Abstract

At the outset, one needs to understand and appreciate the idea of demanding judge’s
accountability in India. As stated earlier, accountability primarily entails instilling a sense of
transparency, subjecting the judicial regime to a strict public scrutiny so as to prevent any
judicial delinquency from infiltrating. At the same time, the long -standing debate between
accountability impinging upon the independence of judiciary often becomes imperative to be
addressed. An interesting observation surrounding the innate resistance between the two has
been drawn from the Constitution as the Constitution makers did not expressly provide for
any mechanism to make the judiciary accountable. The objective sought to be achieved was
to promote accountability through a mechanism of self-regulation without
compromising the facet of independence.

Introduction

One of the great paradoxes of the Indian Judiciary is to maintain the precarious
balance between the slippery slopes of power and accountability. On one side of the
spectrum are the stalwarts of judicial independence and on the other, the faction championing
the cause of increased accountability. Both accountability and transparency are the very
essence of a democratic system of governance. Like every other organ, the judicial arm
must also be accountable. To be “accountable” is to be reasonable, answerable and to take
responsibility of one’s own functions, not to oneself, but to some external body.
Judicial Independence and Judicial Accountability are the two side of a same coin. A
lower judiciary can be held accountable and answerable for a decision or a judgement by the
respective higher courts but same can’t be said for the superior courts. They enjoy the
privilege to work independently, away from the interference of any other organ or institution
of the Government and there is an imbalance as independence in case of higher judiciary
outweighs the accountability. Judicial accountability is also the process by which the
judiciary is responsible to the people on whose behalf it exercises the judicial power under
the Constitution and the law of the country. made between the conduct of the judge in the
discharge of his judicial function and the actual judicial decision or determination. There
are or ought to be mechanisms for the supervision for the judicial decisions or determinations
of a judge and also a need to recognise and critically analyse the factors or reasons and
ramifications that are responsible for the failure of accountability in a judiciary so that they

1
may be amicably resolved and higher standards of transparency and accountability in
judiciary are achieved.

Objectives

The objective of the paper is to understand and analysis the judge’s accountability in India
while examining the functioning of the Indian judiciary and also to understand the standards
of accountability in the Indian Judicial System.

Scope and Limitations

The scope of the project focuses on the accountability of the judges in the Indian Judiciary
system and due to vast subject matter; the researcher has limited her study to-

 the study of judge’s accountability in India while understanding the standards of

accountability in the judiciary system of India.

Review of Literature

 T Devidas and Hem Lall Bhandari, Judicial Accountability (2006)

The researcher, in this article, tries to understand the concept of judicial accountability. The
judiciary has come into adverse notice because of many difficulties created in the connection
with both access to justice and delivery to justice. It has been stated in this article that
judicial accountability is within the mandate of Article 14 and for it to get started all that
would seem necessary is for the judiciary to respect faithfully the mandate of Article 14 of
the Constitution and the denial in the time gap from ‘is’ to ‘ought’. Alongside with that the
punish ability of erring judge who fails to give protection of the applicable substantive law
from the time of violation of right have to be predictable and automatic. There are or ought to
be mechanisms for the supervision for the judicial decisions or determinations

 Prof. Jay Bhongle, Role of Supreme Court and Judicial Accountability (2016)
Bhongle, in this literature piece, talks about the Supreme Court of India and its role to
upgrading the concept of judicial accountability which according to him is weak as compared
to the foreign legal system. In the behind of judicial independence veil the judicial

2
system of India moving towards the gross failure. Inordinate delay, corruption, deviant
behaviour of the higher judiciary, power despotism with the help of contempt proceeding
becomes modern phenomenon of judiciary of India. There is having room for
development in the procedure of appointment of higher judiciary, their removal and
transfer. He stated in this article that judicial independence and judicial accountability are
the two side of a same coin.

Research Questions

The researcher has based her research on the following question-

 What are the problems that have led to the failure of accountability of the judges and
in higher judiciary?
 What are the codes of conduct or ethics the judges need to follow?

