JUDICIAL ACCOUNTABILITY AND INDEPENDENCE OF JUDICIARY:

THE TOUCHSTONE OF INDIAN DEMOCRACY

-1. Rishiraj Baruah, 2nd year,
rishitajb10@gnlu.ac.in

2. Ronak Arora,, 2nr year,

ronaka10@gnlu.ac.in

“We all, judges and lawyers, must restore our old faith and rekindle new hopes. The future is yours; men and women
of law, take it and redeem yourselves”

- Justice Sabyaschi Mukharji

There was once a time when it was thought that the major issues concerning a judiciary were matters
of independence, tenure, the appointment process, and of course, questions of performance and
integrity. These matters no doubt continue to obtain but no one can ignore the sea change in
emphasis that has taken place in recent times.

Democracy, as the opening page of our constitution declares, proceeds on the fundamental
postulate that ultimately political sovereignty vests in the people of the country. This sovereignty
gains social reality and dynamic viability only if the constitutional instrumentality submits tacitly to
the broad oversight of the sovereign people. The people in the mass obviously cannot exercise
monitoring, controlling, disciplining like functions. Therefore, we need checks and balances so that
the power vested anywhere may not go haywire and may become amenable to the constitutional
fundamentals and answerable to those who are the ultimate masters or donors of the power. This
nexus between power and people has certain dialectic. There is bound to be a contradiction, over
time, between the tendency of authority to turn authoritarian, corrupt or partisan, and this proclivity
may be accentuated by the syndrome of popular illiteracy and meek submissiveness of the masses
and even of the classes who are overawed by the echelons of power. The other side of the
contradiction is the inevitable eruption of discontent protest, violence and other forms of entropy
induced by administrative terrorism, unabated disenchantment and infliction of injustice
camouflaged as justice. Chaos will surely cosmos if the process of order are not functionally ensured
by the law and justice and the structures for the delivery of justice. If this confrontation is not to
escalate into explosive resistance to the court and judge, a new rapport, communication and
accountability of judicial power to the beneficiaries, viz., the Indian People must be fashioned.

The Indian judicial experience is unique. Judicial accountability in the first sense was very much in
question in the first two decades of the Supreme Court from 1950 to 1973. There were clashes
between the Sc‟s decisions on property and agrarian and economic reform and Govt.‟s view that the

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SC was unsympathetic and at times hostile to its legislation on such matters. However after 1973
there has been no such problem as the judiciary changed its direction. Its concerns now were more
of human rights and civil rights of the citizens and community rights. Today, it is the method of
appointments to the superior judiciary 1 and the absence of any disciplinary control including
removal of judge of a supreme court which raises a problem of accountability 2. There is no method
for disciplining a Judge of a superior court for deviant behavior not amounting to misbehavior.
Further, in the absence of a clear reformulation of the law of Contempt of Court by SC, the existing
law of scandalizing the court is perceived to operate as a deterrent to criticize a judge for his
conduct.

On its Golden Jubilee in January 2000, former President Mr. K.R. Narayan said:

“It is not exaggeration to say that the degree of respect and public confidence enjoyed by the by the Supreme Court is
not matched by many other institutions in the country”

Lord Bryces‟s statement that in America every political question becomes sooner or later a legal
question is applicable in India as well. The Indian Supreme Court is not averse to the theory of
avoidance of a political question and has never declined to exercise its powers merely because a legal
question has political overtones.3

The Confrontation Period!

The standing and confidence secured by the SC of today is in contrast between 1950 and 1973
during which courts came into confrontation with the Executive repeatedly over its powers and
authority. In 1967 in a property case the Supreme Court by a majority of 6:5 judges held that the
parliament had no power to amend any fundamental rights.4 In 1970, the Supreme Court invalidated
the Bank Nationalization Act 1969 on an interpretation of the Amended Art.31 of the Constitution
designed purposefully by Parliament to avoid the justifiability of the amount of compensation for
the property acquired by the State.5 The Keshavananda Bharati6 case is a defining moment in India‟s
Constitutional history. The Supreme Court held that the parliament in exercise of its constitutional
powers could not damage or destroy “the basic structure” of the constitution. This decision given in
1973 by a 7:6 majority, was highly controversial and will remain so far for all the times as a matter
of judicial theory. Since the decision in 1967 the SC has rendered invalid several amendments to the
constitution which in its opinion have violated the basic structure principle. The importation of an
architectural concept to control majoritan constituent power of the state must be most spectacular
achievement of any court in the world. No other judiciary in the world except that of Bangladesh
has claimed such a power.

