JUDICIAL ACCOUNTABILITY 2017

It is high time that the Contempt of Courts Act be amended. The Contempt of Courts
(Amendment) Bill, 2003 was introduced in the Lok Sabha and the same was referred to the
Parliament Standing Committee on Home Affairs for examination and report. The committee
received several memoranda containing suggestions, few are discussed below.
a. Accused should be given reasonable opportunity to defend himself according to law.

b. Cases of contempt should not be tried by courts but by an independent commission of

concerned district.

c. The Act should be amended to remove words, ‘scandalizing the court or lowering the authority
of the court’ from the definition of criminal contempt.25
It is to be noted that the recently introduced amendment of truth may be a good defense in
contempt action while mitigating a problem, but it does not solve the issue, because one often
needs to prove the truth of the allegation before the same judge against whom the allegation has
been made, thus the whole exercise become meaningless.

6. ROLE OF MEDIA AND NGOs:

Media is considered to be the forth pillar of democracy. Earlier media had always been silent
because of the threat of the Contempt of Court Act, but with the amendment of this act, it seems
that the freedom of expression will not be infringed. It is true that the media has its own negative
sides but one cannot fail to give credit to its positive aspect, for instance in the investigating role
it played in the Jessica Lal case. The way it brought the truth out was indeed incredible. The
negative aspects can be solved through a common ethics for media with regard to honesty and
fairness.26
Judicial reforms issues were also raised by the NGO’s. Some that were discussed are:
(a) Weak governance and corruption in judiciary
(b) Lack of laws to govern magistrate.
(c) Lack of judges and lawyers
(d) Low salary of judges and prosecutors.

25
Mona Shukla, ‘Judicial Accountability: an aspect of judicial independence’ in Judicial Accountability, Regal
Publications, New Delhi, 2010, p. 16-17
26
Ibid, p. 36
 JUDICIAL ACCOUNTABILITY 2017

7. LOKPAL BILL:

To begin with there are two versions of Lokpal bill. In the Government version, the judges are
not brought under scrutiny. It will be only an advisory body and therefore the Lokpal cannot
register an FIR on any complaint. The Lokpal will comprise of three members and all will be
retired judges, now this committee will be selected by politicians themselves.
The Civil Society version brings the judges under its jurisdiction. Complaints can be initiated by
Lokpal itself or from the public directly. The Lokpal will comprise of 11 members which will be
broad based.

9. PRIVATE ARBITRATION:

This is recognized as an effective method whereby parties who are involved in a dispute, upon an
agreed rules and regulation, share of expense, try to reach a settlement. A qualified arbitrator
who is a licensed professional and expert in that area is hired to solve the issue. The parties
involved also decide that after the completion of the resolution it may further not be appealed.
This saves them from the prolonged litigation experience.
In India, arbitration involving commercial disputes is being recognized as an effective method.
Equitable solutions are reached more quickly than litigation, at less costs and it allows parties to
adopt whatever procedures they choose for the resolution of the disputes. The courts in India
have offered full support and encouragement for arbitration; they do not review the merits of an
award in arbitration, unless requested by any party and only under restricted grounds of
challenge laid down in the Arbitration Act.

10. LAW COMMISSION REPORT NO. 230, AUGUST 2009:

This report has come up with certain recommendations. Some of which are discussed below:
 JUDICIAL ACCOUNTABILITY 2017

1. Increase in number of working days: considering the huge number of pendency which
has been discussed above it becomes necessary to increase the number of working days.
This introduction must be done at all levels of judicial hierarchy and it must begin from
the apex court.
2. Speedy justice is a right of every litigant and this has been guaranteed in Article 21 of
the Constitution. In fact it has been rightly said that ‘justice delayed is justice denied’.
Therefore effective steps have to be taken; an attempt has been made by Gujarat state and
Delhi to have evening courts.
3. Alternative dispute resolution (ADR): with new demands emerging, sometimes the
existing ones fail, the ADR has emerged out of this vision. Provisions has been made in
the Legal Service Authorities Act for settling cases through Lok Adalats these are
voluntary mediating agencies where by lawyers, retired judges and social activists can
take up pending cases in the lower courts and secure a settlement.
4. Technology: Modern technologies help to collect a lot of information and also build
judicial database, which enables us to assess the performance of judiciary as an
institution.

