JOURNAL OF THE INDIAN LAW INSTITUTE

Volume 42 April - December 2000

JUDICIAL REVIEW - JUDICIAL ACTIVISM - NEED FOR CAUTION*

A. 5. Ananď*

THERE IS a great need for caution while expanding the parameters of judicial
review. The scope of judicial review generally speaking is in three specific
areas:

i) Judicial review of legislative action;

ii) Judicial review of executive or administrative action;
iii) Judicial review of judicial action.

Under our Constitution distribution of legislative powers b

Parliament and the legislatures of the states is defined. Vari
legislations are contained in the three lists - union, state and
contained in the seventh schedule to the Constitution. The enactments of
legislatures can be challenged on the ground that they are in conflict with
chapter III of the Constitution or are otherwise ultra vires the Constitution.

Judicial review is not an expression exclusively used in constitutional law.

Literally, it means the revision of the decree or sentence of an inferior court by a
superior court. Under general law, it works through the remedies of appeal,
revision and the like, as prescribed by the procedural laws of the land, irrespective
of the political system which prevails. Judicial review has, however, a more
technical significance in public law, particularly in countries having written
constitutions. In such countries it means that courts have the power of testing the
validity of the legislative as well as other governmental actions. The necessity of
empowering the courts to declare a statute unconstitutional arises not because
the judiciary is to be made supreme but only because a system of checks and
balances between the legislature and the executive on the one hand and the
judiciary on the other hand provides the means by which mistakes committed by
one are corrected by the other and vice versa . The function of the judiciary is not
to set itself in opposition to the policy and politics of the majority rule. On the
contrary, the duty of the judiciary is simply to give effect to the legislative policy
of a statute in the light of the policy of the Constitution. The duty of the judiciary

* Inaugural address for the Millennium Law Lecture Series organised by the Kerala High Court
Advocates' Association on October 21, 1999 at Kochi.
** Chief Justice of India.

This content downloaded from

52.66.103.4 on Mon, 31 Jul 2023 16:19:35 +00:00
All use subject to https://about.jstor.org/terms
150 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 42 : 2-4

is to consider and decide whether a particular statute accords o

the Constitution and make a declaration accordingly.

The legislature, the executive and the judiciary are three co-o
of the state. All the three are bound by the Constitution.
representing the executive, the elected candidates as members
representing the legislature and the judges of the Supreme Cou
courts representing the judiciary have all to take the oaths pre
third schedule to the Constitution. All of them swear to bear true faith and
allegiance to the Constitution. When it is said, therefore, that the judiciary is
the guardian of the Constitution, it is not implied that the legislature and the
executive are not equally to guard the Constitution. For the progress of the
nation, however, it is imperative that all the three wings of the state function in
complete harmony.

A judicial decision either stigmatises or legitimises a decision of the

legislature or of the executive. In either case the court neither approves nor
condemns any legislative policy, nor is it concerned with its wisdom or
expediency. Its concern is merely to determine whether the legislation is in
conformity with or contrary to the provisions of the Constitution. It often
includes consideration of the rationality of the statute/Similarly, where the
court strikes down an executive order, it does so not in a spirit of confrontation
or to assert its superiority but in discharge of its constitutional duties and the
majesty of the law. In all those cases, the court discharges its duty as a judicial
sentinel.

In his 1998 Hamlyn Lectures (50th series) titled "Freedom, Law & Justice",
Lord Justice Stephen Sedley said:

What earns the courts far less public approbation, though it is

what they do far more often, is their upholding as rational and
fair of a variety of governmental initiatives which are almost daily
challenged in the High Court. It is sometimes forgotten by aspiring
village Hampdens that the protection of good government is as
much the High Court's job as the castigation of misgovernment.
Here, in fact, as much as in the criminal process, is where the
communitarian dimension of law is displayed.

When the validity of an Act is challenged before a court of law, the judiciary
is required to consider the constitutionality of the statute on the touchstone of
the parameters fixed by the Constitution. It is no reflection either on the
government or on the Parliament that their views as to constitutionality are
again being reviewed by the judiciary. In interpreting the existing law, that is
to say, what the law is, the courts are required to keep the particular situation
in view and interpret the law so as to provide a solution to the particular problem
to the extent possible. This is a legitimate exercise by the judiciary of its

This content downloaded from

52.66.103.4 on Mon, 31 Jul 2023 16:19:35 +00:00
All use subject to https://about.jstor.org/terms
2000] JUDICIAL REVIEW - JUDICIAL ACTIVISM - NEED FOR CAUTION 151

constitutional obligation by virtue of the role assigned to it in the constitution

scheme. The gaps in the existing law, which are filled by updating the law
result in the evolution of juristic principles, which in due course of time get
incorporated in the law of the land and thereby promote the growth of law.

Judicial review is an essential component of the rule of law, which is

basic feature of the Indian Constitution. Every state action has to be tested on
the anvil of rule of law and that exercise is performed, when occasion arises by
reason of a doubt raised in that behalf in the courts. This well-established
constitutional principle of the existence of the power of judicial review and its
need was indicated by Chief Justice Marshall in Marbury v. Madison1 :

It is emphatically the province and duty of the judicial department to

say what the law is. Those who apply the rule to particular cases,
must of necessity expound and interpret that rule. If two laws conflict
with each other, the Courts must decide on the operation of each. So
if a law be in opposition to the Constitution; if both the law and the
Constitution apply to a particular case, so that the Court must either
decide that case conformably to the law, disregarding the Constitution;
or conformably to the Constitution, disregarding the law; the Court
must determine which of these conflicting rules governs the case.
This is of very essence of judicial duty. If, then, the Courts are to
regard the Constitution, and the Constitution is superior to any
ordinary Act of the Legislature, the Constitution, and no such ordinary
act (sic.), must govern the case to which they both apply.... Why
otherwise does it (the Constitution) direct the judges to take an oath
to support it?

Judicial institutions have a sacrosanct role to play not only for resolving
inter-se disputes but also to act as a balancing mechanism between the
conflicting pulls and pressures operating in a society. Courts of law are the
products of the Constitution and the instrumentalities for fulfilling the ideals
of the state enshrined therein. Their function is to administer justice according
to the law and in doing so, they have to respond to the hopes and aspirations of
the people because the people of this country, in no uncertain terms, have
committed themselves to secure justice - social, economic and political - besides
equality and dignity to all.

In human affairs, there is a constant recurring cycle of change and

experiment. A society changes as the norms acceptable to the society undergo
a change. The judges have been alive to this reality and while discharging their
duties have tried to develop and expound the law on those lines while acting
within the bounds and limits set out for them in the Constitution.

1. 2L Ed 60: 1 Cranch 137(1803).

This content downloaded from

52.66.103.4 on Mon, 31 Jul 2023 16:19:35 +00:00
All use subject to https://about.jstor.org/terms
152 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 42: 2-4

The progress of the society is dependant upon proper appli

to its needs and since the society today realises more than ever
and obligations, the judiciary has to mould and shape the law t
rights and obligations. The mere existence of a particular piece
legislation cannot solve the problems of the society at large un
interpret and apply the law to ensure its benefit to the right q
the court followed a policy of adhering to a narrow doctrine a
away from development of the law. Soon after the Constitution
in 1950 in A.K. Gopalan's çase2, the Supreme Court placed
and restrictive interpretation upon article 21 of the Constitutio
it was held in that case that "... the procedure established
procedure established by a law made by the State" and the
infuse in that procedure the principles of natural justice. The c
at the conclusion that article 21 excluded enjoyment of the free
under article 19. Gopalan 's case3 was decided soon after the Co
into force, more than 49 years ago. The judgement was mai
language of the Constitution and the requirements of the partic
the court. The law has not remained static. The doctrine o
fundamental rights as evolved in Gopalan's case4 was throw
the same Supreme Court, about two decades later in Bank
case5, and four years later in 1974, in Hardhan Saha 's case6, the
judged the constitutionality of preventive detention with refe
19 also.

Twenty eight years after the judgement in Gopalan's case7 , in 1978 the
Supreme Court in Maneka Gandhi's case8, pronounced that the procedure
contemplated by article 21 must be 'right, just and fair' and not arbitrary; it
must pass the test of reasonableness and the procedure should be in conformity
with the principles of natural justice and unless it was so, it would be no
procedure at all and the requirement of article 21 would not be satisfied.

Responding to the changing times and aspirations of the people, the

judiciary, with a view to see that the fundamental rights embodied in the
Constitution of India have a meaning for the down-trodden and the under-
privileged classes, pronounced in Madhav Haskot's case9 that providing free
legal service to the poor and needy was an essential element of the 'reasonable,

2. AIR 1950 SC 27.

3. Supra note 2.
4. Supra note 2.
5. AIR 1970 SC 564.
6. AIR 1974 SC 2154.
7. Supra note 2.
8. AIR 1978 SC 597.
9. AIR 1978 SC 1548.

This content downloaded from

52.66.103.4 on Mon, 31 Jul 2023 16:19:35 +00:00
All use subject to https://about.jstor.org/terms
2000] JUDICIAL REVIEW - JUDICIAL ACTIVISM - NEED FOR CAUTION 153

fair and just procedure'. Again, in Hussainara Khatoon's case10 whi

considering the plight of the undertrials in jail, speedy trial was held to be a
integral and essential part of the 'right to life and liberty' contained in artic
21 of the Constitution of India. In Nandini Satpathy v. PL. Dani 11 , the Suprem
Court held that an accused has the right to consult a lawyer during interrogatio
and that the right not to make self-incriminatory statements should be widely
interpreted to cover the pre-trial stage also. Again, in Sheela Barse v. State of
Maharashtra 12 the Supreme Court laid down certain safeguards for arrested
persons. In Bandhua Mukti Morcha 's case13 the Supreme Court held that righ
to life guaranteed by article 21 included the right to live with human dignity
free from exploitation.

The courts have, thus, been making judicial intervention in case

concerning violation of human rights as an ongoing judicial proces
Decisions on such matters as the right to protection against solitar
confinement as in Sunil Batra v. Delhi Admn . 14, the right not be held i
fetters as in Charles Sobraj v. Supdt., Central Jail15 , the right against
handcuffing as in T.V. Vatheeswaran v. State of Tamil Nadu16 , the righ
against custodial violence as in Nilabati Behera v. State of Orissa17 , the
rights of the arrestee as in D.K.Basu v. State of West Bengal 18 , or th
right of the female employees not to be sexually harassed at the place o
work as in the case of Vishaka v. State of Rajasthan19 and Apparel Expor
Promotion Council v. A.K. Chopra 20 are just a few pointers in tha
direction.

An enforceable right to compensation in case of 'torture' including

'mental torture' inflicted by the state or its agencies is now a part of the
public law regime in India. In many of its decisions, the Supreme Court of
India started a new era of compensatory jurisprudence in Indian legal
history. This newly forged weapon to help the torture victims has been
sharpened in many of its decisions, like, Rudal Shah v. State of Bihar21,
Bhim Singh v. State ofJ&K 22, Saheli v. Commissioner of Police13.

10. AIR 1979 SC 1369.

11. AIR 1978 SC 1025.
12. 1983(1) SCC 96.
13. AIR 1984 SC 802.
14. 1978 (4) SCC 494.
15. 1978 (4) SCC 104.
16. 1983 (2) SCC 68.
17. 1993 (2) SCC 476.
18. 1997(1) SCC 426.
19. 1997 (6) SCC 241.
20. JT 1999(1) SC 61.
21. AIR 1983 SC 1086.
22. 1984 SCC Supp. 504.
23. (1990)1 SCC 422.

This content downloaded from

52.66.103.4 on Mon, 31 Jul 2023 16:19:35 +00:00
All use subject to https://about.jstor.org/terms
1 54 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 42 : 2-4

In the case of Nilabati Behera v. State 24 , the court crystall

right to compensation, which was further reiterated in D.K. B
W.B.25 In D.K. Basu's case the court went to the extent of
compensation was being directed by the courts to be paid by t
has been held vicariously liable for the illegal acts of its official
to clause 9(5) of ICCPR by the Government of India had lost it
fact, the sentencing policy of the judiciary in torture rela
erring officials in India, has become very strict. For an establ
fundamental rights, compensation can now be awarded in the e
law jurisdiction by the Supreme Court and high courts, in add
law remedy for tortuous action and punishment to wrongdoer
law.

In Nilabati Behera's case26, the Supreme Court said:

The Court, where the infringement of fundamental right is

therefore, cannot stop by giving a mere declaration. It mu
further and give compensatory relief, not by way of dama
civil action but by way of compensation under the pu
jurisdiction for the wrong done, due to breach of public du
State of not protecting the fundamental right to life of ci
repair the wrong done and give judicial redress for legal in
judicial conscience.

What has been and is being done by the higher judiciary in

not something which can be said to be a 'new innovation'.
ourselves into believing that the present generation is the pion
Ours is only a participatory role in an ongoing judicial process
the basis for the development and evolution of law, which can
to remain static. Development of law by the Supreme Cou
States would provide an apt example. In Dred Scott v. Sandfor
held that a 'negro' was the property of his master and not a '
legitimising 'slavery' and discrimination on the grounds of 'co
This doctrine was cast away, a century later by the same cour
Board of Education2* , when it said that slavery is a de-human
institution denying human dignity to such an extent that no
uphold it and later that court gave it a decent burial in Bak
court realised that the values which guided the society when Dr

24. Supra note 17.

25. (1997)1 SCC 416.
26. Supra note 17.
27. 15 L Ed 691 (1857).
28. 347 US 483: 98 L Ed 873 (1954).
29. 438 US 265: 57 L Ed 2d 750 1978).
30. Supra note 27.

This content downloaded from

52.66.103.4 on Mon, 31 Jul 2023 16:19:35 +00:00
All use subject to https://about.jstor.org/terms
2000] JUDICIAL REVIEW - JUDICIAL ACTIVISM - NEED FOR CAUTION 155

came to be decided had undergone a sea change and could not stand the scrutiny
of the age when the judgement in Brown's case31 or Bakke 's case32 was given.

The judiciary has, thus, been rendering judgements which are in tune and
temper with the legislative intent while keeping pace with time and jealously
protecting and developing the dimensions of the fundamental human rights of
the citizens so as to make them meaningful and realistic. New contents ar
being provided to criminal justice also resulting in prison reforms and
humanitarian treatment of the prisoners and the undertrials. The doctrine of
equality has been employed to provide equal pay for equal work. Ecology,
public health and environment are receiving attention of the courts. Exploitation
of children, women and labour is receiving the concern it deserves. The
executive is being made more and more to realise its responsibilities.

In view of the operations by the courts on a wider canvass of judicial

review, a potent weapon was forged by the Supreme Court by way of public
interest litigation (PIL) also known as social action litigation. The Supreme
Court has ruled that where judicial redress is sought in respect of a legal injury
or a legal wrong suffered by persons, who by reason of their poverty or disabilit
are unable to approach the court for enforcement of their fundamental rights,
any member of the public, acting bona fide , can maintain an action for judicial
redress. Thus, the underprivileged and the downtrodden have secured acces
to court through the agency of a public-spirited person or organisation. This
weapon was effectively used by the Supreme Court and the high courts, being
Constitutional courts, to a large extent from 1980 onwards. The decisions of
the Supreme Court in Sunil Batra v. Delhi Administration33', Municipal Council ,
Ratlam v. Vardhichand 34; Akhil Bharatiya Soshit Karamchari Sangh, Railway
v. Union of India35 and umpteen number of decisions thereafter by the Suprem
Court and more particularly the decision of the Supreme Court in S.P. Gupta 's
case36 represent watersheds in the development of PIL and liberalisation o
the concept of locus standi to make access to the courts easy. The principl
underlying order 1 rule 8, Code of Civil Procedure has been applied in public
interest litigation to entertain class action and at the same time to check misuse
of PIL. The appointment of amicus curiae in these matters ensures objectivity
in the proceedings. Judicial creativity of this kind has enabled realisation of
the promise of socio-economic justice made in the preamble to the Constitutio
of India.

31. Supra note 28.

32. Supra note 29.
33. Supra note 14.
34. AIR 1980 SC 1622.
35. AIR 1981 SC 298.
36. AIR 1982 SC 149.

This content downloaded from

52.66.103.4 on Mon, 31 Jul 2023 16:19:35 +00:00
All use subject to https://about.jstor.org/terms
156 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 42 : 2-4

With a view to retain legitimacy and its efficacy, the pot

PIL forged for the benefit of the weaker sections of society
a class, cannot agitate their legal problems by themselves has to
so that it may not get blunted by wrong or overuse. Care has
that PIL essentially remains Public Interest Litigation and
either Political Interest Litigation or Personal Interest Litigat
Interest Litigation or used for persecution. If that happ
unfortunate. PIL would loose its legitimacy and the credibilit
would suffer. Finding the delicate balance between ensuring ju
around us and yet maintaining institutional legitimacy is a con
for the higher judiciary. The courts must be careful to see th
zeálousness they do not consciously or unconsciously cause
confusion in the law. In that event, the law will not only deve
lines instead of straight and consistent path but the judiciary
in the bargain get tarnished and its respectability eroded. Th
day. Judicial authoritarianism cannot be permitted under any

The expanded concept of locus standi in connection with P

interpretation from time to time, has expanded the jurisdict
courts exercising judicial review. This expanded role has be
of 'judicial activism' by those who are critical of this exp
judiciary. The main thrust of the criticism is that the judiciar
to the administration is usurping the functions of the legisla
executive and is running the country and, according to some
these critics of the judiciary overlook is that it is the tardin
and the indifference of the executive to address itself to the
citizens about violations of their human rights which provid
for judicial intervention. In cases where the executive refuse
legislative will or ignores or thwarts it, it is surely legitimate
in and ensure compliance with the legislative mandate. W
apprised of and is satisfied about gross violations of basic
cannot fold its hands in despair and look the other way.
neither prevaricate nor procrastinate. It must respond to
oppressed and the downtrodden for justice by adopting ce
principles within the parameters of the Constitution and
directions in order to render full and effective relief. If the
shut its door to the citizen who finds the legislature as n
executive indifferent, the citizen would take to the streets a
bad both for the rule of law and democratic functioning of
have come to realise and accept that judicial response to hum
be blunted by legal bigotry. Courts no longer feel bound by
locus standi where the question involved is injury to public i
in this country has been the most vigilant defender of demo
values and constitutionalism.

This content downloaded from

52.66.103.4 on Mon, 31 Jul 2023 16:19:35 +00:00
All use subject to https://about.jstor.org/terms
2000] JUDICIAL REVIEW - JUDICIAL ACTIVISM - NEED FOR CAUTION 157

Judicial activism in India encompasses an area of legislative vacuum in

the filed of human rights. Judicial activism reinforces the strength of democrac
and reaffirms the faith of the common man in the 'rule of law'. The judiciar
however, can act only as an alarm clock but not as a timekeeper. After giving
the alarm call it must ensure to see that the executive performs its duties in th
manner envisaged by the Constitution.

It would be seen that judicial activism which is the search for the spirit of
law, has been profitably used by powerless minorities, such as bonded labour,
prison inmates, undertrial prisoners, sex workers and such other powerle
minority groups as are crusading for protection of human rights of women an
children or seeking redressai against governmental lawlessness, or relief against
developmental policies which benefit the haves at the cost of the have-nots.

Judicial activism, however, is not an unguided missile. It has to be

controlled and properly channelised. Courts have to function within established
parameters and constitutional bounds. Decision should have a jurisprudenti
base with clearly discernible principles. Limits of jurisdiction cannot be pushe
back so as to make them irrelevant. Courts have to be careful to see that they
do not overstep their limits because to them is assigned the sacred duty
guarding the Constitution. People of this country have reposed faith and trus
in the courts and, therefore, the judges have to act as their trustees. Betrayal o
that trust would lead to judicial despotism which posterity would not forgive

It must always be remembered that the judges in exercise of their power

of judicial review are not expected to decide a dispute or controversy which i
purely theoretical or for which there are no judicially manageable standards
available with them. The courts do not, generally speaking, interfere with th
policy matters of the executive unless the policy is either against the Constitutio
or some statute or is actuated by mala fides . Policy matters, fiscal or otherwis
are thus best left to the judgement of the executive. The danger of judiciary
creating a multiplicity of rights without the possibility of adequate enforceme
will in the ultimate analysis be counter productive and undermine the credibili
of the institution. Courts cannot 'create rights' where none exist nor can the
go on making orders which are incapable of enforcement or violative of othe
laws or settled legal principles.

Article 142 of the Constitution of India vests in the Supreme Court powers
of very wide amplitude. The plenary jurisdiction under article 142 is the residu
source of power which the Supreme Court may draw upon as necessary
whenever it is just and equitable to do so and in particular to ensure th
observance of the due process of law, to do complete justice between the partie
while administering justice according to law. In Supreme Court Bar Associatio
v. Union of India and another31- while dealing with the power under article

37. (1998) 4 SCC 409.

This content downloaded from

52.66.103.4 on Mon, 31 Jul 2023 16:19:35 +00:00
All use subject to https://about.jstor.org/terms
158 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 42 : 2-4

142 of the Constitution, a constitution bench of the Supreme Co

It, however, needs to be remembered that the powers conferre

Court by Article 142 being curative in nature cannot be const
powers which authorise the Court to ignore the substantive rig
litigant while dealing with a cause pending before it. This powe
be used to 'supplant' substantive law applicable to the case
under consideration of the Court. Article 142, even with the w
its amplitude, cannot be used to build a new edifice where non
earlier, by ignoring express statutory provisions dealing with
and thereby to achieve something indirectly which cannot be a
directly.... The Supreme Court in exercise of its jurisdictio
Article 142 has the power to make such order as is necessary f
complete justice 'between the parties in any cause or matter p
before it'. The very nature of the power must lead the Court
limits for itself within which to exercise those powers.. . .

Thus, even under article 142(1) of the Constitution, the Su

held that the court does not have any jurisdiction to make an
inconsistent with the express statutory provisions of substantive
less, inconsistent with any constitutional provision.

It is in fact stating the obvious to say that courts must, whil

the power of judicial review, exercise proper restraint and base t
on recognised doctrines or principles of law. Judicial activism
restraint are two sides of the same coin. It is therefore essential to remember
that judicial restraint in the exercise of its functions is of equal importance for
the judiciary while discharging its judicial obligations under the Constitution.
With a view to see that judicial activism does not become 'judicial adventurism' ,
the courts must act with caution and proper restraint. They must remember
that judicial activism is not an unguided missile and failure to bear this in
mind would lead to chaos. People would, thus, not know which organ of the
state to look to for ensuring check on the abuse or misuse of power.

It would be prudent to remember the following observations of Lord Justice

Lawton in Laker Airways 38 :

In the United Kingdom aviation policy is determined by ministers

within the legal framework set out by Parliament. Judges have nothing
to do with either policy making or the carrying out of policy. Their
function is to decide whether a minister has acted within the powers
given (sic.) him by statute or the common law. If he is declared by a
court, after due process of law, to have acted outside his powers, he
must stop doing what he has done until such time as Parliament gives

38. 1977 (2) WLR 234 at 267.

This content downloaded from

52.66.103.4 on Mon, 31 Jul 2023 16:19:35 +00:00
All use subject to https://about.jstor.org/terms
2000] JUDICIAL REVIEW - JUDICIAL ACTIVISM - NEED FOR CAUTION 159

him the powers he wants. In a case such as this I regard myself as a

referee. I can blow my judicial whistle when the ball goes out of
play; but when the game restarts I must neither take part in it nor tell
the players how to play.

Thus, 'judicial whistle' needs to be blown for a limited purpose and wit
caution. It needs to be remembered that courts cannot run the government
the administration indulge in abuse or non-use of power and get away wit
The courts have the duty of implementing the constitutional safeguards t
protect individual rights but they cannot push back the limits of the Constit
to accommodate the challenged violation.

All it means is that judges are expected to be circumspect and se

disciplined in the discharge of their judicial functions. It is an onerous dut
cast on the judiciary to see that either inadvertently or overzealously, the
not allow the instrumentality of the courts to be polluted thereby eroding p
trust and confidence in the institution.

Judicial activism is a delicate exercise involving creativity. Great skill

required for innovation. Caution is needed because of the danger of populi
imperceptibly influencing the psyche. Public adulation must not sway the ju
and personal aggrandisement must be eschewed. It is imperative to pre
the sanctity and credibility of judicial process. Let us all strive to achieve
end.

This content downloaded from

52.66.103.4 on Mon, 31 Jul 2023 16:19:35 +00:00
All use subject to https://about.jstor.org/terms
 Judicial Accountability∗

A Accountability: A Very Brief Conceptual Overview

5
T he advent of judicial accountability as a widespread phenomenon is a
relatively modern development. It grew as an institutional response to
the growing power of courts in adjudicating matters that were hitherto not
considered within the ambit of judicial resolution. Its intellectual progenitor,
from which it derived both its terminology and its conceptual moorings, is
the concept of public accountability, which itself underwent a new wave in
the latter half of the twentieth century.1 Previously, public accountability was
an under-theorised and seldom discussed concept. In democratic theory,
it had a settled meaning, applicable to elected representatives, who had to
be accountable to their constituents;2 in public administration, it denoted a
traditional book-keeping function, true to its etymological roots.3 However,
caught at the confluence of the twin developments of the multiplication of

∗ This chapter is a revised version of my article originally published in Public Law:

Arghya Sengupta, ‘Judicial Accountability: A Taxonomy’, Public Law, April (2014):
245–266.
1 The term ‘public accountability’ is used in this chapter to denote accountability of
institutions which exercise public power. This includes the legislature, executive
and the judiciary, as well as accountability of public agencies such as police, health
and educational services.
2 In early Athenian society, accountability was enforced by public officials having to report
on their conduct to the Assembly of citizens: see Jennifer T. Roberts, Accountability
in Athenian Government (Madison: University of Wisconsin Press, 1982); in modern
representative democracy, this has been adapted to mean elected representatives being
accountable to citizens through regular elections: see Patricia Day and Rudolf Klein,
Accountabilities: Five Public Services (London: Tavistock Publishers, 1987), 6.
3 The word ‘accountability’ derives from giving an ‘account’ which itself derives from
the Latin accomptare, itself a cognate of computare, meaning to calculate or count.
C. T. Onions (ed.), The Oxford Dictionary of English Etymology (Oxford: Clarendon
Press, 1966), 8.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

197
 120 Independence and Accountability of the Indian Higher Judiciary

power centres within the state requiring multiple sites of accountability and
theories of New Public Management redefining traditional public administration
understandings, the concept of public accountability exploded, suddenly being
used in a variety of ways, with multiple meanings and diverse objectives.
To document and analyse each of these meanings and objectives is the task of
an accountability historian and beyond the scope of this chapter. I am concerned
with the limited task of sifting through these multiple understandings in order to
delineate a plausible conceptual core of judicial accountability. This conceptual
account is bolstered by jurisdiction-specific examples that demonstrate the
various ways in which judicial accountability is used in practice. Such an
account will provide a matrix to understand the particular dimensions of judicial
accountability which are, much to our intellectual detriment, significantly
under-theorised today.
Two parallel developments in governance and public administration are
responsible for the profusion of the uses of public accountability in the latter half
of the twentieth century. In governance, there was an increasing realisation that the
traditional conception of public accountability of elected representatives, that is,
ministerial responsibility to parliament in the Westminster tradition, was inadequate
for a number of reasons.4 Thus, direct bureaucratic accountability to parliament,
administrative accountability to courts and accountability of various governmental
authorities directly to the people were offered as necessary supplements. On the
other hand, in public administration, New Public Management theories viewed
public sector entities as service providers who needed to be held directly responsible
for their actions to their clientele, that is, the citizens. As a result, new forms of
professional, performance, managerial and market-driven accountability and control
mechanisms applicable to service providers developed, chiefly in the sectors of
health, education, social services and policing.5
Most of these meanings were derivatives of the traditional meaning of
accountability, that is, holding to account or answerability.6 However, the
purposes for which such answers were sought, the mechanisms to facilitate
such answerability and the authorities who were accountable and to whom
such accountability was owed varied considerably. At the same time, these
new understandings of accountability which were proffered were themselves

4 Peter Barberis, ‘The New Public Management and a New Accountability,’ Public
Administration 76 (1998): 451, 452.
5 Day and Klein, Accountabilities.
6 Onions, Oxford Dictionary.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

198
 Judicial Accountability 121

constantly in flux—new forms of accountability once implemented led to

concomitant institutional changes, which in turn required the development
of newer forms of accountability to account for the changed circumstances.7
Both the varying motivations for the usage of accountability and its constantly
changing nature owing to its reciprocal relationship with changing institutional
designs meant that public accountability was largely a concept without fixed
content, notoriously difficult to theorise.
In the last few years however, a concerted effort has been made to understand the
core features of the concept of accountability. Most notably, Bovens8 and Mulgan9
have attempted to develop a coherent framework within which to understand, assess
and identify limits of varying accountability regimes. This chapter derives from
their work, particularly Bovens’, and adopts a fivefold structure for understanding
judicial accountability—who is accountable (subjects), the authorities to whom
such accountability is owed (addressees), the specific actions for which the actor is
accountable (subject matter), the purpose for such accountability (rationale) and
the mechanisms for implementing such accountability (methods). An analysis of
judicial accountability in this fivefold structure, it is believed, will shed necessary
light on its conceptual core, thereby facilitating an analysis on its interface with
judicial independence, dealt with in the next two chapters.

