CHAPTER - 1

INTRODUCTION

Problem Profile

The Indian judiciary is facing a new problem of accountability in higher

judiciary without sacrificing judicial independence. Judicial Accountability has been
emphasized in the name of judicial independence. It is a known fact that the higher
judiciary is not free from the cancer of corruption like executive and legislature other
organs of State. The high hopes of the general public at large that Judges must give an
account for their conduct being trustees and custodians of the Indian constitution have
been miserably failed in our country. Judicial Accountability has not been enforced in
factual spirits to check the cancer of corruption within judiciary in spite of the
existence of constitutional provisions to discipline the erring Judges and, therefore,
what should be done in such like situations predominantly when impeachment process
and other in house mechanism have not yielded good results

1.1 Introduction

“We have provided in the Constitution for a judiciary which will be independent. It is
difficult to suggest anything more to make the Supreme Court and the High Courts
independent of the influence of the executive. There is an attempt made in the
Constitution to make even the lower judiciary independent of any outside or
extraneous influence”1.

“There can be no difference of opinion in the House that our judiciary must both be
independent of the executive and must also be competent in itself. And the question is
how these two objects could be secured” 2.

1
Dr. Rajendra Prasad, President of the Constituent Assembly and later President of India,
Speech to the Constituent Assembly of India preceding the motion to adopt the Constitution
(Nov. 29, 1949), in 11 CONSTITUENT ASSEMBLY DEBATES, p. 498./*
2
Dr. B.R. Ambedkar, Chairman of the Drafting Committee of the Constituent Assembly and
later Law Minister of India Reply to the debate on the draft provisions of the Constitution on
the Supreme Court (May 24, 1949), in CONSTITUENT ASSEMBLY DEBATES, Vol. VIII,
p. 258./*

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“We have assumed that it is recognised on all hands that the independence and
integrity of the judiciary in a democratic system of government is of the highest
importance and interest not only to the judges but to the citizens at large who may
have to seek redress in the last resort in courts of law against any illegal acts or the
high-handed exercise of power by the executive... in making the following proposals
and suggestions, the paramount importance of securing the fearless functioning of an
independence and efficient judiciary has been steadily kept in view ”3.

“The Constitution of India which is the fundamental law of the land”4 has laid
down the provisions for the establishment of Supreme Court and High Courts as
watchdog institutions with the sole objective to not only deliver justice in the society
but to make it sure that the other two organs of State i.e. Legislature and Executive do
not cross their authority and that they discharge their functions strictly by the powers
conferred upon them by the various provisions of the Constitution. In this manner, the
judiciary had played a very significant role in the interpretations of the various
provisions of the Constitution as well as the other enactments passed by the
legislature from time to time. It had struck down the executive order, if it violated the
fundamental rights of the citizens or if they infringe any other law or constitution in
any manner. From the “Basic Structure Doctrine” 5
“to the “Natural Justice
Principle”,6 from “Golak Nath”7 to Keshvananda Bharti, our judiciary had trodden a
long way to act as a custodian of the constitution rather than acting as a mere
adjudicating institution. “It is clear from a catena of cases” 8 that our judiciary has
saved democracy due to its absolute independence within the framework of the
constitution. “With time, judicial activism and judicial review have also been brought
within the ambit of basic structure doctrine”. The judiciary became so powerful that it
also assumed the powers of making appointments to the Supreme Court and High
Courts themselves by creating collegiums systems in Supreme Court and High Courts

3
S.C. Advocates-on-Record Association v Union of India AIR 1994 SC 268 at pp. 44./*
4
Available at http://www.dlnluassam.ndl.iitkgp.ac.in/bitstream/handle/123456789/172/
Deboleena%20Dutta%20Diss%202018.pdf?sequence=1&isAllowed=y/* last visited on
15/05/2020.
5
Keshanandan Bharti v. State of Kerala, AIR 1973 SC 1461.
6
Propounded in Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
7
Golak Nath v. State of Punjab, AIR 1967 SC 1461.
8
Minerva Mills v. Union of India, (1980) 3 SCC 625; Keshvanandan Bharti v. State of Kerala,
AIR 1973 SC 1461; Maneka Gandhi v. Union of India, (1978) 1 SCC 248.

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through judicial verdicts given from time to time and thus it can be said that now it is
a self-perpetuating oligarchy. “There does not exist any effective mechanism for
making appointments of Judges to the higher judiciary”. “There is no transparency in
the appointment process and thus there is an urgent need to enact some effective
enactment to make it accountability without touching its independence in any
manner”. “The judiciary plays a vital role in protecting the constitution. It attempts to
mend the damages done “by the government and the executive and endeavour to give
citizen their right pledged by the Constitution and take into consideration the
Directive Principles of State Policy” 9. “Dr Justice A.S. Anand Justice N.D. Krishna
Rao in Memorial Lecture on Protection of Human Rights — Judicial Obligation or
Judicial Activism, pointed out that the law is the base of the democratic system, and
the execution of the law lies with the judiciary”10. This is the fundamental component
of the constitution, which cannot be changed even after the improvisation of new laws
by the parliament. As Edmund Burke 11 stated: “all persons in positions of power
ought to be strongly and lawfully impressed with an idea that they act in trust, and
must account for their conduct to one great master, to those in whom the political
sovereignty rests, the people”. 12 India has a parliamentary.

9
Available at: Available at https://www.mondaq.com/india/Government-Public-Sector/20649/* .
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10
Dr. Justice A.S. Anand, “Justice N.D. Krishna Rao Memorial Lecture, Protection of Human Rights
– Judicial Obligation or Judicial Activism”, (1997) 7 SCC (Jour) 11; S.N. Jain, “New Trends of
Judicial Control in Administrative Discretion”, 11 JILI 544 (1969). S.N. Jain, “Legality of
Administrative Discretion”, 8 JILI 349 (1966). Available at: Available at
https://www.mondaq.com/india/Government-Public- Sector/20649 . Fetched: 5/15/2021 5:46:00
AM
11
Edmund Burke was an Irish Politician, author, orator, political theorist, and philosopher. Available
at: Available at https://www.mondaq.com/india/Government-Public- Sector/20649 . Fetched:
5/15/2021 5:46:00 AM
12
Anupa V. Thapliyal, “Central Administrative Tribunals and Their Power to Issue Directions,
Orders or Writs Under Articles 226 and 227 of the Constitution”, (1992) 4 SCC (Jour) 18;
Balram K. Gupta, “Administrative Tribunals and Judicial Review: A Comment on Forty-
second Amendment”, in Rajeev Dhavan and Alice Jacob (Ed.), Indian Constitution : Trends
and Issues, 401 – 425 (N.M. Tripathi, Pvt. Ltd., Bombay, 1978). M.L. Upadhyay,
“Administrative Tribunals: No Alternative Mechanism for Judicial Review”, Central India
Law Quarterly, Vol. 2 433-444 (1989); K.I. Vibhute, “Administrative Tribunals and the High
Courts: A Plea for Judicial Review”, 29 JILI 524-546 (1987); J.S. Verma, “Ensuring
Accountability and the Rule of Law: the Role of the Judiciary”, A Speech delivered by him at
the Inaugural Conference of the Asian Center for Democratic Governance titled Making
Democracy Work: Accountability & Transparency, (January 7-8, 2001). Available at:
Available at https://www.mondaq.com/india/Government-Public-Sector/20649 Fetched: 5/15/2021
5:46:00 AM

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1.2 Judges Code of Conduct

“Justice S.H. Kapadia,”13 said: “When we talk of ethics, the Judges normally
comment upon ethics among politicians, students and professors and others. But I
would say that for a Judge too, ethics, not only constitutional morality but even ethical
morality, should be the base. . . ”14. “The famous legal personalities like Justice E.S.
Venkataramaiah,”15 Justice D.A. Desai16 and Justice Chinnappa Reddy, 17 stated that if
all the public are responsible for their activities, there won’t be any motivation for the
Judges to left behind. Justice Verma 18 perceived the legitimacy of this supplication
and commented, “These days we (Judges) are telling everyone what they should do
but who is to tell us?”19 We have the task of enforcing the rule of law, but does not
exempt and even exonerate from following it” 20 . For legitimate usage of legal
accountability, the Judges must follow a code of conduct known as the ethics for
Judges.