1
Reference to the case of Justice Ashwini Kumar Mata
2
Reference to the case of Justice Soumitra Sen
3
State of Rajasthan v. Union of India (1978) 1 SCR 1.
4
Golak Nath IC v. Punjab AIR (1967) SC 1643
5
R.C.Cooper v. UOI (1970) 3 SCR 530
6
AIR 1973 SC 1461

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“As the independent custodians of the law, the judges bear a direct and personal burden of responsibility which makes
their office a lonely and difficult one. We are fortunate that our judges are worthy inheritors of the great tradition of
their predecessors.”7

The most notorious fiction in law is that judges do not make law but merely apply it. They are
depicted as interpreters rather than creators of law. The most famous controversy on this was
between Lord Denning and the House of Lords about whether judges can fill the „gaps‟ left by the
legislature. The House of Lords thought that they could not8. However, despite the support given to
Lord Denning9 it is not clear as to what the extent of this „gap‟ filling function is. According to J.
Oliver Wendell Holmes „judges legislate but they do so interstitially‟.10

Relationship between Judicial Accountability and Independence:

Are these mutually incompatible values, destined always to be in a state of tension? Alternatively,
should accountability be viewed as a correlative obligation of independence, the one being the
necessary complement of the other? It may be that there is no one clear, categorical answer. For
some commentators there must be a tension here; whereas for others this is not necessarily the case.
For example, the 1995 Friedland Report on the Canadian judiciary acknowledged that tension must
exist, in that accountability could have an „inhibiting‟ or „chilling‟ effect on the judges. 11 For Justice
RD Nicholson of the Supreme Court of Western Australia, on the other hand, the two values of
independence and accountability „should be perceived as complementary rather than antithetical,‟ 12 a
view supported by Morabito who says that an proper system of accountability will „enhance judicial
independence‟ by raising „general community satisfaction‟ with the judiciary.13

David Pannick, a noted commentator of this field had written:

“The value of the principle of judicial independence is that it protects the judge from dismissal or other sanctions
imposed by the Government or by others who disapprove of the contents of his decisions. But judicial independence was
not designed as, and should not be allowed to become, a shield for judicial misbehavior or incompetence or a barrier to
examination of complaints about injudicious conduct on apolitical criteria...That a man who has an arguable case that
a judge has acted corruptly or maliciously to his detriment should have no cause of action against the judge is quite
indefensible”14

Independence of Indian Judiciary:

7
Henry Cecil, “The English Judge”, 1970, pg. 170
8
Magor and St. Mellons Rural District Council v. Newport Corporation, (1951) 2 All E.R. 839
9
See Renton Committee, The Preparation of Legislation, 1975, Cmnd. 6053
10
South Pacific Co. v. Jensen (1917) 244 U.S. 205
11
ML Friedland, A Place Apart: Judicial Independence and Accountability in Canada, The
Canadian Judicial Council, May 1995, p 129
12
RD Nicholson, Judicial independence and accountability: can they co-exist? , (1993) 67 ALJ 404 at 414
13
V Morabito, The Judicial Officers Act 1986 (NSW): a dangerous precedent or a model to be
Followed, (1993) 16 UNSW Law Journal 481 at 490
14
D Pannick, Judges, Oxford University Press 1987, p 99

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After the lifting of emergency in 1977 which was a blow to the independence of judiciary15 and with
background of interference in judicial appointments by the executive, the Supreme Court was called
upon to safeguard the independence of the judiciary from undesirable appointments and arbitrary
transfers by the executive. This it did in three cases- the First, Second, Third Judges cases.

The First Judge’s case:

In 1982 in S.P. Gupta vs. UOI16 , a bench of five judges of the Supreme Court considered the
method of appointment of judges of the Supreme Court and High Court. Both Articles 124(2) in
relation to Supreme Court Judge and Art.217(1) in relation to High Court Judge requires an
appointment by the President(which means the Executive) after “consultation” amongst other
functionaries mentioned in the Articles of the Chief Justice of India. The expression “consultation”
does not in ordinary parlance mean “concurrence”. The Constituent Assembly debates show that
when it was suggested by some of the members that the expression should be concurrence and not
consultation, it was not agreed. The court in present case held that the ultimate power of
appointment resided with the central government and that was in accordance with the constitutional
practices prevailing in other democratic countries like UK, Canada, and New Zealand. The majority
of the court speaking through Justice Bhagwati said:

“This is, of course, not an ideal system of appointment of Judges, but the reason why the power of appointment of
judges is left to the Executive is responsible to the Legislature and through the Legislature, it is accountable to the
people who are consumers of justice. The power of appointment of Judges is not entrusted to the Chief Justice of India or
to the Chief Justice of High Court because they do not have any accountability to the people and even if any wrong or
improper appointment is made, they are not liable to account to anyone for such appointment.”

