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(2020) PL January 68
Judicial Accountability in the Democratic Set-Up : Examining the Ramifications

of the Existing Legal Regime in Light of the Judicial Standards Bill, 2010
JUDICIAL ACCOUNTABILITY IN THE DEMOCRATIC SET -UP : EXAMINING THE

RAMIFICATIONS OF THE EXISTING LEGAL REGIME IN LIGHT OF THE JUDICIAL STANDARDS
BILL, 2010
by
Rajarshi Singh* and Shruti Gupta**
“There is no difference between the Judge and the Common Man except that one
administers the law and the other endures it.”
— McKenna J.
INTRODUCTION
The institution of judiciary, for a democratic nation, is at the helm of public welfare.
The essential significance of it cannot be undermined, in light of its vested power and
the responsibility to administer justice and maintain the subsistence of the rule of law,
rather than rule of men. It acts as the custodian of constitutional values, is bestowed
with the duty for its promulgation and has been defined as the cornerstone of
democracy.1 It is manifest in the judicial documents and the history that it holds, the
role played by this institution in shaping the nation's policy and guiding the shift
towards the modern welfare
Page: 69
nation that India is. From an imperialistic notion to the guardian of public interest, the
design and configuration of the judicial thought has traversed a path which is unique
in its existence. This can be attributed to several factors in this arena, one of which is
the independence that is ascribed to it.
An independent judiciary is essential for a free society, a constitutional democracy

and to ensure the rule of law and realisation of human rights and also the prosperity
and stability of a society.2 Judicial independence is not an end in itself but merely a
means to an end.3 However, this exercise of grant of independence also raises the
threshold of its accountability towards the citizens and the system. Accountability is
the concept of ethics and is often used synonymously with responsibility, answerability
or with the expectation of account giving.4 This paper aims to analyse the
accountability-independence continuum with pertinence to the Indian judiciary in light
of the recent debate stirred by the Judicial Standards and Accountability Bill, 2010.
Independence and Accountability — Who Triumphs Who
The question of supremacy of the two postulates has been a constant reminder for
this institution of its duties. The notion of discharging its duties under the
constitutional framework with ultimate authority, and the duty that it holds towards
the subject that it exercises authority over. The Law Commission in its 195th Report
reiterated that judicial independence is not absolute, judicial independence and
accountability are two sides of the same coin. The questions in this area are
concerning whether this institution's independence or its accountability, should be
given primacy over the other and whether such allowance of primacy is within the
constitutional mandates. The daunting question however remains is, are these values,
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in substance, really different and capable of survival in isolation? The answer to this
question bears a negative character. The actions of the judiciary on the premise of
independence of the judiciary while understandable cannot be at the expense of
accountability.5
The classic judgment in Kesavananda Bharati v. State of Kerala6 bore the seeds of
elevating the independence of judiciary to a status of being a constituent of the basic
structure of the Constitution, which was later firmly established in State of Bihar v. Bal
Mukund Sah.7 It seeks to insulate the functioning of the judiciary from political
influence. However, its meaning still remains imprecise.8 Lord Woolf has captured the
essence of independence as, “the independence of the judiciary is therefore not the
property of the judiciary, but a commodity to be held by the judiciary in trust for the
public”. On the other hand, the dire need of an accountability mechanism stems from
the over-assertiveness of the judiciary to the extent of declaring themselves immune
from any form of enquiry into their actions.9 This presumptive belief of immunity could
potentially challenge the faith placed by the people in this institution, which forms the
pillar of support for its independence.
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Accountability and independence are hence not mutually exclusive.10 As a

consequence, accountability stems through necessary implication, as a result of its
independence. Hence, deliberation over accountability, as an isolated phenomenon, is
non-fructuous in its very character.
Voluntary Conduct v. Involuntary Imposition