B Judicial Accountability: Answering the Five

Questions
Like public accountability in general, the idea that judges must be held
specifically accountable for their actions has gained particular traction in the
last two decades.10 Previously, invocations of judicial accountability were mostly

7 The best example of the dynamic nature of accountability mechanisms and their
application is provided by Barbara Romzek and Melvin Dubnick in relation to
accountability mechanisms in NASA leading up to and following the Challenger
disaster. See Barbara Romzek and Melvin Dubnick, ‘Accountability in the Public
Sector: Lessons from the Challenger Tragedy,’ Public Administration Review 47,
no. 3 (1987): 227.
8 Bovens, Analysing and Assessing Public Accountability.
9 Richard Mulgan, Holding Power to Account: Accountability in Modern Democracies
(London; Basingstoke: Palgrave Macmillan, 2003); Richard Mulgan, ‘Accountability:
An Ever-Expanding Concept,’ Public Administration 78, no. 3 (2000): 555.
10 See Guy Canivet, Mads Andenas and Duncan Fairgrieve (eds), Independence,
Accountability and the Judiciary (London: British Institute of International and
Comparative Law, 2006); Kate Malleson, The New Judiciary: The Effects of Expansion

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

199
 122 Independence and Accountability of the Indian Higher Judiciary

platitudes of the nature that every exercise of power, including judicial power,
must be accompanied by some degree of accountability. In the context of
state judges in the United States of America, however, a different notion
of judicial accountability prevailed, which was that judges must be directly
elected by the people, which would allow them to be directly accountable, and
by implication, removable by the people. Though this view of accountability
had some support within the United States,11 it had little applicability
elsewhere, given the primary importance attached to judicial independence,
which electing judges was squarely in conflict with. Thus, for a long time,
the dominant conception of judicial accountability was a philosophically
self-evident proposition that judges, being wielders of state power, must be
accountable for their actions. The implications of this proposition, however,
were scarcely grappled with.
With the expansion of judicial power in several countries, the implications
of holding judges to account for exercise of their power became a live question.
However, the notion of what judicial accountability entailed and how it
would affect the prevailing understanding of judicial independence that was
considered a sine qua non for the functioning of the judiciary varied, depending
on the context of a country’s particular constitutional and political culture.
For example, in South Africa, accountability was the key value sought to be
protected in the establishment of a Judicial Service Commission that would be
responsible for appointment as well as supervising several aspects of judicial
functioning.12 Canada experimented with a system of televised confirmation

and Activism (Ashgate/Dartmouth, 1999); T. David Marshall, Judicial Conduct and

Accountability (Scarborough: Carswell, 1995); Kate Malleson and Peter H. Russell
(eds), Appointing Judges in an Age of Judicial Power: Critical Perspectives from
Around the World (Toronto; Buffalo: University of Toronto Press, 2007); Edwin
Cameron, ‘Judicial Accountability in South Africa,’ South African Journal on
Human Rights 6 (1990): 251; Andrew Le Sueur, ‘Developing Mechanisms for Judicial
Accountability in the UK,’ Legal Studies 24, no. 1 (2004):73; Nihal Jayawickrama,
‘Developing a Concept of Judicial Accountability: The Judicial Integrity Group and
the Bangalore Principles of Judicial Conduct,’ Commonwealth Law Bulletin 28, no.
2 (2002): 1091; S. P. Sathe, ‘Accountability of the Supreme Court,’ Economic and
Political Weekly 37, no. 15 (2002): 1383.
11 For an excellent account of the arguments both for and against elective judges,
see Dorman Bridgeman Eaton, Should Judges Be Elected? Or, the Experiment of an
Elective Judiciary in New York (New York: JW Amerman, 1873).
12 For an excellent account of the changes in judicial administration in the post-
apartheid era in South Africa, see Penelope Andrews, ‘The South African Judicial
Appointments Process,’ Osgoode Hall Law Journal 44 (2006): 565.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

200
 Judicial Accountability 123

hearings of Supreme Court nominees and reformed its appointment process

to ensure that it was not shrouded in secrecy.13 In the United Kingdom, the
Constitutional Reform Act was passed and the traditional roles of the Lord
Chancellor abolished to ensure accountability in judicial functioning, while
providing a firm institutional basis for judicial independence.14 In the United
States, a recognition that judicial accountability was not a pejorative term
that would make judges less independent, but a requirement for an optimally
functioning judiciary, slowly but surely emerged.15
Differing uses of the term in different political and constitutional contexts
meant that no unifying conceptual account of judicial accountability developed.
Much like public accountability, accountability of the judiciary too witnessed a
conflation of diverse subjects of accountability, its subject matter, addressees, the
reasons for seeking it and the range of methods that could be used to enforce it.
While several such uses of accountability may have been ruses by governments
attempting to hinder the functioning of a strident judiciary, the essence of the
concept, whether used legitimately or not, was to seek ways and means to hold
judges to account for their actions: a device to manage diverse expectations of
the judicial institution and individual judges.16
Given these developments, it would be useful to fit the prevalent understandings
of judicial accountability in the fivefold structure outlined earlier. Distinguishing
between the subjects of accountability (individual and institutional), subject
matter (decisional, behavioural and administrative), addressees (horizontal,

13 Lori Hausegger, Matthew Hennigar and Troy Riddell, Canadian Courts: Law, Politics
and Process (Don Mills: Oxford University Press, 2009), 141–211; Kate Malleson,
‘Parliamentary Scrutiny of Supreme Court Nominees: A View from the United
Kingdom,’ Osgoode Hall Law Journal 44 (2006): 557.
14 Department for Constitutional Affairs, Constitutional Reform: Reforming the Office
of the Lord Chancellor, CP 13/03 (London: Department for Constitutional Affairs,
2003); Johan Steyn, ‘The Case for a Supreme Court,’ Law Quarterly Review 118
(2002): 382.
15 At the forefront of this debate, campaigning aggressively against elected judges
has been Justice (Retired) Sandra Day O’Connor. For an illustrative example of her
views on this topic, see Sandra Day O’ Connor, ‘Keynote Address: Symposium on
State Judicial Independence—A National Concern,’ Seattle University Law Review
33 (2010): 559.
16 This is derived from Romzek and Dubnick who use this understanding for
accountability in the public sector: Romzek and Dubnick, ‘Accountability in the
Public Sector.’ This is the working definition of judicial accountability that is used,
where necessary, in this book.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

201
 124 Independence and Accountability of the Indian Higher Judiciary

vertical and internal), methods (legal, political, public, internal/ hard and soft)
and the rationale for seeking accountability (responsible decision-making)
will mean that the foundations of the concept of judicial accountability can
be understood more precisely and the differences in enumeration between its
various uses highlighted. Though the answers to the five questions raised above
will neither be singular nor straightforward, such is the extent to which judicial
accountability as a concept is under-theorised today that developing such a
taxonomy for judicial accountability may have value per se.

5B.1 Individual and Institutional Accountability

A preliminary distinction needs to be drawn between the accountability
of individual judges (‘individual accountability’) and accountability of the
judiciary as a whole (‘institutional accountability’), that is, regarding the
subject of accountability.17 Individual accountability concerns the validity or
otherwise of particular decisions made by judges, aspects of their out-of-court
personal behaviour that may have an impact on their decision-making such as
the disclosure of their financial assets or articulation of an ideology in a public
lecture, and any action of an individual judge that may amount to misconduct
and require disciplinary action. The source of such accountability derives
from the oath taken by judges on appointment, and its rationale is to ensure
answerability for the exercise of judicial power, thereby managing expectations
that may be held regarding the judiciary. A classic early example of the working
of individual accountability can be seen in the impeachment proceedings
against Justice Samuel Chase, judge of the Supreme Court of the United States,
in 1803.18 Chase was sought to be impeached on the grounds of being partial
in the trials of two anti-federalist sympathisers who had been brought before
him, whom he had sentenced to be hanged and imprisoned for nine months
respectively, and for making anti-Republican comments to a Baltimore Grand
Jury. Considering these instances as seditious attacks against the Constitution
and conduct unbecoming of a judge, the House of Representatives impeached
him. However, in the Senate, the requisite two-thirds majority to confirm the

17 This distinction has been made previously in the existing literature. For more, see
United Nations Office on Drugs and Crime, The Bangalore Principles of Judicial
Conduct (The Hague: United Nations Office on Drugs and Crime, 2002), available at
http://www.unodc.org/pdf/crime/corruption/judicial_group/Bangalore_principles.
pdf (accessed 12 December 2011) (hereinafter ‘Bangalore Principles’); Le Sueur,
‘Developing Mechanisms for Judicial Accountability.’
18 For more, see Rehnquist, Grand Inquests, 1–134.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

202
 Judicial Accountability 125

impeachment could not be garnered and thus the impeachment proceeding

failed. Notwithstanding the failed impeachment, this example shows both
plausible reasons and mechanisms used for enforcing individual accountability
of a judge for his actions within and outside the court.
At the same time, accountability of the judiciary as an institution must
be seen as a cognate yet independent category. Institutional accountability
directly concerns the administrative functioning of courts, that is, the number
of cases filed, the number disposed and backlogs, the spending of its allocated
budget, and the exercise of its decision-making function in cases where they
are perceived to have overstepped their boundaries or have erred leading to
governmental intervention or appellate remedies. Recently, with the growth
of institutional accountability in general, as adverted to earlier in this chapter,
mission statements, annual reports and answers in response to Freedom of
Information/Right to Information petitions have regularly been issued by courts
relating to various aspects of their administrative functioning.19 The extent
of such accountability lies in the particular role of the judicial institution in
a country’s constitutional and political context and its rationale is to require
courts to be answerable for diverse aspects of their functioning by virtue of being
public institutions. These are thus the newest forms of enforcement of judicial
accountability, mirroring the development of institutional accountability in
general public accountability literature.20
At the same time, the exercise of the power of appointment of judges
has a crucial role in ensuring institutional accountability of the judiciary.
In fact, the issue of appointments and the extent to which its accountability
function infringes the need for judicial independence has been one of the
most complex questions confronting judiciaries and public law academics in
recent times. Part of the complexity is owing to the fact that the exercise of
appointment power is prior to the decision-making function being exercised
by judges. Consequently, it is antecedent to the applicability of behavioural and

19 For an analysis of such forms, see Francesco Contini and Richard Mohr, ‘Reconciling
Independence and Accountability in Judicial Systems,’ Utrecht Law Review 3, no.
2 (2007): 26; for a list of such forms, see Website of the UK Judiciary, ‘Other
forms of accountability,’ available at www.judiciary.gov.uk/about-the-judiciary/
the-judiciary-in-detail/jud-acc-ind/other-forms-of-accountability (accessed 12
December 2011).
20 Bruce Stone, ‘Administrative Accountability in the “Westminster” Democracies:
Towards a New Conceptual Framework,’ Governance 8, no. 4 (1995): 505, 508.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

203
 126 Independence and Accountability of the Indian Higher Judiciary

administrative accountability of judges as well. This casts doubt on whether the

power to appoint has any impact on judicial accountability at all.21
The distinction between individual and institutional accountability
addresses this complexity. Thus, while the appointment power has no
accountability function in relation to an individual judge given that the
appointment authority is functus officio as far as she is concerned and incapable
of exercising any check on her functioning, it continues to perform a crucial
institutional accountability function. This is best exemplified by President
Franklin Roosevelt’s ‘court-packing’ plan. The plan was designed to use the
power of appointment to rein in the Supreme Court that had threatened
to overturn crucial New Deal legislation, which was the centrepiece of his
economic recovery plan for the United States.22 Whether the use of the said
power in a given instance is justified or not, and the impact it has on judicial
independence, is a conceptually distinct question that will be addressed in
Chapter 7. For the purposes of this chapter, it is sufficient to note that the
power of appointment can be used to shape the judiciary in the image of the
power wielder, which has the effect of ensuring that the judicial institution,
as it exists currently, is held accountable for its actions.

5B.2 Decisional, Behavioural and Administrative Accountability

A second axis along which a taxonomy for judicial accountability can be developed
concerns the aspects of judicial functioning for which accountability is sought,
that is, the subject matter of accountability. On this basis, there are three broad
objects: the decision-making function of judges (‘decisional accountability’), the
behaviour of judges both in court and specific matters out of court (‘behavioural
accountability’) and administration and management of judicial matters

21 It is on the basis of this understanding that judicial independence and accountability

as conceptualised by the authors of the Federalist Papers did not squarely discuss
the issue of appointing power, since it was assumed that such concepts would have
applicability only once a judge was appointed. See Federalist Papers. Over time such
a view has persisted. A speech by Satish Chandra Mishra, Member of Parliament,
Rajya Sabha (upper house), India, in the context of the Judicial Appointments
Commission Bill, 2013, provides an example. See Rajya Sabha Debates, 5 September
2013, available at http://164.100.47.5/newdebate/229/05092013/15.00pmTo16.00pm.
pdf (accessed 25 September 2013).
22 For an informative account of Roosevelt’s court-packing plan and the executive–
judicial relations at the time, see William Leuchtenburg, Franklin D. Roosevelt and
the New Deal (New York: Harper and Row, 1963), 236.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

204
 Judicial Accountability 127

(‘administrative accountability’).23 Applying the twofold distinction based

on the subject of accountability described above, individual accountability
has dimensions of all three objects of accountability, whereas institutional
accountability is limited primarily to administrative accountability, though aspects
of decisional accountability may also have an institutional dimension.
Decisional accountability, as is evident from its description, requires judges
to be held accountable for judicial decisions made. However, as will be adverted
to in the next chapter, judicial decisions are also the most significant situs for
judicial independence to be secured. Thus, accountability for judicial decisions
must be the minimum necessary to ensure fulfilment of its intended rationale in
a manner not affecting judicial independence in any significant way. Ordinarily
this involves ensuring that the substantive reasons used by individual judges
in their decisions are defensible in law, precedent has been adhered to and that
the process of adjudication has been impartial and fair.
Institutional decisional accountability, on the other hand, means the
possibility of holding a judiciary, which by a consistent string of decisions
has espoused a particular ideological or legal view that the other branches of
government feel is inconsonant with the Constitution or beyond the jurisdiction
of the courts, to account for their collective decision-making. Jurisdiction
stripping of courts by governments because of an unfavourable decision being
made is the most extreme example of such accountability being enforced in
practice.24 An egregious instance of this was seen with three amendments
to the Constitution of India in 1975, by which the government sought to bar
judicial review of proclamations of emergency (38th Amendment), insulate
elections relating to the prime minister of India and the speaker of the House
of the People (Lok Sabha) from judicial review (39th Amendment) and bar any
criminal proceedings against the president, prime minister or governor for acts
done in office or before entering office, and also bar civil proceedings against

23 Charles Gardner Geyh uses this criterion alone for classification of accountability,
and adopts a similar threefold classification, though ‘administrative accountability’
is termed ‘institutional accountability’. See Charles Gardner Geyh, ‘Rescuing
Judicial Accountability from the Realm of Political Rhetoric,’ Case Western Reserve
Law Review 56 (2006): 911.
24 In the United States, this power is derived both from Art. III and Art. I of the
Constitution. The possibility of a jurisdiction-stripping law for federal courts
inferior to the Supreme Court is less controversial than stripping the appellate
jurisdiction of the Supreme Court itself. See Tara Leigh Grove, ‘The Structural
Safeguards of Federal Jurisdiction,’ Harvard Law Review 124 (2011): 869.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

205
 128 Independence and Accountability of the Indian Higher Judiciary

the same authorities, before, after or while in office (41st Amendment). These
amendments were passed at a time when the Allahabad High Court had decided
an election dispute pertaining to Prime Minister Indira Gandhi against her and
the matter was to come up for hearing before the Supreme Court.25 Because the
enforcement of such accountability is usually controversial, perceived to be a
violation of judicial independence, it is generally couched in more acceptable
terms that may be akin to holding individual judges behaviourally accountable.
For example, a legislatively prescribed code of conduct for judges in the Judicial
Standards and Accountability Bill, 2010, in India has been viewed by many as
an effort to undermine judicial independence, though its overt objective is to
check the behaviour of individual judges.26 It has of course been defended as
necessary to ensure the transparency of the judiciary and the public confidence
in the institution.27
The second category, behavioural accountability, seeks to hold individual judges
accountable for their behaviour within and outside court. The former primarily
relates to statements made in the course of court proceedings. Thus, for example,
clause 6 of the Code of Judicial Conduct for Judges in South Africa tabled before
the Ad-hoc Joint Committee of Judicial Conduct & Disclosure of Interests, adopted
under the Judicial Service Commission Act 1994, provides:

In conducting judicial proceedings the judges personally avoid or

dissociate themselves from comments or conduct by persons subject to
their control that are racist, sexist or otherwise manifest discrimination in
violation of the equality guaranteed by the Constitution.28

25 For a detailed account of the political machinations regarding barring of judicial

review by the government of Indira Gandhi, see Austin, Working a Democratic
Constitution, 314–27.
26 Ajit Prakash Shah, ‘Judicial Standards and Accountability Bill,’ The Hindu,
29 March 2011, available at www.thehindu.com/opinion/lead/article1582573.
ece?homepage=true (accessed 13 December 2011); Pre-Legislative Briefing Service
(PLBS), ‘The Judicial Standards and Accountability Bill, 2010: A Briefing Document,’
available at www.vidhilegalpolicy.in/pdf/PLBS_Briefing_Document_JSA_Bill.pdf
(accessed 13 April 2014).
27 The Judicial Standards and Accountability Bill, 2010 (India), Statement of Objects
and Reasons. See also Department-Related Parliamentary Standing Committee
on Personnel, Public Grievances, Law and Justice, The Judicial Standards and
Accountability Bill, 2010 (47th Report, Rajya Sabha Secretariat, Parliament of
India, 2011).
28 Parliamentary Monitoring Group, ‘Code of Judicial Conduct for Judges’ (South
Africa), available at http://www.pmg.org.za/files/docs/110119code_0.pdf (accessed
13 December 2011).

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

206
 Judicial Accountability 129

The latter entails accountability for any out-of-court actions by judges that
may adversely affect their fitness for judicial office. This includes statements
by the judge in public fora, either oral or written, record of financial assets of
judges, acceptance of gifts, affiliation to a political party and a range of analogous
actions that may imperil the judge acting as a fair and impartial arbiter. In most
countries, this aspect of behavioural accountability is closely regulated by a code
of conduct. For example, the Code of Conduct for United States Judges applicable
to several categories of judges prescribes detailed canons regarding the types of
permissible and impermissible extra-judicial activity.29 Similarly clauses 3, 4 and
5 of the Guide to Judicial Conduct (2009) issued by the UK Supreme Court stress
on the extra-judicial activities that a judge should refrain from being part of,
since participation would lead to a reasonable apprehension of bias or a possible
conflict of interest in a current or prospective case.30 The enforcement of such
accountability can be through internal disciplinary procedures or, if deemed
serious enough, through an independent commission or, in the most extreme
case, through impeachment by the political organs of government.
Administrative accountability on the other hand seeks to hold judges
to account for administrative aspects relating to their judicial work. Such
accountability is ordinarily expected to be addressed by the institution as a
whole, though in certain instances, especially in judiciaries that do not hear
cases en banc, individual administrative accountability may be necessary. Such
instances of individual administrative accountability relate to the time taken
by a judge to dispose of cases, the number of cases disposed of, the filing of
administrative reports and other aspects relating to internal administration.
An enumeration of such aspects is most often found in jurisdictions that have
institutionalised performance evaluation indicators for individual judicial
performance, which are primarily directed at ensuring that the administration
of justice is expeditious and efficient.31

29 United States Courts, ‘Code of Conduct for United States Judges,’ 2000,
available at http://www.uscourts.gov/RulesAndPolicies/CodesOfConduct/
CodeConductUnitedStatesJudges.aspx (accessed 13 December 2011).
30 Supreme Court of the United Kingdom, ‘Guide to Judicial Conduct,’ 2009, available
at http://www.supremecourt.uk/docs/guide-to-judicial_conduct.pdf (accessed 13
December 2013) (hereinafter ‘UK Judicial Guide’).
31 For details of the history and operation of judicial performance indicators in the
United States of America, where they have been widely used, see Rebecca Love
Kourlis and Jordan M. Singer, ‘A Performance Evaluation Program for the Federal
Judiciary,’ Denver University Law Review 86 (2008): 7.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

207
 130 Independence and Accountability of the Indian Higher Judiciary

Institutional administrative accountability can be of two types: the sum of

the administrative accountability of individual judges and accountability for
administrative decisions concerning the entire judiciary, usually made by the
chief justice of the apex court in a country. The former is best exemplified in a
court’s annual report, as described earlier,32 which presents a summary of the
administrative performance of the court in the last year. The latter refers to
administrative decisions such as allocation of cases to judges in courts that do not
sit en banc, disciplining of individual judges, judicial transfers and even judicial
appointments, when these actions are taken internally within the judiciary.
An example of this is the system of transfers of judges between various High
Courts in India, a decision de facto to be taken by the chief justice of India, an
issue discussed in Chapter 3. These aspects of internal judicial administration,
albeit not traditional judicial functions, are today so integral to the functioning
of the judiciary as a state institution responsible for dispute resolution that an
appropriate degree of accountability is widely considered essential.

5B.3 Addressees of Accountability and Methods of Enforcement

Key to the implementation of judicial accountability, and often the source of
tension with the competing value of judicial independence, are the methods of
enforcement of such accountability. In order to coherently understand the vast
plethora of such methods, a twofold classification based on the criteria of the
addressee of accountability and the consequences of the particular enforcement
method may be useful. The former leads to a fourfold sub-classification into
political, legal, public and internal methods of enforcement, whereas the latter
leads to a twofold sub-classification into hard and soft methods.

5B.3.a Accountability Addressees: The Law or the People

To whom judicial accountability is owed is an age-old and complex question.
The historical debate, which often resurfaces in the context of reining in
exceedingly powerful judiciaries, centres around the question of whether judicial
accountability, in the ultimate analysis, is owed to the law itself or to the people,
as the authors of the law. Divergent answers to this question result in strikingly
different mechanisms for enforcement of accountability. Accountability to the
law, the idea that it is the duty of the judges to remain faithful to the law, has

32 Supreme Court of Singapore, ‘Justice Within Reach’ (Supreme Court Annual

Report 2014–15), available at http://www.supremecourt.gov.sg/data/AnnualReport/
AnnualRpt2014/ (accessed 16 November 2016).

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

208
 Judicial Accountability 131

its best intellectual expositions in the writings and judgments of Chief Justice
John Marshall in the United States.33 His view in this regard is epitomised in
his statement:

This court must not yield to feelings which might seduce it from the path
of duty … [it] must obey the mandate of the law.34

Following from this, Marshall conceptualised the idea of judicial

accountability not as accountability to any authority, but rather responsibility
for carrying out certain objectives that the law espouses. When applied to the
judiciary, it proceeds on the presumption that the objectives of the law can be
decisively ascertained by judges and all that accountability would require is the
strict adherence to such objectives. This presumption is far from unproblematic,
and indeed a variant of two questions at the heart of legal philosophy relating
to the nature of law itself and the role of a judge in adjudication35 and beyond
the remit of this book. For our purposes, it would suffice to note that such a
conception of accountability is enforced primarily by the self-restraint exercised
by judges, their constitutional role of exercising judgment backed by reasons
in an open and public setting.
On the contrary, the idea of judicial accountability being owed to the people
is based on the fundamental premise that judicial power is an exercise of state
power, which in modern constitutional democracies must derive its legitimacy
from the people.36 If this viewpoint is adopted, the mechanisms of enforcement
that follow are vastly different. A pure conception of such accountability,
untrammelled by, or at any rate trumping contravening considerations of
judicial independence, results in the mechanism of judicial elections as a way
of appointing and renewing tenures of judges.37 A more nuanced mechanism,

33 Sotirios A. Barber, The Constitution of Judicial Power (London: Johns Hopkins

University Press, 1993), 30.
34 The Antelope, 23 US 66 (1825) (US Supreme Court).
35 H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1963); Ronald Dworkin,
Law’s Empire (Cambridge: Belknap Press, 1986).
36 This was a fundamental tenet in the republican tradition of considering the people
as an undifferentiated mass who entrusted different modes of state power to
different representatives. Thus, judicial power was a particular mode of exercise
of sovereign power suitable for legal questions that arose. See J. G. A. Pocock, The
Machiavellian Moment: Florentine Political Thought and the Atlantic Republican
Tradition (Princeton: Princeton University Press, 1975), 517–21.
37 Pamela S. Karlan, ‘Two Concepts of Judicial Independence,’ Southern California
Law Review 72 (1998–99): 535.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

209
 132 Independence and Accountability of the Indian Higher Judiciary

which has recently received particular traction, is the idea of direct public
accountability for judges, as will be described below.38
Space precludes a full account of this conceptually weighty debate concerning
the ultimate addressees of judicial accountability. Instead, the primary focus of
this sub-section will be on the intermediate addressees of accountability, that is,
those who seek to enforce such accountability—who they are and in what way
individual judges and the judicial institution are accountable to them. Linked
to such intermediate addressees are the methods of enforcement of judicial
accountability by them. The two enquires are thus taken up together.