The Second Judge’s Case:

Ten years later in 1993, the Supreme Court in the case of Supreme Court‟s Advocates on Record
Association v. Union of India17 constituted a larger bench of nine judges to consider the correctness
of the First Judge‟s case, which had held the Chief Justice of India did not have primacy of his
opinion. By a majority, overruling the First Judge‟s case, it was held that CJI was best equipped to
access the worth of a judge and because it was also necessary to eliminate political influence on
judiciary. The majority in the Second Judge‟s Case dismissed the view of the First Judge‟s Court as:-

“as easily exploded myth, a bubble which vanishes on a mere touch. Accountability of the Executive to the people in
matter of appointments of superior judges has been assumed, and it does not have any real basis. There is no occasion
to discuss the merits of any individual appointment in the Legislature on account of the restriction imposed by Art.121
and 211 of the constitution. Experience has shown that it also does not form a part of the manifesto of any political
party, and is not a matter which is, or can be debated during the election campaign. There is thus no manner in which
the assumed accountability of the executive in the matter of appointment of the executive in the matter of appointment

15
The infamous supersession of Justice H.R.Khanna when the office of CJI became vacant, hinted herein, in 1976.
16
(1981) Supp. 1 SCC 574; AIR (1982) SC 149
17
(1993) 4 SCC 441; AIR (1994) SC 268

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of an individual judge can be raised, or has been raised at any time. On the other hand, in actual practice, the Chief
Justice of India and the Chief Justice of the High court, being responsible for the functioning of the courts, have to face
the consequence of any unsuitable appointment which gives rise to criticism leveled by the ever vigilant Bar. That
controversy is raised primarily in the Courts. Similarly, the Judges of Supreme Court and the High Courts, whose
participation is involved with the Chief Justice in the functioning of the Courts and whose opinion is take into account
in the selection process, bear the consequences and become accountable.”

The Third Judge’s case

The Second Judge‟s case left an area of uncertainty as regards the collective opinion of the Chief
Justice and his senior colleagues. It presumed that the CJ would consult his senior colleagues and
that generally his recommendation would be acceptable and not controversial.

However during eight months of Chief Justice Punchhi‟s tenure as the Chief Justice of India, a
number of recommendations for the appointments were found controversial and maintained that
the Law Ministry was not entitled to enquire into the extent of the Chief justice‟s consultations. It
was even feared that a Bench of Supreme Court constituted by the Chief justice could issue a
mandamus on the Government to appoint a judge recommended by him. In these circumstances,
the Central Government hurriedly decided in July 1998 to make reference to the SC under 143(1)
seeking the opinion of the Supreme Court.18 The court opinioned that the CJ must make a
recommendation to appoint the Judge of the Supreme Court in consultation with four senior most
puisne Judges of the Supreme Court, and in so far as the appointment to the High Court was
concerned, the recommendation must be in consultation with senior most puise Judges of Supreme
Court. Moreover it stated that if the CJI makes a recommendation without any complying with the
norms and requirements of the consultation process, it would not be binding on the Government of
India.

Effect of Second and Third Judges’ Case:

The judgments in Second and third Judges Cases have altered the provisions of the Constitution for
appointment of Judges. They are a tour de force under the veil of securing independence of
judiciary. The clear intention of the Constitution makers reflected in the Constituent Assembly
Debates of not making the CJI the final appointing authority is disregarded.