“Men who make their way to the Bench sometimes exhibit vanity, irascibility,
narrowness, arrogance and other weaknesses to which human flesh is heir.”11
As crystallised into words by the former CJI Hon'ble Justice J.S. Verma, “I believe
most of us prefer voluntary correct behaviour instead of outside imposition. That, in
my humble view, is the dignified course for Judges of the higher judiciary, which
appears to have been the view also of the framers of the Constitution.”12 This led to
adoption of a self-regulation mechanism by the Supreme Court on 7-5-1997 paving
the way for Restatement of Values of Judicial Life13 endorsed by the Chief Justice's
Conference of 1999, and followed by the Bangalore Principles of 2002.14 These
guidelines lack legal sanction. However, taking account of historical instances that
have raised substantial doubts over this methodology, specifically the Ramaswami
case,15 Arundhati Roy contempt issue16 and also the Soumitra Sen fiasco, the
subsistence of this ideology remains an important question of determination. In light
of the recent developments on this front and the increasing demand for accountability
mechanism, the need of a regulatory framework in the form of the proposed legislation
as opposed to a code of conduct to be adhered to is imperative. The need for reform
stems from the fact that the system remains dysfunctional for the weak and the poor,
and has been displaying their elitist bias.17 The provisions of the Judicial Standards
and Accountability Bill, 2010 are by and large consistent with what has been stated in
V. Ramaswamy case18 and also facilitate statutory recognition, with some minor
changes, of the Restatement of Judicial Values.19
Constitution of the Oversight Committee Does Not Impinge Judicial
Independence
India follows a model of separation of powers wherein it recognises separate
legislative, executive and judicial bodies, but allows some overlap in powers.20 The
rationale behind judicial independence is to insulate the judiciary from any external
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pressure in order to decide cases independently. Therefore, the Constitution creates a

structure for protection of Judges from being influenced by Parliament and the
executive21 which is not
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hindered through the creation of Oversight Committee under the Bill. The Judicial
Standards and Accountability Bill, 2010 provides for creation of an Oversight
Committee to regulate the complaint mechanism. The features of the Bill enabling the
Oversight Committee to impose “minor measures” are also within the constitutional
bounds. They ought not to be viewed as an encroachment on judicial independence by
the executive or by the legislature.22
Drawing support from the Conference of the International Bar Association at its 19th
Biennial Conference at New Delhi in October 1982, First World Conference on the
Independence of Justice held at Montreal on 10-6-1983 and the clauses in the
Universal Declaration on the Independence of Justice which concerned “discipline and
removal of national Judges”, B.C. Ray, J. mentioned in Sub-Committee on Judicial
Accountability v. Union of India,23 that the proceedings for judicial removal or
discipline, when such are initiated, shall be held before a court, tribunal or a board
predominantly composed of members of the judiciary.24 This does not call for absolute
judicial presence, but only for predominant judicial presence, which means, in
majority. This resonates with the provision as laid down in Section 18 of the Bill
concerning the constitution of the Oversight Committee which mandates that three of
the five members of the Committee represent the judiciary, keeping its integrity and
its independence intact. It consists of a retired Chief Justice of India as the
Chairperson, a Judge of the Supreme Court, a Chief Justice of the High Court, the
Attorney General for India, and an eminent person appointed by the President. The
Attorney General is appointed by the executive, and the eminent person appointed is
nominee of the executive. The other three succeed in resulting to a predominant
composition of the Committee upholding the principle of judicial independence.
Established Procedure under the Bill is in Line with the Constitutional Mandate
Article 124(5) of the Constitution bestows the power to regulate the procedure for
investigation regarding the grounds as mentioned in Article 124(4) to the Parliament.
The provision in Article 124(5) for the making of a law was not an enabling provision
but incorporated a condition precedent on the power of removal by Parliament. The
Supreme Court then held:“74. In this connection, the parliamentary procedure
commences only after proof of misbehaviour or incapacity in accordance with the law
enacted under clause (5), the machinery for investigation and proof of the
misbehaviour or incapacity being statutory, governed entirely by provisions of the law
enacted under clause (5).”25 In light of this provision, Parliament is vested with the
power to create and establish such provisions and regulatory framework as is
envisaged under the Bill. Hence, the procedural framework of the Judicial Standards
and Accountability Bill, 2010 is visualised in pursuance to Article 124(5) of the
Constitution of the nation. The precedence for the same exercise of power can be
found in the enactment of the Judges (Inquiry) Act, 1968.26
Exclusion of Legislature in Investigation Procedure is Maintained
The initiation of the investigation procedure on the allegation being made is
governed by the law enacted under Article 124(5) and in view of the
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restriction provided in Article 121, the machinery for the same has to be outside the
Parliament and not within it, and Parliament comes into picture only when a finding is
reached by the assigned machinery. The provisions made under Article 124(5) thereof
have to be construed in this light.27 The three institutions as envisioned under the Bill
further this objective of restricting legislative participation in the procedural setup
before the presentation of the findings is made before the Parliament. The restriction
in the jurisprudence lies only with the legislative participation and the constitutional
scheme does not conceive a prohibition on the contributory involvement of the
executive. The 2010 Bill is also reflective of this constitutional philosophy of both the
judicial and political elements of the process of removal, resting the ultimate authority
with the Parliament.28 After presidential assent, the Bill is laid before both the Houses
for further action in this regard29 and the process is then carried out in consonance
with Article 124(4) of the Constitution.30
Strict Application of Nemo Judex in Causa Sua