5B.3.b Methods of Enforcement I: Legal, Political, Public and

Internal
As far as intermediate addressees of accountability are concerned, a clear
threefold distinction between horizontal, vertical and internal addressees can
be identified. Horizontal accountability, that is, accountability addressed to
the politically elected representatives in coordinate organs of government, is
enforced by methods that are, by their very nature, political. Key examples of such
political methods for accountability enforcement are impeachment of judges
by elected representatives, which is the standard system for removal of judges
followed in many countries, the role of the coordinate wings of government in
disciplining judges by imposing punishment short of impeachment, monitoring
performance of judges through statutorily prescribed performance evaluation
standards and tabling of reports by the judiciary before the political organs for
either approval or information.39
Vertical accountability, on the other hand, is enforced by a range of legal
and directly public methods of enforcement. The legal method, applicable
to all courts, except the apex court in the country, is the right to appeal a
decision by any court to a designated higher court. The presence of such legal
methods for enforcing accountability ensures that decisions are reasoned and
in accordance with law and precedent. In fact, these requirements of a reasoned

38 See Section 5B.3.b.

39 In addition, there have been several instances of political intervention in judicial
functioning that have been justified on the basis of an accountability rationale. See
Kim Lane Schepple, ‘Declarations of Independence: Judicial Reactions to Political
Pressure,’ in Judicial Independence at the Crossroads: An Interdisciplinary Approach,
ed. Stephen B. Burbank and Barry Friedman (Thousand Oaks: Sage Publications,
2002), 227.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

210
 Judicial Accountability 133

judgment taking into account applicable laws and precedent are not only a sine
qua non for the exercise of legal accountability but are also equally the basis for
the exercise of methods of direct public accountability. The giving of reasons
performs a crucial justificatory function, inasmuch as it communicates, both
to the litigants and to the public, the grounds on which a decision has been
made, thereby affording them the opportunity to hold judges to account by
scrutinising and, if necessary, questioning the decision should the grounds
be found inadequate, insufficiently reasoned or plainly wrong.40 This public
accountability function of scrutiny and criticism of judicial decisions is most
commonly carried out by academics, subject area specialists and, for decisions
of wide public importance, by the media. In this regard, a recent modification,
brought about by several courts, is greater engagement with the popular media.
Thus, the Supreme Court of the United Kingdom televises its hearings live,
thereby facilitating greater transparency.41 The Constitutional Court of South
Africa, apart from publishing its decision, releases an official media summary,
thereby facilitating public understanding of its decisions and allowing itself to
be held accountable for them.42
Administrative and behavioural accountability of the judiciary and individual
judges too are often enforced through direct accountability mechanisms.
The most controversial form of such accountability for individual judges is
the holding of popular elections for appointment, and retention elections for
reappointment of judges, which is prevalent, most prominently, in several
state higher judiciaries in the United States. Direct elections provide scope for
maximum accountability to the public, since judges have to factor in public
opinion in every aspect of their functioning. While obviously the impact of such
elections on their decision-making and consequently on judicial independence is
significant, as a result of which they have been roundly criticised, the behavioural
accountability function they perform has long been advocated as a significant

40 For the justificatory function played by reasons, see Thomas Nagel, ‘Moral Conflict
and Political Legitimacy,’ Philosophy & Public Affairs 16, no. 3 (1987): 215.
41 For the rationale for televised hearings, see Supreme Court of the UK, Press Notice,
16 May 2011, available at http://www.supremecourt.uk/docs/pr_1106.pdf (accessed
13 December 2013).
42 For an illustrative example, see the media summary in Leon Joseph and others v. City
of Johannesburg and others, CASE CCT 43/09 (South African Constitutional Court),
available at http://41.208.61.234/uhtbin/cgisirsi/20111213120031/SIRSI/0/520/S-
CCT43-09 (accessed 13 December 2011).

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

211
 134 Independence and Accountability of the Indian Higher Judiciary

rationale justifying their continuance.43 Less egregious are the publication of

annual reports, disclosure of financial assets and other like reporting functions,
which provide information regarding the judiciary and individual judges to the
public, thereby facilitating accountability.
In addition to accountability addressees outside the institution of the
judiciary, several methods of accountability enforcement are internal,
operationalised through checks and balances imposed by higher administrative
authorities within the judiciary itself. Such mechanisms are largely directed at
the enforcement of individual administrative and behavioural accountability of
judges. Thus, judges in India are administratively responsible to the chief justices
of their respective courts and the latter can take several minor measures such
as suspending the former from work for a period of time, or a verbal censure,
if evidence of conduct unbecoming of a judge not amounting to impeachment
has been found.44 At the same time, individual judges are also accountable to
the chief justice for more routine functions such as ensuring timely and effective
disposal of cases. Similar such measures, necessary to secure the effective
institutional functioning of the judiciary without providing scope for external
intervention, can be found across jurisdictions.45

5B.3.c Methods of Enforcement II: Hard and Soft

Kate Malleson has introduced a helpful distinction within judicial accountability
literature by providing for two distinct modes of enforcement of accountability
based primarily on the consequences occasioned, which she describes as ‘hard’
and ‘soft’.46 Malleson understands hard accountability for judges as the power
of political authorities to remove judges from their position when specified
enumerated circumstances arise. Thus, it is an ex post, politically enforceable
accountability with extreme consequences, as a result of which Malleson feels it to
be generally inappropriate for judges. On the contrary, soft accountability refers to

43 For both these perspectives, see Karlan, ‘Two Concepts of Judicial Independence’; see
also Lee Epstein, Jack Knight and Olga Shvetsova, ‘Selecting Selection Systems,’ in
Judicial Independence at the Crossroads: An Interdisciplinary Approach, ed. Stephen
B. Burbank and Barry Friedman (Thousand Oaks: Sage Publications, 2002), 191.
44 These minor measures currently do not operate on a formal basis. For an argument
for their formalisation, see Law Comm., 195th Report.
45 Michael Kirby, ‘Judicial Accountability in Australia,’ Legal Ethics 6, no. 1 (2003):
41, 49.
46 Malleson, New Judiciary, 37.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

212
 Judicial Accountability 135

ex ante measures such as fostering of openness and representativeness in judicial

functioning. These are neither enforced politically nor set up as mechanisms
enforcing consequences for judicial misconduct, but rather create prior conditions
that mitigate the possibility of such misconduct in the first place.47 Thus, the
distinction between these two types of accountability is based on both consequences
that ensue from their enforcement and the addressee of such accountability.
Though the distinction is helpful, it has two limitations. First, as Malleson
herself admits, it can function as a classificatory tool only in relation to different
methods of individual accountability.48 Measures for institutional accountability
cannot easily be fitted into the binary distinction between hard and soft methods.
To do this, there needs to be fresh thinking of what consequences would count as
extreme enough for the judicial institution to be considered ‘hard’ and likewise
‘soft’. It would suffice to say that such criteria cannot be the same as the criteria for
individual accountability specified by Malleson, given the differing objectives,
emphases and mechanisms for institutional accountability.
Second, Malleson’s equation of hard accountability with political accountability
is excessively restrictive. There are several mechanisms of accountability, such
as publication of annual reports, mandatory responses to Right to Information/
Freedom of Information petitions and prior disclosure of judicial assets, which are
ex ante measures that would constitute soft accountability in her categorisation.
However, the same measures may have certain ensuing consequences that may
not warrant impeachment, thereby not being classified as hard accountability, but
be nonetheless more significant than soft accountability outcomes. For example,
an internal suspension of a judge from judicial work for a period of time owing to
a failure to disclose financial assets is a stringent penalty, enforced non-politically,
flowing from a soft accountability mechanism. Either the definition of soft
accountability or hard accountability needs to widen to incorporate such hybrid
mechanisms of enforcement (and there are many more such) or, alternatively,
instead of a binary distinction, hardness and softness of accountability need to
be measured on a scale as a spectral value.
In my opinion, the latter option would be more appropriate. Mechanisms
of accountability are already considerably diverse, and as judicial power
increases, and judiciaries adapt to the particular requirements in every country’s
constitutional and political culture, these mechanisms will only diversify further.

47 Ibid., 41.
48 Ibid.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

213
 136 Independence and Accountability of the Indian Higher Judiciary

To account for a profusion of these methods within a binary distinction would

be both difficult and also devoid of meaning since these characterisations may
become excessively portmanteau. Thus, accountability mechanisms can be
usefully thought of on a scale of consequential hardness, where a mechanism’s
position on the scale will depend solely on the intensity of the consequences of
the mechanism and not the addressee of such accountability. Thus, impeachment
will be seen as a harder measure than an internal suspension, only because it
warrants removal as opposed to temporary suspension, and not because it is
politically, as opposed to internally, enforced. At the same time, the scale will
incorporate appropriately analogous understandings of hardness for institutional
accountability measures. In this manner, the four types of accountability
mechanisms described above—legal, political, directly public and internal—with
regard to decisions, behaviour or administration, concerning a particular judge
or the institution of the judiciary itself, can be classified on a scale of hardness.
This provides a coherent matrix within which the interplay between different
methods of accountability, both individual and institutional, can be viewed.

5B.4 Rationales
The quest for greater accountability for the judiciary is of relatively recent
origin. In early separation of powers literature, judicial accountability was seen
as inherent in the contingent nature of the composition and functioning of the
judicial institution and thus did not require express provision. The emphasis
instead was on how best to secure judicial independence given the relatively
weaker position of the judiciary vis-à-vis the legislature and the executive.49
However, as judicial power increased dramatically in the last few decades in
several jurisdictions and the political significance of judicial decisions rose
sharply,50 there was a concomitant increase in measures to hold the judiciary
accountable. These measures have largely taken the form of greater transparency
in judicial appointments51 and judicial administration,52 checks on behaviour

49 Federalist Papers, 510; Frederic S. Burin, ‘The Theory of the Rule of Law and the
Structure of the Constitutional State,’ The American University Law Review 5, no.
3 (1966): 313.
50 An excellent account of the expansion of judicial power may be found in The Global
Expansion of Judicial Power, ed. C. Neal Tate and Torbjörn Vallinder (New York;
London: New York University Press, 1995).
51 For changes in appointments systems around the world in the last two decades in
light of growing judicial power, see Malleson and Russell, Appointing Judges in an
Age of Judicial Power.
52 Le Sueur, ‘Developing Mechanisms for Judicial Accountability.’

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

214
 Judicial Accountability 137

and performance of individual judges53 as well as attempts to make judicial

decisions more accessible to the general public.54
The underpinning provided for such accountability measures is the
justification that accountability is a necessary incident of the exercise of any
power—the more the power that is exercised, the more is the accountability that
ought to exist. In addition to this, in case of the judiciary, added justification
for increased accountability has been sourced from the fact that judicial power
represents an exercise of sovereign power. This has been advanced as a strong
democratic justification to ensure that the said power is exercised accountably and
could be checked by the people, from whom it was ultimately sourced.55 Though
the judiciary is unlike the legislature and the executive which in Westminster
government source their legitimacy directly from the people, yet the fact that
judicial power did not arise sui generis but was an exercise of sovereign power
provided sufficient justification for such a democratic checking function. Space
precludes further scrutiny of this account for judicial accountability.
At the same time, the growing incidence of the need for judicial accountability
has an additional justification: the greater the political significance of judicial
decisions, the greater is the need for ensuring that such decisions are made
responsibly.56 This is best exemplified by measures seeking to enforce decisional
and behavioural accountability. Insofar as individual decisional accountability
is concerned, at its minimum, legal measures such as the right of appeal and
conventional measures such as the obligation to give reasons and follow
precedent ensure the lawfulness as well as the substantive correctness of
decisions. Likewise, public accountability measures such as academic criticism
and media analysis of judgments seek to promote responsible decision-making
by judges, by scrutinising judgments closely and making them subject to public
criticism should such criticism be warranted.

53 A comprehensive account of performance evaluation measures and how

they promote judicial independence can be found in J. J. Spigelman, ‘Judicial
Accountability and Performance Indicators,’ Civil Justice Quarterly 21 (2002): 18.
54 See notes 41 and 42.
55 For examples of such checks being imposed across the world, see Mauro Cappelletti,
‘Who Watches the Watchmen? A Comparative Study on Judicial Responsibility,’
The American Journal of Comparative Law 31, no. 1 (1983): 1, 8–14.
56 Responsible decision-making understands responsibility as ‘responsibility-as-
virtue’, that is, whether in the course of decision-making, the virtues considered
necessary for the judiciary to uphold, are upheld. This is both substantive and
procedural. See Nicolas Haines, ‘Responsibility and Accountability,’ Philosophy
30 (1955): 141, 143.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

215
 138 Independence and Accountability of the Indian Higher Judiciary

Measures seeking behavioural accountability of judges, such as the public

disclosure of annual incomes, internal disciplining and, in extreme cases,
impeachment for misconduct, while being ends in themselves and serving several
independent purposes57 also bear a close connection to the need for responsible
decision-making. By verifying the financial position of judges and deterring
possibilities of behaviour unbecoming of a judge, these measures act as preventive
checks, seeking to create the conditions conducive for a responsible decision to be
reached in the first place. For example, the practice requiring judges to disclose
their income sources in various countries was prompted by a need to introduce
transparency, which in turn would bring to light any factors that may derogate
from the requirement of impartiality of a judge hearing a particular case, such as
a potential conflict of interest.58 Thus, unlike decisional accountability measures,
which are directed at the decision itself, behavioural accountability measures
are directed at securing the prerequisites necessary for such a decision to be
made responsibly. Both, however, are similar insofar as their justifications are
instrumental, leading, in different ways, to more responsible decision-making.
However, the boundaries of responsible decision-making, as an end sought
by judicial accountability, are not clearly defined. Though both the substantive
correctness of a decision, addressed by decisional accountability, and procedural
propriety in terms of impartiality of a judge hearing a case, addressed by behavioural
accountability, fall squarely within its ambit, several measures may be more
problematic. This is particularly true with regard to institutional accountability
measures such as jurisdiction-stripping legislations that seek to check judicial
decisions for appropriateness rather than their procedural or substantive validity.
Though the need to ensure responsible decision-making is cited as an ostensible
justification for such measures, it is more often a smokescreen to instead ensure
that particular substantive decisions favourable to the government are reached. The
constitutional amendments in India seeking to limit judicial review before a crucial
election dispute was heard by the Supreme Court provide a clear example of such
a measure, which can scarcely be argued to be legitimately directed at responsible
decision-making.59 Even if such an argument can be made, such measures
arguably achieve responsible decision-making in a manner that is antithetical
to judicial independence, which has been widely considered fundamental for a

57 Geyh, ‘Rescuing Judicial Accountability,’ 916.

58 Keith E. Henderson, ‘Asset and Income Disclosure for Judges: A Summary Overview
and Checklist,’ available at http://siteresources.worldbank.org/INTLAWJUSTINST/
Resources/IncomeAssetDisclosure.pdf (accessed 31 July 2012).
59 Austin, Working a Democratic Constitution.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

216
 Judicial Accountability 139

well-functioning judiciary.60 Similar conflicts arise with regard to institutional

accountability measures such as various mechanisms for judicial appointment.
The validity of such measures and whether, all things considered, they can be
justified as promoting the end of responsible decision-making will be dealt with
doctrinally in Part III of the book. For the purposes of this chapter, it would suffice
to note that responsible decision-making is a contested concept, whose boundaries
are fluid. At the same time, implicit in this understanding is the possibility of
responsible decision-making serving as a bridge between judicial independence
and accountability, a possibility that will be fully explored in Chapter 7.

C CONCLUSION
Section 5A of this chapter highlighted the development of the concept of
public accountability and the fivefold structure which has been used in
accountability literature to classify its diverse usages. Such a structure serves
as the foundation for developing a taxonomy for judicial accountability, one of
public accountability’s prime offshoots. Seeing judicial accountability in terms of
its subjects, addressees, subject matters, rationales and methods of enforcement,
as Section 5B of this chapter does, brings a degree of analytical clarity to a concept
that has largely been used rhetorically, to exert a degree of popular control over
increasingly powerful judiciaries. At the same time, it demonstrates that judicial
accountability, despite its wide-ranging usage, is not a monolithic concept—on
the contrary, people have different conceptions in mind when using judicial
accountability in specific contexts. Neither are all these conceptions pejorative,
attempting to illegitimately restrain judiciaries, nor are all justified in requiring
judiciaries to remain responsive to popular or political considerations. Instead,
as this chapter suggests, a determination of the justifiability or otherwise of the
various forms and uses of judicial accountability is contingent on understanding
its precise inter-relation with judicial independence, a concept it is commonly
conceived of as being in competition with. To condemn judicial accountability
outright or celebrate it without an analogous analysis of judicial independence
would be premature. Accordingly, the next chapter follows this lead and looks
at the concept of judicial independence with the intention of questioning the
commonly held assumption of it being the antithesis of judicial accountability
and attempting to develop more meaningful connections between them.

60 John Ferejohn and Larry Kramer, ‘Independent Judges, Dependent Judiciary:

Institutionalizing Judicial Restraint,’ New York University Law Review 77 (2002): 962.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

217
 Judicial Independence

A
6 Judicial Independence: A Protean Concept

J udicial independence, like rule of law or accountability, is a slogan of our

times. The Constitutional Reform Act, 2005, fundamentally altered the judicial
apparatus in the United Kingdom with the intention of providing a firm statutory
basis for judicial independence;1 the Indian Supreme Court regularly cites the
need for judicial independence in response to questions regarding accountability
for its internal working;2 it is even provided express constitutional recognition
in section 165 of the Constitution of South Africa.3 In addition, it has been
considered by the International Bar Association,4 numerous inter-governmental
fora5 and, on several occasions, by the United Nations.6

1 Specifically see sections 3(1), 26 and 61 and Schedules 8 and 12 to the Constitutional
Reform Act, 2005 (UK).
2 The chief examples of this are SCAORA and Presidential Reference.
3 Section 165 of the Constitution of South Africa reads: ‘The courts are independent
and subject only to the Constitution and the law, which they must apply impartially
and without fear, favour or prejudice.’
4 Internationa l Bar Association, ‘IBA Minimum Standards of Judicia l
Independence,’ 1982, available at http://www.ibanet.org/Document/Default.
aspx?DocumentUid=bb019013-52b1-427c-ad25-a6409b49fe29 (accessed 31 July 2012).
5 Universal Declaration on the Independence of Justice (Montreal Declaration), 10
June 1983, available at http://www.mpil.de/ww/en/pub/research/details/projects/
minerva_jud_indep/intdocs.htm (accessed 31 July 2012); Beijing Statement of
Principles of the Independence of the Judiciary in the LAWASIA Region, 19 August
1995, available at http://lawasia.asn.au/beijing-statement.htm (accessed 31 July 2012).
6 United Nations Basic Principles on the Independence of the Judiciary, 1985, available
at http://www2.ohchr.org/english/law/indjudiciary.htm (accessed 31 July 2012)
(hereinafter ‘UN Basic Principles’); endorsed by UN General Assembly, Resolution
40/32 (29 November 1985) UN Doc A/RES/40/32 and UN General Assembly,
Resolution 40/146 (13 December 1985) UN Doc A/RES/40/146.

1::79 .6 680 91/. 65 5/ 8 .0/ 5 /89 : 8/99

218
 Judicial Independence 141

Concern for judicial independence is near-universal, extending to

developed and developing countries, old legal systems and new. However,
the interest in judicial independence, despite appearances, is not a modern
phenomenon. Historically, in the common law world, judicial independence
has been seen as a necessary prerequisite both for maintaining the rule of
law and for ensuring adherence to a scheme of separated powers. During
the reign of the Stuart kings in seventeenth century England, early signs of
judicial independence could be seen with the growth of an independent legal
profession removed from politics and the consequent functional specialisation
that became the hallmark of the courts.7 Subsequently, the Act of Settlement of
1701 represented the first institutional incorporation of judicial independence
in the late middle ages, abolishing the pleasure doctrine which had made
judges subservient to the Crown, and replacing it with the doctrine of good
behaviour which ensured security of tenure.8 Blackstone developed this
conception of judicial independence further, as the foundation on which
separation of powers and consequently public liberty rested.9 The culmination
of these developments was the Federalist Papers, key documents in the drafting
of the Constitution of the United States, which established the judiciary as a
co-equal and independent branch of government whose independence was
constitutionally secured.10
Unsurprisingly, elucidations of judicial independence by different authors in
different countries have led to distinct understandings of the term. Furthermore,
owing to its conflation with ideas of checks and balances, separation of powers
and rule of law, all of which have been used as justifications for judicial
independence, its conceptual core is nebulous. Today, the term is used in an
astonishingly diverse number of ways, directed at serving numerous objectives
considered generally desirable for the judiciary. Thus, judicial independence
is defined in a manner that justifies the politicised process of appointment of
Supreme Court justices in the United States; it is the rationale that is cited for
preventing the executive from setting the budget for the judiciary in Germany
and it is used as the basis for the Supreme Court self-appointing future
members of the court in India. As Tom Ginsburg has recently noted, ‘Judicial

7 Scott Shapiro, ‘Judicial Independence: The English Experience,’ North Carolina

Law Review 55 (1977): 577, 614.
8 See text accompanying note 17.
9 Herbert Broom and Edward Hadley (eds), Blackstone’s Commentaries on the Laws
of England (London: Maxwell, 1869), 322.
10 Federalist Papers, 508.

1::79 .6 680 91/. 65 5/ 8 .0/ 5 /89 : 8/99

219
 142 Independence and Accountability of the Indian Higher Judiciary

independence has become like freedom; everyone wants it but no one knows
quite what it looks like.’11
This chapter develops a conceptual account of judicial independence to provide
an idea of what ‘it looks like’, which in turn will be used to analyse its relation
with judicial accountability. It does this by using the fivefold model laid out in
Chapter 5 for judicial accountability to provide the broad conceptual contours
of judicial independence. Given that both accountability and independence are
relational terms, the model is useful in delineating and thereby breaking down
the diverse usages of judicial independence into a coherently formed taxonomy.
Development of such a taxonomy (Sections 6B.1–4) is useful as an end in itself to
classify different uses of the term ‘judicial independence’ (without dismissing any
offhand as illegitimate, though on further enquiry and dependent on context, they
well might be), while at the same time recognising the conceptual and practical
convergences and conflicts with judicial accountability. Key to understanding
this relation lies in answering the question as to why judicial independence is
necessary in the first place (Section 6B.5). On the basis of this answer, certain
types of independence that are desirable for the judiciary can be understood, and
a more searching enquiry into the effect that these types of independence have
on judicial accountability undertaken. Such an enquiry provides the foundation
for a new, conceptual approach to thinking about judicial independence and
accountability developed in Chapter 7.

B Answering the Five Questions

At a conceptual level, independence and accountability are both relational
concepts. Like accountability, independence connotes the existence of
a particular relation between two or more persons or entities. Unlike
accountability though, the nature of the relation is distinct—independence
connoting the absence of the relation of dependence between them.12 Despite
the obvious substantive difference, the baseline conceptual similarity in terms
of being relational concepts makes the fivefold model used in the context
of judicial accountability relevant for the purpose of classifying the various
meanings of judicial independence with appropriate variations. A cursory

11 Tom Ginsburg, ‘Judicial Independence in East Asia: Lessons for China,’ in Judicial
Independence in China: Lessons for Global Rule of Law Promotion, ed. Randall
Peerenboom (Cambridge: Cambridge University Press, 2010), 247, 248.
12 Warner Fite, ‘The Theory of Independence—Once More,’ Journal of Philosophy,
Psychology and Scientific Methods 10, no. 20 (1913): 546.

1::79 .6 680 91/. 65 5/ 8 .0/ 5 /89 : 8/99

220
 Judicial Independence 143

glance at the ways in which judicial independence is used demonstrates various

subjects of independence (individual judges, the judiciary on the whole), persons
to be independent of (litigating parties, the government), subject matters
(decisions, behaviour, administration), rationales (impartiality, effectiveness in
adjudication) and arrangements to secure it (constitutional, statutory, political,
self-enforced). This process will not only highlight the fundamental conceptual
similarity between judicial independence and judicial accountability but also
precisely locate the sites where conflicts between the two may arise.

6B.1 Whose Independence?

The subject of judicial independence, that is, whose independence is in question,
has a long and complex history. In this regard, the development of two parallel
strands can be seen: first, a conscious move towards ensuring that individual judges
were not subject to pressure from government in taking particular substantive
decisions; second, the continuing evolution of an independent judicial institution,
functionally specialised and structurally distinct from the legislature and executive.
These were the developments that underpinned the formulation of the twin
categories of individual independence of judges and the institutional independence
of the judiciary, commonly found in contemporary literature today.13
The independence of individual judges is an obvious necessity and largely
uncontested today as a prerequisite of a fair judiciary. However, in medieval
England, where judges had a key adjudicative function in resolving disputes
and laying down the common law, judicial independence was not viewed as a
fundamental and non-negotiable desideratum. The emergence of individual
judicial independence as a prerequisite in practice can be significantly seen for the
first time only in 1610 in Lord Coke’s opinion in Dr. Bonham’s case.14 Coke held
that the College of Physicians, which had imprisoned the applicant for practising
medicine without a license, was acting as minister (in issuing summons), judge
(in hearing the matters) and party (in receiving the fines), and the fusion of the
three functions was unlawful.15 For Coke, the genesis of judicial independence
lay in the fundamental maxim of fairness that no person shall be a judge in her

13 Ferejohn and Kramer, ‘Independent Judges, Dependent Judiciary’; John Ferejohn,

‘Independent Judges, Dependent Judiciary: Explaining Judicial Independence,’
Southern California Law Review 72 (1998–99): 353.
14 (1610) Hil. 7 Jac. 1, 8 Co. Rep. 114 (Court of Common Pleas, England).
15 For an enumeration of this principle in the common law subsequently, see City of
London v. Wood, (1706) 88 ER 1592 (Mayor’s Court, England).