Research Methodology

The researcher has relied on both primary and secondary sources of data. Primary sources
include the bare acts, reports and bare texts of various cases and secondary sources include
books, magazines, journals and web resources. This project is done by way of exploring
and analysing the existing literature by applying reasoning power. The mode of writing is
descriptive and doctrinal research methodology has been applied.

3
Accountability of the Judge’s - A Theoretical Understanding

Accountability and transparency are the very essence of a democratic system of

governance. Like every other organ, the judicial arm must also be accountable. To be
“accountable” is to be reasonable, answerable and to take responsibility of one’s own
functions, not to oneself, but to some external body. For instance, the lower Judiciary
under Article 235 of the Constitution1 is accountable and answerable to the respective High
Court of the State while enjoying the privilege to work independently, away from the
interference of any other organ or institution of the Government. But the same can’t be said
in the higher judiciary. The higher judiciary suffers from an imbalance where independence
outweighs accountability. In the name of accountability the only way by which a judge of the
higher judiciary can be made answerable or be brought to the books is by the process of
impeachment. But this procedure is so complicated that the result has been that not a
single case of impeachment against a Judge of the Higher Judiciary has come to fruition.
Therefore, the Constitution in the name of accountability provides an almost impractical
procedure and for its impracticality it may be inferred that the higher judiciary of our
democratic nation is not accountable to anyone, not even the sovereign people.
Therefore to fill up this lacuna in the democratic setup the time has come for urgent
enactment of provisions and establishment of a constitutional institution to which the higher
judiciary is answerable making the judicial organ transparent, like all the other organs
of the Government. But the standard of accountability for the judiciary should be different
from that expected from the executive or any other public institutions. Deciding the cases
before them in an expeditious and fair manner and giving reasoned orders is another aspect of
such accountability. The strength of any judicial institution depends upon the standards of
accountability it sets, higher the standard, the more respect and confidence it garners.

It is rather interesting to note that it has only been in recent times, that a public outcry for
holding the judiciary accountable has been a matter of public debate and deliberations
in all corners of the world, thereby making it a global phenomenon. As Justice Sir Moti
Tikaram of Fiji notes, judiciary is “no longer a sacrosanct and inviolable sanctuary of its
occupants.”2 While the debate regarding the need for judicial accountability has gained
significant momentum in the recent years with civil society and the media, assuming the
role of alert watchdogs, a question to ponder upon often has been the need for judicial
1
The Constitution of India, 1950
2
Sir Moti Tikaram, “Public Accountability – Who Judges the Judges?” 19 COMMW L.BULL.1231 (1993)

4
accountability. It has to be noted that noted that 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. Such a reprehensible and autocratic
practice makes it all the more onerous to ensure that an accountability mechanism be
operative as it is imperative to note that Judiciary is about the law and not above the law.
Accountability is imperative as, inter alia judges are appointed in most countries and thus the
public at large has no control over them. 3

Judges are expected to exhibit good moral character and maintain purity of judicial
administration. All the eyes of the citizen are, therefore, focused on the judges’ who is judged
not only through his performance but also through his actions. In fine, the principle that
Justice should not only be done but also should appear to have been done prevailed all
through the ages explains fairness as a part of accountability.4

Judicial accountability, therefore, is the process by which the judiciary is responsible to the
people on whose behalf it exercises the judicial power under the Constitution and the law of
the country. In understanding the concept of the accountability of the judge’s, distinction
should be made between the conduct of the judge in the discharge of his judicial function
and the actual judicial decision or determination. 5 Accountability relates to the former
except where the decision is the product of judicial misconduct. This is because of which
there are or ought to be mechanisms for the supervision of judicial decisions or
determinations and also one needs to recognise and critically analyse the factors or reasons
and ramifications that are responsible for the failure of accountability in a judiciary so that
they may be amicably resolved and higher standards of transparency and accountability in
judiciary are achieved.