Sir Robin Cooke writing on the Second Judge‟s Case in an Article significantly entitled “Making the
Angels Weep” could not help expressing his amazement in polite language at the interpretation
given by Supreme Court. He states:

18
(1998) 7 SCC 739

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“The majority of the Court may have gone too far, if their conclusions be viewed as an interpretation of the
Constitution intended to be binding in law … However, vulnerable in detail, it will surely always be seen as a
dramatic event in the international history of jurisprudence”19

Writing in the same vein on the Third Judge‟s Case, in another article “Where Angels fear to tread”,
he says that

“It sounds more like a promulgation of policy than an exercise in juridical reasoning. The reasoning is noticeably
limited ….. All in all the opinion of the Supreme Court in the Third judges case must be the most remarkable rulings
ever issued by a Supreme national appellate court in common law world.”20

The Supreme Court has frequently asserted that all power under the Constitution is limited and
subject to judicial review. The same limitation, however is not applicable to the newly acquired
power of the Chief Justice of India and the collegiums, the Court in Second Judge‟s Case having
declared that no judicial review can be entertained by any person aggrieved by the Chief Justice‟s
action e.g. by a Judge who is transferred from one High Court to another by the Collegium.
Involved of the executive, or politicians if you may like to call that, which is the foundation of these
Judgments, is not necessarily a bad thing unless the executive of the day seeks to pack the judiciary
with judges who are loyal to its values and quality of Judges is sacrificed. As Justice Michael Kirby
has observed:-

“if these abuses are avoided by the observance conversations, the right of the elected representatives of the people to
appoint the judges from those senior, qualified lawyers whose general values they hope will be in tune with their own is
a means which defends the judicial institution from uniform or monochrome social values. Under the system copied
from England, it is legislators in government should have the final say in matter of appointment. This gives an element
of democratic legitimacy to the judiciary.”21

National Judicial Commission:

In India proposals for the establishment of a National Commission for Judicial Appointments have
been made at various times. The Law Commission in 1987 recommended a broad based body of
judges and other person to make recommendations for the appointments of judges. A
Constitutional Amendment Bill was tabled in Parliament for the establishment of such a
Commission in 1990 but it lapsed. The National Commission to Review the Constitution 2002 set
up by the Government of India favored a National Judicial Commission with a predominance of
judicial members as an alternative to the collegium system. With the size of the Indian superior
judiciary, it may be necessary to have two judicial commissions in India, one for the Supreme Court
and another for the High Courts.22

19
Robin Cook, J., Making the Angels Weep, Law and Justice Vol. 1, p 109
20
Robin Cook, J., Supreme But Not Infallible- Essays in Honor of the Supreme Court of India, Oxford 2000, p 97
21
Modes of Appointment and Training of Judges, A Common Law Perspective CLTL Year Book Vol VIII Jan.2000
22
http://www.thehindu.com/opinion/op-ed/article66672.ece , as on 5th December 2011.

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The general dissatisfaction with the Court‟s self assumed role in appointing and transfer of Judges
has lead to suggestions for formation of a National Judicial Commission, which shall constitute not
only members of the judiciary but also other non-judicial members which were supposed to make
recommendations for appointment of Judges of High Court and Supreme Court. Responding to the
necessity of a National Judicial Commission, former Chief Justice A.S.Anand stated:

“The answer of the nine Judges bench to the Presidential Reference which provides for wide consultations by the
collegiums meets the requirement of wide consultations. It must be given a fair chance to prove its worth”23

Judicial Accountability Bill:

The Judicial Standards and Accountability Bill will set judicial standards and make judges
accountable for their lapses. It will also mandate that judges of the High Courts and the Supreme
Court declare their assets and liabilities, including those of their spouses and dependants. The Union
Cabinet has approved the draft Judicial Standards and Accountability Bill, 2010 that provides for
setting up a five-member oversight committee to deal with complaints against members of the
higher judiciary. Official sources said judges would also be required to declare their assets and file an
annual return of assets and liabilities. All these details will be put up on the websites of the Supreme
Court and high courts. It will further require judges not to have close ties with any member of the
Bar, especially those who practice in the same court. “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 will further strengthen the credibility and independence of the
judiciary,” Information and Broadcasting Minister Ambika Soni told reporters after a meeting of the
Union Cabinet. The proposed oversight committee will be headed by a former chief justice of India
and include the attorney general, a Supreme Court judge, a chief justice of a high court and an
eminent person nominated by the President.24

Judicial Accountability: Concept and Reality

In England and the former colonies the change has largely been brought about by the tremendous
progress in administrative law which Lord Diplock acknowledged was the greatest legal
development in his judicial lifetime.25 The process of judicial review often pitted the judiciary against
executive leading to charges of government by the judiciary. 26

The principle of an unelected judiciary overruling laws passed by elected representatives of people
was argued by critics as undemocratic and violative of the principles of majoritarianism. 27 The
problem is undoubtedly elevated due to the strong language which the Judges use while striking