Accountability stems from the design that necessitates being answerable to a body
comprising of individuals, holding no direct personal interest in the outcome of such
scrutiny. The mechanism comprising of members of the judiciary testing the
accountability of fellow members, as a measure to protect their collective interests,
stands in violation of the principle of nemo judex in causa sua. This dictum translating
as “no one should be a judge in his/her own cause”, is considered to be a precondition
for a reliable, upright judicial system.31 The Judicial Standards and Accountability Bill,
2010 has incorporated this foresighted approach to counteract this mechanism and is
designed and equipped in a manner to forestall the various impediments that may
originate in its functioning. It seeks to establish a National Judicial Oversight
Committee to investigate individual complaints and motions for removal of a Judge
moved in Parliament. The membership of this Committee is not limited to judicial
representation. Though there is a predominant character of judicial presence, however,
the executive also enjoys enough representation. Judicial accountability is generally
sought effectively through an external regulatory authority. Ironically, the in-house
procedure, if comprised only of sitting Judges to investigate into the alleged charges of
misconduct, posturing themselves in the garb of an external authority, can potentially
negate the very purpose of seeking accountability32 as it violates the principle of
natural justice, that no man shall be the judge in his own cause.33
Collective repute — an incidental, but significant notifier
The notion of reputation performs as a belief inflicting mechanism for the subjects
of an institution. The reputation of the courts as a whole is a crucial determinant in the
judiciary's ability to accomplish its goals.34 And in direct nexus, the reputation of the
judiciary as a whole is dependent on the
Page: 73
reputation of its component Judges. Different reputation mechanisms, as ascribable to

an institution, might attract different types of people participation.35 Selection
processes tend to reinforce the status quo, since the new Judges are interested in
reinforcement of the reputation that attracted them to the profession in the first
place.36 Collective reputation is essentially determined by external mechanisms. It
reflects the views of society or public opinion in general towards the judiciary, but also
how the interests of the relevant constituencies with power over the courts are
addressed. These constituencies might include the Bar, other branches of Government,
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political parties and others, depending on the institutional environment of the courts.37
Collective reputation shapes the social and political influence of the judiciary as a
whole, and the extent and limits of public faith.
Conclusion
A contextualised understanding of the constant strife between the notions of
independence and the accountability of the institution of judiciary in India, renders
strength to the mandate of their balance. Independence cannot subsist in itself
without, affirming the accountability as a measure to reinforce the public faith. The
derivation of this independence lies on the established constitutional norms, which
mandates public welfare. The Judicial Standards and Accountability Bill, 2010 is a
welcome step in this regard and lays down the foundation for, what could be termed
as an essential regulatory framework. A rebuttal from the institution for this
proposition, on the pretext of disguising it as an unconstitutional legislation, only
strengthens the cause for its implementation. Ascribing the judiciary with privileges
without imposing necessary checks, would only lead to the demolition of
constitutionalism and the rule of law, consequentially causing substantial harm to the
faith bestowed by its subjects and the power vested in this institution through the
vision of the craftsmen of this nation.
———
* Student at National University of Study and Research in Law, Ranchi.
** Student at National University of Study and Research in Law, Ranchi.
1
All India Judge's Assn. v. Union of India, (2002) 4 SCC 247
2 Philip S. Anderson, Foreword to Symposium, Judicial Independence and Accountability, 61 Law and Contemp.
Problems 1, 2 (Summer 1998).
3 Roger Warren, Judicial Accountability, Independence, and Fairness, 5 The Court Review (2006).
4 A. Clarence and P. Dykstra, The Quest for Responsibility, American Political Science Review 33(1) 1939.
5Comments of the Committee on Judicial Accountability on the Judges Enquiry Bill, 2006, Committee on Judicial
Accountability, 2006.
6 (1973) 4 SCC 225.