Appointment of Judges and Judicial Accountability

3
Sri B.L.N. Swamy, “Judicial Accountability” 74 Cuttack Law Times 17 (1992).

4
R.S. Pathak, “Administration of Justice and Public Accountability”, 15 INDIAN BAR
REVIEW 213 (1988)

5
T Devidas and Hem Lall Bhandari, “Judicial Accountability”, 48(1) JILI 95 (2006)

5
According to The Chief Justice of India (Retd.), P Sathasivam,

“Judicial accountability is fostered through the process of selection, discipline

and removal found in the Constitution...Judicial accountability has become an
indispensable counterbalance to judicial independence. In that connection, accountability is
fostered through the process of selection, discipline and removal found in the Constitution
and the statutes in various judicial systems. Without accountability, there is a little hope for
the rule of law. Thus, the need for judicial independence is not for judges or the judiciary per
se but for the people”6

In the present scenario, the court wields vast political powers, either because of a
weakened political class or over strengthened judges. A weakened political class over the last
four decades has meekly surrendered to judicial supremacy and the judiciary has tried to
become even superior to the Constitution since the present perception is that the
Constitution is what the judiciary says it is. 7 The incompetent legislature has often found
it convenient to avoid decision making, leaving for the courts to decide. It is in this
background that we need to examine the system of appointments in the Superior courts, i.e.
the Supreme Court and the High Courts, which interpret and apply the Constitution.
Does the system of judicial appointments meet the requirements of democratic
accountability? Apart from the self-conferred power to strike down amendments to the
Constitution which is the violation of the basic structure of the Constitution by the
Kesavananda Bharti Case8, the superior courts have the power to strike down laws made by
Parliament and the state legislatures also. Laws can be struck down on two grounds:

(1) If they violate fundamental rights, or

(2) If the concerned legislature lacks ‘legislative competence’ (for instance, a Union
law made on subjects which falls within the state list and vice versa).

This is a necessary feature of a system of checks and balances. But, our judges are not
elected and once appointed, are virtually irremovable. Surely, the system of checks and
balances must apply to the process of judicial appointments also.
6
“CJI defends Collegiums system of appointment of judges”, The Hindu, NEW DELHI
www.thehindu.com/news/national/cji-defends-collegium...of.../article5128309.ece (October 15, 2017)

7
Charles Evans Hughes, Addresses and Papers, Pg. 139(1908)

8
SC AIR 1973 SC 1461

6
Appointment of judges to the Supreme Court of India and the High Court’s is provided for in
Article 124(2) and Article 217(1) of the Constitution respectively. 9 The constituent assembly
after long debate approved the system which the president would appoint judges, after
compulsorily consulting with the Chief Justice of India. Also, Art. 124(4) read that-

“A judge of the Supreme Court shall not be removed from his office except by an
order of the President passed after an address by each House of Parliament supported
by a majority of the total membership of that House and by a majority of not less than
two-thirds of the members of the House present and voting has been presented to the
President in the same session for such removal on the ground of proved misbehaviour or
incapacity.”10

It is important to note that removal for ‘misbehaviour’ refers to personal misbehaviour, not
for constitutional transgressions. It is, therefore, essential that there is public accountability in
the appointment of judges.

In the S.P. Gupta case11 , the Supreme Court held by a majority that that ‘consultation’ does
not mean ‘concurrence’ and ruled further that the concept of primacy of the Chief
Justice of India is not really to be found in the Constitution. Justice Bhagwati, while
delivering the majority judgment, also held that ‘consultation’ with the Chief
Justice would mean that there should be a ‘collegium’ to advise the Chief Justice. It was,
however, not spelt out as to what should be the composition of the collegium, at this stage. It
was also held that the solitary view of the Chief Justice would not constitute
‘consultation’ within the meaning of Articles 217 and 224 (2). So, in this case gave the
supremacy of executive over the judiciary in the appointment and transfer of the judges.