1. The legal verdict is truthful: “The Judges in their judicial decision must be
honest and sensible. The legal verdict is not honest unless the Judge’s lattice
of law and reality decide on it. Though, the impression of a Judge is not
completely right. However, a wrong verdict does not make him false. A

13
Sarosh Homi Kapadia was the 38th hief Justice of India. The Vodafone Judgement was the
most high-profile judiciary of Justice Kapadia’s tenure. Available at
https://shodhganga.inflibnet.ac.in/bitstream/10603/207059/14/14_chapter%208./* pdf Fetched:
5/14/2020 6:09:42 AM
14
Available at https://www.legalindia.com/%e2%80%9cjudicial-accountability%e2%80%9d/*
15
Engalaguppe Seetharamiah Venkataramiah, was appointed as a Judge in Karnataka High
Court and the 19th Chief Justice of India. Available at https://shodhganga.inflibnet.ac.in/
bitstream/10603/207059/14/14_chapter%208./* pdf Fetched: 5/14/2020 6:09:42 AM
16
Dhirajlal Ambelal Desai, enrolled as Advocate in Gujarat High Court in 1977, appointed as
the Honorable Judge of Supreme Court of India. Available at
https://shodhganga.inflibnet.ac.in/bitstream/10603/207059/14/14_chapter%208/*. pdf Fetched:
5/14/2020 6:09:42 AM
17
Ontethupalli Chinnappa Reddy, was a Judge in Supreme Court of India. Available at
https://shodhganga.inflibnet.ac.in/bitstream/10603/207059/14/14_chapter%208/*. pdf Fetched:
5/14/2020 6:09:42 AM
18
Jagdish Sharan Verma, who served as the 27 th Chief Justice of India. He was also the
Chairman of National Human Rights Commission, and amended the Criminal law after the
2012 Delhi Gang rape case. Available at
https://shodhganga.inflibnet.ac.in/bitstream/10603/207059/14/14_chapter%208./* pdf Fetched:
5/14/2020 6:09:42 AM
19
Available at https://www.iilsindia.com/study-material/282965_1585287833.pdf/*
20
Available at https://www.iilsindia.com/study-material/282965_1585287833.pdf/*

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 verdict is dishonest if it ends up being unequal, dishonest, and on non-
partisanship”.21

2. Judges Decide One’s Action: “The fundamental code of morals expresses

that one is not the Judge of his activity. The decision limits that a Judge is
not just a decision-maker of a case, but also a benefactor. A Judge cannot
compromise with a circumstance where he has a special interest. Judges
must maintain their level of separation and objectivity in legal matters.
Judges should be reasonable and non-partisan”.

3. Regulates Impartiality: Judges regulate impartially. “Fiat justitia, ruat

caelum” that is “let justice be done, though the heavens fall” 22 is the motto
of a Judge.

4. Equal Prospect: “Judges treat the litigants equally as per the standards of
law and equality. A Judge does not belong to any individual, segment, class,
community, division or group. There are no double standards in the Court of
law as one for the high class and another for the lower or middle class”23. A
Judge is not bothered by the identity of the parties ‘other than the merits of
the case. He treats the disputed parties equally, giving them equal rights
during the prosecution. Lord Hewart of Bury, 24 Lord Chief Justice of
England, said that it is “essential to the proper administration of justice that
every party should have an opportunity of being heard, so that he may put
forward his views and support them by argument and answer the views put
forward by his opponents” 25 . The Supreme Court in the case said, “No
man’s right should be affected without an opportunity to ventilate his
views”. Metaphorically, “the God of Justice sits on a golden throne, but at
21
After the Provident Fund scam broke out in UP, the Chief Justice of India has set a “12-point
model Code of Conduct” for subordinate officers and High Courts. The Bombay High Court with a
full house meeting of Judges adopted the disciplinary codes. Available at
https://shodhganga.inflibnet.ac.in/bitstream/10603/207059/14/14_chapter%208./* pdf Fetched:
5/14/2020 6:09:42 AM
22
Available at: https://www.slideshare.net/bantisagar71/hypothesis-judicial./*.
23
Available at https://www.iilsindia.com/study-material/282965_1585287833.pdf/*
24
Gordon Hewart, 1 st Viscount Hewart, was politician and Judge in UK. Available at
https://shodhganga.inflibnet.ac.in/bitstream/10603/207059/14/14_chapter%208/*. pdf Fetched:
5/14/2020 6:09:42 AM
25
Ibid.

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 his feet sit two lions-law and equity”. A Judge fails to discharge his duties
when he disregards their presence and involvement.

5. Maintains Distance from Families: “Judges keep separate themselves from

the parties under trial and the lawyers during the conduct of legal
proceedings” 26 . Nowadays in the legal profession “one thrives not by
intellectual or professional capabilities, but by utilizing their close linking
with the Judges”.27 The lawyers and Judges avoid meeting with contending
parties in private. High profile people maintain distance from those who are
close to them to avoid exploitation of their familiarity. (Legal services,
2010).

6. Judges avoid Excessive Social Activity: “Too much of social activity,

make them famous, where litigants fear injustice. To resist that feeling,
Judges avoids social activity. They are very selective in attending social
functions. Whereas Judges in England and the USA refuse such
involvement”. Even if they attend a private function, they request the guest
list. The judiciary in case of “Ram Pratap Sharma v. Daya Nand”,28 “issued
a notice that Judges should not accept any private invitation and hospitality
from business, commercial organization, political parties, clubs, religious
institutions, communal or parochial pursuit”29.

7. Media Advertisements Avoided: “Judges prefer to refrain from media

publicity on pending cases or which may be filed before them in future in
due course for adjudication. The Indian media often twist facts which is one
of their major defects”. All the news is paid news and they follow vicious

26
Available at https://www.iilsindia.com/study-material/282965_1585287833.pdf/*
27
Available at: http://www.legalservicesindia.com. Also available at Available at
https://shodhganga.inflibnet.ac.in/bitstream/10603/207059/14/14_chapter%208/*.pdf Fetched:
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28
1977 AIR 809, (1977) 1 SCR 242. Also Available at https://shodhganga.inflibnet.ac.in/
bitstream/10603/207059/14/14_chapter%208/*.pdf Fetched: 5/14/2020 6:09:42 AM
29
The Chief Justice of India has regulated that no official servant should accept gifts and offers
from HC Judge or chief Justice. No private trips, excursion, visits to religious places for
visiting HC or CJ, or they will not arrange for accommodation, transport, food, for visiting
such HC Judges. Availed at https://www.iilsindia.com/study-material/282965_1585287833.
pdf/*

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 practices. Media also portrays non-issues as a real issue. Lord Widgery,30
Lord Chief Justice of England since 1971 to 1980, said that “the best Judge
is the man who does not indulge in Court publicity and should work in such
a way that they don’t catch the eyes of the newsmen”31. Lord Hailsham32
said, “the best Judges are those who do not find their names in The Daily
Mail and still, who abhor it 33”.

1.3 Lack of Judicial Accountability in India

“The Courts act as an ombudsman, independent of the executive and the

parliament, to dispense justice, and safeguard the executive and the government. The
Judiciary is powerful to construe the laws and give away official activity which
disregarded the law or the rights of the citizens. The judiciary examines laws
composed by the Parliament for ensuring that they conform to the Constitution and
declare them void if they violate it”. “There are provisions, which authorize the
parliament to modify the Constitution. In 1973”34, the judiciary knocked down the
constitutional amendments made by the parliament for disregarding the constitution.
During that phase, the judiciary had struck down many laws and constitutional
amendments. The lower judiciary is accountable to high Courts, whereas Supreme
Court Judges do not hold the same. Apart from impeachment on the grounds of
misbehavior, there are other harmful functioning of the judiciary, which sometimes
affects the society at large”. “The judiciary is an independent body with its rights. It is
beyond accountability. The Constitution protects the Judges from the will of the
citizens, Parliament, and government. It promotes three discrete values: law, public

30
John Passmore Widgery, Baron Widgery, was an English Judge who served as Lord Chief Justice
of England and Wales. Available at https://www.legalindia.com/%E2%80%9Cjudicial-
accountability/*. Fetched: 5/15/2021 5:46:00 AM
31
Available at https://www.legalindia.com/“judicial-accountability”/*
32
Quintin McGarel Hogg, Baron Hailsham of St Marylebone, won the title “2nd Viscount
Hailsham” was a British politician. Available at
https://shodhganga.inflibnet.ac.in/bitstream/10603/207059/14/14_chapter%208/*. pdf
Fetched: 5/14/2020 6:09:42 AM
33
Available at https://www.iilsindia.com/study-material/282965_1585287833.pdf/*Judicial
Accountability in India, 2011. Available at https://shodhganga.inflibnet.ac.in/bitstream/
10603/207059/14/14_chapter%208/*. pdf Fetched: 5/14/2020 6:09:42 AM
34
Available.at. https://www.iilsindia.com/study-material/282965_1585287833.pdf/* also
available at https://shodhganga.inflibnet.ac.in/bitstream/10603/207059/14/14_chapter%208/*.
pdf Fetched: 5/14/2020 6:09:42 AM

