JUDICIAL ACCOUNTABILITY

1.2 LEGAL METHODS

SUBMITTED BY

Rohit Debnath
UG 17 86
1 Semester

SUBMITTED TO

Assit. Prof. Karishma Gavai

MAHARASHTRA NATIONAL LAW UNIVERSITY

 Contents

1) Table of Cases ..3

2) Table of Statutes ...3

3) Table of Abbreviations..................................................3

4) Introduction4

5) Aims and Objectives....6

6) Review of Literature.........6

7) Research Questions and answers..8

8) Conclusion13

9) Bibliography..........14
TABLE OF CASES

Sr.no. Name of the case Year

1. NJAC v Collegium 2014
2. S. P. Gupta v. Union of India 1993
3. In re Special Reference 1 1998
4. United Breweries Co. v Bath 1926

TABLE OF STATUTES

Sr. Name of the statute Year

no.
1. Article 124 of Indian Constitution 1949
2 Article 217 of Indian Constitution 1949
3. Article 224 of Indian Constitution 1949
4. NJAC 2014
5.

TABLE OF ABRREVIATIONS

Sr. Full Form Short form

no.
1. Supreme Court SC
2. High Court HC
3. National Judicial Appointment Commission NJAC
4. V. Versus
 INTRODUCTION

Judiciary is that part of a government that can make laws protect laws and even abolish laws
that are made in the parliament. So as its seen that judiciary can be seen as the most power
welding organ of the government. Though is an organ which is not selected by the peoples
yet the power it enjoys is a question that should be looked into. Though going by the theory
of separation of powers it is implied that all three organs have the power but by going
through the facts it paints a different picture.

From their total control over the life, freedom and property of all citizens high and low, they
have the ability to pronounce unlawful and void the general population demonstrations of all
civil servants, each minister and each legislature in light of the fact that they disregard the
constitution, the law or standards of normal equity. In addition, they can pronounce a law
passed consistently by the President and the two Houses of Parliament as invalid and void in
the event that they observe it to be in strife with the Basic Principles of our Constitution

Power tends to corrupt and absolute power corrupts absolutely

These were the wise words of Lord Acton in reference to an Anglican Bishop, though we
dont belong to a theocratic state but the abuse of power is a term which can be used in this
subject too. The Indian constitution was made so that its authority and essence of democracy
and freedom spread throughout the land of India after the British oppression and regression.

In todays age every department of the government can be questioned even the Prime
Ministers Office (PMO) can be questioned. with the implementation of the RTI Act 2005
nobody can escape the clutches of accountability ( though Official secret Act 1923 clause 6
can still override it ) be it a clerk of a government office the principal secretary . Even
passing of landmark Bills like the Jan Lok Pal which are presumed to bring waves of
transparency and accountability in the functioning of the government have made the
governments uneasy which is natural but brings the confidence of the people in their elected
government.

These Acts were not passed smoothly by the government. It is a natural instinct that the
people behind the government dont want give up their power easily but with the interference
of the judiciary, it generally tends to give a happy ending to the peoples grievances.
Now the hypocrisy is that the institution that has given landmark decisions on the
accountability and functioning of other organs of the government has itself faced criticism
over its track record on accountability and the process through which its appoints judges with
allegations of corruption and favouritism levelled against it. Shouldnt the judiciary come
clean on these allegations and also before judging the other organs of the government?

Also by imposing prison terms to those who give a different opinion on the courts
judgements and vies and also allegations of corruptions and misconduct of Judges of higher
judiciary largely ignored by the courts have raised questions on the accountability of the
judiciary.

It can also be questioned that the institution which also judges about the various laws of the
land and also sometimes judges the parameters of quality of different government
organisation itself facing lakhs of cases pending before it with no one able to question these
insufficiencies of the judiciary.

The former President of India, Pratibha Patil commented on the judiciary "Judiciary cannot
escape blame for delayed Justice that is fraught with the risk of promoting the lynch mob
phenomenon."

The immunity that the judges give to themselves whether be it of corruption charges,
misconduct, erroneous judgements, public criticism given draconian powers which are likely
tend to be abused.

This paper tries to analyse these problems of judicial accountability.

AIMS

1)To provide a clear cut view of the current judicial accountably in India.

2)To suggest reforms for more transparency in Judiciary.

OBJECTIVES

1)Analysing judicial accountability in India through various sources like books ,legal
databases etc.

2)Analysing the process through which the current of judiciary that we see today.

3)Studying case laws.

4)Collecting news articles where abuse of power by the judiciary is seen.