1::79 .6 680 91/. 65 5/ 8 .0/ 5 /89 : 8/99

221
 144 Independence and Accountability of the Indian Higher Judiciary

own cause. To ensure that judges exercised their power independently, they would
have to be structurally insulated in some manner from the king.16
It was only in 1701 with the Act of Settlement, which substituted the doctrine
of good behaviour for the pleasure doctrine as the guiding principle for judicial
tenure, that Coke’s view of individual judicial independence in Dr. Bonham’s
case secured a firm basis. The Act, which came about as a compromise between
the king and parliament, mandated that judicial tenure would be granted quam
diu se bene gesserint (during good behaviour), judges could only be removed
upon address by both houses of parliament and judicial salaries would be
ascertained and established.17 Judges would no longer be answerable to the king
and removable at pleasure but would rather continue to serve for life or until
there was a breach of the good behaviour condition. While critics have suggested
correctly that the Act of Settlement may not have been primarily intended to
fulfil the lofty motive of judicial independence, but was rather a parliamentary
ploy to circumscribe prerogative powers of the monarch, key amongst which
was the control over the judiciary,18 its unequivocal effect was to ensure that
individual judges enjoyed the structural independence necessary for impartial
decision-making in matters involving the state for the first time.
It is a testament to the significance of the Act of Settlement that the specific
independence protections envisaged by it, namely establishment of financial
security, security of tenure along with a procedurally onerous form of removal,
continue to be seen as the fundamental tenets for individual independence of
judges even today. For example, Art. III section 1 of the Constitution of the
United States of America lays down the requirement of tenure during good
behaviour as well as the guarantee of non-reduction of salary of all federal judges,
whereas Art. II section 4 prescribes impeachment as the only method for removal
of such judges.19 Again, in the more recent drafting process of the Constitution
of South Africa, the fundamental structural protections sought for the judiciary

16 C. J. S. Knight, ‘Bipolar Sovereignty Restated,’ The Cambridge Law Journal 68

(2009): 361, 375.
17 Act of Settlement, 1701, 12 & 13 Will III, c. 2 (UK). For an analysis of the meaning
of the term ‘good behaviour’ as used in the Act, see Saikrishna Prakash and Steven
D. Smith, ‘How to Remove a Federal Judge,’ The Yale Law Journal 116 (2006): 72.
18 Robert Stevens, ‘The Act of Settlement and the Questionable History of Judicial
Independence,’ Oxford University Commonwealth Law Journal 1 (2001): 253;
Shapiro, ‘Judicial Independence,’ 626, 627.
19 In relevant part, Art. III section 1 of the Constitution of the United States of America
(hereinafter ‘US Constitution’) provides:

1::79 .6 680 91/. 65 5/ 8 .0/ 5 /89 : 8/99

222
 Judicial Independence 145

despite its anti-populist leanings were security of tenure and financial security.20
Its continuing importance is best captured by the opinion of Justice Le Dain
in the Canadian case Valente v. The Queen,21 where he stated that though the
concept of judicial independence ‘has been an evolving one’22 security of tenure,
financial security of individual judges as well as the institutional independence
of the adjudicating authority were its ‘essential conditions’.23
As Justice Le Dain’s opinion illustrates, the institution of the judiciary on
the whole is a distinct subject of judicial independence. Unlike independence
of individual judges, the requirement of institutional independence focuses on
the appropriate degree of separation of the judiciary from its coordinate wings
of government. Montesquieu’s conception recognised the importance of such
institutional separation—his proposal was to not have permanent judges, but
rather to draw jurors directly from the people on an ongoing basis with their tenure
limited to the particular disputes at hand.24 The judiciary, as composed of rotating
jurors, would thus be independent of the king, who would otherwise have exercised
complete control, had judges been permanent. While such a solution achieved a
modicum of institutional independence, it did so by making the judiciary a lay,
semi-permanent and inherently weak institution with little specialisation, thereby
leading to its unsuitability in adjudicating complex legal disputes.
Rendering the institution of the judiciary independent while according it
coordinate status at par with the legislature and the executive was a key issue

The Judges, both of the supreme and inferior Courts, shall hold their
Offices during good Behavior, and shall, at stated Times, receive for their
Services a Compensation, which shall not be diminished during their
Continuance in Office.
Art. II section 4 of the US Constitution provides: ‘The President, Vice
President and all civil Officers of the United States, shall be removed from
Office on Impeachment for, and Conviction of, Treason, Bribery, or other
high Crimes and Misdemeanors.’
20 For an understanding and analysis of judicial independence protections in the
Constitution of South Africa, see Patrick Mtshaulana and Melanie Thomas, ‘The
Constitutional Court of South Africa: An Introduction,’ Review of Constitutional
Studies 3 (1996): 98.
21 Valente v. The Queen, (1985) 2 SCR 673 (Supreme Court of Canada) (hereinafter
‘Valente’).
22 Ibid., 691.
23 Ibid., 685.
24 Anne Cohler, Basia Miller and Harold Stone (eds), Montesquieu’s The Spirit of Laws
(Cambridge: Cambridge University Press, 1989), 158.

1::79 .6 680 91/. 65 5/ 8 .0/ 5 /89 : 8/99

223
 146 Independence and Accountability of the Indian Higher Judiciary

confronting the framers of the Constitution of the United States of America.

Though the authors of the Federalist Papers envisaged the federal judiciary as a
coordinate organ, central to the overall scheme of checks and balances, they did
not render it institutionally independent of the legislature and the executive.25
In fact, the judiciary was specifically made dependent on its coordinate wings
through the legitimacy accorded to political checks on it such as the Congress’
power to exercise budgetary and jurisdictional control, lay down judicial
procedure and case management rules as well as the executive’s power to not
enforce judicial decisions and significantly the power of appointment of federal
judges.26 Thus, key to securing the institutional status of the judiciary was
to enmesh it within the checks and balances scheme of government thereby
specifically denying any institutional independence.
However, over time and especially in the contemporary context of the
emergence of powerful constitutional judiciaries in several jurisdictions,
institutional independence has emerged as a distinct type of protection to be
accorded to the judiciary. Specifically, the focus is on ensuring an appointments
process that upholds institutional independence, administrative independence
of the court, in terms of autonomy in setting its own budget, devising case
management and procedural rules and disciplining of judges for misbehaviour
short of impeachment.27 A key example of such institutional independence can be
seen in the German Federal Constitutional Court’s quest for budgetary autonomy
shortly after its formation.28 Despite considerable governmental opposition, the
court was successful in asserting its budgetary autonomy. This was a product
of a sustained belief amongst judges that such administrative independence of
the court was indeed a sine qua non for their functioning as an autonomous
institution of state, coupled with intense pressure from both the opposition and
the parliament, who saw greater independence of the judiciary as a key instrument

25 Federalist Papers, 510; For an analysis of Federalist Paper No. 78 which contains
Hamilton’s views on judicial independence, see Martin Redish, ‘Good Behavior,
Judicial Independence and the Foundations of American Constitutionalism,’ The
Yale Law Journal 116 (2006): 139.
26 Ferejohn and Kramer, ‘Independent Judges, Dependent Judiciary.’
27 Anthony Mason, ‘Judicial Independence and Separation of Powers, Some Problems
Old and New,’ University of British Columbia Law Review 24 (1990): 345; Ian
Greene, ‘The Doctrine of Judicial Independence Developed by the Supreme Court
of Canada,’ Osgoode Hall Law Journal 26 (1988): 177.
28 George Vanberg, ‘Establishing Judicial Independence in West Germany: The Impact
of Opinion Leadership and the Separation of Powers,’ Comparative Politics 32, no.
3 (2000): 333.

1::79 .6 680 91/. 65 5/ 8 .0/ 5 /89 : 8/99

224
 Judicial Independence 147

in setting up the court as an effective counterweight to an otherwise powerful

government. Institutional independence of the judiciary has now emerged as a
distinct yet cognate category of independence that requires specific protection
per se and to protect individual judges from systemic pressures.
These categories of individual and institutional independence are, as is evident,
analogous to the like classification of subjects of judicial accountability. Thus,
individual judges and the institution of the judiciary must be both independent
and accountable. Per se this dual requirement does not itself suggest whether the
concepts of judicial independence and accountability themselves are conflicting
or congruent. Persons could be independent in some respects and accountable in
others, or even when they are independent of someone, there could be a degree of
accountability that they owe to others. In order to assess this relation more fully,
it will be necessary to look at the individuals and institutions, independence from
whom is considered desirable and how such independence is secured, which is
the subject matter of the next sub-sections.

6B.2 From Whom?

Implicit in the aforesaid discussion of the subject of judicial independence is the
notion that a major threat to the independence of the judiciary emanates from the
government.29 The close links between the legislature and executive on the one
hand, and with the judiciary on the other, seen in their role in the appointments
process and administrative functioning of the judiciary, the government’s
presence before the court as a litigant, as well as a history of unwarranted
interference by governments in the functioning of courts across jurisdictions,
make such threats real. Defenders of judicial independence have thus vigorously
sought effective insulation of both individual judges and the judicial institution
on the whole from the government. Such measures are crucial, both to secure
the independence of the judiciary per se and to ensure that such independence
translates into impartiality of the judiciary as an arbiter of disputes involving the
state, especially significant, given the dramatic growth in public law litigation.30
The latter rationale, it is apparent, is not limited to independence from the
government alone. On the contrary, courts are required to be independent of

29 The terms ‘government’, ‘political organs of state’ and ‘coordinate organs of state’
in this section are used to refer to the legislature and the executive or either of the
two, as appropriate in the context.
30 For a seminal understanding of public law litigation, see Abram Chayes, ‘The Role
of the Judge in Public Law Litigation,’ Harvard Law Review 89 (1976): 1281.

1::79 .6 680 91/. 65 5/ 8 .0/ 5 /89 : 8/99

225
 148 Independence and Accountability of the Indian Higher Judiciary

any party to a case that may be in a position to threaten its impartiality. The
impartiality of a court of law in resolving disputes, secured by its independence,
is thus a more general constitutive factor of the judiciary itself, irrespective of the
presence of the state as a litigant before it in a given case.31 This idea is expressed
most simply in the form of a triad—the court is an impartial arbiter between two
antagonistic parties who require a conflict to be resolved.32 Individual judges must
thus be independent of all the parties to the case, not just the government alone,
in all relevant ways. This implies that they must be protected from any threats
to their independent status through sources of influence, temptations or actual
threats. While space precludes a discussion of each of these threats, an example
of a device to secure such individual independence aimed ultimately at ensuring
impartiality in decision-making can be found in norms of recusal followed
by judges. Across jurisdictions, specific guidelines require judges to recuse
themselves in cases where their impartiality may be reasonably questioned.33
While the exact nature of each of these formulations may differ, norms of recusal
are designed to provide baseline protection in ensuring that adjudicators remain
independent of parties before them and thereby impartial.34
In adjudication involving private parties only, such general protection against
threats to individual independence of judges may be sufficient. However, in
matters where the state is a litigant, the idea of the triad comes under intense
strain, given the fact that the executive, an organ of state, is a litigant before the
judiciary, which is another state organ. Independence of the judiciary from the
government, through a number of mechanisms and arrangements that will be
discussed presently, is thus structurally essential to maintaining the legitimacy
of the triad and the impartiality of courts in a specific type of case, that is, one
where the government is a litigant.
In addition, there is a prior, non-instrumental sense in which independence
from the government has been deemed necessary. So pervasive has been the

31 John Chipman Gray, The Nature and Sources of Law (New York: Columbia
University Press, 1909), 109, 110. In a sophisticated understanding, impartiality
has been considered necessary given the nature of the judicial forum as one which
hears reasoned proofs and argument. See Lon L. Fuller and Kenneth I. Winston,
‘The Forms and Limits of Adjudication,’ Harvard Law Review 92, no. 2 (1978): 353.
32 Shapiro, ‘Judicial Independence.’
33 As an illustrative example, see rules against appearance of bias and conflict of
interest for judges of the Supreme Court of the United Kingdom. See UK Judicial
Guide, paras 3.7–3.16.
34 For more, see Grant Hammond, Judicial Recusal: Principles, Process and Problems
(Oxford: Hart Publishing, 2009).

1::79 .6 680 91/. 65 5/ 8 .0/ 5 /89 : 8/99

226
 Judicial Independence 149

incidence of attempted political interference in both the composition and

functioning of the judiciary that independence from the political organs of
state has become desirable per se to retain the appearance of independence,
irrespective of any case-specific impartiality considerations. Thus, historically,
protections accorded to individual judges, that is, security of tenure, financial
security and removal by impeachment, as demonstrated earlier, were
primarily directed at insulating the judiciary from the political organs of state.
Likewise, more contemporary institutional independence measures relating
to administrative autonomy, self-disciplining of judges as well as appointment
mechanisms, all developed with a key objective of insulating the judiciary from
political interference per se. Such a justification for independence from political
organs of state was prompted both by principle—independence of the judiciary
is a sine qua non for maintaining the distinct institutional role of the judiciary
as a coordinate organ of state—and by the experience of repeated attempts to
coerce the judiciary into adopting the governmental standpoint on issues. The
working of the King’s Courts in England in the medieval ages,35 the early colonial
courts in America36 and, more recently, courts in apartheid South Africa37
and the Supreme Court of India during a short period of Emergency38 are all
testament to the need for independence of the judiciary from the government
per se with a view to specifically retaining the appearance of independence in
the public eye.
It is unsurprising that such a requirement of independence of the judiciary
from its coordinate organs of state has been inevitably seen as flowing from
a requirement of separation of powers. Though the exact nature of such a
connection between separation of powers and judicial independence will be
analysed in Chapter 7, the existence of such a linkage points to a key salient
fact: the independence of the judiciary from the government cannot ever be
absolute. This flows from the universally acknowledged view that separation of
powers between organs of state, despite varying enumerations, is never absolute
and each organ is separate in some respects and aligned in others.39 Given the

35 G. E. Aylmer, The King’s Servants (London: Routledge and Kegan Paul, 1974), 44.
36 Joseph H. Smith, ‘An Independent Judiciary: The Colonial Background,’ University
Of Pennsylvania Law Review 124 (1976): 1104.
37 David Dyzenhaus, Judging the Judges, Judging Ourselves: Truth, Reconciliation and
the Apartheid Legal Order (Oxford: Hart Publishing, 2003).
38 Seervai, Emergency, Future Safeguards and the Habeas Corpus Case, 1–59.
39 M. J. C. Vile, Constitutionalism and the Separation of Powers (Indianapolis: Liberty
Fund, 1998, 2nd ed.), 14.

1::79 .6 680 91/. 65 5/ 8 .0/ 5 /89 : 8/99

227
 150 Independence and Accountability of the Indian Higher Judiciary

connections that exist between the judiciary and government, the key question
to ask is not whether the judiciary is independent of government or not, but
rather how independent the judiciary is. Thus, judicial independence from
the government must be fundamentally constructed, not as a binary value, but
rather a spectral one, focusing on whether it is independent of the government
in ways that are relevant and to a degree that is optimal.

6B.3 How Is It Safeguarded?

Judicial independence, both from litigants before the court generally and from
the coordinate organs of state specifically is secured by a conspectus of rules,
conventions and practices. Arrangements to secure judicial independence are
distinct, geared to protect the judiciary from diverse threats, directed either at
the level of the individual judge or at the institutional level. Accordingly, they
can be classified into four categories: constitutional, statutory, political and
self-enforced arrangements for protection.
Constitutional methods for protection of judicial independence definitionally
vary depending on the constitution in question. However, in the common
law world, financial security, security of tenure combined with a procedurally
onerous mechanism for removal of judges are safeguards that though subject
to particular variations are entrenched widely. Financial security, that is, the
guarantee of a permanent, non-diminishing judicial salary during tenure, is
an instrumental mechanism to protect judicial independence. Its rationale,
captured succinctly by Alexander Hamilton, is based on the commonsensical
view that ‘[i]n the general course of human nature, a power over a man’s
subsistence amounts to a power over his will’.40 Thus, constitutional clauses
that provide protection against salary reduction are fairly well-established.
They seek to divest the legislature and the executive of the power to reduce
judicial salaries, thereby ensuring that the judiciary is not dependent on its
coordinate organs on this account and consequently not beholden to them in
its decision-making.41 Examples of the insidious effect control over judicial
salaries can have can be seen in the courts of the British colonies in the United
States prior to its independence. As an example, in Massachusetts Bay, judicial

40 Federalist Paper No. 79 in Federalist Papers, 518.

41 A more recent debate with regard to judicial salaries has focused on the power of
government to not increase judicial salaries rather than the power to reduce salaries,
the traditional concern. See Christopher E. Smith, ‘Federal Judicial Salaries: A
Critical Appraisal,’ Temple Law Review 62 (1989): 849.

1::79 .6 680 91/. 65 5/ 8 .0/ 5 /89 : 8/99

228
 Judicial Independence 151

salaries were paid directly by the Crown from taxation revenue as specified in
the Townshend Revenue Act. As a result, judges were entirely beholden to the
Crown, and the possibility of impartial justice rendered negligible. Protesting
against this, the House of Representatives passed a resolution that rendering
judges dependent on the Crown for their salary was unconstitutional as it led
to the establishment of arbitrary government in the province.42
Given similar experiences in other colonies, 43 the Declaration of
Independence in 1776, in specifying the improprieties of the monarch, noted
that ‘[h]e has made Judges dependent on his Will alone, for the tenure of their
offices, and the amount and payment of their salaries’.44 Rectifying this position,
most state constitutions drafted in pursuance of the declaration provided for
permanent salaries determined by law, epitomised by the Compensation Clause
of the United States Constitution which provides:

The Judges… shall, at stated times, receive for their services, a

compensation, which shall not be diminished during their continuance
in office.45

Security of tenure, equally significant in protecting judicial independence,

guarantees tenure for as long as the constitution allows it (including for life if so
allowed) protecting judges from arbitrary removal within this period.46 It was
firmly established through the incorporation of the good behaviour requirement
in the Act of Settlement 1701, which responded to the most egregious threat
to the independence of judges that existed hitherto, that is, the king’s power to
remove judges at pleasure.47

42 Smith, ‘Independent Judiciary,’ 1120.

43 Irving R. Kaufman, ‘The Essence of Judicial Independence,’ Columbia Law Review
80 (1980): 671, 679–87.
44 The Declaration of Independence (1776) (USA), available at http://www.archives.
gov/exhibits/charters/declaration.html (accessed 31 July 2012); for an analysis, see
Carl L. Becker, The Declaration of Independence: A Study in the History of Political
Ideas (New York: Vintage Books, 1958), 3–23.
45 US Constitution, Art. III section 1.
46 An authoritative understanding of security of tenure can be found in the UN Basic
Principles: ‘Judges, whether appointed or elected, shall have guaranteed tenure until
a mandatory retirement age or the expiry of their term of office, where such exists.’
47 C. H. McIlwain, Constitutionalism and the Changing World: Collected Papers
(Cambridge: Cambridge University Press, 1939), 294, 302. For pre-Act of Settlement
security of tenure discussions, see James C. Corson, ‘Judges and Statutory Tenure
in England in the Seventeenth Century,’ Juridical Review 42 (1930): 136.

1::79 .6 680 91/. 65 5/ 8 .0/ 5 /89 : 8/99

229
 152 Independence and Accountability of the Indian Higher Judiciary

The extent of protection the judiciary had from parliament, however,

remained an open question. This was especially so since good behaviour tenure
in the Act of Settlement was accompanied by the vesting of power in parliament
to remove judges, albeit through the device of an address being presented in
both houses. On the other hand, in the United States, impeachment proceedings
in the House of Representatives combined with trial in the Senate was the
constitutionally mandated method for removal of federal judges. Impeachment
in the United States Constitution or removal by address in the United Kingdom,
by virtue of its procedure, was certainly more difficult than removal owing to
displeasure of the monarch. In this sense, it provided an important fillip for
judicial independence. But fear of parliamentary misuse of the power of removal
was widely expressed through the course of the eighteenth century.48
But since then, till today, the power to impeach has not been viewed as a threat
to judicial independence, being seen paradoxically as ‘the only provision …
which is consistent with the necessary independence of the judicial character’.49
This understanding is revealing for a number of reasons. First, it reaffirms
the view advanced in the previous section, that judicial independence is not
meant to be absolute. If such absolute independence was required, vesting
the power of removal in the legislature could hardly have been acceptable,
let alone commended. Giving the legislature the absolute power to impeach,
as Art. II section 1 of the United States Constitution does, suggests that an
underlying rationale, distinct from complete insulation of the judiciary, must
be found to conceptualise judicial independence. Equally, it suggests that the
conceptualisation of judicial independence and how it is to be protected cannot
purely be a determination based on constitutional provisions; if that were so,
vesting the power of removal in a popularly elected legislature, which could use
it to remove judges for flimsy and unwarranted reasons, would be anathema.
Instead, protecting judicial independence equally involves looking at actual
political practice, how coordinate organs of state interact and the political
arrangements that make the preservation of judicial independence possible.
Political arrangements to secure judicial independence are products
of the historical development of inter-institutional relations in particular

48 Broom and Hadley, Blackstone’s Commentaries, 150–51; this view was especially
prevalent in British Colonies in America where the power of removal by address was
considered untrammelled; for an analysis, see Robert Stevens, The English Judges:
Their Role in the Changing Constitution (Oxford: Hart Publishing, 2002), 10.
49 Federalist Paper No. 79, in Federalist Papers, 519.

1::79 .6 680 91/. 65 5/ 8 .0/ 5 /89 : 8/99

230
 Judicial Independence 153

constitutional contexts in countries. They are thus contingent on the terms

of the separation of powers envisaged constitutionally and consequently the
checks and balances considered to be legitimate.50 Evidence of such political
arrangements can be seen in most jurisdictions—the failed impeachment trial
of Justice Chase of the Supreme Court of the United States, adverted to in
Chapter 5, giving rise to the practice of not impeaching a judge on the basis
of substantive decisions made;51 the acceptance by the Indian parliament of
the basic structure doctrine, allowing courts to strike down constitutional
amendments for being unconstitutional, after a prolonged struggle with
the Supreme Court that imperilled the independence of the judiciary52 and
the traditional role of the Lord Chancellor in England as the protector of
judicial independence by serving as a bridge between the judiciary and the
government and upholding judicial independence, by convention, in his
decision-making.53 Common to these political arrangements is the respect
that, by virtue of long-established practice, is accorded to the judiciary
by its coordinate wings of government, without which the protection of
judicial independence, despite the most carefully constructed constitutional
provisions, would remain illusory.
While by virtue of long-established practice several such political protections
have become conventions, key statutory protections have also developed for
securing judicial independence. The most notable statutory development in
the common law has been the passage of the Constitutional Reform Act, 2005,
in the United Kingdom. The Act provides a firm statutory basis for judicial
independence, making its protection a statutory obligation on the Lord Chancellor.
It also provides for an independent Judicial Appointments Commission to make
appointments and sets up the new Supreme Court, abolishing the Appellate
Committee of the House of Lords, which exercised judicial functions, and could by
convention exercise legislative functions as well. Undoing the historical anomaly
of the highest appellate court being a committee of parliament and replacing
the conventional methods for protecting judicial independence with statutory
provisions and a publicly accountable Judicial Appointments Commission for

50 Gerald N. Rosenberg, ‘Judicial Independence and the Reality of Political Power,’

The Review of Politics 55, no. 3 (1992): 369.
51 William H. Rehnquist, ‘Judicial Independence: Symposium Remarks,’ The
University of Richmond Law Review 38 (2004): 579, 582–89.
52 Austin, Working a Democratic Constitution, 171–390.
53 Diana Woodhouse, The Office of the Lord Chancellor (Oxford: Hart Publishing, 2001).

1::79 .6 680 91/. 65 5/ 8 .0/ 5 /89 : 8/99

231
 154 Independence and Accountability of the Indian Higher Judiciary

appointments based on clear criteria was thus an unequivocal statement that for
the courts to be independent, they had to be seen to be so.54
Equally, in several other jurisdictions, standards of judicial behaviour and
complaints mechanisms short of impeachable offences have been provided
statutory basis.55 Several aspects of these statutes, some of which shall be dealt
with presently, seek to protect the independence of judges by regulating their
interactions with the general public. By making these protections statutory and
thereby actionable, greater certainty has thus been attached to their protection
thereby demonstrating the growing significance of judicial independence.
Apart from constitutional, political and statutory arrangements to protect
judicial independence, the judiciary itself has a key role in perpetuating its
own independence. This takes two forms: First, an institutionalised self-
restraint exemplified in its refusal to adjudicate on political questions, matters
of policy and any other matter deemed to be outside its legitimacy. Space
precludes a discussion of whether and how judiciaries have exhibited such
restraint; it would suffice to say that the nature of judicial decision-making is
instrumental in maintaining the delicate political arrangements to secure judicial
independence.56 Second, internal codes of conduct operate as autonomous
devices to protect judicial independence. The Restatement of Values of
Judicial Life (1997), adopted by the full bench of the Supreme Court of India,
voluntarily commits judges to recuse themselves from matters where there may
be a perceived conflict of interest, not publicly express opinions of matters that
are pending or likely to arise for adjudication and other analogous principles,
deemed necessary to protect the independence of the judiciary.57 Similar, albeit
more detailed prescriptions, can be found in the Guide to Judicial Conduct
adopted by the UK Supreme Court.58
The methods for protection of judicial independence are thus diverse in their
scope. This suggests that threats to the judiciary are from diverse sources, while
pointing out the diverse facets of the functioning of the judiciary for which

54 For more, see Diana Woodhouse, ‘United Kingdom: The Constitutional Reform Act,
2005—Defending Judicial Independence the English Way,’ International Journal
of Constitutional Law 5 (2007): 153; Steyn, ‘Case for a Supreme Court.’
55 Judicial Councils Reform and Judicial Conduct and Disability Act, 1980 (USA), 28
USC §§ 351–64.
56 For more, see Ferejohn and Kramer, ‘Independent Judges, Dependent Judiciary.’
57 Restatement.
58 UK Judicial Guide.

1::79 .6 680 91/. 65 5/ 8 .0/ 5 /89 : 8/99

232
 Judicial Independence 155

independence is a prerequisite. Having addressed the former in the previous

section, it is the specific facets of judicial functioning that merit protection that
are discussed in the next section.

5B.4 Regarding What?

The aspects of judicial functioning for which independence is sought are
contingent on the role of the judiciary in the constitutional architecture of the
country in question. Proactive constitutional judiciaries exercising judicial
review tend to demand independence for a range of activities fearing interference
from reactionary political organs of state, whereas for restrained judiciaries
the ambit is considerably more limited.59 Irrespective of the power wielded
by the judiciary, however, is the need for decisional independence, that is,
independence in decision-making, which is central to the legitimate functioning
of any judiciary. It has thus been widely described as the ‘sine qua non of judicial
independence’.60 Decisional independence involves safeguarding judges from
threats, temptations, reprisals and other extraneous pressures, which can affect
judicial decision-making.61 It is core to judicial functioning and needs little
additional explanation.
These ends served by decisional independence measures are equally the
rationale for administrative independence measures, which constitute a second
aspect of judicial functioning regarding which independence is sought. Calls
for administrative independence have grown as an institutional response to
an increasing recognition of diverse and subtle means of political interference
ultimately directed at making the judiciary subservient to the government
in terms of the substantive decisions made. Such interference has been seen
to be directly proportionate to the growing power wielded by constitutional
judiciaries.62 At the institutional level, budgetary autonomy of the judiciary,
independence in laying down case management rules and, most recently,
divesting the political organs of their hitherto significant role in appointment
of judges are key to securing administrative independence. The preferred

59 This connection has been widely made. For a link between judicial power and
independence, see Malleson and Russell, Age of Judicial Power, 3–10.
60 Gordon Bermant and Russell R. Wheeler, ‘Federal Judges and the Judicial Branch:
Their Independence and Accountability,’ The Mercer Law Review 46 (1995): 835, 838.
61 Ferejohn and Kramer, ‘Independent Judges, Dependent Judiciary,’ 965.
62 For the connection between growing power of the judiciary and threats to its
independence, see Tate and Vallinder, Global Expansion of Judicial Power.