9
124. Establishment and constitution of Supreme Court (1) There shall be a Supreme Court of India constituting
of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other
Judges.
Article 124 (2) :- Every Judge of the Supreme Court shall be appointed by the President by warrant under his
hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the
States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty
five years: Provided that in the case of appointment of a Judge other than the chief Justice, the chief Justice of
shall always be consulted:
217(1) reads: ‘Every Judge of a High Court shall be appointed by the President by warrant under his
hand and seal after consultation with the Chief Justice of India, the Governor of in the case of appointment of a
Judge other than the Chief Justice, the Chief Justice of the High Court…’

10
The Constitution of India, 1950

11
AIR 1982 SC 149

7
In the year 1991, doubts were expressed about soundness of the S.P. Gupta judgment
in Subhash Sharma v. Union of India12, it was held that “the opinion given by the Chief
Justice in the consultation process has to be formed taking into account the
views of the two senior most judges of the Supreme Court. The Chief Justice of
India is also expected to ascertain the views of the senior most judge of the
Supreme Court and Article124 (2) is an indicator that ascertainment of the views of some
other judges of the Supreme Court is requisite.”

Under Article 222 of the Constitution the Chief Justice of India has to be consulted on the
question whether a particular Judge should be transferred and where he should be transferred
while implementing the said policy. If the Government requests the Chief Justice of India to
give his opinion on a transfer to implement the said policy which is really in the public
interest he cannot decline to do so.13

The 121st Report of Law Commission of India 14, recommended for constitution of National
Judicial Service Commission. The report of law commission recommends NJSC shall have
eleven members, namely, the chief justice of India and three senior most judges of Supreme
Court, three senior most Chief Justices, Minister of Law and Justice, Attorney General of
India, immediate retiring office of the Chief Justice of India and an outstanding law
academic. Law commission also recommends that Commission will also have its own
procedure for suggesting persons for selection. Commission recommendation would bind on
President but President may refer the recommendation back to Commission on the
basis suitability of the candidate.

In 1990 the Constitution 67th Amendment Bill was introduced for National Judicial
Commission, but it has being lapsed since then. In Supreme Court Advocates-on Record
Association v. Union of India15, also commonly known as Second Judges Case, Article
124(2) was broadly interpreted. In this case opinion and satisfaction of Chief Justice of India
shall have primacy in all types of judicial appointments. It means that in the appointments of
judicial posts consultation with CJI is compulsory. In Addition Supreme Court held that only
CJI views is not required but also two of the senior most judges of the Supreme Court is
12
AIR 1991 SC 631

13
S.P Gupta v. Union of India, AIR 1982 SC 149

14
The 121st Law Commission Report of India, lawcommissionofindia.nic.in/101-169/report121.pdf

15
(1993) 4 SCC 441

8
essential. In this way Collegium system of appointment started with this case. Still
uncertainty, regarding judicial appointments was not totally cleared.

In 1998, in Re Presidential Reference, Supreme Court held that The Chief Justice of India
shall make a approval to appoint a Judge of the Supreme Court and to transfer a Chief
Justice or Judge of a High Court in consultation with the four senior-most Judges of
the Supreme Court. At the time of Appointing High Court judges, the recommendation
must be made in consultation with the two senior-most Judges of the Supreme Court.
So, in this way Collegium system of appointment of judges start where consultation with four
senior judges becomes compulsory. Apex court cleverly declared the supremacy of executive
but kept the control under hand in appointing the judges. But this system also was not
complete, it has also many loopholes, so the colloquium system was criticised on the ground
of lack of judicial accountability, lacking transparency, being biased and corruptions For
instances like allegation was framed that Justice Bhaskar Bhattacharya of Chief Justice of
Gujarat High Court was not selected to Supreme Court because he was opposed to the
selection of then Chief Justice Altamas Kabir sister to become Calcutta High Court
Judge were disclosed by the media against of judicial accountability and justice.

One of the solutions of this problem of accountability in the process of the appointment
of judges can be the creation of a new constitutional body for the sake of securing
independence of the judiciary. The Constitution Ninety Ninth Amendment Act, 2014 came
into force providing for the composition and the functions of the NJAC. The members of
NJAC will be consisting of according to Article 124 A 16. Through this Act the Constitution of
India was amended and Article 124A, 124B, 124C was added to Article 124.