RESEARCH METHODOLOGY

The researcher followed the doctrinal mode of research. Books, newspaper archives, and
legal databases have been thoroughly analysed. Some important judgements have been
referred and the research questions have been framed through it and rigorously analysed.
Both primary and secondary sources have been referred.
REVIEW OF LITERATURE

The researcher has analysed leading books and research articles and views of leading jurists.
Some books like Rule of Law by Ian Shapiro which gives a thorough analysis of how the law
should function with different leading perspectives about the judiciary but book focuses too
much on the political theories rather than judiciary that can be drawback. The researcher also
took note of leading English judge Tom Binghams view on the rule of law and accountability
who gives his brilliant views on the supremacy of law rather than some institution like
judiciary or parliament quite Also a outstanding on the topic of accountability by the
judiciary views of leading jurists like Krishna Iyer, Fali S. Nariman have helped in this
research. Their views can be seen as criticism of the current state of the judiciary. Views of
different jurist on the NJAC case gives a good view on the gaping hole that the judiciary
suffers.

RESEARCH QUESTIONS AND ANSWERS

1)By its ruling in NJAC v Collegium, the Supreme court declared that the NJAC as
unconstitutional but the question is that is the collegium system constitutional that is can the
judiciary give itself a mechanism of appointment that is not mentioned in the constitution?

2)Can someone be the judge in his own cause (nemo judex in causa sua)?

3)Absence of any laws that specifically deals with judicial accountability with no
punishments and penalty. Does it violate the constitution?

RESEARCH ANSWERS

1)The collegium system of selecting judges is a no where mentioned in the constitution or on

further amendments its structure, machinery and history is explained in the following
newspaper article

The collegium system of appointment of judges is popularly referred to as judges-selecting-

judges.

The collegium system was created by two judgements of the Supreme Court in 1990s in
which a body of senior apex court judges headed by the Chief Justice of India selected
persons and recommended their names for appointment as judges.

Under the 22-year-old court-framed collegium system of appointment and transfer of judges
of high courts and the Supreme Court, the chief justice of the respective high courts and two
other senior-most judges of the court comprise a collegium empowered by virtue of a 1993
judgment of the Supreme Court to identify suitable candidates, do due diligence and
recommend for appointment as judges of the court.

The shortlisted candidates are scrutinized by a collegium of five senior-most judges of the
apex court headed by Chief Justice of India before being cleared for appointment. The same
collegium of the apex court identifies serving judges and chief justices of high courts for
elevation to the Supreme Court.

There is no mention of the collegium either in the original Constitution of India or in

successive amendments.1

Now under 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 India shall
always be consulted2

Also under Article 217 (1) for the high courts

Appointment and conditions of the office of a Judge of a High Court

1)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 the State, and, in
the case of appointment of a Judge other than the chief Justice, the chief Justice of the High
court, and shall hold office, in the case of an additional or acting Judge, as provided in Article
2243

Now it the above articles it is clearly mentioned that the appointments shall me made with
consultation of the chief justice of the respective courts . now going by the dictionary
meaning which says, To ask the advice or opinion of something or someone4. Also in its own
interpretation in S. P. Gupta v. Union of India 1982 observed that the concept of primacy of
the CJI in matters of judicial appointment is not really to be found in the Constitution. It
further went on to hold that consultation as used in Article 124(2) does not mean
concurrence But the SC with its own judgements on the following cases of

S. P. Gupta v. Union of India 1982

Supreme Court Advocates-on Record Association v. Union of India 1993

In re Special Reference 1 of 1998

1
What is the collegium system Oct 16, 2015 , https://timesofindia.indiatimes.com/india/What-is-the-collegium-
system/articleshow/49404698.cms
2
Constitution of India 1949.
3
Constitution of India 1949.
4
Definition of consult https://www.merriam-webster.com/dictionary/consult.
Virtually replaced the provisions of the Articles concerning there appointment with the
collegium system which is also nowhere mentioned in the constitution. The appointments of
judges an executive function discharged by the President as the head of the executive to
Being a judicial function being exercised by the CJI wherein the Presidents role as the head
of the Executive has been reduced to being a mere approver.

Late V.R. Krishna Iyer, eminent jurist and a former Judge of the Supreme Court of India
summarizes all that is wrong with the Collegium as follows, Thus, today we have a curious
creation with no backing under the Constitution, except a ruling of the Supreme Court, and
that too based on a very thin majority in a single ruling. Today, the collegium on its own
makes the selection. There is no structure to hear the public in the process of selection. No
principle is laid down, no investigation is made, and a sort of anarchy prevails. In a minimal
sense, the selection of judges of the highest court is done in an unprincipled manner, without
investigation or study of the class character by the members of the collegium. There has been
criticism of the judges so selected, but the collegium is not answerable to anyone.5

The researcher feels that it is a gross abuse of power by the SC to replace an existing system
without parliament approval to change the essence of articles of constitution in the veil of
interpretation.