1::79 .6 680 91/. 65 5/ 8 .0/ 5 /89 : 8/99

233
 156 Independence and Accountability of the Indian Higher Judiciary

method to achieve this end, commonly prevalent in several countries, is the

existence of a judicial commission responsible both for appointment and for
several aspects of internal court administration. One of the early examples of
such commissions was the South African Judicial Service Commission, which
was set up as a constitutional authority under section 178 of the Constitution
of South Africa, 1995. The Constitution, read with the relevant legislation,
vested the commission with a key role in appointment of judges, investigation
into misconduct and hearing of complaints as well as recommending removal
to the president.63
Unlike institutional administrative functions, the scope of administrative
functions of individual judges is negligible and thus no specific independence-
related protection has been deemed necessary. However, for the chief justice,
in whom several administrative functions vest, such individual independence
becomes significant. For example, the chief justice of India is responsible for
setting up panels in the Supreme Court and assigning cases to each panel. A
revealing study of administrative decisions of four chief justices between 1973
and 1981 in panel selection and case assignments reveals wide divergences
in the size of panel formations, the composition of judges in each panel and
participation of each judge in Constitution bench decisions (five judges or
more) depending on the chief justice in question.64 At the same time, another
study shows that the chief justice of India is 6.5 times less likely to be in dissent
than other judges on a constitution bench.65 This demonstrates how the
administrative power of constituting benches can be used by the chief justice
to affect substantive decisions of the court, especially in important cases that
are heard by larger benches. Independence from the government and other
sectional interests is thus crucial to ensure that these administrative tasks are
performed in a fair and efficient manner.
Another aspect of judicial functioning where the judiciary has asserted
its independence has been with regard to disciplining individual judges for
misbehaviour short of the threshold necessary for an impeachment proceeding.
While impeachment for serious misconduct is constitutionally the prerogative
of the legislature subject to onerous procedural safeguards in most jurisdictions,
misbehaviour short of impeachment was a grey area where increasing demands

63 For an analysis of the Judicial Service Commission, see Hugh Corder, ‘Judicial
Authority in a Changing South Africa,’ Legal Studies 24 (2004): 253, 262–65.
64 Gupta, Decision Making, 95–121.
65 Nick Robinson, ‘Structure Matters: The Impact of Court Structure on the Indian and
US Supreme Courts,’ The American Journal of Comparative Law 61, no. 1 (2013): 173.

1::79 .6 680 91/. 65 5/ 8 .0/ 5 /89 : 8/99

234
 Judicial Independence 157

for accountability were being raised.66 To address such concerns while respecting
the independence of the judiciary which could potentially be threatened if such
disciplining could be carried out at the instance of the legislature or executive, several
judiciary-led disciplining methods have been devised in various jurisdictions. For
example, in the United States, subsequent to the Judicial Councils Reform and
Judicial Conduct and Disability Act of 1980, the federal judiciary has the power
to devise its own framework for disciplining judges short of impeaching them. In
India currently, the Judicial Standards and Accountability Bill, 2012, though not
enforceable, envisaged the setting up of a bipartisan National Judicial Commission,
which will oversee any investigation of judicial misconduct.
Decisions, behaviour and administration are thus aspects of judicial
functioning regarding which independence is necessary. A key fact that
emerges from the analysis in this section is that judicial independence is not
a monolithic concept applicable to the judiciary on the whole but rather to
specific aspects of judicial functioning. For example, a judge choosing to
ignore conventional modes of dressing in a courtroom is also expressing
her independence, literally interpreted. However, our analysis of the types of
independence deemed necessary, as well as the persons and institutions to be
independent of, demonstrates that neither absolute independence in terms
of degree nor independence regarding all aspects of judicial functioning is
desirable. The rejection of the monolithic conception of judicial independence
in favour of decisional, behavioural and administrative independence leads us
to the obvious question as to why certain kinds of independence are desirable
and thereby deemed necessary, whereas others are not. It is this question of the
rationale for judicial independence that is discussed next.

6B.5 Why?
Most legal systems in democratic countries take the existence of judicial
independence for granted. On the other hand, in non-democratic states
or fledgling democracies where judiciaries are subservient to the ruling
dispensation, the lack of judicial independence is lamented and the securing of
such independence is seen as the bellwether of democratic change. A statement
such as ‘Independence of the judiciary is a basic feature of the justice system
under the Constitution’67 and ‘Judicial independence and public access to justice

66 Law Comm., 195th Report.

67 K. Veeraswami, The Perils to Justice: A Judge Thinks Aloud (Kolkata: Eastern Law
House, 1996), 118.

1::79 .6 680 91/. 65 5/ 8 .0/ 5 /89 : 8/99

235
 158 Independence and Accountability of the Indian Higher Judiciary

are important requirements for the rule of law in the human dimension’68
are commonplace and testimony to the importance attached to judicial
independence in democratic and non-democratic states alike. But they say little
as to why such independence is deemed necessary. In fact, being unsupported by
further argument, as they often are, they give rise to the impression that judicial
independence is necessary per se for any judicial system to function. While
this may indeed partly be the case, it is far from providing a comprehensive
explanation. On the contrary, as evidenced by history and modern practice,
the reasons for wanting judicial independence are complex, intertwined with
knotty conceptual questions concerning impartiality, separation of powers and
the rule of law.
Historically in England, as adverted to earlier, judges were never considered
independent functionaries. Instead they were officers of the Crown, much like
others in administration. The lack of independence was per se not considered
to be a hindrance to adjudication for several centuries.69 It was only when it
became evident that impartial justice, specifically in matters involving the
monarch, was impossible with a dependent judiciary that the demand for its
independence was raised by parliament. At the same time, for parliament, it
was politically imperative to prevent excessive concentration of powers in the
king. Separating the judiciary from the king thus became a key demand that
would secure the independence of the judiciary, thereby diminishing the power
of the king.70 Judicial independence was thus sought not for its own sake but to
promote impartial justice and effectuate separation of powers in the context of
the bitter struggle for political supremacy between king and parliament.
Equally, in the colonies in America and subsequently in the drafting process
of the Constitution of the United States of America, judicial independence was
a key device to ensure impartial adjudication. The demand for independence of
judges in the colonies came from the popular legislatures who viewed judges as
agents of the colonial government, incapable of rendering impartial justice.71

68 Organisation for Democratic Institutions and Human Rights, Strengthening Judicial

Independence and Public Access to Justice (OSCE Human Dimension Seminar
Consolidated Summary, Warsaw, 17–19 May 2010), 2.
69 For a history of the role of judges in England in the 17th Century up to which time
this view was largely prevalent, see Aylmer, King’s Servants, 44–57.
70 For a view which stresses the power struggle between the king and parliament
being responsible for a limited idea of judicial independence being developed, see
Stevens, ‘Act of Settlement.’
71 Smith, ‘Independent Judiciary.’

1::79 .6 680 91/. 65 5/ 8 .0/ 5 /89 : 8/99

236
 Judicial Independence 159

Evocatively, a Letter of Correspondence drafted by the inhabitants of Boston

noted that the dependence of the judiciary on the Crown would

Deprive us of every thing valuable as Men, as Christians and as Subjects,

entitled, by the Royal Charter, to all the Rights, liberties and privileges of
native Britons.72

Building on this, the authors of the Federalist Papers realised that

independence of the judiciary from the colonial governor should not lead
to its dependence on the popular legislature. Thus, they sought to make the
judiciary a constitutional organ, optimally independent of both the Congress
and the president, with the power of judicial review to check and balance
them, thereby effectuating the constitutionally envisaged separation of powers
scheme. Independence of the judiciary was a key element in this scheme, ‘to
secure a steady, upright and impartial administration of laws’73 without which
the limitations on the legislature and the executive ‘would amount to nothing’.74
Even in the current day, demands for judicial independence where it does
not exist, or exists inadequately, are made primarily with the underlying goal of
seeking impartiality in adjudication or effectuation of a more workable separation
of powers scheme. Criticisms of elections to appoint judges, the prevalent system
for appointment in several states in the United States of America, are founded
on the view that elected judges are inadequately independent of the parties in a
case and thereby incapable of rendering impartial justice.75 Again, in the United
Kingdom, where no serious concerns regarding judicial independence existed,
the Constitutional Reform Act, 2005, was mooted by the Labour government to
‘redraw the relationship between the judiciary, the government and Parliament
to preserve and increase [our] judges’ independence’.76 Specifically, the abolition
of the traditional functions of the Lord Chancellor, stripping him of his right

72 18 Boston Records Commissioners (1887) 106 as cited in Smith, ‘Independent

Judiciary,’ 1146.
73 Federalist Papers, 511.
74 Ibid.
75 Roy A. Schotland, ‘Six Fatal Flaws: A Comment on Bopp and Neeley,’ Denver
University Law Review 86 (2008): 233. Even Bopp and Neeley, who do not object to
personal solicitation of campaign funds by candidates in judicial elections, admit
that impartiality is a key value which needs to be protected: see James Bopp Jr. and
Josiah Neeley, ‘How not to Reform Judicial Elections: Davis, White, and the Future
of Judicial Campaign Financing,’ Denver University Law Review 86 (2008): 195.
76 Department for Constitutional Affairs, A Supreme Court for the United Kingdom,
CP 11/03 (Oxford: Department for Constitutional Affairs, 2003), para 7.

1::79 .6 680 91/. 65 5/ 8 .0/ 5 /89 : 8/99

237
 160 Independence and Accountability of the Indian Higher Judiciary

to sit as a judge while continuing as a member of the prime minister’s cabinet,

and vesting the power of judicial appointments instead in a proposed Judicial
Appointments Commission were envisaged as key steps towards securing the
institutional independence of the judiciary, thereby leading to a more structured
separation of powers scheme.77 Thus judicial independence, if scrutinised
closely, despite its self-evidently virtuous qualities, has been widely sought for
ensuring impartial adjudication and an effective separation of powers scheme.
This requires a close analysis of the key linkages that exist between judicial
independence on the one hand and impartial adjudication and separation of
powers on the other. Let us consider each of these linkages in turn.
Independence of the judiciary and its impartiality are terms that are often
used interchangeably in common parlance. Both signify a certain degree of
detachment of the judiciary, and both are concerned with the relation that the
judiciary has with others, institutions or individual litigants, as the case may be.
But does that entail synonymy? The Bangalore Principles of Judicial Conduct,
2002, drafted and agreed upon by chief justices and judges from apex courts of
several jurisdictions and the International Court of Justice, recognise each, that
is, independence and impartiality, as separate values to be secured. Though the
principles point to a degree of congruence between the two concepts inasmuch
as both judicial independence and impartiality are seen as key elements of the
rule of law, two conceptual distinctions emerge from their separate treatment
in the principles. First, impartiality primarily makes sense at the level of the
individual judge and his/her decision-making. The idea of the judiciary as an
institution having to be impartial is either a platitude, if the word ‘impartiality’
is used loosely, or has the limited meaning of suggesting that the judiciary
institutionally should not be biased in its decision-making.78 Second, judicial
independence is a wider concept than is judicial impartiality. While both terms
are relational, independence entails the lack of dependence, of either an individual
judge or the judicial institution, from the political organs of state or the parties
to the case regarding decision-making, administration or factors affecting the
general behavioural integrity of judges. Impartiality, on the other hand, focuses
on the specific relation between the individual judge and the parties to the case
in the context of a judicial decision-making process. While this may certainly

77 Roger Masterman, Separation of Powers in the Contemporary Constitution: Judicial

Competence and Independence in the United Kingdom (Cambridge: Cambridge
University Press, 2011), 220–24.
78 This is relevant primarily for courts which sit en banc, rather than courts which
sit in benches where discerning institutional bias is difficult.

1::79 .6 680 91/. 65 5/ 8 .0/ 5 /89 : 8/99

238
 Judicial Independence 161

require independence of the judge, besides other objective factors to be met, to

assess her impartiality or the lack thereof requires relating back such factors to
the decision-making process undertaken by the judge and the effects thereupon.
It is thus a narrower enquiry.
The latter difference suggests theoretically what the history of the quest for
judicial independence suggested in practice, that judicial impartiality, widely
considered integral to any decision-making process, is a key reason why judicial
independence is sought in the first place. Specifically, decisional independence
of individual judges from the parties to the case as well as from the government
(when it is a litigating party) is prompted by concerns of impartiality. This type
of impartiality, known as party impartiality, is central to judicial independence.79
Apart from such party impartiality, issue impartiality, that is, impartiality
regarding issues before court, is significant only to the extent that an individual
judge does not have a committed opinion regarding her stance on particular
issues that arise before her,80 or the judiciary does not formulate a pre-fixed
ideological policy in this regard.81
It is crucial to note that, in all cases where impartiality is in question, it is the
perception of impartiality that is the key test.82 A good example is provided by
the case of R v. Bow Street Metropolitan Stipendiary Magistrate and others (Ex
Parte Pinochet Ugarte No. 2).83 The question before the House of Lords in this
case was whether its previous decision to reject an immunity plea by Pinochet,
the former president of Chile, should be quashed on the ground that Lord
Hoffman, one of the judges to the said decision, was a director of the Amnesty
International Charity, a wholly owned subsidiary of Amnesty International,
which was an intervener in the case. Pinochet’s counsel did not impute any
actual bias on the part of Lord Hoffman but suggested that there was an

79 In India, party impartiality is ensured through the convention of judges recusing

themselves in case of a conflict of interest. This question was raised and discussed
in detail in the recusal order of Justice Chelameswar in the NJAC Case rejecting
the request that Justice Khehar recuse himself from the case.
80 UK Judicial Guide, para 3.14.
81 This is a complex concern especially in the United States, where the political views
of several judges are known and many judges might be elected: Laura E. Little,
‘Loyalty, Gratitude and the Federal Judiciary,’ American University Law Review 44
(1995): 699.
82 Torstein Eckhoff, ‘Impartiality, Separation of Powers and Judicial Independence,’
Scandinavian Studies 9 (1965): 9, 12.
83 [2000] 1 AC 119 (House of Lords, UK).

1::79 .6 680 91/. 65 5/ 8 .0/ 5 /89 : 8/99

239
 162 Independence and Accountability of the Indian Higher Judiciary

appearance of such bias, which ought to be sufficient to quash the proceedings.

The House of Lords upheld this argument on the ground that Lord Hoffman’s
association with Amnesty International Charity gave him relevant interest in
the subject matter of the case, thereby making him a judge in his own cause
and consequently not impartial. Likewise, impartiality requirements in codes
of judicial conduct require judges to act in a manner that does not give rise to
any ‘perception of partiality towards [an] organisation, group or cause’84 rather
than requiring actual impartiality. The perception of impartiality in the decision-
making process, impartial adjudication for short, is thus a key rationale for the
independence of individual judges from the parties to the case regarding their
decision-making.
The institutional independence of the judiciary from the government,
especially regarding judicial administration and disciplining of individual
judges, is supported by another, arguably distinct rationale, based on the concept
of separation of powers. Judicial independence has been widely considered
to be necessary to secure separation of powers between the three organs of
government.85 While this is often asserted dogmatically, the underlying reasons
for such a linkage lie in the twin objectives of instituting a separation of powers
scheme in the first place, that is, securing the functional competence of distinct
institutions of government86 and ensuring that by an efficient exercise of
functions, they can uphold the rule of law.87 The independence of the judiciary
is considered necessary in order to vest the judiciary with the functional
competence it requires to adjudicate, as well as to prevent transgressions by the
government through such adjudication. Let us consider each of these in turn.

84 UK Judicial Guide, para 3.5.

85 Kaufman, ‘Essence of Judicial Independence,’ 688; Eckhoff, ‘Impartiality, Separation
of Powers,’ 11.
86 Jeremy Waldron, ‘Separation of Powers in Thought and Practice,’ Boston College
Law Review 54, no. 2 (2013): 433; Nick Barber, ‘Prelude to the Separation of Powers,’
The Cambridge Law Journal 60 (2001): 59.
87 The connection between separation of powers and rule of law is best illustrated in
John Adams’ drafting of Art. XXX of the Massachusetts Constitution 1780 (USA),
where he writes:
In the government of this commonwealth, the legislative department shall
never exercise the executive and judicial powers, or either of them: the
executive shall never exercise the legislative and judicial powers, or either
of them: the judicial shall never exercise the legislative and executive
powers, or either of them; to the end it may be a government of laws and
not of men.

1::79 .6 680 91/. 65 5/ 8 .0/ 5 /89 : 8/99

240
 Judicial Independence 163

Functional competence of state institutions involves structuring the form of

an institution according to the function it performs. In early separation of powers
literature, the exercise of judicial functions, that is, adjudication of disputes, was
not considered sufficiently distinct from the functions of the executive to warrant
distinct treatment, or be vested in a separate institution. Separation of powers
was, at the time, envisaged as twofold: legislative and executive.88 However, stray
references can be found in early literature pointing to the existence of certain
judicial functions such as adjudicating cases of treason, which the king ought not
to judge, given that he would be both judge and party to the case.89 Over time,
as more and more functions of the executive began to be recognised as judicial,
the different competencies required for the exercise of judicial power became
prominent.90
Montesquieu, the most celebrated proponent of the idea of separation of
powers, challenged the consolidation of judicial power with executive power on
the grounds of unfairness and impracticability. In Book VI of The Spirit of Laws, he
advanced a limited separation of judicial power from the executive, based on the
view that if the power of the prince (executive) was seen as consolidated, including
the power to both execute and judge, it would be a travesty, since ‘he would be
both judge and party’.91 Besides, if the prince judged, it would render superfluous
his power to pardon, which was ‘the finest attribute of his sovereignty’.92
The context and rationale of Montesquieu’s limited separation are significant.
At the time of writing, Montesquieu’s chief concern, as is apparent in Book XI
of The Spirit of Laws, was a joining of the three powers of legislation, execution
and judging in the same person or body of persons.93 This, according to him,
would lead to a loss of liberty, as in the Italian republics, with degeneration
into despotism a distinct possibility, as in Turkey.94 Specifically, if the judge
and executor were the same, ‘the judge could have the force of an oppressor …

88 John Locke, ‘An Essay Concerning the True Original, Extent, and End of Civil
Government,’ in Two Treatises of Government, ed. Peter Laslett (Cambridge:
Cambridge University Press, 1988), 265, 364–66.
89 Vile, Constitutionalism and the Separation of Powers, 34–35.
90 Charles Dallison, The Royalists Defence (1648), available at http://gateway.
proque st .com /openu rl?c t x _ver =Z 39. 8 8 -2 0 03& re s _ id=x r i :e ebo& r f t _
id=xri:eebo:image:54815:2 (accessed 14 July 2012).
91 Cohler, Miller and Stone, Montesquieu’s The Spirit of Law, 78.
92 Ibid.
93 Ibid., 157.
94 Ibid.

1::79 .6 680 91/. 65 5/ 8 .0/ 5 /89 : 8/99

241
 164 Independence and Accountability of the Indian Higher Judiciary

and it [sic] can destroy each citizen by using its particular wills’.95 Hence, he
envisaged a limited separation, which would ensure that judicial functions were
not exercised by the same body of persons as those who were responsible for
their execution. This was achieved by drawing jurors directly from the people, to
whom they owed their direct allegiance, and limiting their tenure to particular
disputes at hand. Though judicial power was thus separated from executive and
legislative power, because it was seen as distinctly inferior in nature to them, it
did not warrant a permanent judicial institution.
The rationale for articulating a distinct judicial power, without a separate
judicial institution, was to ensure that judges were independent of the parties
to the case, which very often, and most commonly in criminal law matters,
was the king himself, while not having a chance to acquire power, given their
temporary status. Functional competence for the judges thereby implied their
ability to adjudicate impartially in matters where the king was a party. No
additional qualifications were felt necessary, as evident in the lay nature of the
semi-permanent judiciary. This understanding of separation of powers leading
to functional competence, which in the case of the Montesquieuan judiciary
required it to be independent of the king, is reminiscent of the notion of
impartial adjudication being the rationale for judicial independence. Separation
of powers, thus expounded, seems to require independence of individual judges
from the other organs of government so that they can be impartial when such
organs regularly appear before them in their capacity as litigants, despite their
concomitant ability to interfere in their independent functioning. Thus, the
argument from functional competence appears to essentially rest on the ability
of the judiciary to adjudicate impartially.
A second rationale for judicial independence, flowing from separation of powers,
concerns the rule of law. This is achieved through two means: first, by the very
conceptualisation of the judiciary as an institution independent of the legislature
and the executive, responsible for the exercise of judicial power, thereby preventing
the excessive concentration of political power in a single organ which is antithetical
to the rule of law;96 second, by creating an institutional structure amenable to the
judiciary passing judgments quashing decisions taken by the political organs of
the state ‘to the end it may be a government of laws and not of men’.97

95 Ibid.
96 For the connection between separation of powers and the rule of law, see Waldron,
‘Separation of Powers.’
97 Massachusetts Constitution 1780 (USA), Art. XXX; for a discussion of the phrase,
see Burin, ‘Theory of the Rule of Law,’ 318.

1::79 .6 680 91/. 65 5/ 8 .0/ 5 /89 : 8/99

242
 Judicial Independence 165

One of the fundamental underpinnings of separation of powers as a means

to achieve the rule of law is the need to prevent excessive powers being vested
in a single institution. One of the finest expressions of this is Madison’s words
in Federalist No. 47 where he writes:

The accumulation of all powers, legislative, executive, and judiciary, in

the same hands, whether of one, a few, or many, and whether hereditary,
self-appointed or elective, may justly be pronounced the very definition
of tyranny.98

Integral to the scheme of separation envisaged by Madison was a bicameral

legislature, a unified presidency and an independent judiciary. Though the
judiciary was given constitutional status as a distinct organ, thereby making it
independent of the legislature and executive insofar as the source of its authority
is concerned, it was inherently weak, having no control over either the finances
of the state or the army. Such infirmities were sought to be offset by a fortified
conception of judicial independence. Judicial independence would thus be
crucial in securing the institutional status of the judiciary, thereby reducing the
scope for governmental interference. This specifically entailed that judges of the
Supreme Court were appointed during good behaviour, with fixed salaries that
could not be reduced to their disadvantage by the government, no retirement age
and removal only by impeachment.99 Permanence in office would ensure that
an independent spirit pervaded the judiciary and possibilities of governmental
interference reduced substantially. Non-reduction of compensation would be
equally crucial to maintain this spirit, since pecuniary control over judges would
render them answerable to the government and jeopardise their autonomous
institutional nature. The procedure for impeachment too was multi-layered,
such that the threat of removal could not be used as a stick by the government
to ensure conformity by the judiciary.100 Creating a separate judicial institution
and providing safeguards for its independence were thus envisaged as important
checks against the concentration of political power in either the legislative or
executive organ of state.
A related linkage between judicial independence, separation of powers and
the rule of law lies in the ability of the judiciary to uphold a government by

98 Federalist Paper No. 47 in Federalist Papers, 316.

99 Federalist Paper Nos. 78, 79 in Federalist Papers, 514, 520.
100 The grounds for impeachment too were restricted to certain kinds of malpractice;

inability was specifically excluded as a ground. Federalist Paper No. 79 in Federalist

Papers, 519–20.

1::79 .6 680 91/. 65 5/ 8 .0/ 5 /89 : 8/99

243
 166 Independence and Accountability of the Indian Higher Judiciary

law through checking transgressions of the law by the political organs of state.
The judiciary, an organ of state, set up by law is vested with the crucial task of
ensuring that the government itself is bound by the laws it makes. This checking
function is performed by the judiciary through the exercise of the judicial power
vested in it, to quash illegal administrative decisions taken by the government,
as well as striking down unconstitutional statutes, if it has the power of judicial
review of primary legislation. Independence of the judicial institution from the
political organs of government regarding decision-making and administration,
as well as regarding judicial behaviour of individual judges, is a sine qua non for
such a checking function to be performed. The lack of independence, as has been
demonstrated earlier, leads to the grave improbability of impartial adjudication,
thereby reducing the possibility of checking and balancing government. But
given the institutional weakness of courts and their consequent dependence on
the government to enforce its orders and decrees, can judicial independence
itself lead to effective checks and balances thereby preventing transgressions by
the government and ensuring the rule of law? This is enquired into in Chapter 7.
In the final analysis, judicial independence is necessary for impartial
adjudication, as well as for securing separation of powers. While an analysis of
the former demonstrates the distinct nature of the two concepts of independence
and impartiality, a deeper scrutiny of the arguments underlying the separation
of powers leads to the understanding that separation of powers concerns are at
their core, part concern for impartial adjudication and part about ensuring that
the judiciary is effective in checking and balancing government and upholding
the rule of law. This idea of a judiciary adjudicating impartially and ensuring
separation of powers, termed ‘an effective judiciary’ in shorthand henceforth in
this book, prima facie has some parallels with the idea of responsible decision-
making by the judiciary, considered in Chapter 5 as a rationale for judicial
accountability. After all, decision-making by the judiciary is synonymous with
adjudication and responsibility was considered to apply both to the substantive
correctness of the decision reached and to the process that led to the decision.
The latter encompasses the need for impartiality and, subject to the outcome
of the arguments in the following chapter, factors relevant for ensuring checks
and balances on other organs of government as well. The exact nature of this
inter-relation will be the subject matter of Chapter 7.

1::79 .6 680 91/. 65 5/ 8 .0/ 5 /89 : 8/99

244
 Judicial Independence 167

C Conclusion
This chapter began with a modest objective: to provide a better understanding of
what judicial independence ‘looks like’. To this end, the sections of this chapter
deconstructed a monolithic conceptualisation of judicial independence using
the fivefold model employed in relation to judicial accountability in Chapter
5. Each of these sections not only furthered our understanding of judicial
independence in a number of ways but also threw up specific inter-connections
with judicial accountability. The subjects of independence (individual judges and
the institution of the judiciary) represent distinct sites for judicial independence
protection, overlapping with the subjects of judicial accountability as well. A
similar overlap can be seen in the analysis of the persons and institutions from
whom independence is sought, and the aspects of judicial behaviour for which
it is so sought. Specifically, individual judges and the judicial institution have
to be independent from both the political organs of the state and the parties
to the case, which is secured by a range of political and apolitical methods;
they also have to be accountable to the same political organs and parties to
the case, which is itself secured by a conspectus of distinct methods. Judicial
independence and accountability thus operate in an identical plane insofar as
its subjects, objects and subject matters are concerned, while the methods to
secure them are contingent on the extent of independence and accountability
deemed desirable. At the same time, judicial independence and accountability
seem to be underpinned by a similar rationale—the judiciary adjudicating
impartially and ensuring separation of powers, that is, ‘an effective judiciary’
in the case of the former and responsible decision-making in case of the latter.
If these two objectives are analogous or one is subsumed in another, then a
conceptual reconciliation between the two seems possible. Whether indeed
such a speculative assertion is borne out by argument is the question we turn
to next, in Chapter 7.