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confidence in the law, and official responsibility”. The Judges of the Supreme Court
and High Court are appointed by the “Collegium System” 35 . “The law is a self-
propagating theocracy. There is no protocol followed in their appointment process and
there is no clarity in the framework. The records or certifications are not verified for
their ideological adherence to the constitutional standards of a secular, socialist,
democratic, republic”36, or feeling towards the citizen who is deprived, downgraded
and weak to fight for justice”. “The judiciary enjoys absolute and unrestrained power.
Therefore, there is no accountability of their performance and behavior irrespective of
corruption, disrespect for the constitution, or the rights of the people. Unfortunately,
the Constitution has no establishment or system to scrutinize their performance or
grievances against them”. The Constitution does allow removal of the High Court and
Supreme Court Judges on the ground of impeachment. The procedure requires one
hundred MPs signatures for its initiation. If a motion has grounds of sincere
misbehavior with the required number of signatures, submitted for acceptance by the
Speaker of the Parliament, an “inquiry Committee of 3 Judges” hold a trial for the
accused Judge. In case he is found guilty, the motion moves to the Parliament where it
needs 2/3 of the voters. A Judge cannot be removed on the grounds of impeachment
despite valid documented proof of the grave offence. “An impeachment off the
ground is difficult unless the issue is a major public scandal”. The only impeachment,
which has gone far was that of Justice V. Ramaswami 37 in the mid ‘90s. On
presentation of the motion, “Judges Inquiry Committee” found him guilty of various
allegations and the issue was escalated to Parliament for voting. “The governing
Congress Party guided all the MPs to stay away from casting their votes and thus it
failed to get the required majority from the House. However, he continued to be Judge
till the day he retired, but the then Chief Justice did not allot him with any serious
judicial work”. Another motion against Justice Soumitra Sen was signed and
presented to the Chairperson of the Council of States. Documented charges against a

35
Available at https://ncert.nic.in/ncerts/l/keps206.pdf/* also available at
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36
Available.at. https://www.iilsindia.com/study-material/282965_1585287833.pdf/* also
available at https://shodhganga.inflibnet.ac.in/bitstream/10603/207059/14/14_chapter%208/*.
pdf Fetched: 5/14/2020 6:09:42 AM
37
V. Ramaswami was the first Judge of Supreme Court against whom removal proceedings were
initiated.

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Judge with full proof, never gets any media coverage due to fear of “Contempt of
Court”. “The Contempt law permits Judges of the higher Court to accuse anyone with
criminal contempt and send him for imprisonment because the person has
“scandalized the Court or lowered the authority of the Court”38. “What scandalizes or
underestimates the power of a Court is the independent verdict of the Judges. In the
case of Arundhati Roy, 39 a bench of 2 Judges accused her of contempt and sent her to
imprisonment only because she condemned the Court of law in her document” 40 .
Previously, the judiciary did not allow a man to scandalize the Court to demonstrate
the reality of his charges. Recently the “Contempt of Courts Act”,41 has been changed
to permit truth as a protection, and not to avert Judges against whom claims produced
accusing the individual. The criminal contempt authority and its inconsiderate means
is an instance of the massive and unrestricted power of the judiciary. The Judicial
Accountability has long been demanding that the Judges’ authority to penalize for
scandalizing the Court has to be removed by the government. The Judge rejected this
demand claiming that removing this authority would encourage groundless
accusations of the Judges by discontented petitioners and it would destroy public
confidence on them.

“There are laws to protect the Judges against attack. Moreover, public trust on
the judiciary as an individual or establishment, produced or dissolved by the activities
of the Judges, is not an untrue claim made by the dissatisfied litigant”. With this
furious disapproval by the judiciary, the legislature did not remove this provision
from the “Contempt of Courts Act”. In 1991, Justice Veeraswami, 42 who was seized
with inappropriate assets unequal to his earning, imposed that Judges of the higher
“Court cannot be exposed for a criminal enquiry without the on-paper authorization of
the Chief Justice of India. This verdict prohibited the enquiry and trial of many Judges

38
Available at https://socialissuesindia.files.wordpress.com/2012/03/judicial_accountability_in _i/*
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39
Suzanna Arundhati Roy, writer of “The God of small Things” which won her “Man Booker
Prize” for Fiction in 1997.
40
Also available at https://socialissuesindia.files.wordpress.com/2012/03/judicial_accountability
_in/* _i ... Fetched: 5/14/2020 6:09:01 AM
41
The Contempt of Courts Act, 1971, available at: http://doj.gov.in/sites/default/files/
contempt.pdf/*.
42
The father-in-law of Justice Ramaswami and Chief Justice of the Tamil Nadu High Court.

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against whom documented proof of corruption, scam, misappropriation, etc”43 was
there. “This expanded the exemption of Judges who cannot escape with any
unfortunate behaviour or criminal conduct, from legal trial or action for removal.
With the authority of contempt, they barely fear public exposure. This produces a
disturbing picture of the absence of accountability of the Judges. The judiciary cannot
commit any disciplinary or criminal activity on the grounds of misconduct. If the
media expose them, they are at risk of contempt. This absence of accountability
combined with massive, unrestricted authorities of the judiciary made the Court a
very hazardous place and a genuine threat to the government. The current report of
the Times of India, on the corruption perception index, demonstrates that the judiciary
is the second-largest corrupted place after the police department”.

1.4 Judicial Accountability and Discipline

“The Judges are independent regardless of external impact, especially of

political and monetary elements. Thus, judicial independence binds them and the
Court from the frivolous act. Judicial independence establishes trust and maintains the
highest standards of integrity and responsibility. If judiciary and associates violate the
public trust, suitable measures are identified, investigated, and unethical behaviour
registered”

1. Systemic Accountability to whom and to what authority:

“Accountability is the capacity to consider an individual or
establishment in charge of its activities. The question arises as who is
accountable for enquiry of the Judges and for what? They are
accountable to the Court, and so the verdicts made conform with the
law. They are also accountable to the public like another government
department”.

2. In what way to Achieve Judicial Accountability: “A culture of

freedom, neutrality and accountability is a crucial factor for the overall
honesty of the Judges. This is evident where there is a lack of

43
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 accountability among different divisions of administration. “Codes of
conduct” “provide judicial accountability, since they serve as a guide
and a measure of legal conduct” 44 . Robust and autonomous judicial
organizations, provides a reliable direction for the judiciary, enabling
them to communicate with the state in an accountable and independent
way. However, they are responsible to the subjects of a nation,
common society, broadcasting, and NGOs, and assume an improved
role in demanding judicial accountability”.

3. Perceiving Corruption in Legal Systems: “Judges make decisions on

breaches of law made by the people, administrations, and
organizations. Judicial independence has restricted measure of
protection which shield from unimportant or annoying grievances.
Legal systems ensure that the corruption of Judges is distinguished,
inspected, and legitimately held. Anti-corruption phone hotlines are a
component of law which helps in recognition of corruption amongst
them. The brave public or honest people within the law often revolt
against corruption. This activity is supported by building a classified
and difficult official grievance process so that attorneys, Court clients,
prosecutors, police department, mass media and civil society
associations can inform “alleged or real” corruption in the judicial
system”.

4. Confirming Viable Legal Discipline: “There are various models for

legal conduct, However, all models work at two levels: first, a
disciplinary framework that advises, charges fine or suspend judiciary
for misbehaviours; and, second, the expulsion of them for genuine
misconduct, including corruption. A disciplinary system is
autonomous, reasonable, and difficult. The judiciary has the privilege
of reasonable hearing, legitimate statement, and a plea for any
disciplinary issue. The High Court penalizes lower Court Judges, and

44
Available at https://shodhganga.inflibnet.ac.in/jspui/bitstream/10603/241658/8/08_chapter3.
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 Supreme Court Collegium transfers high Court Judges. The procedures
are in balance and the legal independence protected, but they are
accountable to direct public trust”.

1.5 Right to Information

“Without a law to check the power and extent of “judicial activism” or setting
down sets of accepted rules which is need-based accountability of the Judges, the
Right to Information Act, is the best available tool for managing some features of the
accountability of Judges”. The Judges of the Supreme Court, on the planned
modifications in the RTI Act, have seen: “Transparency or openness is an accepted
principle of democracy and good governance”. Louis Brandeis 45 had said: “Sunlight is
the best disinfectant and electricity is the best police officer”. The “Seven Principles
of Public Life indicated in Lord Nolan Committee’s 46 report on standards in public
life include objectivity, accountability, and openness”. “Public power is derived from
we the people of India . . .”. Its activity is liable to inspection by the population who
are the wellspring of that power. The general population has a participatory part in a
republic system as they are” the keepers of the Constitution”. In such conditions, there
is no support for any such modification to the RTI Act proposed “tried to limit the
people absurdly and illegally right to know what their public servants are doing for
their benefit”. (Judicial Accountability in India, 2011). In the utilization of the Act,
Judges left out of its realm, which was quite absurd. The Parliament introduces
corrections recommended by apex judiciary strikes at the base of the defend contained
in the Act: “all public authorities, including the Courts, are subject to the jurisdiction
of an independent appellate body”. This Act is a step forward in “enforcing the
accountability of the Judiciary” specifically to the general population until an exact
and more comprehensive act is in order.