23
T.R.Adhyarujina, ‘Judicial Accountability: India’s methods and Experience’, Judges and Judicial Accountability by
Cyrus Das, Kaanagasabai Chandra, Commonwealth Law Association,2000, pg.123
24
http://legalservicesindia.com/article/article/judicial-accountability-in-india-538-1.html as on 9th Dec 2011
25
The Fleet Street Casuals Case R. v. I.R.C. (1982) AC 617 at 641
26
Lord Diplock’s, The Judicial Control Of Government, (1979) 1 MLJ xxv.
27
See PN Bhagwati, CJ ,The Role of The judiciary In Developing Societies:New Challenges In Law & justice, Ed.
Salleh Abas & Sinnadurai, Professional Book Publishers, KL, 1988, 25 at 35

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down a law passed Governmental action or a minister elected by the Govt. Politicians hate being
told that they have done wrong and more so that they have acted contrary to law. A former CM of
Maharashtra is reported in the Times of India as said:

“Who is running in country, the government, the courts or the media? .....let judges behave as
judges. They should not use objectionable language. If they do so it will not be possible to treat
them with respect.”28

In today‟s outlook of greater transparency and accountability in govt., the judiciary will not be
exempted from close scrutiny for its performance and conduct of its members. The concept that the
judiciary cannot be accountable because of its independence is no longer a valid argument and of
being unelected and enjoying security of tenure, will not pass a muster.29 It is also a question of
doubt whether the passive assurance of integrity of judges themselves will meet today‟s climate. For
example Lord Donaldson the former English Master of Rolls says:

“Judges are without constituency and answerable to no one except their consciences and the law.”30

A new theory of judicial exposure and accountability is integral to the Republic‟s moral survival:

“Obviously, therefore, the men who are to make justice in the courts, the way in which they are to perform their
function, the methods by which they are to be chosen, the terms upon which they shall hold power, these, and their
related problems, lie at the heart of political philosophy. When we know how a nation-state dispenses justice we know
with some exactness the moral character to which it can pretend.”31

Justice Kirby is correct as he talks about judges functioning in the public way and being accountable
for their decisions through reasoned judgments. The right to comment and criticize judgments is an
indispensible part of the accountability process.32

Criticism and Accountability:

The recent orders for contempt of court against journalists and writers who criticize judgments have
brought in focus the prevailing tension regarding criticism of the judges in India. The emblematic
punishment to Ms Arundhati Roy is in spot.33

The Contempt of Court Act 1971 punishes scandalizing of the court. The Supreme held in a case
that the fundamental right of a citizen to free speech and expression (Art 19) has not abolished the
offence of scandalizing the court.34 However the Supreme Court has failed to strike a balance
between the challenging necessity of maintaining the integrity of the court from unjustified attacks

28
Quoted in Michael Kirby, Judicial Activism(1997) CLB 1224, Oct 1996
29
Hon. Mr. RD Nicholson J., Judicial Independence and Accountability: can they Co-exist? (1993) 67 ALJ 404
30
Sturges & Chubb, Judging the world, Butterworth’s, 1988 at pg. 182
31
Harold J. Laski, “A Grammer of Politics”, pg. 541-42
32
Cyrus Das, Kanagasabai Chandra, ‘Judges and Judicial Accountability’, Commonwealth Law Asscociation,2000
33
In Re Arundhati Roy (2002) 2 SCALE 537
34
EMS Namboordiripad v. Nambiar (1970) 2 SCC 325-333

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and scurrilous attacks and the equal necessity of legitimate criticism of judges and courts in a
democratic society- the type of balancing judgment carried out by the South African Constitutional
Court in State v. Mamabolo.35

The ringing tones of the passage of Lord Atkin in Ambard v.AG Trinidad and Tobago 36 , that “the path
of criticism is a public way; the wrong headed are permitted to err therein” contains a reservation: “provided the
members of the public abstain from imputing improper motives”. Vigorous criticism of the judiciary is now as
necessary in a democracy as of other branches of government. Imputation of bias or partiality and
the like f it is a fair and honest comment on the basis of facts truly stated would far from being
contempt of court be for the public benefit.37

Former Chief Justice Brennan of Australia eschewed suggestions that the duties of the judiciary are
vowed to the electorate; “they are owed”, he says “to the law, which is there for the peace, order and good
governance of all in community”.38 He had rightly acknowledged that judges should be accountable for the
use of judicial power, esp. while giving landmark judgments, but the actual problem is not being
accountable but “the reporting and the critical appreciation of the account that is given.”39