1::79 .6 680 91/. 65 5/ 8 .0/ 5 /89 : 8/99

245
 In Search of an Effective
Judiciary

7 A Doctrinal Reconciliation
of Judicial Independence and
Accountability

T he quest for judicial independence has long obsessed public law academics,
judges and political theorists. The historical struggles to establish
independent judiciaries, its prominent espousal in constitutional arrangements
and its centrality to judicial functioning have made such obsession inevitable.
As a result, whether a particular judicial system in a country is independent or
not is often the sole lens through which existing constitutional arrangements as
they affect the judiciary are analysed.1 This ‘one-dimensional holism’,2 though
understandable, is limiting. Especially when used to analyse or shape the
structuring and functioning of courts, it is closed to the other factors that are
responsible for ‘an effective judiciary’.3 We most certainly want the judiciary to
be independent, but we also want the judiciary to be competent, impartial and
sufficiently powerful to check government and possess a range of other virtues.
To briefly substantiate this argument—in Indian constitutional jurisprudence,
the Supreme Court has focused solely on judicial independence amongst all
normative values, when interpreting provisions relating to appointment of
judges to the higher judiciary.4 The justification for such an interpretive exercise
is traced to the intention of the drafters of the Constitution. However, if the
intention of the drafters is carefully scrutinised, an alternative touchstone for
interpretation can be found—preserving the institutional dignity and high
status of the judiciary. This is what, one might argue, guided members of the

1 SCAORA, para 8 (Justice Verma); Redish, ‘Good Behavior, Judicial Independence.’

2 Saikrishna Prakash and Steven D. Smith, ‘Reply: (Mis)Understanding Good
Behavior Tenure,’ The Yale Law Journal 116 (2006): 159, 163.
3 ‘An effective judiciary’ is used as a term of art in this book. See Chapter 6, Section
6B.5; Effectiveness, as generally understood, may have other facets but that is not
the concern of this book.
4 This can be seen in the majority opinion in Gupta and SCAORA.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

246
 In Search of an Effective Judiciary 169

Constituent Assembly to make the president the appointing authority and the
chief justice of India a mandatory consultee for all appointments to the higher
judiciary. At the same time, this is why, as a matter of fact, proposals for legislative
ratification of proposed appointees were rejected, since it was felt that such
voting would reduce the esteem in which the higher judiciary ought to be held.5
Prima facie, this argument seems plausible. But like the argument that views
provisions on appointments and transfers solely from the perspective of judicial
independence, it would be incorrect. This is because as Prakash and Smith point
out ‘appealing to one among many competing commitments in a “holistic” way
and then construing a provision to further that value is no way to respect the
constitutional design’.6 Likewise, a carefully crafted constitution more often than
not envisages balance between factors, trade-offs and compromises—to not
look at the conspectus of relevant factors in a constitutional scheme is myopic.
The one-dimensional holistic approach focusing on judicial independence
will be challenged in this chapter at two levels: First, in demonstrating the factors
apart from judicial independence which are required for an effective judiciary
(‘basic anti-holism’). Second, by arguing how judicial accountability is crucial to
the presence of such factors. Through these twin arguments, it will be contended
that judicial independence and accountability are both essential factors for
achieving an effective judiciary (‘meta-level anti-holism’). How these factors
will be balanced in practice will then be addressed in Section 8A of Chapter 8.
In Chapter 6, we found that judicial independence when deconstructed
is needed for judicial impartiality and checking and balancing other organs
of government. These aims of judicial independence, described succinctly
as necessities for ‘an effective judiciary’, I argue, are equally served by other
factors. I advance three hypotheses in Section 7A. First, impartiality is closely
linked with judicial integrity and not judicial independence alone—despite
being independent, if a judge lacks integrity, impartiality will not be firmly
secured. What integrity means and how it leads to an effective judiciary is
described in Section 7A.1. Second, maintaining a distinct institutional status
of the judiciary, which is part of a wider need to ensure effective checks and
balances, is dependent on the ability of the judiciary to secure public confidence
in its functioning. This is an obvious proposition and is thus briefly discussed in
Section 7A.2. Third, to be able to check and balance other organs of government,
it is imperative that the judiciary is part of a mutual checks and balances scheme.

5 See Chapter 2, Section 2A.

6 Prakash and Smith, ‘(Mis)Understanding Good Behavior Tenure,’ 164.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

247
 170 Independence and Accountability of the Indian Higher Judiciary

It is when ‘ambition counteracts ambition’7 that judicial decisions are respected

by more powerful coordinate organs of state. The mutual checks and balances
scheme, which I term the ‘web of integrated government’, is analysed in Section
7A.3. Thus, sub-sections 7A.1–3 together comprise a consolidated argument
supporting basic anti-holism.
It can unarguably be claimed that other factors may be equally relevant
for a well-functioning judiciary. By limiting arguments to the aforesaid three
hypotheses and the facets of an effective judiciary they relate to, I make no claims
to the contrary. The rationale for such limitation, however, is twofold—first,
integrity, public confidence and the ability to check and balance other organs
of government are widely acknowledged as essential for any well-functioning
judiciary; second, as I will demonstrate in Section 7B, they serve as a bridge
between judicial independence and accountability. Constructing such a normative
bridge between these two concepts is precisely the point of this chapter.
Having delineated the multiple prerequisites of an effective judiciary in Section
7A, Section 7B outlines how integrity, public confidence and the web of integrated
government also require judicial accountability for their fulfilment. Chapters 5
and 6 demonstrated a structural similarity in the conceptual contours of judicial
accountability and independence. But such structural similarity is hardly a
guarantee for conceptual coherence. There is, on the contrary, a certain intuitive
attractiveness to the popular arguments that independence and accountability are
inherently contradictory. For example, the argument that judicial elections that
promote judicial accountability, by making judges answerable to voters, affect
their independent functioning is quite obviously correct.
Several reasons have been suggested as to why particular conflicts between
judicial independence and accountability are resolved in the ways they are, based
on a consideration of the balance between independence and accountability,
keeping in mind the constitutional culture of the jurisdiction in question.8 To
assess the validity of these claims is beyond the remit of this book, especially
as they are contingent on specific constitutional contexts. Instead, by arguing
that judicial independence and accountability are both needed for an effective

7 Per Madison, Federalist Paper No. 51 in Federalist Papers, 341; For commentary,
see David F. Epstein, The Political Theory of the Federalist (Chicago: University of
Chicago Press, 1984).
8 Martin Redish, ‘Judicial Discipline, Judicial Independence and the Constitution: A
Textual and Structural Analysis,’ Southern California Law Review 72 (1999): 673;
Lord Hope of Craighead, ‘Judicial Independence,’ Supreme Laws Today 13 (2002):
105; Krishna Swami.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

248
 In Search of an Effective Judiciary 171

judiciary, Section 7B provides a normative resolution to such conflicts. Doing

so, it advances an argument for meta-level anti-holism, seeing both judicial
independence and accountability as significant for achieving the same aim—an
effective judiciary.

A Constituents of an Effective Judiciary

7A.1 Integrity
From an ethical perspective, integrity is a virtue that is widely considered
essential for any decision-maker to possess. When the decision-maker is also
a judge who is morally and legally required to decide impartially, intuitively it
may seem that the requirement of integrity becomes even more crucial to the
exercise of judicial functions.9 But what does integrity as a core concept entail?
Is there a separate conception of judicial integrity comprising virtues that are not
covered by the core concept? Stated differently, are there distinct connotations
of integrity depending on the role in question?
‘Integrity’ in the Oxford English Dictionary has two meanings: ‘the quality of
being honest and having strong moral principles’ and ‘the state of being whole
and undivided’.10 The etymology suggests a derivation from the Latin integer
meaning ‘intact’.11 Both these senses of ‘integrity’ can be seen in common, non-
legal usage. Let us consider a few examples. A recent statement from the British
Foreign office on the international legal status of Gibraltar read:

Self determination is far more significant than territorial integrity. The

people of Gibraltar have repeatedly expressed and overwhelmingly their
wish to remain under British sovereignty.12

Integrity in terms of territory directly makes use of the second meaning of

integrity above, that is, that the territory must remain whole and undivided.
This same meaning can be seen in Dworkin’s understanding of integrity as an

9 Michael Kirby, ‘Judicial Integrity: A Global Social Contract,’ Commonwealth Law

Bulletin 29 (2003): 976.
10 OED, available at www.oxfordreference.com/view/10.1093/acref/97801995
71123.001.0001/m_en_gb0415130 (accessed 27 September 2013).
11 Ibid.
12 Press Association, ‘Spain to Take Gibraltar Dispute to UN,’ The Guardian, 11 August
2013, available at www.theguardian.com/world/2013/aug/11/spain-gibraltar-
dispute-uk-un (accessed 21 August 2013).

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

249
 172 Independence and Accountability of the Indian Higher Judiciary

adjudicative principle, which instructs judges to decide a case after taking into
account the law as an undivided whole, that is, a coherent set of principles.13
On the other hand, writing about Abraham Lincoln, historian Daniel Howe says:

Moral integrity occupied the core of the kind of person Lincoln made
himself. Financial honesty represented one important aspect of this
integrity. When his partner in a grocery business, William Berry, died in
1835, leaving behind serious debts, Lincoln worked long and hard to pay
off not only his own share but Berry’s as well...14

Here, Howe’s understanding of Lincoln’s integrity springs from his financial

honesty. But it seems to go beyond such honesty to encompass a spirit of
humanity and brotherhood that makes Lincoln repay his business partner
Berry’s business debts. Integrity here is value-laden, tied to certain substantive
principles, which gives it meaning. A similar value-laden understanding, albeit
with different values deemed essential to integrity, can be seen in the Bangalore
Principles of Judicial Conduct. The commentary to the principles describes
integrity as ‘the attribute of rectitude and righteousness’,15 which for judges
comprises ‘honesty and judicial morality’.16
Third, there are usages of integrity when both the aforesaid meanings—being
an undivided whole and connoting certain substantive values—are implied.
Polonius, while advising his son Laertes who is at the onset of a major voyage
to France, ends his sermon with the words:

This above all: to thine own self be true,

And it must follow, as the night the day,
Thou canst not then be false to any man.17

13 Dworkin, Law’s Empire, 225.

14 Daniel Walker Howe, ‘Honest Abe: Abraham Lincoln and the Moral Character’
(2008), 13 Footnotes (Foreign Policy Research Institute Newsletter), available
at www.fpri.org/footnotes/1316.200806.howe.honestabemoralcharacter.html
(accessed 21 August 2013).
15 United Nations Office on Drugs and Crime, ‘Commentary on the Bangalore
Principles of Judicial Conduct,’ September 2007, available at www.unodc.org/
documents/corruption/publications_unodc_commentary-e.pdf (accessed 21
August 2013) (hereinafter ‘Bangalore Principles Commentary’).
16 Ibid.
17 William Shakespeare, Hamlet, Act 1 Scene 3, Lines 78–81, available at http://
shakespeare.mit.edu/hamlet/full.html (accessed 21 August 2013).

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

250
 In Search of an Effective Judiciary 173

Polonius’ words suggest that if one is true to oneself, an idea that is shorn
of substantive moral considerations, then one will not be false to anyone else.
This has been widely seen as the cornerstone of integrity,18 that is, a man who
lives life based on a coherent set of principles. But in the context of Polonius’
speech, there is a well-defined way for Laertes to remain true to himself and
thereby have integrity. This involves not borrowing or lending money, not
associating with women of dubious character, not dressing ostentatiously and
a range of moral guidelines that must be adhered to.19 This points to a value-
laden conception of integrity, which is substantive and tied to certain specific
moral values.
Comparing the substantive aspect of Polonius’ idea of integrity with Howe’s
description of Lincoln’s integrity, it is clear that the values deemed central to
integrity in these conceptions are distinct. The understanding of relevant values
is contingent on the nature of the person in question—as a businessman, the
moral principles central to Lincoln’s integrity are his honesty and humanity,
whereas as a young man on the verge of travelling to live abroad, a more
eclectic combination of values broadly underpinned by the need for moderation
determines Laertes’ integrity in his father’s eyes. Thus, the values deemed
relevant for integrity in each case are determined by the identity of the persons
described.20 It would suffice to say that integrity connotes certain substantive
values (‘identity-conferring commitments’21) that differ based on the person
in question, on values deemed central to her existence as a moral being and the

18 Terence Eagleton, Shakespeare and Society: Critical Studies in Shakespearean Drama

(London: Chatto and Windus, 1976), 65; John Kekes, ‘Constancy and Purity,’ Mind
XCII (1983): 499, 500.
19 Preceding the extracted quote from Polonius above is a set of moral precepts that
Polonius advises Laertes to follow. These include:
Costly thy habit as thy purse can buy,
But not express’d in fancy; rich, not gaudy (Lines 70–71)
Neither a borrower nor a lender be;
For loan oft loses both itself and friend,
And borrowing dulls the edge of husbandry. (Lines 75–77).
Shakespeare, Hamlet.
20 These are to be seen in contradistinction to defeasible commitments that reflect
particular social settings rather than aspects central to a person’s identity. See
Kekes, ‘Constancy and Purity,’ 514–16.
21 Lynne McFall, ‘Integrity,’ Ethics 98, no. 1 (1987): 5, 13.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

251
 174 Independence and Accountability of the Indian Higher Judiciary

moral principles she is expected to adhere to given the nature of her position.22
This is a theme we will revisit in the context of judicial integrity.
On the other hand, the conception of integrity of territory, adverted to in
the statement by the British Foreign Office, connotes a sense of wholeness,
an opposition to division. When transplanted to actions of individuals, as
Dworkin or Polonius do, such an understanding corresponds to the need for
acting according to principle. It is only when one espouses coherent principles
and takes actions strictly in consonance with such principles that integrity is
possible. For Polonius, being true to oneself is only possible when one adheres
to principles—this ensures that one is not false to any other man. Similarly for
Dworkin, a judge must view the entire body of a community’s legal practice
relevant to a case as a coherent whole. Deciding a case would thus require
finding the best fit within this coherent body of principles. Both Polonius’ and
Dworkin’s views embrace coherence in choosing the relevant principles (it
would be incoherent to adhere to inconsistent principles) as well as coherence
between principles and action (it would be incoherent to act contrary to the
principles chosen).23 This understanding of integrity as acting according to
coherent principles thus provides a value-free, first-order understanding of
integrity that is not contingent on other virtues for its existence.
However, as a standard for assessment, evaluating whether indeed a person
acts according to principle is a difficult matter.24 Shorn of any consideration of
substantive values, it may often lead to counter-intuitive inferences of lack of
integrity. Laertes may, on this meaning, have complete integrity, despite adhering
to the principle of working solely for selfish gains including cheating people
where necessary to uphold this principle, as long as it does not detract from a
contrary principle he holds. This is squarely contrary to our intuitive inference in
this regard. Again, as McFall points out, if one has a principle of friendship which
one fails to honour by betraying one’s friend in self-interest, to say that one’s
action lacked integrity because it was marked by incoherence between principle
and action would be a curious charge.25 On the contrary, such an allegation
would be much more strongly founded on a charge of betrayal of friendship.
Thus, the concept of integrity as acting according to coherent principles does
not per se correspond with common usages of integrity. This suggests that

22 Ibid.
23 Gabriele Taylor, ‘Integrity,’ Proceedings of the Aristotelian Society (Supplementary
Volumes) 55 (1981): 143.
24 Ibid.
25 McFall, ‘Integrity,’ 11.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

252
 In Search of an Effective Judiciary 175

the idea of integrity needs to necessarily factor in identity-conferring values

described above. It is this combination of principle and identity-conferring
values in conceptualising integrity that is useful in understanding the integrity
that is expected of judges.
For judges, the first-order notion of the aforesaid integrity applies as it would to
any other decision-maker for whom integrity is ethically a prerequisite.26 Canon
4.2 of the Guide to Judicial Conduct in the United Kingdom (2009), which deals
with integrity, provides that judges must avoid behaviour that might ‘expose them
to charges of hypocrisy’.27 Hypocritical judges, like other hypocritical persons,
would by definition act contrary to held principles and would thereby lack
integrity. At the same time, the Commentary to the Bangalore Principles of Judicial
Conduct mandates that in order to have integrity, judges must avoid ‘conduct that
is indicative of bias, prejudice or improper influence’.28 Any decision-maker who
allows her decision to be affected by improper and extraneous considerations
can be said to lack integrity qua her role as a decision-maker. This is specifically
so since the action is contrary to the principle of impartiality that a decision-
maker ought to espouse. For a judge, such impartiality, as discussed earlier, is
the keystone for judicial functioning and a lack thereof represents an erosion of
integrity. Other first-order manifestations of a lack of integrity are provided by
Taylor—the insincere, weak-willed and self-deceiving, all of whom demonstrate
a stark lack of principle in their actions for various reasons.29
Ensuring the selection of judges of high integrity as understood above, and
safeguarding such integrity while in office, makes the achievement of identity-
conferring values, the substantive aspect of integrity, more likely. Having a
judicial officer who possesses first-order integrity implies necessarily that she
is a thinking individual who has carefully considered her position on issues and
actions in light of the evidence that is available. It also means that the person is
necessarily free of certain undesirable traits—hypocrisy, deception, cowardice,
insincerity and weak will, all of which are contrary to such a notion of
integrity.30 It must though be admitted that neither of these reasons guarantees
that such a person will possess the substantive values deemed desirable for a

26 For the role of integrity in decisions generally, see John Teehan, ‘Character, Integrity
and Dewey’s Virtue Ethics,’ Transactions of the Charles S Peirce Society 31, no. 4
(1995): 841.
27 UK Judicial Guide.
28 Bangalore Principles Commentary, 81.
29 Taylor, ‘Integrity,’ 144–47.
30 Ibid.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

253
 176 Independence and Accountability of the Indian Higher Judiciary

judge, but only makes such possession more likely. To the contrary, it is quite
possible that a thinking individual may have reprehensible moral qualities. At
the same time, the undesirable traits that a judge is free of (that allows her to
have first-order integrity) may not be the sum total of undesirable traits that
judges ought not to possess. This caveat of the lack of a seamless transition
from first-order non-substantive integrity to its second-order value-laden
counterpart ought to be kept in mind.
So what are these substantive values that a judge with integrity ought to
possess? Space precludes an exhaustive enumeration of such values—in fact, it
is doubtful whether such an exhaustive enumeration is possible per se. Perhaps,
this is why most understandings of integrity are general—viewing integrity
as that conduct which befits proper discharge of judicial office.31 While this
is eminently sensible since integrity is incapable of easy definition, it gives us
little idea of the substantive values entailed by it. A useful way to arrive at such
an understanding, albeit in an illustrative manner, might be by analysing the
values implicated in prominent cases of judicial impeachments where the lack
of integrity was alleged and widely accepted. Through factors that constitute
lack of integrity, a better understanding of the values needed in order to have
integrity can emerge.
In the impeachment motion against Justice Dinakaran, the grounds for
which are discussed in Chapter 2, the memorandum submitted by the Supreme
Court Bar Association to the chief justice of India repeatedly stated that Justice
Dinakaran’s actions made him a person of ‘doubtful integrity’.32 The Bar
Association of India, in a similar plea to the chief justice asserted that the key
issue was not whether the charges against Justice Dinakaran were correct or not;
instead it was a question of whether ‘the appointment of such a person whose
integrity is widely perceived to be doubtful would affect the faith of the common
man in this glorious institution’.33 Even the impeachment motion moved against
him in parliament alleged that the judge through his actions demonstrated an
utter lack of probity and integrity, ‘basic qualities of being a judge’.34

31 For an illustrative example, see Bangalore Principles, Value 3.

32 J. Venkatesan, ‘Plea Not to Elevate Justice Dinakaran,’ The Hindu, New Delhi, 3
December 2009, available at http://www.thehindu.com/news/national/plea-not-to-
elevate-justice-dinakaran/article59077.ece (accessed 11 September 2013).
33 The Hindu, ‘Do Not Elevate Dinakaran.’
34 ‘Notice of Motion for Presenting an Address to the President of India for the Removal
of Mr. Justice Paul Daniel Dinakaran, chief justice of the Karnataka High Court, also

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

254
 In Search of an Effective Judiciary 177

The charges against him which formed the basis of the aforesaid allegations
of lack of integrity were twofold. He was accused of dishonestly passing certain
judicial orders by deciding cases where he himself or an acquaintance was
an interested party. At the same time, he was alleged to have violated the law
by acquiring property illegally. Thus, two qualities that were deemed lacking
in Justice Dinakaran, making him unfit for judicial office, were honesty and
law-abiding behaviour. Dishonesty was a causal factor for corrupt practices,
that is, actions by a judge contrary to conduct befitting judicial office owing to
extraneous reasons, often monetary. The lack of law-abiding behaviour was both
a causal factor and indicative of such corruption since the properties owned
were entirely disproportionate to known sources of income. Taken together, it
simply exhibited behaviour that was unbecoming of a judge.35
During the impeachment of Justice Samuel Chase, discussed in Chapter 5,
the main allegations against him were regarding his integrity as a judge of the
Supreme Court.36 Specifically, it was alleged that his integrity was compromised
since he was acting as a mouthpiece of the Federalists from the Supreme Court
Bench. He was accused of not only spewing political propaganda from the bench
but also allowing his political views to determine the outcome of trials. Thus, his
lack of integrity was a consequence of his political partisanship. This affected his
ability to adjudicate impartially and led to political grandstanding, which was
contrary to the rectitude expected of a judge. Though the impeachment motion
itself failed, its failure was not a repudiation of the view that Justice Chase lacked
integrity—on the contrary, it espoused the principle that substantive decisions
rendered, including questions of integrity raised in connection therein, would
not form the basis of impeachment.37
Through these two examples of a lack of integrity, we have some idea of the
values it entails—honesty, law-abiding behaviour, impartiality and rectitude. It
is by no means claimed that these values constitute the sum total of values that
integrity entails. Other examples of lack of integrity in common usage will lead
to other values being implicated. But it does provide some substantiation to the
meaning of integrity, moving beyond its rhetorical appeal as a portmanteau term
consolidating all the values that a judge ought to reasonably possess.

known as Mr. Justice Paul Daniel Dinakaran Premkumar under Article 217 read with
124(4) of the Constitution of India’ (Rajya Sabha), 2009, available at www.outlookindia.
com/article/Impeachment-Motion/263269 (accessed 13 September 2012).
35 For details of charges, see Chapter 2, Section 2C.3.
36 See Chapter 5, Section 5B.1.
37 For more, see Rehnquist, Grand Inquests, 1–134.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

255
 178 Independence and Accountability of the Indian Higher Judiciary

Like individual integrity of a judge, the idea of institutional integrity entails

the conditions necessary for the exercise of the judicial function by courts of
law. Unlike individual integrity, however, which has primarily been discussed
in codes of conduct and academic debate, institutional integrity is a doctrine
that has been used in several jurisdictions in order to invalidate legislation.
The most prolific and continuing use of ‘institutional integrity’ has been in
Australia, an understanding which explains the rationale for the doctrinal use
of such a concept. In Kable v. Director of Public Prosecutions,38 the High Court
of Australia invalidated section 5(1) of the Community Protection Act, 1994,
which vested the power to order continued detention of a specified prisoner
in the Supreme Court of New South Wales, for the reason that such vesting
was incompatible with the institutional integrity of the judiciary. In Kable and
subsequent cases that have used this doctrine to invalidate legislation,39 the
underlying justification for its use has been cited as the need to protect the
institutional competence of the court. This entails maintaining the sanctity
of the judicial process, safeguarding it from threats, especially those affecting
the independence and impartiality of judges. It is only such safeguarding
which secures public confidence in the judiciary, expressed as the meta-norm
necessitating the doctrine of institutional integrity.40
In India too, reference to this principle was made in the recent case of Centre
for Public Interest Litigation v. Union of India.41 In this case, the Supreme Court
invalidated the appointment of the central vigilance commissioner, not chiefly
because his personal integrity was in question, but because appointment of a person
who had pending criminal charges would compromise the institutional integrity
of the Central Vigilance Commission. Integrity of such an institution would
require that it can function competently with its independence and impartiality
secured.42 Thus institutional integrity, from both these doctrinal uses in Australia
and India, implies the overall character of an institution that allows it to function
competently—in the context of courts, such functioning must be independent
and impartial at the very least to secure public confidence. It is hence tied to the
substantive values that are deemed essential for courts to do their task.

38 (1996) HCA 24 (High Court of Australia).

39 For analyses of subsequent cases, see Chris Steytler and Iain Field, ‘The “Institutional
Integrity” Principle: Where Are We Now, and Where Are We headed?’ The
University of Western Australia Law Review 35 (2011): 227.
40 Ibid., 244–46, 262–64.
41 (2011) 4 SCC 1 (Supreme Court of India).
42 Ibid., 39, para 33.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

256
 In Search of an Effective Judiciary 179

The aim of this sub-section was to construct a general understanding of

judicial integrity, using which its relation with judicial impartiality could be
examined. On the basis of such a general understanding, the first hypothesis—
impartiality has a close link with judicial integrity distinct from its linkage with
judicial independence—appears justified. This is because integrity has a two-
way connection with judicial impartiality. On the one hand, the lack of judicial
impartiality leads to an inference of lack of integrity given that impartiality is an
identity-conferring value for an individual judge or the judicial institution. In
this sense, impartiality is constitutive of integrity. On the other hand, the lack
of judicial integrity is likely to have a deleterious impact on judicial impartiality.
Since impartial functioning is key to the judicial function, the effects of a
judge failing to act according to principle or demonstrating a lack of other
identity-conferring values are likely to affect her impartial functioning. This
is widely seen in instances of judicial corruption. This symbiotic relationship
between impartiality and integrity—impartiality is a constituent factor for
judicial integrity and integrity in turn making impartiality in adjudication more
likely—is a complex, multi-layered inter-relation. Given that it is incidental to
the point of this chapter (and the book) it must be explored further elsewhere.43
The relevant lesson for our purpose is that integrity, apart from judicial
independence, is relevant for understanding the preconditions for impartial
functioning of a judge, and consequently an effective judiciary.