45
Louis Dembitz Brandeis, an American Lawyer and Associate Justice in Supreme Court of
United States.
46
The first report of “Seven Principles of Public Life” also known as “Nolan’s principles” had:
selflessness, integrity, objectivity, accountability, openness, honesty and leadership.

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1.6 Independence of Judiciary

“The judiciary has an independent and powerful status. The Judiciary as an

integrated structure -with the Supreme Court at the top of the hierarchy, followed by
High Courts in the middle and District Courts at the grass-root level. The Judiciary in
the country has the responsibility to protect the Constitution of India and the
fundamental rights of the citizens of India” 47 . Through the power of “Judicial
Review”, the judiciary can declare any law unconstitutional. Even any High Court
Judge has the power to check on the constitutional validity on the law of the country.
“The Constitution is the law of land in the country and the Judiciary exercises its
power and role in protecting the Constitution. It is, therefore, our Constitution that
lends the Indian judiciary an incomparable powerful status vis-à-vis the executive or
the legislature. How does the Constitution of India make Judiciary so powerful? It is
with the following privileges”:

 The President makes all the appointments of Judges.

 A very high level of qualification kept for the appointment of a Judge,

 Removal of Judges made complex through the method of

impeachment,

 Steep salaries, pension system and other rewards for Judges,

 Powers and special functional autonomy for the Judiciary

“The above-mentioned privileges make the Judiciary an independent and

powerful organ of State. Other than the above privileges discussed, the following are
the points that bolster the Judge’s powers in the country”:

(a) “Judiciary safeguards the rights of people and the violation of their
rights, the higher Court judiciary has the power to issue a writ in this
case”.

47
Available at https://legodesk.com/legopedia/types-of-courts-in-india/* last visited on
12/05/2020.

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 (b) “Separation of powers between the Judiciary and executive make
Judiciary independent and allowed to run as per the orders of the Apex
Court”.

(c) “The judiciary allows an accused to defend himself. Through the “open
trial” the judiciary help the financially challenged to fight his case with
the help from the Government”.

(d) “The system of Public Interest Litigation (PIL) System empowers the
judiciary to initiate and order an action to protect any significant public
or general interest which is under threat. Under this system, a lawyer, a
citizen or even a group can file a PIL to bring to Judge’s notice any
case demanding action of guarding a public/general interest”.

1.7 Objectives of the Study

The problem of corruption and misuse of power has become a universal

practice and every institution is infested by it. Therefore, the question of how to deal
with the present situation of “quis custodiet Ipsos custodes” means “who will guard
the guards themselves”. Same is the condition with the judiciary 48 system, as Judges
are no exception and they have charges of corruption and misuse of power against
them. Moreover, the Indian Judicial system is slow and laborious, and the civil and
criminal cases take years to proceed and reach the final decision. However, Higher
Judiciary acts like “Imperium in Imperio” i.e. functioning as a superior body to the
general body politic, which under the disguise of judicial process interferes with the
powers of the state which is not framed under the Constitution of India. Therefore,
this exercise of excessive power by the higher judiciary is now a matter of concern
against Judges and their accountability.

The main primary objectives for researching this burning topic are as under:

1. To study and analyse the existing scheme of judicial accountability of

the higher judiciary.
48
H.M. Seervai, Constitutional Law of India – A Critical Commentary, Vol. 3 (Universal Law
Publishing, 4th Edition, 2005). See also, Justice V.R. Krishna Iyer, The Majesty of the
Judiciary, (Universal Law publishing, 2007).

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 2. To study and analyse the impeachment process for the removal of
Judges of the higher judiciary.

3. To examine the interface between judicial accountability and judicial

independence.

4. To critically analyse the laws relating to corruption in higher judiciary.

5. To study some important past controversies regarding the removal of

errant Judges.

6. To suggest remedial measure for effective judicial accountability in

higher judiciary.

Lately, a list of legal outrages broke out, beginning with Chief Justice
Sabharwal’s49 case, and going ahead to the “Ghaziabad district Court Provident fund
scam, the 15-lakh cash-at-Judges-door scam of Chandigarh, and the Justice Soumitra
Sen case of Calcutta”. Some of these have emerged because of the absence of
transparency in the selection and appointment of Judges. Sometimes, Judges are
appointed with uncertain background, secretive, ad hoc, the illogical, and the non-
transparent method by the Collegium. Unfortunately, these “rotten eggs” are never
removed by the Collegium. A Judge’s committee found them guilty of criminal acts
and breach of trust, the Chief Justice of India recommends their “impeachment
selection, appointment and removal of Judges”. (Judicial Accountability in India,
2011)

1.8 Research Questions

The following research questions have been taken into consideration to

conduct the instant research and every effort has been made to find out the possible
answers to these important questions:

1. Does the existing scheme of removal of Judges of High Courts and

Supreme Court regarding serious misconduct is unsatisfactory?

49
Yogesh Kumar Sabharwal was the 36th Chief Justice of India.

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 2. Does the lack of accountability of Judges in higher judiciary lead to
corruption in judiciary?

3. Does judicial accountability is an integral part of judicial

independence.

4. Whether there is no existing system to evaluate the

performance/conduct of Judges in higher judiciary.

5. Whether there is a lack of effective institution to take cognizance of

complaints/grievances of people against Judges of the higher judiciary.

6. Whether there should be some disciplinary control over High Court &
Supreme Court Judges. If so, how and in what manner.

1.9 Hypothesis

The hypothesis is a tentative generalization whose validity is required to be

tested in any research and thus this study has been conducted to test the following
hypothesis regarding judicial accountability:

1. The existing statutory provisions of removal of Judges of High Courts

and Supreme Court regarding serious misconduct is unsatisfactory
which require major changes.

2. Lack of accountability of Judges in higher judiciary leads to corruption

in the judiciary.

3. Judicial accountability is an integral part of judicial independence.

4. There is no existing system to evaluate the performance/conduct of

Judges in higher judiciary.

5. There is a lack of effective institution to take cognizance of

complaints/grievances of people against Judges of the higher judiciary.

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1.10 Universe for the Research

The various attempts made by stakeholders by way of writings, holding

seminars and conferences on the subject shows the importance and universalities in
this area.

The present study is based on the materials to be collected from various books,
journals and secondary sources of data. The scope of the study is to examine various
constitutional provisions and suggest remedial measures

The present study is focusing on the various issues of higher judiciary to make
it more accountable. Lack of investigation against Judges, lack of accountability of
their powers has left the judicial system cry on the mercy of Judges. So, this study is
an attempt to find out the problems of higher judiciary and provide suitable solutions
to it so that the authenticity of the judicial system is maintained. Various studies at the
international level have been conducted and compared with the Indian legal system
and their loopholes followed by some suggestions.

1.11 Research Methodology

This is a qualitative study rather than an empirical study. So, the case study
methods of various cases have been considered in the study. The data is collected
from various secondary sources like books, journals, newspaper, e-journals, internet
sources etc. The latest reviews of government taken from a newspaper, international
conventions, extant literature forum debates etc.

1.12 Review of Literature

Aristotle in “Politics” contended that constitution has three main elements:

deliberative, magisterial and judicial. 50 The present review of literature contains the
study done by various researchers on judicial accountability, judicial independence,
separation of powers, judicial performance, judicial activism and judicial misconduct
in India and globally. This is an eye-opener for many scholars to compare the
judiciary of India and judiciary of federal countries. The studies aim to collect various

50
Mason Hammond, City-state and World State in Greek and Roman Political Theory Until
Augustus Biblo and Taanen, 22 (1951).

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objectives, results and conclusion on judicial accountability which could help us to
develop the current legal system and upgrade our laws as per international standards.