There are judgments of the Supreme Court which hold that a contemnor cannot be allowed to
justify the contempt. Held that:

“If evidence was to be allowed to justify allegations amounting to contempt it would tend to encourage disappointed
litigants- and one party or the other to a case is always disappointed- to avenge their defeat by abusing the judge.”40

The iron curtain of contempt of court will not silence the populace when the time for storming the
Bastille arrives. The cult of robes must yield to the command of democratic discipline. The robe as a
symbol is out of date, an anachronistic remnant of ceremonial government. An immature society
may need or like to fear its rulers, but a vital and developing America can risk full equality. A judge
who is part of a legal system serving present needs should not be clothed in the quaint garment of
the distant past. Just as the robe conceals the physical contours of the man, so it needlessly conceals
from the public his mental contours. When the human elements in judging process are covered up,
justice operates stealthily. Now, that the Supreme Court has declared the judiciary a part of candid
democratic government, I think the cult of the robe should be discarded.41

In 1998 Latimer House Guidelines42 for good governance were set up at Latimer House in
London. Article VI (1) deals with “Judicial accountability”, and paragraph (b) with “public criticism”

35
State v. Mamabolo 10 BHRC 493
36
Ambard v.AG Trinidad and Tobago (1936) AC 322-355 (PC)
37
T.R.Adhyarujina, ‘Judicial Accountability: India’s methods and Experience’, Judges and Judicial Accountability by
Cyrus Das, Kaanagasabai Chandra, Commonwealth Law Association,2000, pg.129
38
The Hon. Sir Gerard Brennan, The State of the Judicature, (1998) 72 ALJ 33 at 40
39
Ibid
40
C.K.Dapthary v. O.P.Gupta (1971) 1 SCC 626,633,647
41
Jerome Frank, “Courts on Trial”, pg. 260-61
42
See Starrs v. Procurator Fiscal Linlithgow (2000) SLT per Lord Reed

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of the courts. The guidelines call upon the Commonwealth Countries to adopt and enforce them.
Our country should make an effort to make them a reality in our domestic jurisdiction.

*Latimer House Guidelines

VI. Accoutability Mechanisms
b. Public Criticism

(ii) the criminal law and

i) Legitimate public criticism
contempt proceedings are
of judicial perfomance is a
not appropriate mechanisms
means of ensuring
for restricting legitimate
accountability.
criticism fo courts.

The so called dilemma now is that, should not a modern day Francis Bacon who as Lord Chancellor
took bribes be exposed for his shameful deed? Or should the critic be punished for revelation of the
truth?!!

Finally as commented by Justice Albe Sachs of the South African Supreme Court

“If respect for judiciary is to be regarded as integral to maintenance of the rule of law…such respect will be
spontaneous enduring and real to the degree that it is earned rather to the extent that it is commanded.” 43

Disciplining Judges:

As the Constitution provided that the appointment of Judges in the Supreme Court and High
Courts would be by the executive, it was also keeping with the method that the Constitution also
prescribed that such Judges would be removed from the office by executive after addressing each
house.

“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 the Parliament supported by a majority of the total membership of the House and by a
majority of not less than two-thirds of the members of that House present and voting has been presented to the
President in the same session for such removal on the ground of proved misbehavior or incapacity.”44

43
State v. Mamabolo 10 BHRC 493
44
Constitution of India, Article 124(4)

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In an address to the Bar45, Former CJI Mr.S.P.Bharucha stated that more than 80% of judges in the
country are honest and incorruptible and the smaller percentage was bringing the entire judiciary
into disrepute. Investigation and dismissal of judges of lower courts was easier as power lay with the
High Courts. However difficulty arises when the judges of higher judiciary are corrupt and their
impeachment in most cases fail due to political reasons as examples show.