The National Judicial Appointments Commission Act was also passed on 31 December 2014.
The preamble17 of the Act define its purpose which having relating to appointment and
transfer of the judges. Section 5 of NJAC Act specify the procedure to selection of the
Supreme Court judges whereas sections 6 will specify procedure to select High Court
judges. The selection will do by commission on the basis of seniority and on merit and ability
wise. Section 11 of the Act specifies the rule making power of the Commission. So that’s
16
The Constitution of India, 1950

17
An Act to regulate the procedure to be followed by the National Judicial Appointments Commission for
recommending persons for appointment as the Chief Justice of India and other Judges of the Supreme
Court and Chief Justices and other Judges of High Courts and for their transfers and for matters
connected therewith or incidental thereto.

9
why this Act being criticised and challenged on the aspect that it violating the basic structure
Doctrine which was evolved by the Supreme Court in Kesavananda Bharti 18 case and
also intervention of executive and political parties in the appointment of judges which is
being seemed against independence of Judiciary. Serious criticism rose among the judiciary
that Law Minister may interfere in to the functioning of NJAC and he can send the detail of
the vacancies in the higher judiciary. This is against the Theory of separation of power and if
Law minister exercised both power like Executive and Judicial, then there will be chances
of misusing the power because absolute power corrupts absolutely.

Article 124A (1) (d) also criticised on the basis that introduction of reservation in NJAC
which will result that particular member of the Commission will try to cherish the cause of
the community and class where he belongs which will lead to the introduction of reservation
in judiciary. Section 1319 of National Judicial Appointment Commission Act also objected on
the basis that Article 145 and 229 of the Constitution of India. It means that Subordinate
legislation drafted by judicial bodies shall lie before the parliament which is against the
Constitution.

Supreme Court rejected the NJAC Act and the 99th Amendment to the Constitution was also
declared unconstitutional and void. Collegium system would be operative relating
appointment of the higher judiciary. Learned Senior Counsel appearing before the
Constitution bench under this case made contention that impugned act infringe the basic
structure of the Constitution as the same demoralizes the independence of judiciary as the
very act itself challenge the role of the Hon'ble Chief Justice in selection of the judges to
the Higher Judiciary and therefore, the act must be declared as ultra vires.

Code of Conduct for Judges

Hon’ble Mr. Justice S. H. Kapadia, Chief Justice of India (Retd.) said-

18
AIR 1982 SC 149
19
Section 13. Rules and regulations to be laid before Parliament :
Every rule and regulation made under this Act shall be laid, as soon as may be after it is made, before each
House of Parliament, while it is in session, for a total period of thirty days, which may be comprised in one
session or in two or more successive sessions, and if, before the expiry of the session immediately
following the session or the successive sessions aforesaid, both Houses agree in making any modification in the
rule or regulation or both Houses agree that the rule or regulation should not be made, the rule or
regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so,
however, that any such modification or annulment shall be without prejudice to the validity of anything
previously done under that rule or regulation

10
 “When we talk about ethics, the judges normally comment upon ethics among
politicians, students and professors and others. But I would say that for judge too,
ethics, not only constitutional morality but even ethical morality, should be the
base....”

“These days we (judges) are telling everyone what they should do but who is to tell
us? We have talk of enforcing the rule of law, but does not exempt and even exonerate
us from following it”20

Judicial discipline along with the Code of Conduct and ethics in a Judge is very important.
The judges shall be disciplined for the three reasons. The first is for democratic public
accountability so that the governed may safely relinquish control to those who hold
authority.21 The second is to ‘enforce adherence to law itself- so that neutral principle rather
than his own personal preferences motivate in his decision in each and every case. The third
is to ensure that judges will follow to professional standards of behaviour and conduct so
that they will not lose their respect of those who are subjected to it while exercising their
authority.

While justifying first reason, in democracy, citizen must exercise their control over their
government. Without this control, the exchange of power from citizens to government cannot
be legitimate. It does strictly apply to political leaders so it applies to judges as well.
Adherence to legal norms is important because a judicial decision shall be reliable and
accurate.