Mate, Manoj, (2015) studied “The Rise of Judicial Governance in the Supreme
Court of India” where his Article analysed how the Supreme Court of India, through
its activism and confidence, has developed as the most capable Court among fair
legislative issues. Throughout the decades, the Court extended its part in the domain
of rights and administration, affirming the ability to nullify established revisions
under the essential structure convention, control legal arrangements, and represent in
the ranges of natural strategy, observing, and researching government debasement,
and advancing discretionary straightforwardness and responsibility. The Court’s
workday toward more noteworthy, yet, decisiveness in India’s administration clarified
by another hypothetical approach “elite institutionalism”. This hypothesis sets that the
special institutional and scholarly environment of the Court moulded the institutional
points of view and strategy perspectives that pushed politicking and confidence in the
administration. Elite institutionalism grows the extent of “regime politics and
institutional theories” by arranging judicial basic leadership inside the bigger
intellectual setting of Indian judging. The identities of Judges on the Indian Supreme
Court are a subset of their general scholarly personality and perspectives, which they
share with expert and scholarly elites in India. The “elite-meta regimes” of view, the
aggregate values, and streams of expert and scholarly elite opinion on sets of
legitimate or political issues formed Judges’ perspectives. The more extensive moves
in the Court’s activism and confidence mirrored a move from the meta-regime of
social justice to one of liberal change.

Gagrani, Harsh (2009) studied, “Appointment or Disappointment: Historical

Backdrop and Present Problems in the Appointment of Judges of Indian Judiciary” in
which he stated that the method and technique of selection of Judges to the higher
judiciary have always been a topic of debate in India. The public has demonstrated
disappointment, both during the stage of executive and judiciary hold in appointments
While the previous stage saw the legal fulfilling individual impulses of the official,
opening and absence of responsibility portray the last stage. The author has explained
the reason behind the first technique for appointments, offering supremacy to the

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official, through the civil arguments, and how over passion secure freedom of legal
incited the Judges to decrypt the law strangely. The main driver behind this perplexity
has been the ever-existing power battle between the official and the legal. The tussle
should end through the foundation of National Judicial Commission, an autonomous
body for appointment of Judges which till date is a paper tiger. Only such a body
ensures that the appointments are unbiased, and not corrupted or selfish.

Purushothaman, Purush, (2013) studied “Higher Judicial Appointments in

India – The Dilemma and the Hope: Trusting the Wisdom of the Generations” he
analysed that the in the vocal conflict was observed between legal independence and
democratic accountability in the Constituent Assembly. The Assembly fearing
political interference do not protect the appointment process from legislative issues
which interferes with its freedom. The constitution does not have proper guidelines of
judicial appointment with defined roles of Judges and lawyers is an issue in the
development of constitutional provisions. The autonomy of Judges provoked the
Assembly to give legal consultation to remove official instability. The judicial
accountability convinced the constitution framers to incorporate the review process
for the official to found the system of check and balance. The individuals who “work
the constitution can make the ambiguous provisions workable” by creating sound
constitutional pacts for future experience so that judicial autonomy and self-governing
accountability are stable.

Purushothaman, Purush (2012) studied “The ‘Collegium Conundrum’: The

Role of the Executive in Higher Judicial Appointments in India” where he mentioned
that the political activities of constitutional amendment and the scholastic and
prominent critique of the current collegium system are joined in their absence of
acknowledgement and thorough examination concerning the natural role for officials
in the Judges’ appointment process. Academic debates are exceptionally uncommon
on the subject and the constitutional role for the official in appointment process
remained unknown.

In the first chapter, the conflict between legal autonomy and self-governing
accountability remained at the centre of the development of the constitutional

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provisions concerning legal appointments. Recognizing the constitutional plans
concerning the role of the official in the legal appointment procedure, against which
the working of the constitutional provisions until the establishment of the collegium
were analysed.

In the second chapter, the functions of the constitutional provisions till 1993
until the collegium for appointment founded in the Second Judge’s case. The
important case law and different law commission studied the reports to assess the
constitutional structure for legal appointment replicated in the functioning of the
provisions till 1993.

In the third chapter, the foundation of the collegium system in the Second
Judges case and it’s the functioning in the Third Judges case and consequent
discussions concerning legal appointments to comprehend the functioning follow the
constitutional plan for official policymaking in the appointment procedure.

Acharya, Bhairav, (2017) studied “The Evolution of Judicial Accountability in

India” in which he stated that “The Judicial Standards Bill of 2010” almost concluded
the accountability for judicial misbehaviour and indiscipline. The growing number of
reports of judicial misconduct includes an admission from a sitting Chief Justice in
2001 of many corrupt Judges. Previous endeavours to discipline Judges removed
because they interfere with judicial freedom. Lack of regulation in the Constituent
Assembly did not consider judicial accountability in details. The Assembly concerned
with the mechanics of removing Judges, and not measures to discipline them. The
Judges Act of 1968 was the first statute to regulate the impeachment process. It
invoked but failed to achieve its objectives. The judiciary has made an ad hoc internal
mechanism to deal with the hiatus called the “minor measures” approach. The
punishment behind “minor measures” approach is transfer. The only way to step
forward from this deadlock is to introduce scalable responses to judicial misconduct,
with strong warnings and punishments, a due process regime, which does not interfere
with judicial independence.

“Baruah, Rishi, Arora, Ronak (2012) studied “Judicial Accountability and

Judicial Independence: The Touchstone of Indian Democracy” in which the

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researcher analysed that once the key issues of the judiciary were subjects of
“independence, tenure, the appointment process, and of performance and integrity”.
These matters obtained the sea change in importance that took place. Indian judicial
experience is unique. Judicial accountability was in question from 1950 to 1973 in the
Supreme Court. There was a conflict between the Supreme Court and government on
decisions of property, agricultural and economic reform where the supreme Court was
sometimes unsympathetic and hostile to the legislation. However, after 1973 the
judiciary changed its direction. In the first, second and third Judges case, the judicial
independence and accountability criticized and the concept of disciplining the Judges
discussed. The concept of judicial accountability and Independence and Bangalore
principles and Latimer house guidelines analysed”. 51

Yellosa, Dr. Jetling (2017), studied “Judicial accountability in India: A myth

or reality in which he says that the judiciary is one of the three organs of the state”52.
Article 12 of the Constitution provides the meaning of the state but does not contain
the word judiciary. The Constituent Assembly left the word judiciary to give special
and independent status to the judiciary. The Oxford Dictionary of English Language
defines accountable as “responsible for own decisions or actions and expected to
explain to them when asked”. Accountability is the “sine qua non” of democracy”53.
Transparency enables accountability. Public establishment or representative is not
exempted from accountability. The Constitution ensures the special status to the
judiciary and it has accountability. “Judicial accountability is not the same as the
accountability of the executive or the legislature or any other public establishment” 54.
The people resort to the judiciary as the last provision to set their difficulties when
elected authorities fail to do that. Well, some of the judicial officers’ sail in same
directions as the elected authorities to neglect their official duties. The autonomy and

51
Available at: https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2011755
_code1551404.pdf?abstractid=2011755&mirid=1
52
Available at http://www.dlnluassam.ndl.iitkgp.ac.in/bitstream/handle/123456789/172/
Deboleena%20Dutta%20Diss%202018.pdf?sequence=1&isAllowed=y/*
53
Available at https://www.legalindia.com/%E2%80%9Cjudicial-accountability /* Fetched:
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54
Available at: https://www.icj.org/wp-content/uploads/1999/01/CIJL-Yearbook-judiciary-in-a-
globalizedworld VII-1999-eng.pdf/*. also available at https://shodhganga.inflibnet.ac.in/
jspui/bitstream/10603/241658/8/08_chapter3/*. pdf Fetched: 6/5/2020 6:28:51 AM

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neutrality of the judiciary is a symbol of the democratic system. The Constitution
provides safeguards to maintain the autonomy of the judiciary. There are laws to
maintain judicial accountability but they are not sufficient. The governments in
framing more laws to strengthen judicial accountability.

Chaudhuri, Sayak, (2006) studied “Impeachment of Judges: A Theoretical

Stroke on Judicial Accountability” 55 in which he concluded that where impeachment
of Judges in India is a complicated matter. Many motions in the Parliament and by the
bar Council for removal of corrupt Judges is a cropper. The Supreme Court set up for
this mechanism and many other reasons against this framework. This study was
conducted on judicial accountability and impeachment of disobedient Judges” 56.