He was referring to the only case in 1993 of removal of Supreme Court Judge Mr. Justice
V.Ramaswamy. A committee of senior judges constituted under the Judges Inquiry Act 1968 found
judge guilty of misbehavior in misappropriating and misusing public property but the motion for his
removal in the Parliament failed as the ruling party abstained from voting for his removal. The
expectation of the Supreme Court in one of these challenges by the judge was that:

“Parliament would discharge its obligations in the Constitutional scheme with as much responsibility and seriousness,
as was expected from any other organ of the State or authority involved in the process of removal of a judge”46

Safeguarding the independence of the judiciary from unfounded prosecutions of criminal conduct,
the Supreme Court has prohibited the criminal authorities from registering a criminal case against a
judge of a superior court unless the Chief justice of India is consulted in the matter and if the Chief
Justice of India is of the opinion that it is not a fit case for proceeding under the Act the case is not
be registered.47

In absence of an effective remedy for the removal of a judge, the Bar of one High Court resorted to
the unconventional method of disciplining four Judges by passing resolutions against them to resign
and requesting the Chief Justice of a High Court not to assign work to them. Such methods adopted
by the Bar have been held by the Supreme Court to be ultra vires as the only method of disciplining
the judges of a Superior Court was the Constitutional method of removal in Art. 124(4). In the same
case the Supreme Court, on its own prescribed a procedure for investigation into the behavior of a
judge if the Bar should have a complaint against him. According to this method the complaint
should be put to the CJI who in his discretion would advise the Judge to resign or may initiate action
against the Judge deemed necessary.48 The method suggested by the Supreme Court is criticized as
having no transparency and unworkable.

The Constitution provides for removal of a Judge for “proved misbehavior”. This has not been
defined. Many times the conduct of judges requires an investigation and discipline for deviant
behavior not amounting to misbehavior. There is no machinery to discipline the one who has a role
to play in such deviant behavior.

45
2002 (2) SCALE J-1
46
Sarojini Ramaswami v. Union (1992) 4 SCC 506, 553
47
K.Veeraswami v. Union of India (1991) 3 SCC 655
48
Ravindran Iyer v. J.S.Bhatacharji (1995) 5 SCC 457

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 Finally, let us consider the lines mentioned in the Preamble of The Bangalore Principles of Judicial
Conduct49 :

“THE FOLLOWING PRINCIPLES are intended to establish standards for ethical conduct of judges. They are
designed to provide guidance to judges and to afford the judiciary a framework for regulating judicial conduct. They are
also intended to assist members of the executive and legislature, and lawyers and the public in general, to better
understand and support the judiciary. These principles presuppose that judges are established to maintain judicial
standards, which are themselves independent and impartial, and are intended to supplement and not to derogate from
existing rules of law and conduct which bind the judge.”

Conclusion
“Justice, sir, is the great interest of man on earth. It is the ligament which holds civilized beings and civilized nations
together”.

-Daniel Webster

Be ye ever so high, the law, in its equal majesty, is above you too!

The subject of judicial accountability considering the variety of aberrations some of which judges are
guilty of requires careful and realistic handling because many of the improprieties go unnoticed
behind the iron curtain of the Contempt of Court. Law of contempt has been overdrawn because
it‟s of colonial vintage. Judges, like other constitutional functionaries must face the law if they depart
from or deceive the law. Justice is no cloistered virtue.

The ultimate reason for any type of judicial discipline is to maintain public confidence in the
judiciary. The logic behind this principle is simple: “A legal system can function only as long as the public
accepts and abides by decisions rendered by the courts; the public will accept and abide by these decisions only if it is
convinced that the judges are fair and impartial; anything that tends to weaken that conviction should be avoided.” In
other words, justice must not be only done, but must also appear to be done. For this reason, judges
are commanded to avoid not only actual impropriety but also the appearance of impropriety in all of
their activities.50

Part and parcel of the forgoing comment is the old-age rule, cited by many cases and as fundamental
to proper administration of justice that justice must only be done, but must also be perceived to be
done. The Supreme Court of America repeated the forgoing maxim in the form of following:

“The effective functioning of the judicial system depends not only on justice in fact being administered but that the
citizens feel they are being provided fair treatment and just decision.”51

49
The Bangalore Draft Code of Judicial Conduct 2001 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, November
25-26, 2002
50
Martineau, 10 University of Baltimore Law Review, 225 at 227
51
In Re McDonough, 296 N.W. 2d 648, at 697

Electronic copy available at: https://ssrn.com/abstract=2011755

It is undoubtedly for the foregoing reason that the rule is universally followed in court disciplinary
actions that-

“Judicial removal is neither civil nor criminal in nature, but sui generis, designed to protect the citizenry by insuring the
integrity of the judicial system.”52

The desideratum is to create a structure at once high-powered but ease of access to the common
people. Let the Bench-Bar Accountability to Indian Humanity be high on the agenda of national,
even constitutional concern. Steps should taken by the judges themselves to formulate a code of
conduct. Similarly, the bar which has, alas, fallen into disrepute so much that Shakespeare, through
Dick the butcher used the words which are unprintable but are on the lips of many in the country.
Immediately, the Bar Council of India must painstakingly and creatively, with relevance to prevent
pathology, draw up a professional code for the Bar and suggest one for the Bench.