2)Can someone be the judge in his/her own cause?

Nemo judex in causa sua a fundamental principle of natural justice which states that no
person can judge a case in which he or she is party or in which he/she has an interest. The
maxim crystalized in British-tradition common law in the case from United Breweries Co. v
Bath6 . The SC and the higher judiciary in giving judgements in all the cases relating to its
accountability, appointments, allegations ,criticism have been its own judge to give itself a
clean chit. It is a principle of natural justice that no person can judge a case in which they
have an interest. Be it the NJAC, the summons to Justice Katju for his criticism on a
judgement of the SC7 , contempt notice to author Arundhati Roy for her article Professor,
POW in Outlook magazine is an excellent illustration of all thats wrong with criminal
contempt punishable under the Contempt of Courts Act, 1971 and why its an affront to
freedom of speech protected under the Constitution8 or the arrest of journalist who raised
allegations of graft against a Delhi High Court Judge which he said that he can prove but was

'Collegium system has done more harm to judiciary'5

6
http://www.duhaime.org/LegalDictionary/N/NemoJudexInParteSua.aspx
7
Supreme Court issues contempt notice to Katju NOVEMBER 11, 2016
http://www.thehindu.com/news/national/Supreme-Court-issues-contempt-notice-to-Katju/article16442960.ece
8
The contempt notice against Arundhati Roy is yet another reminder of why this law must go November 1st
2017 https://scroll.in/article/778529/the-contempt-notice-against-arundhati-roy-is-yet-another-reminder-of-why-
this-law-must-go
arrested without any chance of speak for his defence9. In all these instances the courts seem
to have a natural pride that they cannot be questioned and also it is interesting to note that in
all these cases the court was judge in the matters where it was the defendant, doesnt that
violate the principle of natural justice ?. This was not what the constitution makers would
have thought of when they were pressing for the independence of the judiciary. Independence
should be there but that independence should not be abused. The researcher feels the courts
are violating the maxim of Nemo judex in causa sua .

1)In the past the judiciary has seen various corruption and scandals which has not generally
been probed and also in proved misconduct and corruption by judges have also resulted in no
prosecution and liability. The best examples of this can be said of V. Ramaswami J. , Sen J.
and CJ Dinakaran of the Sikkim HC. In these cases either they have resigned or were saved
from prosecution but no liability was incurred by them even after their resignation. It violates
Article 14 of the Indian constitution that none of these judges have faced prosecution for
proved misconduct. The researcher feels that this kind of illegal privileges that the judges
enjoy can be a result of political nexus or other reasons but it seriously undermines the
accountability of the judiciary. Punishment is not for revenge but for reform. By not giving
punishments the judiciary is indirectly decreasing its accountability and its perception as a
temple of justice in the country.

9
High Court convicts 4 Mid Day journalists of contempt of court Sep 12, 2007
http://www.hindustantimes.com/delhi-news/high-court-convicts-4-mid-day-journalists-of-contempt-of-
court/story-s1XVfDDuvh5ga805zCtPQN.html
CONCLUSION

Judiciary is the temple of justice in the country. No negative aspect like favouritism,
partiality, immorality, corruption etc. should infest the judiciary which can be lower its
credibility and prestige among the citizens of the country. To continue its legal of a justice
giving organisation with utmost standards, the judiciary should increases its accountability by
setting an example of its clean standards. Before judging the government on various cases of
accountability it is moral right for the judiciary to first clean its own mess.

Unfortunately through a series of judgements (like strucking down NJAC) and its draconian
implementation has set down this process in the wrong track with the upholding of the
collegium system and throwing behind the bars to those who condemn it. Other countries like
the UK have already given away with these type of laws with judicial reforms but
unfortunately this cannot be said for India.

Judicial accountability should be a fundamental right for the general masses. It is the hands of
a judge where a persons life rest and any wrong judgment can destroy the persons life.

So judicial accountability should be legislated and properly codified because the constitution
is supreme but this supremacy is interpreted by the judges of the judiciary. So its absolutely
necessary for their accountability.
BIBLIOGRAPHY

1) Ian Shapiro, Rule of law, Universal law publishing, 1994

2) Tom Bingham, Rule of law ,. Penguin UK, 2011

3) Kalraj Mishra Judicial Accountability, 2016