Thripathi, Mani Avijit, (2010) studied “Acknowledging Accountability? A

Comment on Secretary-General, Supreme Court of India v. Subhash C. Agarwal”57
where “Higher judiciary in India has recently received a lot of condemnation when
Supreme Court of India preferred to appeal against the judgment of Single Judge of
High Court of Delhi in Secretary-General, Supreme Court of India v. Subhash C.
Agarwal” 58. The impugned judgment upheld an earlier order of Chief Information
Commissioner (CIC), whereby CIC directed Central Public Information Officer
(CPIO) of the Supreme Court to furnish the information sought by the respondent in
the present case, under the Right to Information Act, 2005. “The information to the
disclosure of assets of Judges of the Supreme Court and the High Courts submitted to
the Chief Justice of India” 59 (CJI) under the resolution passed by the full Court of the
Supreme Court on May 7, 1997. Amidst severe criticism by media and public at large,
Judges of the Supreme Court of India and of several high Courts voluntarily ‘declared
their assets to save their honour and dignity and the faith that the public repose in

55
Available at https://www.ssrn.com/abstract=953237/*. Fetched: 5/15/2021 5:46:00 AM
56
Available at: https://www.ssrn.com/abstract=95323/*.
57
Available at https://nliulawreview.files.wordpress.com/2017/06/vol-ii-issue-ii.pdf/* Fetched:
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Available at: https://nliulawreview.files.wordpress.com/2017/06/vol-ii-issue-ii.pdf/* Fetched:
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59
Available at: https://www.forum-asia.org/uploads/wp/2017/12/SAJB_
FORUMASIA_LST_11217.pdf./* also available at
https://shodhganga.inflibnet.ac.in/jspui/bitstream/10603/253780/10/10_chapter-04.pdf/*. Fetched:
5/14/2020 6:09:50 AM

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them. This comment analyses various issues relating to the Declaration of Assets by
the Judges in India”.

Jayasurya, Gautam (2010) studied “Judicial Accountability and Judicial

Transparency: Challenges to Indian Judiciary” where India is under serious stress.
Confidence of the general population in the quality, honesty and efficacy on
government has completely worn. They swing to the legal as the last support of
expectation. But the things are more distressing and sadly one is unable to make
everything well with the law. The autonomy and neutrality of the law are one of the
trademarks of the democratic government. Only a neutral and autonomous law can
secure the constitutional rights of the people and can give “equal justice” without
dread and support. The constitution of India gives many benefits to keep up the
freedom of law. The Preamble to the Constitution is the replication of the ambitions
and soul of the average person, and a layman will take note of that among the
different objectives the Constitution-producers proposed to secure for the residents,
“JUSTICE- Social, Economic & Political” specified before all. Judge Jerome Frank 60
wrote, “In a democracy, it can never be unwise to acquaint the public with the truth
about the workings of any branch of government. It is undemocratic to treat the public
as children who are unable to accept the inescapable shortcomings of the
manufactured institution. The best way to bring about those eliminations of the
judicial system is to have all citizens informed as to how that system now functions. It
is a mistake, therefore, to try to establish and maintain, through ignorance, public
esteem for our Courts”. Judicial independence confirms that effective individuals
must fit in with the law. The requirement of legal autonomy is not for the Judges,
however for the general population. Judges have a different social role for the
protection of the right. But, freedom of law is unconstrued to protect from the stress
of justice for offences or to shield a judiciary from enquiry and criticism for a
legitimate offence. Freedom underlines official independence, not rights to
comparable self-governance by performing artists inside the institution. However, the
supporters of autonomy perceive the Judges are not accountable for pursuing the
govern of law. This poses a conflict between “judicial independence and judicial

60
Jerome New Frank was an American legal philosopher.

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accountability” which are inseparable and consistent with each other. India has a
solely unified, hierarchical legal structure which indebted its source to the British rule.

Sharma, Sooraj, Srivastava, Kumar Divyanshu, (2011) studied “A Review of

the Impeachment of Judges in India and the United States: More Political than
Judicial?” where Judiciary is one of the three pillars of a democratic state. The Courts
protect the power of the Constitution by interpreting and applying its laws. India and
the United States have many things in common, especially in the political and judicial
situation. Indian constitution copied many provisions from the American Constitution
which provides an inflexible process on the impeachment of Judges to maintain a
strong balance between “judicial autonomy and judicial accountability”.

Bhattacharjee, Maushumi, & Galaw, Prakhar, (2017) debated on “Judicial

Independence and Judicial Accountability” in which the author discussed the fast
approaching requirement of the accountability in the Indian Judiciary. Lately, the
activities and verdicts of the appointments, transfers, judgements, and orders call for
accountability because of the extensive corruption. The judiciary system which is the
protector of the constitution has fallen into the catch of corruption and nepotism. As
the saying “power corrupts and absolute power corrupts absolutely” goes well with
the Indian judiciary. This is responsible due to lack of judicial accountability. Certain
powers like contempt of Court, the Judges could scare anyone as they have many
powers for which they are not accountable to anyone. Some provisions like Judge’s
enquiry which makes the aberrant Judges accountable, but the investigations are done
by the Judges’ advisory groups themselves and so biased results. The multifaceted
impeachment process does not remove Judges from his office. The problem of
accountability is exhaustive considering the previous, existing and upcoming
activities related to appointments, transfer, decisions and misappropriation of the
position for individual advantages and tries to examine different explanations of
accountability like the National Judicial Appointment Commission (NJAC).

Saha Arpita, (2008) studied “Judicial Activism in India: A Necessary Evil”

where Judicial activism over the past few years with different dubious conversations,
Judges of the Supreme Court as well as High Courts have activated off various hot

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debate. But the term “judicial activism” is still a mystery. From the origin of
legitimate history till date, different commentators have given different meanings of
legal activism, which are distinctive as well as opposing. This investigation
endeavoured to draw out the correct essence of “legal activism” and to discover its
consequences for the present evolving society.

Galanter, Marc, & Robinson, Nick (2013), studied “India’s Grand Advocates:
A Legal Elite Flourishing in the Era of Globalization” where a spectator of the
legitimate scene in modern India rapidly ends up with a layer of lawful megastars.
Advocates based at the Supreme Court and High Courts are in high demand and
extensively famous. These “Grand Advocates” are the most obvious and prestigious
legal experts in the present. Stories proliferate of their vital insight, their supernatural
eloquence (talking for hours without proper notes), their exclusive eccentricities and
extra-large earnings, and their commitments to the ‘rule of law’. This top-class bunch
of advocates are engaged with prestigious cases in the most dynamic and intense
higher Courts in the world. Their customers incorporate India’s new rich, major
multinational partnerships, and the nation’s political groups. Grand Advocates (GAs)
are thriving in the era of globalization, benefiting, and resisting captivation by, the
rising law firms. Litigation and the law in India have dominated in perpetuating
lawyers, and the way of life they live. Litigations are less about money as there are
less deep pockets, Judges hardly allow substantial financial payment. The backlog of
Courts drags cases for years and so it is important to secure “beneficial interim”
orders for ownership of property, control over an institution, or the legitimacy of
government direction. Therefore, to achieve this, Grand Advocates utilize the wide-
ranging human capital they created inside the Court and their nuanced information of
both formal and informal legal technique. These benefits are positional goods,
especially their reputational capital under certain Judges that are tough to share with
subordinates or associates. They are resources that can be utilized in extensive
cases,thus decreasing the strain to focus amongst this selective group of advocates,
who are still to a great extent generalists.

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 Sharma, Raghav, (2008) studied “Minerva Mills Ltd. & Ors. v. Union of India
& Ors: A Jurisprudential Perspective” 61 in which “The divergence of majority and
minority opinion within the Supreme Court of India in the case of Minerva Mills Ltd.
& Ors. v. Union of India & Ors,62 poses interesting jurisprudential issues relating to
the balance of interests, the decision-making process of Judges in areas where no pre-
ordained rules are present and the peculiar place of Part IV (Directive Principles of
State Policy), declared to be unenforceable by the Constitution of India, in the
Hohfeldian right-duty paradigm. The object of this short paper is the identification
and exposition of these jurisprudential issues posed by the Minerva Mills’ case”.

Chaudhury, Dash Abhishek, (2012) studied “Review Jurisdiction of Supreme

Court of India: Article 137” which states Article 137 of the Constitution provides that
“subject to provisions of any law and rules made under Article 145, the Supreme
Court has the power to review any judgment pronounced or order made by it. Under
Supreme Court Rules, 1966”63 such a petition is to be filed within thirty days from the
date of judgment or order and as far as practicable; it is to be circulated, without oral
arguments, to the same Bench of Judges who delivered the judgment or order sought
to be reviewed”.

Under Article 145(e), “the Supreme Court is authorized to make rules as to the
conditions subject to which the Court may review any judgement or order. The Order
XL framed to exercise this power”.

The word “Review” in legal parlance connotes “a judicial re-examination of

the case. Therefore, to rectify an error and prevent the gross injustice, a provision for
review under the Section 114 of the Code of Civil Procedure gives a substantive right
of review and Order XLVII there under provides the procedure”.

Review Petition with under Section 114 and Order 47 of the CPC states “Any
party aggrieved by an order or judgement may apply for reviewing the said order or

61
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62
1980 AIR 1789, 1981 SCR (1) 206.
63
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judgement to the same Court. It can be filed where no appeal is preferred or in case
there is no provision for appeal. Review Petition is a discretionary right of the Court.
The grounds for review are limited. The review is filed in the same Court”.