7A.2 Public Confidence

The Court’s authority—possessed of neither the purse nor the sword—

ultimately rests on sustained public confidence in its moral sanction.44

That judiciaries must enjoy public confidence in order to function authoritatively

is a platitude. Public confidence in the judiciary was identified as a cornerstone
of judicial functioning in the Federalist Papers.45 In the Constituent Assembly
of India, Jawaharlal Nehru, in a similar vein, underlined the need for judges
to be persons capable of commanding absolute respect from the people and
other organs of government.46 Creating public confidence in the judiciary (or
revitalising it) has been the underlying rationale for several judicial reforms

43 See generally Jonathan Soeharno, The Integrity of a Judge: A Philosophical Inquiry

(Farnham: Ashgate, 2009).
44 Baker v. Carr, 369 US 186 (1962) (US Supreme Court) (Justice Frankfurter).
45 Federalist Paper No. 78 in Federalist Papers, 508.
46 CAD, vol. VIII (May–June 1949), 246–47.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

257
 180 Independence and Accountability of the Indian Higher Judiciary

undertaken in recent times.47 Thus, Justice Frankfurter’s belief that public

confidence is the bedrock for the court’s authority is part of a long-standing
and well-established view.
The requirement of public confidence, being self-evident, need not be
laboured here. It can simply be said that as a public institution that enjoys
sovereign power, courts ultimately rely on public confidence and support to
function.48 In this respect, it is similar to other public institutions—coordinate
organs of government or state agencies.
But there is a distinct instrumental sense in which such public confidence
is generally essential that is, to secure the autonomous institutional status
of the judiciary, which in turn is necessary for the judiciary to effectively
check and balance other organs of government.49 Judicial independence, as
shown in Chapter 6, is central to structurally insulating the judiciary from
governmental interference, as well as in securing such confidence. But as
several studies demonstrate,50 neither is judicial independence the sole basis
for public confidence nor (as Chapter 6 suggests) is it sufficient to secure such
institutional status. In order to achieve the latter, the judiciary needs to enjoy
wide public confidence and support based on its structure and performance.
The factors that ensure such support and confidence depend to a large extent
on the jurisdiction in question and cannot be enquired into here.51 However,

47 As an illustrative example, see Statement of Objects and Reasons accompanying

the Judicial Appointments Commission Bill, 2013 (India). Justifying the Bill,
the Minister of Law and Justice writes: ‘The proposed Bill would enable equal
participation of Judiciary and Executive, make the system of appointments more
accountable, and thereby increase the confidence of the public in the institutions.’
48 This is a widely accepted proposition. See Federalist Paper No. 78 in Federalist
Papers, 508.
49 In countries such as the United Kingdom which had an independent judiciary
without a distinct institutional status, such need for public confidence still exists
because of the continuing need to check and balance other organs of government,
thereby ensuring the rule of law.
50 Sara Benesh, ‘Understanding Public Confidence in American Courts,’ The Journal
of Politics 68, no. 3 (2006): 697; Gregory Caldeira and James Gibson, ‘The Etiology
of Public Support for the Supreme Court,’ American Journal of Political Science 36
(1992): 635; James L. Gibson, Gregory A. Caldeira, and Vanessa A. Baird, ‘On the
Legitimacy of National High Courts,’ The American Political Science Review 92,
no. 2 (1998): 343.
51 For an illustrative example, see Gregory A. Caldeira, ‘Neither the Purse nor the
Sword: Dynamics of Public Confidence in the Supreme Court,’ The American
Political Science Review 80, no. 4 (1986): 1209.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

258
 In Search of an Effective Judiciary 181

the fact of such confidence ensures that coordinate organs of government,

which crucially depend on public support for continuance in office, would
show a greater likelihood of respecting judicial decisions, thereby making the
judiciary an effective organ.52 It thus feeds into the mutual checks and balances
scheme that is constitutionally envisaged, thereby acting as a deterrent for the
government trampling over the judiciary and upsetting the separation of powers
scheme. This will become evident after the discussion of the role of mutual
checks and balances scheme in creating an effective judiciary below.

7A.3 The Web of Integrated Government

This book argued in Chapter 6 that judicial independence is necessary for
preventing transgressions of the law by government, thereby serving as a check
and balance upon untrammelled legislative and executive power. This checking
function is performed through the exercise of judicial review by courts. While
judicial independence is significant to ensure impartial adjudication in such
judicial review cases where the government is a litigating party before the
judiciary, ensuring that the government respects the results of such adjudication
is a crucially connected, albeit wider, enquiry.53 History is replete with instances
of independent judiciaries failing to check government—Frederick the Great’s
courts in Prussia provide a telling example. Frederick had taken a number of
steps to secure the independence of the courts from the monarchy, refusing on
several occasions to interfere in the impartial administration of justice as his
predecessors had, a system known as Kabinettsjustiz.54 Nonetheless, the idea
of Rechstaat or the king himself being subject to the decisions of the courts
was never given any credence. Thus, though the judiciary was independent,
its decisions did not bind the monarch himself. On the other hand, there are
several other instances when even decisions seemingly to the dissatisfaction
of the ruling government, handed down by an independent judiciary, have

52 This is a reasonable presumption of which space precludes further enquiry. For

more, see Eckhoff, ‘Impartiality, Separation of Powers,’ 31–32.
53 The need for government to respect judicial decisions as a distinct and equally
significant requirement apart from judicial independence has been succinctly
underlined by Justice Stephen Breyer of the United States Supreme Court. See
Stephen G. Breyer, ‘Judicial Independence in the United States,’ Saint Louis
University Law Journal 40 (1996): 989, 994.
54 Herman Weill, Frederick the Great and Samuel von Cocceji: A Study in the Reform
of the Prussian Judicial Administration 1740–1755 (Madison: The State Historical
Society of Wisconsin, 1961), 61.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

259
 182 Independence and Accountability of the Indian Higher Judiciary

been respected—President Eisenhower sending federal troops to Arkansas to

implement court-mandated plans of allowing nine African-American pupils to
be admitted to Central High School, despite his widely publicised opposition to
the judicial orders in the preceding litigation, provides a case in point.55 What
are the crucial factors distinguishing these two types of examples? And what,
apart from independent judicial review, is necessary for courts to effectively
check and balance other organs of government?
Of course, some differences are patently visible. Frederick was an all-powerful
king in a monarchy whereas Eisenhower was the president of a republic.
Crucially, however, the republic was governed by a Constitution that strictly
separated powers between various organs of government. The effectiveness of
the judiciary was thus not contingent on the benevolence of the monarch, but
rather a product of carefully crafted constitutional design.
Such an example of careful construction of constitution design can be
traced to the Federalist Papers. So perceptive were their insights into checks
and balances on organs of government and the role of the judiciary that this
section bases its arguments primarily on these writings. While the practical
manifestation of separation of powers might have limited generalisability
beyond the United States of America, its theoretical bases, the need to weave
a constitutional scheme of checks and balances and the mechanisms to ensure
judicial independence and accountability in such a scheme, are crucial to the
argument being made in this section, that is, that judicial independence and
accountability both lead to an effective judiciary.
Madison, writing in Federalist No. 47, stressed the need to keep organs of
government, including the judiciary, separate and distinct from each other. In
fact, he agreed with critics who had commented that his proposed scheme of
separation was insufficient by agreeing with the basis of their objection, that
no ‘political truth’ other than the separation of powers was ‘of greater intrinsic
value’.56 At the same time he defended his proposed scheme by arguing that
nothing in the concept of separation of powers required absolute separation
between the legislature, executive and judiciary. Instead, he believed that

[u]nless these departments be so far connected and blended with each

other as to give to each a constitutional control over the others, the degree

55 Anthony Lewis, ‘President Warns of Anarchy Peril,’ New York Times, 25 September
1957, available at http://www.nytimes.com/learning/general/onthisday/big/0925.
html (accessed 14 September 2013).
56 Federalist Paper No. 47 in Federalist Papers, 316.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

260
 In Search of an Effective Judiciary 183

of separation which the maxim requires, as essential to a free government,

can never in practice be duly maintained.57

The logical flow of this argument is not obvious—in order to maintain an

optimal degree of separation between organs of government, Madison believed
that the organs must be connected in particular ways. Part of the rationale
for such a counter-intuitive proposition lies in Madison’s belief, justified by
experience, of the ineffectiveness and impracticality of complete separation of
powers.58 But per se this rationale only suggests that there must be some blending
of powers. However, Madison makes a much stronger claim when he writes that
such blending is not merely necessary because complete separation is ineffective
and impractical but rather because it performs a positive function—allowing
organs to exercise mutual control, thereby maintaining an optimal degree of
separation essential for free government. To test this claim, two of its premises
need further scrutiny: How does blending lead to mutual control? And how
does such mutual control lead to an optimal degree of separation of powers?
In the separation of powers scheme envisaged by the authors of the Federalist
Papers, blending of powers of various organs is part of a larger enterprise of
maintaining a balance of political power.59 Maintaining such balance was a key
aim for Montesquieu, from whom Madison was greatly inspired. Montesquieu,
on several occasions, writes of the need to maintain a nuanced degree of
separation in order to maintain equilibrium of political power.60 In fact, his
high praise for the British system of balanced government as the epitome of a
state that adheres to separation of powers demonstrates the centrality of the
need for balance in his separation of powers scheme.61
Similarly for Madison, maintaining a balance of political power is crucial.
But constant clashes between the king and parliament in Britain, a by-product
of the intensely blended Westminster model of government, made him, and
other founding fathers of the Constitution, rightfully wary of interconnections
between personnel in agencies of government.62 Thus, such balance was
sought to be achieved without any blending in terms of institutional personnel.

57 Federalist Paper No. 48 in Federalist Papers, 324.

58 Vile, Constitutionalism and the Separation of Powers, 14.
59 For an excellent analysis of this scheme, see Burin, ‘Theory of the Rule of Law.’
60 Cohler, Miller and Stone, Montesquieu’s The Spirit of Law, 164–66.
61 Ibid., 156–66.
62 William Seal Carpenter, ‘The Separation of Powers in the Eighteenth Century,’
American Political Science Review 22, no. 1 (1928): 32, 35–44.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

261
 184 Independence and Accountability of the Indian Higher Judiciary

Consequently, two key methods were devised—weakening or strengthening

the power of each organ depending on their intrinsic nature and potential to
adversely affect the balance of power (which I call ‘modulated starting points’),
and blending of powers between the three organs of government (which I call
‘mutual checks and balances’). Since the biggest threat to the balance of power
was perceived to emanate from the legislature, bicameralism was seen as the
foremost method by which the legislature could be weakened.63 Similarly, by
sourcing the legitimacy of the executive directly from the people rather than
the legislature, as was the case in England, and strengthening the judiciary by
giving federal judges life tenure subject only to a cumbersome impeachment
procedure, the executive and the judiciary were sought to be propped up. These
meant that the starting points for each organ of government, in terms of the
constitutional power they wielded and the protection they were provided, were
sought to be modulated to prevent a skewing of the balance of power.
However, such ‘parchment divisions’ between organs of government were
deemed insufficient.64 It is because of this that I believe blending of powers, in terms
of creating a scheme of mutual checks and balances between organs of government,
was proposed. This operated in two ways—first, more than one organ would
have to coordinate in order to constitutionally perform a particular function. For
example, the power of appointing Supreme Court justices and executive officials
whose specific form of appointment was not provided for in the Constitution
would be by the president ‘by and with the advice and consent of the Senate’.65
Second, an organ of government would provide an external check on the
exercise of a function by another. For example, the power of judicial review was
vested in the judiciary to ensure that the other organs were acting in consonance
with the Constitution. Though such a power was not an essential corollary to

63 The reasons for incorporating a bicameral legislature can be traced back to the
colonies prior to the formation of the United States of America, specifically
Massachusetts. See Benjamin F. Wright, ‘The Origins of the Separation of Powers
in America,’ Economica 40 (1933): 169, 173–76.
64 The reasons for such a conclusion were based both on principle and experience in
the colonies. For details, see Federalist Paper No. 48 in Federalist Papers, 326–30.
65 Art. II section 2 of the US Constitution in relevant part reads:
[H]e [The President] shall nominate, and by and with the advice and
consent of the Senate, shall appoint ambassadors, other public ministers
and consuls, judges of the Supreme Court, and all other officers of the
United States, whose appointments are not herein otherwise provided for,
and which shall be established by law.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

262
 In Search of an Effective Judiciary 185

the exercise of legislative and executive power, it was posited as an inherent

check on its arbitrary and unconstitutional exercise.
However, if Madison’s words are scrutinised closely, he seems to understand
constitutional control, in terms of having ‘control over’ an organ, that is, being
able to make an organ do one’s bidding.66 This interpretation, commended by
the text, is anomalous when considered in the context of the overall theme of
maintaining the functional competence of each organ, espoused by the Federalist
Papers. If organs of government were to control each other, their functional
competence would be put in grave doubt since organs would not be autonomous
in their actions and thus unable to exercise their functions as they might
otherwise have done. It could, however, be plausibly claimed that if two organs
were to jointly control the third, that might cancel out arbitrary extraneous
influences of each and promote functional competence of the third organ, albeit
in a circuitous manner. However, this is an option that the Federalist No. 49
expressly repudiates. A proposal for a mandatory constitutional convention for
amendment when two-thirds of two organs of government were in its favour
was rejected on the ground that multiple checks, including through recourse
to the people, on the legislature, even though it was the key threat sought to
be curbed, would weaken respect for the government.67 This rejection bears
testimony to the fact that control of an organ by the two remaining organs was
not an option contemplated by the authors of the Federalist Papers.
The insertion of the article ‘a’ before ‘constitutional control’, however, might
point to an alternative meaning. ‘A constitutional control’ suggests a question
of degree, that is, each organ can control other organs to a certain extent. The
meaning of ‘control’ adverted to earlier, that is, to be in a position to make an
organ do one’s bidding, is prima facie incongruous when seen as a question of
degree. This points to an alternative meaning of ‘control’ that is harmonious with
such an interpretation, that is, each organ limits the functioning of another in a
delineated manner. ‘Control’ as ‘limit’ is an established meaning in the English
language.68 At the same time, the Madisonian blending of powers scheme,
involving mutual checks and balances, does precisely that—the executive power
of appointment is checked by the need for advice and consent of the Senate;
the legislative power of law-making is subject to independent judicial review of
constitutionality. Control as enforcing limits leading to balanced government

66 Federalist Paper No. 48 in Federalist Papers, 324.

67 Federalist Paper No. 49 in Federalist Papers.
68 OED, available at w w w.oxfordreference.com/view/10.1093/acref/978019
9571123.001.0001/m_en_gb0176220 (accessed 22 September 2013).

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

263
 186 Independence and Accountability of the Indian Higher Judiciary

thus best captures Madison’s understanding of the purpose of blending of powers

in the American constitutional scheme.
At the same time, this interpretation of ‘control’ is instrumental in answering
the second question posed earlier, that is, how such control leads to separation
of powers. If organs exercise mutual constraints on each other, what makes them
mutually coordinate and stay within their demarcated spheres, thereby maintaining
separation of powers rather than compete in a quest for one-upmanship? The
theoretical premise on the basis of which the Federalists’ proposals for ensuring
separation of powers through an appropriately designed scheme of mutual checks
and balances rested is succinctly stated in Federalist No. 51:

But the great security against a gradual concentration of the several powers
in the same department consists in giving to those who administer each
department the necessary constitutional means and personal motives to
resist encroachments of the others.69

This statement is made in the wider context of preventing legislative

overreach. As is apparent, vesting each department with the ‘necessary
constitutional means’ to resist encroachment, applicable mainly to the executive
and the judiciary, harks back to the issue of modulated starting points. Making
the judiciary independent and the executive directly accountable to the people
provides them the means to remain immune from legislative control to a great
degree. But this is not sufficient. In addition, ‘personal motives’ are also essential.
If personal motives, like constitutional means, are seen as a defensive tactic to
resist encroachments, the inference is anomalous. Surely no self-respecting
authority requires personal motives to keep itself free from interference—it is
commonsensical that it would do so anyway. There is instead a more meaningful
understanding of personal motives that, I believe, is possible. In the very next
sentence, Madison writes:

The provision for defense in this, as in all other cases, be made

commensurate to the danger of attack. Ambition must be made to
counteract ambition.70

Personal motives, it seems from this quote, need not be defensive tactics—
after all, incentives for attack are key to shaping such tactics in the first place.

69 Federalist Paper No. 51 in Federalist Papers, 340.

70 Ibid. For an analysis of this phrase in specific and the separation of powers scheme
in the Federalist Papers generally, see Mark Tushnet, ‘Principle, Politics and
Constitutional Law,’ Michigan Law Review 88, no. 1 (1989): 49, 66.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

264
 In Search of an Effective Judiciary 187

If, on the contrary, personal motives are seen as motives that disincentivise an
organ from attacking another, its use is rather more appropriate in this context.
They supply each organ with the modulated ambition to respect the ambition
of its coordinate organ and act accordingly. They thus resist encroachment,
not simply by motivating organs to protect their own turf. Instead, it is done
far more subtly by integrating organs into a wider web, where the desire to
encroach and consequently the resistance to be encroached upon are intrinsically
connected to each other. Ambition of one organ thus counteracts, rather than
overpowers, ambition of others—by being fused within what I call the ‘web of
integrated government’.
Illustrative of the conceptualisation of the web of integrated government is
the structuring and functioning of the federal judiciary in the Constitution of
the United States of America. The constitutional means to protect itself from
attack are ensured by Art. III section 1 which mandates appointment of federal
judges during good behaviour and ensures that their salary is not varied to
their disadvantage while in office.71 These are significant protections to ensure
that an independent spirit pervades the judiciary. They are also crucial in
ensuring that the judiciary is perceived to be an impartial arbiter in disputes
where the government is a litigating party. However, these protections do not,
in and of themselves, ensure that the judiciary is effective in enforcing a check
and balance on other organs of government. In structuring the institution,
the power of appointment is a two-stage process involving both coordinate
organs of government. Whereas the Senate plays a key role in advising and
consenting to the nomination of the president, the power of initially nominating
a candidate vests with the president.72 This creates a constitutional mandate for
the legislature and executive to cooperate. The rationale for such a scheme is to
seemingly provide ‘some qualified connection between the weaker department
[the Presidency] and the weaker branch of the stronger department [the
Senate]’.73 Crucially, this offsets the power of the House of Representatives,
deemed, by extrapolation from the general principle that large membership
and consequently diminished responsibility is the key reason for legislative

71 US Constitution, Art. III section 1.

72 US Constitution, Art. II section 2. For an analysis of the practical working of
the checks and balances contained in this provision, see Rachel Brand, ‘Judicial
Appointments: Checks and Balances in Practice,’ Harvard Journal of Law and Public
Policy 33, no. 1 (2010): 47.
73 Federalist Paper No. 51 in Federalist Papers, 342.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

265
 188 Independence and Accountability of the Indian Higher Judiciary

encroachment,74 to be the strongest threat to separation of powers. At the same

time, it forces the Senate, despite being a part of Congress, to act in concert with
the presidency, organs whose interests in several other instances are orthogonal
to each other.75 Thus, the web of integrated government strengthens the judiciary
on the one hand by making it independent, while making it vulnerable to its
coordinate organs acting collectively on the other. It then makes provision to
protect against the practical manifestation of such vulnerability by requiring
organs, set up as antithetical to each other, to coordinate. This in turn affects the
dynamic between these two organs, which again in turn has numerous, diverse
effects on other facets of the web. The web is thus all-encompassing—a tug in
one strand sets off a multitude of pulls in others.76
This understanding of the web of integrated government also explains
why it is necessary for an effective judiciary. Whereas judicial independence
provides the constitutional means insulating the judiciary from extraneous
pressures, mostly from other organs of government, the personal motives to
resist encroachment of the judiciary are provided by the mutual checks and
balances scheme envisaged in the web of integrated government. This fosters
an acknowledgement of the respective roles played by each organ in the
constitutional framework. Such acknowledgement, specifically for the judiciary,
translates into a respect for decisions rendered by it, in particular those which
are adverse to the government. When such acknowledgement of the judicial
role is supplemented by the knowledge of the high degree of public confidence
enjoyed by the judiciary, its effectiveness as an institution is further bolstered.
Checks and balances through independent judicial review, on other organs
of government, are thus made effective as a result of counter-checks and
balances on the judiciary. These checks and balances on, rather than by, the
judiciary primarily relate to methods of appointment and removal of judges.
Both, especially in recent times, are instrumental measures in enforcing judicial
accountability in India as demonstrated in Chapters 2 and 3. Thus, they are
discussed in Section 7B in the context of how judicial accountability is key to
securing the web of integrated government.

74 Federalist Paper No. 51 in Federalist Papers, 341–42; Today of course the dominant
view is that such a mantle has transferred to the executive. See Martin S. Flaherty,
‘The Most Dangerous Branch,’ The Yale Law Journal 105, no. 7 (1996): 1725.
75 For an analysis of the instances where the Senate is used to check the House, see
Epstein, Political Theory of the Federalist, 176–78.
76 This is analogous to the ‘spider’s web’ metaphor used by Lon Fuller to explain
his concept of polycentricity. See Fuller and Winston, ‘Forms and Limits of
Adjudication,’ 395.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

266
 In Search of an Effective Judiciary 189

Sub-sections 7A.1–3 together exemplify the constituent factors of an effective

judiciary. Since ‘an effective judiciary’ is used in this book as a term of art,
criticisms that there are other factors that can lead to an effective judiciary, as
generally understood, are beside the point. This does not, however, imply that I
claim other values for the judiciary as unimportant. It is obvious that judiciaries
need to be diverse, efficient, financially prudent, and so on. But such values have
little to do with the central purpose of this chapter—to construct a doctrinal
reconciliation for judicial independence and accountability. To this end, this
section has explained what integrity, public confidence and the web of integrated
government mean and how they lead to an effective judiciary. Doing so has
encapsulated the idea of basic anti-holism, underlining the need to look beyond
judicial independence when attempting to understand and analyse the structure
and functions of the judiciary. Section 7B argues how, like judicial independence,
judicial accountability is needed for an effective judiciary. Doing so not only
continues the pattern of anti-holistic argumentation but also provides a clear
normative reconciliation for judicial independence and accountability.

B Judicial Accountability and an Effective Judiciary

7B.1 Strengthening the Web of Integrated Government

[T]he judiciary is beyond comparison the weakest of the three departments

of power; that it can never attack with success either of the other two; and that
all possible care is requisite to enable it to defend itself against their attacks.77

The authors of the Federalist Papers had a nuanced conceptualisation of

the judiciary in their separation of powers scheme. On the one hand, as we
have seen in Chapter 6, the judiciary was, for the first time, accorded a distinct
constitutional status.78 On the other hand, as the quote above demonstrates,
they did not envisage judicial power as posing any threat to the checks and
balances scheme itself. Thus no real checks and balances on the judiciary were
considered necessary to constrain judicial power, in the way they were crucial
to constraining legislative and executive power.79
As a result, the discourse surrounding the judiciary, both in the Federalist
Papers and in subsequent academic literature, has primarily centred on

77 Federalist Paper No. 78 in Federalist Papers, 508.

78 See Chapter 6, Section 6B.5.
79 Federalist Paper No. 78 in Federalist Papers, 508.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

267
 190 Independence and Accountability of the Indian Higher Judiciary

judicial independence to enable the judiciary to defend itself from attacks, if

any. Rendering the judiciary independent through ‘good behaviour’ tenure
and non-diminishing salaries provided the fortification necessary to impede
legislative or executive control of the judicial power. Since union of either of
these powers with judicial power would be destructive of separation of powers,
independence of the judiciary was a sine qua non. However, it is instructive
to note that though independence entailed a degree of separation from the
coordinate organs of government, it did not mean insulation of the judiciary.
Since separation of powers was not absolute, and the judiciary had a key role
in enforcing checks and balances, it would have to be made a part of the web
of integrated government in a manner not affecting its independence.80 This
would ensure that institutional reasons would prevail to prevent attacks on
the judiciary by its two coordinate organs. Two methods of integration were
proposed—the power to appoint and impeach federal judges. Both the power
of appointment and impeachment are seen as key measures to hold judiciaries
accountable in several parts of the world today.81
According to the Constitution of the United States of America, federal judges,
like the president, vice-president and other civil officers, could be impeached
on account of treason, bribery or ‘other high Crimes and Misdemeanors’.82
All impeachments would have to take place in the House of Representatives83

80 According to M. J. C. Vile, absolute separation of powers and consequently a

complete insulation of the judiciary, which he terms ‘pure separation’, is only an
ideal type and has ‘rarely been held in this extreme form.’ Vile, Constitutionalism
and the Separation of Powers, 14.
81 For example, the recent impeachment motion against Justice Soumitra Sen of
the Calcutta High Court for alleged financial improprieties underlined the hard
accountability nature of the impeachment power. For more, see RS Secretariat
Motion; the importance of a carefully designed appointments process in order for the
judiciary to be accountable can be seen in judicial reforms in several jurisdictions.
See Malleson and Russell, Appointing Judges in an Age of Judicial Power.
82 Art. II section 4 of the US Constitution reads:
The President, Vice President and all civil officers of the United States,
shall be removed from office on impeachment for, and conviction of,
treason, bribery, or other high crimes and misdemeanors.
It is important to note that the provision applies to both federal executive
and judicial officers and not to judges alone.
83 Art. I section 2 clause 5 of the US Constitution reads: ‘The House of Representatives
shall choose their speaker and other officers; and shall have the sole power of
impeachment.’