Some of the generally followed Code of Ethics22 are as follows:

1. No man can be judge in his own cause: The principle not applies only to the cause where
the judge is an actual party to a case, but also applies to a case in which he has interest. A
judge should not adjudicate in a case if he has got interest therein. Judges must remain
impartial and should be also known by all people to be impartial.

2. Administer Justice: Judges must not fear to administer justice. “flat justitia, ruat
caelum” that is “let justice be done though heaven fall” should be followed as motto by a
20
Former chief justice, Verma delivered Speech; Prof. Dr. K.C. Jena, Judicial Independence and
Accountability: a Critique, Indian Bar Review, Vol. XXXIX (4) 2012. [12]

21
Sri B.L.N. Swamy, “Judicial Accountability” 74 Cuttack Law Times 17 (1992).

22
Ibid

11
judge. To have justice and access to justice is the right of every individual residing in a
country so justice is the ultimate objective of an individual and if suppose bench of justice
not providing ideal justice then it would be negation of each and every individuality or it
may violation of possession inviolability of individual conceptualised by theory of justice.

3. Equal opportunity: Parties to the dispute be treated equally and accordance with the
principles of law and equity. A judge does not belong to any person or section or division or
group. A judge should not have any concern with personalities who are parties to the case but
only with merits. “it is essential to the proper administration of justice that every party
should have equal opportunity of being heard, so that he may put forward his own views
and support them by argument and answer the views put forward by his opponents”.23

4. Maintenance of distance from relatives: Since judging is not a profession but a way of
life, the judge must keep distance himself from the parties to the dispute and their lawyers
during the conduct of trial. Now a days the growth of a new caste in legal profession who
thrive not by intellectuals or professional capabilities but by utilising their close
connection with the judges. The growth of this suspicious trend can be checked if practicing
lawyers and sitting judges avoid meeting frequently in private.

5. Judges should brought under Right to Information Act

6. Contempt of Court Act: One and foremost task should be to amend the contempt of
Court Act, 1971. Because wide powers are being conferred upon the courts vide contempt of
court Act. Even today we are following the age old colonial system of deciding contemptuous
act. The law of contempt in India has deviated from its very object. So definition of
‘contempt’ shall confine within the four corners of statutory definition.

The Contempt of Courts (Amendment) Act, 2006 made an important addition to the
Contempt of Courts Act, 1971, to provide for truth as a valid defence in contempt
proceedings. But the 2006 Amendment is only a half-hearted attempt to ensure judicial
accountability, and realise the objectives of the Contempt of Courts Act24. For proper
accountability some more alterations are must. Parliament Standing Committee on Home
Affairs made the following suggestions of amendment in the Contempt of Courts
(Amendment) Bill, 2003:

23
Ibid,p. 14
24
V. Venkatesan, “Truth As A Defence: How Effective Is The Amendment Of The Contempt Of Courts Act?”,
www.Commonlii.Org/In/Journals/Injlconlaw/2008/5.Pdf (October 25, 2017)

12
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.

6. That judges should not have close association with individual members of the
Bar and not allow any member of their immediate family to appear before them
in courts.

7. Judges should not contest any election to any office of club, society or other
association, except those associated with the law or any court.

8. Judges should not have any bias in judicial work or judgments on the basis of
religion, race, caste, sex or place of birth.

Impeachment of the Judges

As per the Law of the Land the only means by which a sitting Judge can be disciplined for his
insidious acts is visa vie Article 124(4) and Article 217(1) (b) (in case of High Court Judges)
under Chapter 4 and 5 of the Indian Constitution. The provision mandates a Motion of
Impeachment requiring the signatures of not less 100 Members of the Lok Sabha or 50 from

13
the Rajya Sabha. From here onwards the procedural law begins its course with the Motion
being stayed by the Speaker subject to a detailed an inquiry by three member committee
stipulated under Sec 3 (2) of the Judges Enquiry Act, 1968.