Tiwari, Neeraj, (2009), studied “Appointment of Judges in Higher Judiciary:

An Interpretational Riddle” where it states the original framework consists of a
“consultative process” between the Administrative and the Judges. After the
formation of the Constitution, this was a widespread practice. But in 1993, after the
Second Judges Case, the Supreme Court has discarded the current consultative
process and developed a new plan for the appointment of Judges in the higher
Judiciary, specifically “Collegium”. “A board of Chief Justice of India accompanied
by two seniors most Judges of the Supreme Court commends the appointment of a
Judge” 64 . However, the current incidents are uncovering the inadequacy and
inconsistency of the collegium. The Law Commission of India, in its 214th Report,
indicated profound worry on the working of the collegium framework and advised for
re-evaluation.

Ghosh, Pritam (2013) studied “Judicial Activism and Public Interest Litigation
in India” in which the judiciary is considered as an activist. It bears the evidence of
judicial decisions dealing with Public Interest Litigations. “After the conclusion of the
first-ever PIL regarding the “Ratlam Municipal Council in 1976”, PIL has become an
effective remedy for all those who are advocates of social justice and believe in
working for the general benefit of the masses including those deprived of their basic
needs falling into the category of the underprivileged”.

In 1982 the Supreme Court delivered the “S.P. Gupta v. Union of India”,65
judgment and said that any person coming to the Court should have appropriate locus
standi, i.e., a lawful ground to look for a legal solution from the Court of law. The
point of presenting the locus standi hypothesis directs the quantity of PILs recorded in
the Courts and alerted the normal individual that a judicial solution in not for about
everything without exception.

64
Available at: https://nliulawreview.files.wordpress.com/2017/06/vol-ii-issue-ii.pdf. .
65
AIR 1982 SC 149: 1981 Supp (1) SCC 87: 1982 2 SCR 365.

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 Robinson, Nick (2014) studied “India’s Judicial Architecture” where he wrote
on “the Indian Court which describes the architecture of the Indian judiciary. In other
words, the several types of Courts and Judges in the Indian judicial system and the
hierarchies and relations between them. It focuses on how the Indian judiciary
coordinates its behaviour through both a system of stare decisis (i.e. judicial
precedent) and internal administrative control.

The Indian judiciary is unusually top-heavy, with more cases, more Judges,
and more administrative power located in the upper judiciary, and especially the
Supreme Court, then in other systems. This top-heaviness has a range of implications,
including leading to a polyvocal jurisprudence and a unique set of inter-Judge
relations, while empowering the upper judiciary that weakens the Court system’s
overall ability to perform core parts of its institutional mandate”.

Bhatia, Gautam (2016) studied “The Primacy of Judges” were the easy
examined the perception of the “primacy of Judges” in judicial appointments, as
understood in “Supreme Court Advocates-on-Record Association v Union of India,”66
(the NJAC Judgment). The NJAC judgment struck down the 99 th Constitutional
Amendment, which looked to substitute the “Collegium” system of legal
appointments with a National Judicial Appointments Commission [NJAC], since it
dishonoured the elementary constitution of judicial freedom. It made three claims:
first, the 99th Constitutional Amendment did not decide by the Supreme Court
without first deciding if the Second Judges Case had legal power to be part of the
fundamental structure or just an “interpretive gloss” on Article 124 of the
Constitution; second, all five distinct ideas in the NJAC Judgment neglected to do as
such; and third, opposed to the dispute by Arghya Sengupta, three juries in the NJAC
judgment held that judicial primacy is part of the legal structure. Therefore, any future
endeavour to change the way of legal appointments should remain consistent with the
rule of legal primacy, even though its establishments in the NJAC judgment are
instable.

66
Writ Petitions Nos. 1303 of 1987, Decided on: October 6, 1993, AIR 1994 SC 268, also
available at: https://nliulawreview.files.wordpress.com/2017/06/vol-ii-issue- ii.pdf.

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 Huchhanavar, S. Shivaraj & Kavita S.B. (2015) studied “The Legal System in
India: Contemporary Problems” in which “Constitution of India reflects the quest and
aspiration of the humankind for justice when its preamble speaks of justice in its all
forms: social, economic and political. Those who have suffered politically, socially,
or economically, approach the Courts, with great hope, for redressal of their
grievances”. The judicial system must administer justice so that the confidence of
nationals remains unharmed. This refrains them from taking law into their own hands.
Therefore, justice must be delivered promptly and in an inexpensive manner to its
followers, without compromising on the quality of justice, fairness, equality, and
impartiality.

Indian judiciary has a “Single Stratified Judiciary headed by Supreme Courts

followed by High Courts and other Subordinate Courts. India has one of the largest
judicial systems in the world; there are 16,000 sanctioned Judges, 1,200,000
Advocates – with over 3.2 crores of pending cases”.

The judicial institution is embedded in the culture and the method of

functioning is far from satisfaction. The delay and the accumulation of cases in the
lower Courts, the High Courts, and the Supreme Court have taken a severe problem
and invited a lot of criticism on the legal system. There are many other problems in
the judiciary which needs attention too so that immediate remedy can be devised to
ease the load.

Verma, Pranav (2014), studied “Judicial Opinions as Literature - ADM

Jabalpur v. Shivakant Shukla” where he mentioned “The Supreme Court of India, in
Additional District Magistrate, Jabalpur v. Shivakant Shukla,67 by a majority of 4:1,
ruled that in a state of emergency, no person has a right to move the High Court under
Article 226 of the Constitution for a writ of habeas corpus and that the constitutional
guarantees under Article 21 remain suspended during such period. Justice Hans Raj
Khanna delivered the minority opinion which has gone down in history as an eloquent
expression of the sanctity of the fundamental right to life and liberty, and, judicial
independence. It seeks to analyse Justice Khanna’s dissent in the light of seeing the

67
1976 AIR 1207, (1976) SCR 172.

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judicial opinions as literature, to see how Judges write and why do they write in away.
The approach is a literary cum legal analysis”.

If India ever finds its way back to the freedom and democracy that were proud
hallmarks of its first eighteen years as an independent nation, someone will surely
erect a monument to Justice H.R. Khanna of the Supreme Court. It was Justice
Khanna who spoke out fearlessly and eloquently for freedom this week in dissenting
from the Court’s decision upholding the right of Prime Minister Indira Gandhi’s
Government to imprison political opponents at will and without Court hearings... The
submission of an independent judiciary to absolutist government is virtually the last
step in the destruction of a democratic society, and the Indian Supreme Court’s
decision appears close to utter surrender”68.

Flanagan, Brian, (2011) studied “Judicial Decision-Making and Transnational

Law: A Survey of Common Law Supreme Court Judges” where a survey was
conducted of “Judges from the British House of Lords, the Caribbean Court of
Justice, the High Court of Australia, the Constitutional Court of South Africa, and the
Supreme Courts of Ireland, India, Israel, Canada, New Zealand and the United States
on the use of foreign law in constitutional rights cases. They found that the conception
of apex Judges citing foreign law as a source of persuasive authority- associated with
Anne-Marie Slaughter, 69 Vicki Jackson, 70 and Chris McCrudden, 71 is of limited
application. Citational opportunism and the aspiration to membership of an emerging
international ‘guild’ appear to be equally important strands in judicial attitudes
towards foreign law. It was argued that their presence is at odds with Ronald
Dworkin’s theory of legal objectivity, and is revealed in a manner meeting his
methodological standard for attitudinal research”.

68
The New York Times, (April 30, 1976). Also available at
https://en.wikipedia.org/wiki/Supreme_Court_of_India Fetched: 5/15/2021 5:46:00 AM
69
Anne-Marie Slaughter is an International Lawyer, Foreign Policy Analyst, Political Analyst,
and Public Commentator.
70
Vicki Jackson is a Writer and Teacher on U.S. Constitutional Law, available at:
http://hls.harvard.edu/faculty/directory/10425/Jackson .
71
Chris McCrudden is a Professor of Law in Michigan Law School, “Human Rights and
Equality”, available at: https://www.law.umich.edu/Faculty Bio/Pages/Faculty
Bio.aspx?FacID=mccrud. .

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 Abeyratne, Rehan, (2017) studied “Upholding Judicial Supremacy in India:
The NJAC Judgment in Comparative Perspective” which states “On October 16,
2015, the Supreme Court of India issued a landmark judgment holding the National
Judicial Appointments Commission (NJAC) unconstitutional. The judgment flawed in
two ways: First, it held that the Indian Constitution requires sitting Judges to have the
final word on judicial appointments. Neither the constitutional text nor the
Constituent Assembly Debates provide any support for this conclusion. Second, the
judgment does not explain how this judicial primacy promotes or secures judicial
independence. A comparative analysis shows that no other major constitutional
democracy gives Judges the final word on judicial appointments. So why is India an
outlier? The peculiar political and historical circumstances required the Indian
judiciary to assume an outsized role. The NJAC Judgment is, therefore, best
understood in institutional terms: it represents the judiciary’s reluctance to cede its
supremacy to the political branches of government”.