7 (2000) 4 SCC 640.
8 Robert Stevens, The Independence of the Judiciary : The View from the Lord Chancellor's Office, 3 (1993).
9 Supra note 5.
10 Ibid.
11
Sacher v. United States, 1952 SCC OnLine US SC 40 : 96 L Ed 717 : 343 US 1, 12 (1952).
12J.S. Verma, In a Higher Court, Indian Express, (11-9-2009), available at <http://www.indianexpress.com/story
-print/515773/>last seen 4-9-2018.
13
See, Restatement of Values of Judicial Life, adopted by a Full Bench of Supreme Court on 7-5-1997, available
at <http://www.judicialreforms.org/files/restatementofvaluesjudlife.pdf>last seen 8-9-2018. (link not found)
14 The Bangalore Principles of Judicial Conduct, 2002, adopted by the Judicial Group on Strengthening Judicial
Integrity, as revised at the Round Table Meeting of Chief Justices held at the Peace Palace, The Hague, 25-11-
2002.
15 Sarojini Ramaswami v. Union of India, (1992) 4 SCC 506.
16 Arundhati Roy, In re, (2002) 3 SCC 343.
17Mona Shukla, “Judicial Accountability : an aspect of judicial independence”, in Judicial Accountability, Regal
Publications, New Delhi, 2010, p. 4.
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18 Justice V. Ramaswamy, Campaign for Judicial Accountability and Judicial Reforms, available at
<https : //judicialreforms.org/justice-v-ramaswamy/>last seen 14-9-2018.
19 Supra note 13.
20Ruma Pal, Separation of Powers in (ed.), The Oxford Handbook of the Indian Constitution, Oxford University
Press (2016), available at
<http://www.oxfordhandbooks.com/view/10.1093/law/9780198704898.001.0001/oxfordhb-9780198704898-e-
15>last seen 12-9-2018 (link not found).
21 Anviti Chaturvedi, Parliament and the Judiciary : Background Note for the Conference on Effective
Legislatures, available at <http://www.prsindia.org/uploads/media/Conference%202016/Parliament%20and%
20Judiciary.pdf>last seen 10-9-2018.
22 195th Law Commission of India Report, The Judges (Inquiry) Bill, 2005, 359 (2006), available at
<http://lawcommissionofindia.nic.in/reports/report195.pdf>last seen 8-9-2018.
23 (1991) 4 SCC 699.
24 Ibid.
25 Sub-Committee on Judicial Accountability case, (1991) 4 SCC 699, 744-45.
26 D.D. Basu, Commentary on the Constitution of India, 5597 (8th edn., 2008).
27 Sarojini Ramaswami v. Union of India, (1992) 4 SCC 506 : AIR 1992 SC 2219.
28 S. 35, Judicial Standards and Accountability Bill, 2010 (passed by Lok Sabha, 29-3-2012).
29 S. 45, Judicial Standards and Accountability Bill, 2010 (passed by Lok Sabha, 29-3-2012).
30 S. 48(3), Judicial Standards and Accountability Bill, 2010 (passed by Lok Sabha, 29-3-2012).
31 Moksha Pillai, A Tragedy of Errors : Exposing Cracks in India's Judicial System, Dailyhunt, available at
<https : //m.dailyhunt.in/news/india/english/qrius-epaper-
qrius/a+tragedy+of+errors+exposing+cracks+in+india+s+ judicial+system-newsid-76344855>last seen 14-9-2018.
32 V. Venkatesan, Crisis of Leadership, Frontline, available at <https : //www.frontline.in/the-nation/crisis-of-
leadership/article9968186.ece>last seen 12-9-2018.
33
Udai Singh and Apoorva Tapas, Judicial Accountability : The Eternal Dilemma, Christ University Law Journal, 1,
1(2012), 69-89.
34
Tom Ginsburg and Nuno Garoupa, Reputation, Information and the Organisation of the Judiciary, 4 Journal of
Comparative Law 228 (2009).
35Malleson, K., Selecting Judges in the Era of Devolution and Human Rights, in Le Sueur, A., (ed.), Building the
UK's New Supreme Court : National and Comparative Perspectives, Oxford University Press (2004).
36
G.A. Caldeira, On the Reputation of State Supreme Courts, 5 Political Behavior 83(1983).
37 Supra note 33, at 229.
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SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.

Page 1 Sunday, February 05, 2023

Judicial Accountability in the Democratic Set-Up : Examining the Ramifications

JUDICIAL ACCOUNTABILITY IN THE DEMOCRATIC SET -UP : EXAMINING THE

An independent judiciary is essential for a free society, a constitutional democracy

Accountability and independence are hence not mutually exclusive.10 As a

Voluntary Conduct v. Involuntary Imposition

pressure in order to decide cases independently. Therefore, the Constitution creates a

Strict Application of Nemo Judex in Causa Sua

reputation of its component Judges. Different reputation mechanisms, as ascribable to

6 (1973) 4 SCC 225.

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