But it‟s a deep concern to see that judiciary is kept at a lofty level. The scenario of great judges
discharging their great obligations of office implies great regard on the part of the people to the
judiciary which is the repository of justice incarnate. Suppose there are some delinquents, there must
be mechanisms for correction test less the situation of entropy pathologically spread or deteriorate
into a popular craving for revenge.

There must be monitoring machinery as judges may not be scared by paper tigers, and so, the code
must both expose and if unheeded, hit. A sentinel on the qui vive, if it is to be effective, must have
statutory sanctions and powers. A collective ombudsman with absolute autonomy, mobility, fair
procedure and graduated punitive/corrective and recommendatory authority, with versatility
conditioned with situations is public necessity. A purposeful, competently trained infrastructure,
with investigative skills, technological aids and delegated powers, must be thought out, learning from
the experience from other countries and remembering the native diseases. A judicial super-
ombudsman composed of the most respected, highly independent team of three judges, one a
retired judge of the Supreme Court, preferably a former Chief Justice without blemish, and one from
the High Courts, preferably a former Chief Justice of unsullied record and the third, a retired judge
of vast experience in public life, involvement in public issues and extra-judicial, even administrative
career, may fill the bill. An Advisory body, with high national status, may be an auxiliary. The
attorney general, the president of bar council of India, an outstanding lawyer-leader nominated by
the president of India, nominee each of PM and the leader of opposition from public life, a
nationally recognized social activist, a great person of commitment to moral values, one each from
among journalists, scientists, professionals and women‟s organizations.53

Finally, the concept of judicial accountability, criticism, public scrutiny and judicial independence has
been nicely stated by the Supreme Court in the Re D.C.Saxena‟s case54 :

52
In Re Gillard, 271 N.W. 2d 785
53
Justice V.R.Krishna Iyer
54
In Re D.C.Saxena AIR (1996) SC 2481

Electronic copy available at: https://ssrn.com/abstract=2011755

“….administration of justice and Judges are open to public criticism and public scrutiny. Judges have their
accountability to the society and their accountability must be judged by the conscience and oath to their office, i.e., to
defend and uphold the Constitution and the laws without fear and favour. Thus the judges must do, in the light given
to them to determine, what is right. Any criticism about judicial system or the Judges which hampers the
administration of justice or which erodes the faith in the objective approach of the Judges and brings administration of
justice to ridicule must be prevented. The contempt of court proceedings arise out of that attempt. Judgments can be
criticized. Motives to the judges need not be attributed. Faith in the administration of justice is one of the pillars on
which democratic institution functions and sustains. In the free marketplace of ideas criticism about the judicial system
or judges should be welcome so long as such criticism does not impair or hamper the administration of justice. This is
how the courts should exercise the powers vested in them and the Judges to punish a person for alleged contempt by
taking notice of the contempt suo motu or at the behest of the litigant or the lawyer… Law is not in any doubt that in
a free democracy everybody is entitled to express his honest opinion about the correctness or legality of a judgment or
sentence or an order of a court but he should not overstep the bounds. Through he is entitled to express that criticism
objectively and with detachment in a language dignified and respectful tone with moderation, the liberty of expression
should not be a license to violently make a personal attack on a judge. Subject to that, an honest criticism of the
administration of the justice is welcome since justice is not a cloistered virtue and is entitled to respectful scrutiny. Any
citizen is entitled to express his honest opinion about the correctness of the judgment, order or sentence with the dignified
and moderate language pointing out the error or defect or illegality in the judgment order or sentence. That is after the
event as post-mortem”

In the end there is this problem before us. As the great historian Lord Acton55 said: “All power
tends to corrupt. Absolute power corrupts absolutely”. Who is to control the exercise of power? As
Lord Denning famously said, “Someone must be trusted. Let it be the Judges .”

55
This arose as a quotation by John Emerich Edward Dalberg Acton, first Baron Acton (1834–1902). The historian
and moralist, who was otherwise known simply as Lord Acton, expressed this opinion in a letter to Bishop Mandell
Creighton in 1887

Electronic copy available at: https://ssrn.com/abstract=2011755