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

268
 In Search of an Effective Judiciary 191

and tried in the Senate.84 The effect of such impeachment would be removal
from office and certain attendant disqualifications.85 For federal judges, it was
specifically provided that they would hold office during ‘good behaviour’.86 This
was widely interpreted as securing life tenure, subject only to impeachment on
the basis of the specific grounds and following the procedure outlined above.87
Hamilton specifically underlined the limited nature of the impeachment
power when he rejected a proposal for incorporating ‘inability’ as a ground for
impeachment for being vague and thereby vesting too much discretion in the
legislature. He commended the existing constitutional provision for being ‘the
only provision on the point which is consistent with the necessary independence
of the judicial character’.88
Prima facie, such a view is anomalous. Would impeachment not hang like
Damocles’ sword above judges’ heads ensuring favourable decisions especially
in cases involving judicial review of legislation? Hamilton offers two plausible
defences—the complex procedure and the limited grounds for impeachment.
Procedurally, a judge would have to be impeached by the House of Representatives.
Following a successful motion there, he would have to be tried in the Senate by a

84 Art. I section 3 clause 6 of the US Constitution reads: ‘The Senate shall have the
sole power to try all impeachments…’
85 Art. I section 3 clause 7 of the US Constitution reads:
Judgment in cases of impeachment shall not extend further than to
removal from office, and disqualification to hold and enjoy any office of
honor, trust or profit under the United States: but the party convicted
shall nevertheless be liable and subject to indictment, trial, judgment and
punishment, according to law.
86 Art. III section 1 of the US Constitution reads:
The judicial power of the United States, shall be vested in one Supreme
Court, and in such inferior courts as the Congress may from time to time
ordain and establish. The judges, both of the supreme and inferior courts,
shall hold their offices during good behavior, and shall, at stated times,
receive for their services, a compensation, which shall not be diminished
during their continuance in office.
For an explanation of the term, see Raoul Berger, ‘Impeachment of Judges and
“Good Behavior” Tenure,’ The Yale Law Journal 79, no. 8 (1970): 1475.
87 Berger, ‘Impeachment of Judges.’ Per contra, Prakash and Smith have argued
that ‘good behavior’ is a tenure-limiting term, that is a judge holds tenure till
misbehaviour is judicial proven. See Prakash and Smith, ‘(Mis)Understanding
Good Behavior Tenure.’
88 Federalist Paper No. 79 in Federalist Papers, 519.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

269
 192 Independence and Accountability of the Indian Higher Judiciary

two-thirds majority. Both the numerical requirement in the Senate and the necessity
of having an impeachment confirmed by both wings of Congress independently
are suitably onerous. Similarly with regard to grounds for impeachment, a careful
delineation of the grounds in the Constitution itself left little scope for expansive
interpretation. Although ‘high Crimes and Misdemeanors’ were not expressly
specified, they did have a specific, limited meaning at the time.89
Over time, the limited use of the impeachment power has affirmed Hamilton’s
belief in this regard. Such confidence might have been premature at the time and
grossly misplaced had Justice Chase’s impeachment motion on grounds of lack of
impartiality in decision-making been successful. But it failed and subsequently
impeachment became used as a ‘last resort’ measure to hold judges accountable
for unbecoming behaviour. This ensured that it did not act as a threat to judicial
independence.90 At the same time, it was clear that impeachment was not designed
as a measure in order to secure judicial independence. It was certainly conceptualised
in a manner that did not overly affect judicial independence, but independence
could hardly be said to be its raison d’etre. On the contrary, the positive justification
for vesting the power of impeachment in the House of Representatives and the
Senate lay, in my opinion, in the need to foster judicial accountability.
This is the overriding impression from Hamilton’s reasons for justifying the
vesting of the power of impeachment in the legislature. As representatives of
the people, the house would be ideally placed to enquire into breaches of public
trust, that is, conduct a ‘national inquest into the conduct of public men’.91
This is a key accountability function—making judges accountable for their
behaviour to the people. Its mode of enforcement is political—through the
political representatives of the people; its consequence is removal from office.
The preference of the Senate over the Supreme Court as the forum for trial for
all impeachments also evinces a similar accountability rationale.92 Impeachment,
following the practice in England, was seen as a ‘bridle’ in the hands of the

89 Michael J. Gerhardt, ‘The Lessons of Impeachment History,’ The George Washington

Law Review 67 (1999): 603, 609–10.
90 This is demonstrable from the few instances of the use of impeachment power by
Congress subsequent to the Chase impeachment for federal judges and the even
fewer number of times the Senate elected to convict such judges. See Jason J. Vicente,
‘Impeachment: A Constitutional Primer,’ Texas Review of Law and Politics 3 (1998):
117, 133–41.
91 Federalist Paper No. 65 in Federalist Papers, 429.
92 Ibid.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

270
 In Search of an Effective Judiciary 193

legislature over officers of the Union including its judges.93 Given the nature of
the trial—between a distinguished public officer accused of impropriety and
the representatives of the people, who accused him—the forum for conducting
such a trial, it was felt, ought to be public, presided over by a large number of
members and of sufficient stature and independence. The Senate, with its more
numerous composition, in comparison to the Supreme Court, high status as an
elected wing of the legislature and with the independence necessary to reach an
impartial verdict that would be widely respected, would thus commend itself.
When analysed, it is clear that there are two key reasons as to why the Senate
is vested with the power to try impeachment. First, if impeachment is a ‘bridle’
held by the legislature, the Senate, set up as the less faction-ridden and more
objective organ of the legislature, has an obvious role in putting its imprimatur on
the impeachment motion. This underlines the public accountability function of
impeachment while at the same time ensuring it is exercised in a fairly independent
manner. Second, while the Supreme Court would ordinarily be equally if not more
independent, neither would it have the fortitude nor would its decision have the
public respect that such a decision regarding impeachment ought to command.
Regarding the former, the view of the authors of the Federalist Papers is consistent
with its overall impression of the Supreme Court as ‘the weakest branch’. Neither
were its members seen to have any special qualities nor was it foreseen that they
would be repositories of public trust and respect. Needless to say, the history and
development of the Supreme Court has belied such bleak portents. As far as the
latter is concerned, the authors of the Federalist Papers viewed public respect
as concomitant with a large number of presiding officers at trial. Public faith in
the superior wisdom of a collectivity is a long established view.94 However, it is
not merely the numerical strength of the Senate that justifies its role but also the
nature of the proceeding. Given that impeachment does not resemble a judicial
proceeding, the Supreme Court would not be ideally suited to render a verdict that

93 Ibid. For the practice of impeachment in England, see Berger, Impeachment, 1–73.
94 This is reflected in the practice in several jurisdictions, where a court can overrule
itself when the matter is heard by a bench larger in size than the bench of the same
court which initially gave the decision. Nick Robinson et al., ‘Interpreting the
Constitution: Supreme Court Constitution Benches since Independence,’ Economic
and Political Weekly 46, no. 9 (2011): 27. Alternatively, en banc review by federal
circuit courts is designed to place ‘a maximum of judicial authority behind decisions
of exceptionally important questions.’ ‘En Banc Review in Federal Circuit Courts:
A Reassessment,’ Michigan Law Review 72, no. 8 (1974): 1637, 1648, 1649.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

271
 194 Independence and Accountability of the Indian Higher Judiciary

would command public confidence.95 On the contrary, the Senate, comprising a

large number of public representatives who, it was expected, would exercise such
power responsibly, would. Given that an impeachable offence is one deemed to
be committed against the public, a Senate impeachment trial would thus be an
authentic verdict delivered on behalf of the people.
Whether vesting such power in the Senate was wise or not is a determination
that must be made elsewhere. What is relevant for the purpose of this section is
the inference that with respect to judges, impeachment was a method to foster
judicial accountability. Such accountability was owed politically to the legislature
and enforced through an impeachment motion in the house followed by a public
trial in the Senate. Fostering such inter-branch accountability through the
impeachment provision was an important facet of stringing together the web of
integrated government, one that has become increasingly significant over time.
Its effect was to provide ‘personal motives’96 for the legislature, the key threat to
an independent judiciary, to respect judicial decisions rather than attack them.
Impeachment would be a constitutionally mandated channel by which legislative
dissatisfaction with the judiciary would be expressed. Given the limited grounds
and complex procedure for impeachment, such an accountability measure would
thus not operate at the cost of judicial independence.97 Judicial accountability
would strengthen the web of integrated government in two ways—by giving a
constitutional stake in the judiciary to the legislature, its perceived bête noire,
while doing so in a manner that did not derogate from judicial independence,
crucial to the sustainability of such a web.98
Likewise, the power to appoint federal judges was seen, as demonstrated earlier,
as a fundamental component of the web of integrated government. Reiterating
briefly, it was invested in the president who could act with the ‘advice and consent’

95 Federalist Paper No. 65 in Federalist Papers, 430.

96 Federalist Paper No. 51 in Federalist Papers, 340.
97 In practice, this meant that impeachment was rarely used. See Vicente,
‘Impeachment: A Constitutional Primer.’
98 It is not apparent that the theoretical understanding of judicial accountability indeed
resulted in respect for judicial decisions by the legislature immediately. On the
contrary, the use of a jurisdiction-stripping legislation following the Civil War and
several instances of non-compliance suggested otherwise. Barry Friedman, ‘History,
Politics and Judicial Independence,’ in Judicial Integrity, ed. András Sajò (Leiden;
Boston: Martinus Nijhoff Publishers, 2004), 99, 110–12. However, the acceptance
of judicial decisions over time for a number of reasons suggests these were teething
troubles in the setting up of an effectively designed web of integrated government.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

272
 In Search of an Effective Judiciary 195

of the Senate.99 It was designed to ensure that neither the legislature nor the
executive could single-handedly influence the composition of the judiciary. In this
counter-intuitive way, by which both the executive and the legislature were given
a constitutional role in appointment, the ‘truly distinct’100 nature of the judiciary,
independent of either of these organs, was sought to be protected. As a result, the
organs of government were integrated with the legislature and executive checking
and balancing each other, while appointing members of the judiciary.
The appointment power, however, was not seen at the time as a check and
balance on the actual exercise of judicial power. The judiciary was considered to
pose little threat to liberty of citizens given the highly circumscribed nature of
judicial power. Such a check was thus presumably considered superfluous. This
was why despite vesting the power of appointment in political organs of state,
such power was not seen, at the time, as wielding any judicial accountability
function. The potential for it to serve such a function, however, was apparent: if
the judiciary exceeded its constitutional remit, a clear signal of the displeasure of
its coordinate organs could be sent out in exercise of the power of appointment.
Though they could not make the judges directly accountable for the questionable
decisions rendered, as that would be inconsistent with the need for judicial
independence, an appropriate use of the appointment power nonetheless had
considerable potential to check judicial power.
This was explained theoretically in Chapter 5 as an example of an
institutional accountability measure. While appointments could not make
individual judges accountable (since they had already been appointed), they
could make the judicial institution accountable for its decisions, behaviour and
administration.101 To do so legitimately, they would have to take into account the
need for respecting the independence of the judiciary. Certain appointments,
designed to foster accountability, fail this test. The appointment of judges with
social philosophies that matched the government’s own by Indira Gandhi’s
government in India, not appointing others, provides such an example.102 But
in principle, the enforcement of institutional accountability through a careful
use of the appointment power need not per se affect judicial independence.
Increasing diversity through the exercise of appointment power makes the

99 US Constitution, Art. II section 2.

100 Federalist Paper No. 78 in Federalist Papers, 508.
101 See Chapter 5, Section 5B.1.
102 See text accompanying notes 38–42 in Chapter 2.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

273
 196 Independence and Accountability of the Indian Higher Judiciary

judiciary accountable for its composition, a key aspect of its administration;

appointing a judge with a record of efficiency likewise makes the existing
judiciary accountable for its performance. The power to appoint thus plays an
important soft accountability function—though not enforcing hard punitive
consequences for actions or decisions for which the judiciary ought to provide
account, it provides a less intrusive method of sending key performance-related
messages to the judiciary.103
This suggests that like several other provisions in the Constitution, the
provision for appointment of judges neither was designed nor operates to solely
serve one value. Securing judicial accountability through appointments is key,
but as is respecting judicial independence, promoting diversity and a range of
other desiderata necessary for having competent judges in a well-functioning
judicial institution. Much like impeachment, the appointment power must be
understood in the context of the ‘personal motives’ of each organ that are key to
this process of integration. Institutional accountability of the judiciary owed to
the appointing authority, usually the executive, provides personal motive to such
authority to desist from encroachment of the judicial function. At the same time,
it provides personal motives to the judiciary to not overstep its jurisdictional
remit and remain administratively efficient. Failure to do so would result in a
strong political signal being delivered to the judiciary through an appropriate
use of the appointment provision.104 As judicial power has grown in the overall
scheme of government, such rationale has developed considerable significance
in integrating organs rather than allowing them to function in disparate ways.
In this way, the web of integrated government is strengthened—by making
the judiciary institutionally accountable and thereby a stakeholder in the
maintenance of the overall constitutional scheme of checks and balances.
Over time, the relationship between judicial accountability measures
and the web of integrated government has become dynamic on account of
two key developments. First, the growing power of the judiciary in several
jurisdictions, briefly adverted to aforesaid, has increased demands for judicial
accountability.105 For a diverse range of reasons, the judiciary, especially the

103 For the distinction between soft and hard accountability, see Chapter 5, Section
5B.3.c.
104 President Franklin Delano Roosevelt’s ‘court-packing’ plan can be seen as an

extreme instance of using the power of appointment to signal the government’s

displeasure with an activist judiciary. William Leuchtenberg, Franklin D. Roosevelt
and the New Deal (New York: Harper and Row, 1963), 236.
105 Cappeletti conducting a review of judicial systems in several jurisdictions writes:

‘[I]t is generally recognized that one feature common to many modern societies

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

274
 In Search of an Effective Judiciary 197

apex court in several countries, has assumed a central role in governance.106 As

a result, several new forms of holding the judiciary accountable have developed.
Amongst institutional accountability measures, the setting up of the Judicial
Appointments Commission for England and Wales provides an example of a
growing demand for greater public accountability of the judiciary. Comprising
fifteen members, a majority of whom are non-judicial, the commission is vested
with the power to appoint judges at most levels in England and Wales and for
certain tribunals whose jurisdiction extends to Scotland and Northern Ireland.107
Both the establishment of such a commission and the transparent processes
of application and interview that it follows for appointment have significantly
bolstered institutional accountability of the judiciary.108 For augmenting
individual accountability of judges, several other jurisdictions have instituted
judicial performance evaluation programmes.109 Originally conceptualised as
feeders for well-informed voting of state judges in certain states in the United
States of America, today several American states have adopted a carefully
delineated judicial performance evaluation programme.110 Its acceptability
has also spread beyond the United States (albeit with significant variations)
as countries seek diverse measures to evaluate the legal ability, administrative

has been a tremendous growth of judicial power.’ Cappelletti, ‘Who Watches the
Watchmen?’ 5.
106 This is particularly conspicuous in courts in South Asia and Latin America. See

Nick Robinson, ‘Expanding Judiciaries: India and the Rise of the Good Governance
Court,’ Washington University Global Studies Law Review 8 (2009): 1; Cesar
Rodriguez-Garavito, ‘Beyond the Courtroom: The Impact of Judicial Activism on
Socioeconomic Rights in Latin America,’ Texas Law Review 89, no. 7 (2011): 1669.
107 Part 4 of the Constitutional Reform Act establishes the Commission and sets out its

powers, duties and other necessary provisions. Schedule 12 to the Act provides the
composition and processes to be followed by the Commission. It will be useful to
note that appointments to the Supreme Court for the United Kingdom are, however,
excluded from its remit, as it is by a special Selection Commission of which the
Chairperson of the Commission is a member. This is as per relevant provisions in
Part 3 of the Act read with Schedule 8.
108 This is reflected in a set of high-quality essays analysing the impact of the setting up

and working of the Judicial Appointments Commission. See Jeffrey Jowell et al., Judicial
Appointments: Balancing Independence, Accountability and Legitimacy (London:
Judicial Appointments Commission, 2010), available at http://jac.judiciary.gov.uk/
static/documents/JA_web.pdf (accessed 10 September 2013) (hereinafter ‘JAC UK’).
109 Kourlis and Singer, ‘Performance Evaluation Program.’
110 David C. Brody, ‘The Use of Judicial Performance Evaluation to Enhance Judicial

Accountability, Judicial Independence and Public Trust,’ Denver University Law

Review 86 (2008): 115.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

275
 198 Independence and Accountability of the Indian Higher Judiciary

performance and efficiency of judges.111 The underlying rationale is thus to

make judges accountable to the public for their performance, albeit in a manner
that does not affect their independence.112
At the same time, the web of integrated government itself has evolved
considerably. As Bruce Ackerman has argued after drawing from developments
in several jurisdictions, the key transformation has been the dilution of the
strict conception of a trinitarian model comprising the legislature, executive
and judiciary. The underlying principle of Ackerman’s point, that is, the web
of integrated government is more intricate than a strict threefold division
of power suggests, is reaffirmed by the developments in the enforcement of
judicial accountability. A pervasive aspect of such measures has been their
enforcement by an inter-branch or an independent commission. A key function
in appointment of judges,113 their disciplining,114 performance evaluations115
and even a role in their removal 116 has been entrusted to, or envisaged for, such
a commission. This has necessarily made the web of integrated government
and consequently inter-branch relations between the legislature, executive and
judiciary more complex. While the exact implications of such complexity will
be a key area for research going forward, for the purpose of this book, it is clear
that judicial accountability measures are central to the evolving web of integrated
government, whether conceptualised in its Madisonian form or its modern avatar.
Irrespective of the shape the web of integrated government takes—modern or

111 Richard Mohr and Francesco Contini, ‘Judicial Evaluation in Context: Principles,
Practices and Promise in Nine European Countries,’ European Journal of Legal
Studies 1, no. 2 (2007): 1.
112 For more, see Kourlis and Singer, ‘Performance Evaluation Program’; Brody, ‘Use

of Judicial Performance Evaluation.’

113 For an illustrative example, see JAC UK.
114 For an illustrative example, see the working of the Judicial Conduct Committee,

part of the Judicial Service Commission in South Africa. See International

Bar Association, ‘Beyond Polokwane: Safeguarding South Africa’s Judicial
Independence,’ July 2008, available at www.ibanet.org/Document/Default.
aspx?DocumentUid=4c7e8c0f-652d-44bd-a459-d9ac85d6872e (accessed 10
September 2013).
115 Kourlis and Singer, ‘Performance Evaluation Program.’
116 An independent statutory committee comprising judges and jurists under the

Judges’ Inquiry Act, 1968 (India), plays a key role in recommending impeachment
of sitting judges to Parliament. See V. K. Agnihotri, Impeachment of a Judge in the
Indian Parliament (Kampala: Communication to Association of Secretary Generals
of Parliament, 2012), available at www.asgp.info/Resources/Data/Documents/
WJPUTLJMWGFXUZDYEQLPKUDKVXTAPQ.doc (accessed 10 September 2013).

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

276
 In Search of an Effective Judiciary 199

Madisonian—measures enforcing judicial accountability are key facets of such a

web. In Chapter 6, we found measures securing judicial independence as equally
key in sustaining the mutual checks and balances scheme that are entailed by
such a web. In this lies a fundamental normative congruence between judicial
independence and accountability that is spelt out presently.

7B.2 Bolstering Public Confidence

Academic writing, extra-judicial comment, and qualitative and quantitative
analyses concerning the judiciary have widely conceived of judicial accountability
as central to public confidence in courts and democracy. This relationship is
often deemed axiomatic, requiring little explanation. Take former Chief Justice
of Canada Beverly Mclachlin’s statement:

The underlying principle of democracy that power should not go

uncontrolled is furthered by an accountable, independent judiciary.117

Charles Geyh, explaining the relationship a bit further, writes:

[J]udicial accountability promotes public confidence in judges and the

judiciary. Regardless of whether independent judges follow the law, if
the public’s perception is otherwise, reforms calculated to render judicial
decision-making subject to popular or political branch control are sure to
follow …118

If the logic underlying such statements is scrutinised, it would go something

like this: Judicial accountability means that the courts are answerable to the
people for their actions; such answerability is required for all state organs in
a democracy; as long as they are answerable, they enjoy public confidence; if
people lose public confidence in courts for any reason whatsoever, they can
enforce such accountability; this can either lead to removal from office or an
analogous remedy for the defect which caused such lack of confidence in the
first place. This is an elegant logical proposition, which is per se unproblematic.
The difficulties lie either in the foundational political principle—should the
implication of democracy as leading to public control apply to the judiciary as
well or be limited to the elected organs of government; or whether methods
of enforcement of such accountability, designed to lead to public confidence,
are adequately respectful of judicial independence and other values necessary

117 Beverly McLachlin, ‘Courts and Judges in the Framework of Accountability,’ Journal
of Parliamentary and Political Law 1 (2008): 293, 298.
118 Geyh, ‘Rescuing Judicial Accountability,’ 916.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

277
 200 Independence and Accountability of the Indian Higher Judiciary

for the judiciary. The former is beyond the remit of this book for reasons
explained in Chapter 5;119 the latter is normatively dealt with presently. Subject
to a satisfactory resolution of both issues, concerns with the enforcement of
accountability do not in principle affect the axiomatic relationship it has with
public confidence.
Subject to the issue above, it is unnecessary to belabour the significance of
judicial accountability to public confidence in the judiciary excessively. Such a view
is commonsensical—after all, managing expectations from the judiciary by holding
it to account is a device to ensure that it is functioning in a manner that promotes
stakeholder confidence. Though the methods of enforcement may be diverse,
the implication is clear—commonly understood facets of judicial accountability
provide the foundation for the public to enjoy confidence in the judiciary.

7B.3 Promoting Substantive Virtues

The analysis of judicial integrity in Section 7A suggested the conceptualisation
of integrity as a portmanteau virtue. While at its core it entailed acting on the
basis of coherent principle, this core understanding was supplemented by several
virtues that are widely considered essential for a judiciary to have. Both individual
integrity of judges and institutional integrity of the judiciary as a whole have a
two-way relationship with such virtues, which are both constitutive of integrity
and follow as a consequence from the presence of integrity. However, neither in
the said discussion nor in general discussions of judicial integrity was judicial
accountability seen as such a virtue.120 But at the same time the significance of
judicial accountability in shaping an effective judicial institution is widely accepted.
If it is not constitutive of integrity as other values are and does not follow as a
consequence, what is the nature of the relationship between judicial accountability
and integrity? Or on the contrary, are they not related in any significant way?
To assess this, it is necessary to revisit the concept of ‘responsible decision-
making’ viewed as the rationale for judicial accountability in Chapter 5. Judicial
accountability, I argued, was needed to ensure that judicial decisions were made
responsibly. This applied to both decisional and behavioural accountability
measures for individual judges and institutional accountability measures.

119 See Chapter 5, section 5B.3.

120 While this is true of most accounts, an exception is the conceptualisation of ‘external
accountability’ as constitutive of judicial integrity by Jonathan Soeharno. Soeharno,
Integrity of a Judge, 69–75. Such conceptualisation seems to wrongly conflate factors
constitutive of integrity with those demonstrative of it.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

278
 In Search of an Effective Judiciary 201

Responsibility itself was seen in terms of ‘responsibility-as-virtue’, that is,

whether in the course of decision-making, the virtues considered necessary for
the judiciary were upheld. Now we have an indicative idea of what these virtues
are—we want judiciaries to have integrity, to be independent and impartial, and
to possess all the second-order values these concepts entail. Once ‘responsibility’
is fleshed out in this manner, it follows as a necessary consequence that judicial
accountability is needed for such values to be seen to be upheld. We can thus
safely exclude the second possibility noted here that accountability is not related
to such values in a significant way.
To understand how judicial accountability positively upholds such values
is also entailed in such an account. The methods of enforcement of judicial
accountability, classified on the basis of addressee into legal, political, public
and internal and on the basis of consequence into hard and soft, provide
a comprehensive account of how judicial accountability is sought to be
incorporated into the functioning of the judiciary. These methods thus must,
in certain specific ways, lead to the upholding of one or the other of the
substantive virtues deemed necessary for the judiciary. This is achieved, as
the subsequent examples demonstrate, by rendering the substantive virtues
that the judiciary ought to possess more likely or serving as a condition
precedent to their realisation or demonstrating the possession of such virtues.
Some measures may do so effectively, others less so. However, in principle, all
methods for enforcement of judicial accountability are significant in furthering
the instrumental rationale of an effective judiciary. Thus, while it is neither
constitutive of integrity per se nor does it follow as a consequence of integrity,
mechanisms of judicial accountability nonetheless provide a crucial foundation
for substantive virtues of a judiciary to thrive.
To understand the specific inter-connections, let us take the argument
made by Soeharno who posits that ‘external accountability’ is necessary in
order to demonstrate integrity of the judicial institution to the public.121 Since
the purpose of integrity, in his explanation, is to create public trust, the mere
possession of virtuous character is necessary but not sufficient. It needs to be
supplemented by methods of accountability that demonstrate such virtuous
character. Demonstrating such integrity to the public is distinct from having
integrity in the first place.122 For example, the disclosure of financial assets
by all judges of the higher judiciary in India is a transparency measure that

121 Soehamo, Integrity of a Judge, 69.

122 Ibid.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

279
 202 Independence and Accountability of the Indian Higher Judiciary

facilitates direct accountability of individual judges for their behaviour.123 At

the same time, it promotes institutional accountability of the judiciary to the
public by allowing for public questioning of finances of judges should there be
suspicion of disproportionate assets or wilful misstatement by judges or other
cause for concern.124 The incorporation of such an accountability mechanism
is not constitutive of the integrity of judges—judges, individually, as well as
the judiciary institutionally may have integrity notwithstanding. But such a
measure demonstrates the possession of such integrity by providing the public
a direct method of holding the judge to account should there be a suspicion of
such integrity being lacking.
Similar examples can be used to demonstrate analogous relationships between
judicial accountability and other virtues deemed essential for the judiciary. The
underlying principle that emerges is that accountability measures are necessary
appendages to the substantive virtues that judiciaries ought to possess. As an
appendage, it either demonstrates the possession of such virtues, as seen earlier
in the case of integrity, or makes such possession more likely. In this manner,
it either points out the shortcomings of the judiciary, thereby deterring their
incidence in the future or reaffirms its virtues. So widely prevalent and useful
are these functions that despite being appendages to other substantive virtues,
judicial accountability per se becomes a necessary virtue for the effective
functioning of the judiciary. Without it, either the substantive virtues would be
less manifested (or not at all), there being little incentive for their possession,
or they would be futile, given that the public would have little knowledge of
their existence. The use and limits of this conceptual relation are revisited in
the opening pages of Chapter 8.

123 Though such disclosure is not mandated by law, judges of the Supreme Court by
an administrative resolution decided to declare their assets and liabilities on the
official website of the court. They could, however, not be questioned on the basis
of such declaration. Dhananjay Mahapatra, ‘Supreme Court Judges to Disclose
Assets,’ Times of India, 27 August 2009, available at http://articles.timesofindia.
indiatimes.com/2009-08-27/india/28160981_1_full-court-meeting-assets-and-
liabilities-judges (accessed 10 September 2013).
124 Such asset declarations have given rise to forms of direct public accountability.

Justice Gyan Sudha Mishra (Judge of the Supreme Court) describing her unmarried
daughters as liabilities led to a spirited public discussion on her ideological views.
The declaration is available at ‘Disclosure of Assets: Hon’ble Mrs. Justice Gyan Sudha
Misra,’ http://supremecourtofindia.nic.in/assets/gsmisra.pdf (accessed 10 September
2013); for a discussion, see Anita Nair, ‘Daughter a Liability for SC Woman Judge,’
One India, 29 December 2010, available at http://news.oneindia.in/2010/12/29/sc-
judge-gyan-sudha-mishra-daughters-liability.html (accessed 10 September 2013).

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

280
 In Search of an Effective Judiciary 203

C Conclusion
This chapter, building on the rationales for judicial independence and
accountability discussed in Chapters 5 and 6, has demonstrated that judicial
independence is needed for impartial adjudication as well as checking and
balancing other organs of government (together termed ‘an effective judiciary’).
For impartial adjudication, judicial integrity is a significant factor; for checking
and balancing other organs of government, the judiciary needs to enjoy public
confidence and be part of a web of integrated government. Judicial accountability
measures are a necessary component of the web of integrated government while
at the same time bolstering public confidence and demonstrating or rendering
the possession of substantive virtues such as integrity and impartiality more
likely. On this basis, it can thus be argued that judicial independence and
accountability are both constituent factors of ‘an effective judiciary’. This meta-
level non-holistic argument suggests that normatively judicial independence and
accountability are needed for an effective judiciary, an end which is served by
other constituent factors as well. The extent to which the former is present is
conditioned not only by the impact on the latter directly but also by the impact
such a measure has on the effectiveness of the judiciary as a whole.
This conceptual understanding of both judicial independence and
accountability leading to an effective judiciary has three significant merits. First,
it provides a distinct normative basis to assess the justifiability of independence
and accountability-promoting measures. Second, it is capacious enough
to accommodate other factors, closely connected with independence and
accountability, though distinct from them, which such measures may promote
or affect. For example, judicial elections do not just affect judicial independence
but plausibly affect public confidence in the judiciary, which provides additional
reason to argue against their use as a method of selecting judges. Third, the
normative idea that judicial independence and accountability are needed for
an effective judiciary can provide a doctrinal device to assess the validity of
measures taken to promote either judicial independence or accountability. Such
a doctrine can provide a positive basis for how real-life conflicts between judicial
independence and accountability will be resolved. The development of ‘an effective
judiciary’ as a doctrinal idea and its application to systems of appointment,
transfers, impeachment and post-retirement employment in the Indian higher
judiciary are taken up in the next part which concludes the book.

099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88

281
099 8 51 57/ : 180. 5 1 . 71 /. 1 .7819 7.88
282