To ensure that the principles of Natural Justice are abided too the accused is given ample
opportunity, under the principle of “Audi Alterm Partem”25 to present his side of the case
under Sec 3(4) of the Judges Inquiry Act. If still unable to prove his innocence, then either
the Chairman of the Committee or the Speaker under Sec 4(3) shall submit a report
recommending the removal of the Judge to Parliament. After this, the Constitutional
provisions under Article 124(4) antes in, whereby the judge can be removed from his post by
a two third majority in both the houses constituting the only current means of disciplinary
action within the territory of India.

The law purposely defined in black and white was actually supposed to act as a deterrent
to prevent the judiciary from practicing absolute despotism has ironically become their
shield since the process of Impeachment is a task fit only for the audacious and since it’s
the only medium of enforcing disciplinary action, the harm this punishment evokes can not
only besmirch the name of a judge whom in certain cases erroneously makes a bad call but
being a double edged sword destroys his reputation for all the annals of time even if he’s
found innocent.

Since the filing of this motion requires the signatures from either 100 Members of the Lok
Sabha or 50 members from the Rajya Sabha a task as per the history of our nation it is only
accomplished if-

a) The documentary evidence if so infallible it needs to be recognised or

b) The arbitrary act has garnered so much attention that it’s amalgamated into media
spectacle.

The reason for the fulfilment of either of these criterions has become an abject necessity as
the political class on a general basis are themselves reluctant to persecute a sitting judge. The
logic upon closer examination seems seamless as, politicians themselves are chosen from a
district. Since the only remedy to solve these disputes lies with the Judiciary therefore a
corrupt judge upon can (till an inquiry is conducted by the Judicial Inquiry Act, 1968) make

25
Arvind P Datar, COMMENTARY ON CONSTITUTION OF INDIA, 2nd Ed. 2007 , p.108

14
the life of that politicians a living hell merely by pronouncing judgements which are
arbitrary and against the people of his district. This in itself will dissuade a politician because
a disgruntled district automatically translates to a boot in the next election. Alternatively
when a corrupt judge is floating in deep waters which are outside his purview or control
(power of impeachment lies with the Legislation) he will seek all refuge including the
patronage from politicians in exchange for professional security.

So far, the impeachment proceeding has been initiated against only three judges. In Justice
Ramasyami Case26, where impeachment proceedings were initiated for misconduct and
financial irregularities was failed because Congress abstained from voting and consequently
two thirds majority was not available. These incidents clearly reflect that our Impeachment
process is cumbersome, time consuming and tends to get politicized.

The Judges Inquiry Act, 1968 lays down the procedure for the investigation and proof of
the misbehaviour or incapacity of a judge of the Supreme Court or of a High Court and for
the presentation of an address by Parliament to the President and for matters connected
therewith. On May 7, 1997, an in-house mechanism for judicial accountability was
adopted wherein three resolutions were adopted by the S.C. which consisted of restatement
of values of judicial life, declaration of assets and an internal mechanism to enquire into
allegations of misbehaviour of judges.

The Bangalore Principles, 2002 were developed by the Judicial Group on Strengthening
Judicial Integrity, by a group of senior judges from eight African and Asian common
law countries. The Bangalore Principles set out six core values that should guide the exercise
of judicial office, namely: independence, impartiality, integrity, equality, propriety, and
competence and diligence. However, the Bangalore Principles of Judicial Conduct are not
contained in a binding document under international law and the States are not bound to
comply with their provisions in the same manner that they are with regard to international
treaties. Also, the Bangalore Principles appear to offer guidance to members of the judiciary,
rather than to set out directly enforceable standards of behaviour, and therefore may not have
a direct impact on improving judicial conduct. The Bangalore principles, 2002 also affirmed
the Restatement of values. The only two punitive actions are withdrawal of work and transfer
of judge.

26
Judicial integrity: Lessons from the past”, The Hindu, New Delhi October, www.thehindu.com › Opinion ›
Lead

15
In 2005, India got one of the most liberal and powerful RTI Acts in the world. It permits
disclosure of internal nothings and correspondence of public officials, has few exemptions
from disclosure, creates an independent appellate body to decide disputes regarding refusal of
information. It applies to all public authorities including the judiciary.