11. INTERNATIONAL TAKE ON ACCOUNTABILITY:

World conferences of independence of judiciary at Montreal, 1993

It dealt with independence and accountability of international judges. It also discussed about
selection, training, promotion, transfers, privileges etc.

Caracas Conference, 1999

This passed a plan of action upholding the principle of rule of law, independence of Judiciary
and human rights.

Bangalore Principle of Judicial Conduct, 2002

After referring to the UN Basic Principles on the Judiciary formulated six values:
 JUDICIAL ACCOUNTABILITY 2017

1. Independence.
2. Impartiality
3. integrity
4. equality
5. propriety and
6. Competence and diligence.
Under each value the principle describe considerations and situations of which judges are
aware of. It recommended certain points:
That civil society and policy makers should utilize these standards as a basis of their
engagements with governments and judiciaries. Attempt must be made to bring to attention of all
judiciaries about Bangalore Principles and encourage their adoption. Discussion among national
judges on the issues of judicial conduct and accountability must also be encouraged.27

CONCLUSION:

The fact that independence may need some interference shows that there are other ideals i.e.
unbiased and fair trials, more important than the former and these ideals can be achieved only
through an accountable judiciary. Independence should be used only as a means to achieve this
end and not an end in itself. If accountability is not taken seriously we can witness a dangerous
nexus between corrupt judges and politicians which will bring an end of democracy. It is also
important to keep in mind that accountability in judiciary is different from the other two organs,
the distinctive nature of the office demands separate treatment and this is in view of the nation’s
benefit.
The main task of judiciary is to dispense speedy justice and bring relief to the litigant. It is
through this way that public trust can be maintained. As the saying goes ‘let justice be done,
even though heaven fall’. However it is not that the judiciary has completely failed. Lok

27
David Pimentel, ‘Reframing the Independence Vs. Accountability Debate’, p.15,
 JUDICIAL ACCOUNTABILITY 2017

Adalats and Nyaya Panchayats have definitely helped the people in having an equal and fair
justice. A judge can ultimately be deemed accountable if she/he adheres to the normative and
ethical principles of her society and culture.
It was once said by the former President K.R. Narayan that, “It is not an exaggeration to say that
the degree of respect and public confidence enjoyed by the SC is not matched by any other
institution in the country.” This trust can be maintained only when the judiciary is constantly
subjected to people’s ‘ombudsmanning’28.

It has to accept that criticism is a way of reinforcing accountability and therefore it must be
tolerant. The best judicial reform would be the one where judiciary functions according to the
philosophy of the Constitution. An organized public opinion and campaign is required to bring
about greater accountability.

28
Mona Shukla, ‘Judicial Accountability: an aspect of judicial independence’ in Judicial Accountability, Regal
Publications, New Delhi, 2010, p. 79
 JUDICIAL ACCOUNTABILITY 2017

Bibliography

Statutes

1. Indian constitution
 Art 124(2) of the Indian Constitution
 Art 217(1) of the Indian Constitution
 Art. 125 of the Indian Constitution
 Art. 124(3) of the Indian Constitution
 Art 124(4) of the Indian Constitution
 Art. 124(2) of the Indian Constitution
 Art 129 of the Indian Constitution

Books

1. Judicial Accountability- by kalraj mishra

2. Transitional Justice, Judicial Accountability and the Rule of Law- by Hakeem O.
Yusuf
3. Judicial Accountability: an aspect of judicial independence –by Mona Shukla

Websites

1. http://www.judicialreforms.org/files/securingjudicialaccountability.pdf
2. http://www.thehindu.com/news/national/article2123870.ece
3. http://lawcommissionofindia.nic.in/reports/report230.pdf
4. http://www.judicialreforms.org/files/mechanism_jud_acc_verma.pdf
5. http://www.judicialreforms.org/files/4%20Comments%20of%20COJA.pdf