The Judges (Inquiry) Bill of 2005 proposes introduction of ‘complaint procedure’ in addition
to the earlier ‘reference procedure’ contained in the 1986 Act. In a ‘complaint procedure’ a
complaint can be made by any person to Judicial Council against Judges of the
Supreme Court (except the Chief Justice of India), Chief Justices and Judges of High
Courts. In the ‘reference procedure’ if there is a motion by members of Parliament in either
House, the for enquiry not only against the above judges but also against the Chief
Justice of India.

Though, The Judges (Inquiry) Bill 2006 was drafted which proposes to establish a National
Judicial Council to conduct enquiries into allegations of incapacity or misbehavior by High
Court and Supreme Court judges; it could not see the light of the day. The Bill provides that
National Judicial Council (NJC) shall investigate complaints submitted by any person or
upon receiving a reference from parliament. If allegations are proven, the NJC may
impose minor measures or recommend the removal of the judge. Removal of a judge shall be
through Impeachment.

With the Judges (Declaration of Assets and Liabilities) Bill, 2009 being introduced as part
of the ambitious reformist agenda of the government, there arouse hope of some positive
change in this direction. The Bill tried to further judicial accountability by making
disclosure of the assets and liabilities of the judges mandatory.

The Judicial Standards and Accountability Bill, 2010 providing for a mechanism to deal
with complaints against judges of High Courts and the Supreme Court was tabled in the Lok
Sabha on December 1, 2010. At present, there is no legal mechanism for dealing with
complaints against judges, who are currently governed by ‘Restatement of Values of
Judicial Life,’ adopted by the judiciary as a code of conduct without any statutory sanction.
The enactment of the bill will address the growing concerns regarding the need to ensure
greater accountability of the higher judiciary by bringing in more transparency and would
further strengthen the credibility of the Judiciary. The Bill sets judicial standards and makes
judges accountable for their lapses and mandates judges of the High Courts and the Supreme
Court to declare their assets and liabilities, including those of their spouses and dependents

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and to file an annual return in this regard. The Bill mandates a series of code of conduct and
ethics for the judges to follow. This most recent Bill that is put forth for consideration seeks
to replace the Judges (Inquiry) Act, 1968. It seeks to:

(a) create enforceable standards for the conduct of judges of High Courts and the Supreme
Court,

(b) change the existing mechanism for investigation into allegations of misbehaviour or
incapacity of judges of High Courts and the Supreme Court,

(c) change the process of removal of judges,

(d) enable minor disciplinary measures to be taken against judges, and

(e) require the declaration of assets of judges. Judges in the form of holding someone in
contempt.27

Conclusion

One must realize that in countries like India the judiciary is relied upon by the citizenry to
solve many of their difficulties and therefore consistent standards of accountability that give
the Indian judiciary this strength are of utmost importance. The moment judicial
accountability wavers it creates a vacuum where, both the political class and vested
27
The Judicial Standards and Accountability Bill (2010)

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interests would take advantage of the conundrum to further reduce the credibility of the
judiciary whereas, an accountable judicial institution can only lead to a stable political
atmosphere as well as a far more efficient system of governance.

However, it is also acknowledged that judicial accountability if stretched too far can seriously
hamper judicial independence and thus it is essential that we strike the right balance between
the two.

The final outcome of the above discussions is that the importance of the independence of the
judiciary was long ago realized by the framers of the constitution which has been accepted by
the courts by marking it as the basic feature of the constitution. It is well known that law has
to change so as to meet to the expectations of a changing society. Similarly judicial
independence too has to be seen keeping in mind the changing dimension of society. Judicial
Accountability or Judge’s accountability and Judicial Independence have to work hand in
hand symbiotically to ensure that the real purpose for setting up of the institution of judiciary
is achieved. Transparency in the judiciary can be facilitated through the process of
accountability.

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