Sharma, Girijesh Sharda (2009), studied “Constitutional Customs and the

Appointment of Chief Justice of India” where “Custom is recognised as a source of
law in international law and India. Act 13 of the Indian Constitution recognizes
custom as a law. But the only condition for it is the binding nature which did not
supersede any legislation. The question of customary law exists in the constitution of
any country answered in the study.

The issue of constitutional customs in the light of the appointment of Judges is

dealt with. The recommendation for the formation of the National Judicial
Commission. The Article examined certain question like; whether there exists any
constitutional custom; what are the conditions which are necessary for existence of a
custom in the constitution; which provisions of the constitution developed as a
custom; whether the President is bound by the custom of appointing Judges of
Supreme Court on advice of the Chief Justice. The present appointment procedure of
the Judges have referred to questions like has this system stood the test of time ‘; does
it sub-serve the purpose for which it was devised ‘Is it result-oriented “Does it meet
with the requirements expected of it in the Constitution itself’ Are there any
shortcomings of this system”. Till now the Indian Judiciary has not decided any case

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on this theory. The theory of constitutional customs so, that the Indian Judiciary while
interpreting the constitution can take note of this theory”.

Tigadi, Rohan (2012), studied “Judocracy v. Independence of the Judiciary”

where the Article is based on “the recent review petition filed in Advocates-On-
Record Association v. Union of India, which brought the present collegium system of
appointments of Judges into being” 72. This system of appointing the Supreme Court
and High Court Judges has come under severe criticism due to the opaqueness of the
system. The author is of the firm belief that this method of appointment was never
envisioned by our Constitutional ancestors and suggested a suitable alternative to
remedy the present situation”.

Lavrijssen, Saskia & Visser, De Maartje (2006) studied “Independent

Administrative Authorities and the Standard of Judicial Review” 73 where “Recent
developments in European competition and electronic communications law have led
to an increased focus on, and importance of, independent administrative authorities.
The competences available to these authorities are often wide-ranging, at times
encompassing elements of all three of Montesquieu’s powers. These competencies
typically embody a considerable degree of discretion to allow the balancing of the:
opposing, interests of various groups of stakeholders, such as consumers, competitors,
and manufacturers. The independence of administrative authorities counterbalanced
by a certain degree of accountability for their actions. To review how three Member
States - the Netherlands, the United Kingdom and France have shaped the judicial
accountability of the independent administrative authorities. Based on an analysis of
some important cases the Article assessed whether there are commonalities between
the ways the national Courts in these Member States review the exercise of
discretionary powers by independent administrative authorities. The Article
ascertained the influence of EC law and the European Convention on Human Rights,

72
Available at: https://www.nalsar.ac.in/sites/default/files/IJCL%20Volume-5.pdf . also available at
https://shodhganga.inflibnet.ac.in/jspui/bitstream/10603/253780/10/10_chapter-04.pdf Fetched:
5/14/2020 6:09:50 AM
73
Available at: https://www.utrechtlawreview.org/articles/10.18352/ulr.19/*.

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notably Articles 6 and 13 thereof, on the standard of review applied in the Member
States”74.

Sueur, Andrew, Le (2012) studied “Parliamentary Accountability and the

Judicial System” where “Tensions between political and legal accountability are a
backdrop to many debates about the character and future direction of the British
constitution. This essay explored a juncture of these two modes of accountability by
examining how the UK Parliament exercises accountability about the judicial system
of England and Wales. The first part defined ‘the judicial system’ and what is the
meaning of parliamentary accountability in this context. It then takes an institutional
and procedural approach for examining the opportunities Parliament has for engaging
in accountability activities concerning the judicial system, focusing on the evolving
role of select committees. An inductive approach is used to map current
accountability practices in Parliament in relation to particular aspects of the judicial
system by drawing on examples from the parliamentary record to develop an
explanation of what is and ought to be the reach of MPs’ and peers’ accountability
functions relating to Judges and Courts”75.

Craig, Paul, P., (2014) studied “Accountability and Judicial Review in the UK
and the EU: Central Precepts”76 in which “Judicial review is one method of securing
accountability in the modern state. It is not the only one, but then accountability is not
in this respect a zero-sum game. This is so even though commentators might
legitimately disagree on the ambit of judicial review, or on its relative importance as a
mechanism to secure accountability when compared to other methods. The very fact
that all developed legal systems have some regime of judicial review is indicative of
its perceived importance in securing the values of the liberal state, using that phrase in
broad terms for these purposes. This does not mean complacency in this regard. To
the contrary, discussion of accountability entails not merely an estimation of the
relative efficacy of different mechanisms to secure this end, but also evaluation of the

74
Available at: https://www.utrechtlawreview.org/articles/10.18352/ulr.19/*.
75
Available at: https://www.ssrn.com/abstract=2025786/*.
76
Available at https://www.ssrn.com/abstract=2379045/*. Fetched: 5/15/2021 5:46:00 AM

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credentials underlying any accountability mechanism itself, the latter being the
objective.

The judicial review as developed in the UK and the EU does not directly
address the impact of the latter on the former. There is literature dealing with the
effect of EU law on judicial review, more especially how EU general principles of
law have affected domestic judicial review. This chapter does not replicate this
discourse. The focus is on the cardinal features that define and shape judicial review
in a legal system to see how the UK and the EU compare in this regard. To this end,
the subsequent analysis considers the two systems in terms of conceptual foundations,
legitimacy, hierarchy of norms and rights. This exercise is not concerning the UK and
EU models of review. It sheds interesting light on domestic debates in the UK and on
the foundations of judicial review in the EU. The discussion addressed principally
concerning judicial review of executive action rather than primary legislation,
although there is a consideration of the latter, more especially because the divide
between the two has not in the past been either clear or central to the application of
judicial review in the EU. At the outset that the EU principles of judicial review bind
not only the EU institutions but also the Member States when they act in the scope of
EU law”77.

Schor, Miguel (2008) studied “Judicial Review and American Constitutional

Exceptionalism” in which “The conventional view is that the American model of
judicial review largely conquered the world’s democracies after the Second World
War. This study questioned that view by examining the following question: why do
social movements contest constitutional meaning by fighting over judicial
appointments in the United States and why would such a strategy make little sense in
democracies that constitutionalized rights in the late twentieth century?”78

“The short answer is that the United States has been both a model and an anti-
model in the spread of judicial review around the globe. When the hope of Marbury
(constitutionalized rights) travelled abroad in the second half of the twentieth century,

77
Available at: https://www.ssrn.com/abstract=2379045/* .
78
Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1081385&/* Fetched:
5/15/2021 5:46:00 AM

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joined with the fear of Lochner (Courts run amok). Therefore, polities abroad adopted
stronger mechanisms of judicial accountability that make it difficult for social
movements to wrangle over appointments as a means of resolving disputes over
constitutional meaning. The political Court model of judicial review, adopted in
Germany and the democracies it influenced, relies on ex-ante mechanisms of
accountability. When supermajority appointment provisions used to select members
of a national high Court, factions forced to negotiate over appointments. The
politicized rights model of judicial review, on the other hand, adopted in Canada and
the democracies it influenced, relies on post facto mechanisms of accountability.
When Courts have the first but not the final word in interpreting the constitution,
citizens choose to overrule Courts directly rather than fight over appointments. In
short, popular constitutionalism, which originated in the United States, or the notion
that citizens should play a role in construing their constitution has thrived abroad
better than at home”79.

“Battles over appointments have decisively shaped the United States Supreme
Court and inadvertently resolved a long-standing scholarly debate between law
professors and political scientists. Law professors believe that the Court is a counter-
majoritarian institution checked by law whereas political scientists believe that it is an
anomalous majoritarian institution checked by appointments. It turns out that the law
professors were right but for the reasons given by political scientists. For the first time
in our nation’s history, factions have succeeded in fashioning a counter-majoritarian
Court but they have done so through the politics of appointments.”80

Colquitt, Joseph, A., (2007) studied “Rethinking Judicial Nominating

Commissions: Independence, Accountability, and Public Support” in which the author
mentioned there is no best way to appoint Judges. “Any judicial selection system has
both strengths and weaknesses. State Judges in the United States may take the bench
via election or appointment, but most Judges, even those in states utilizing judicial
elections, originally take the bench through the appointment. The appointment is the

79
Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1081385& /* Fetched: 5/15/2021
5:46:00 AM
80
Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1081385&/* rec=1&
srcabs=990968&pos=4.

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quickest and most efficient way to fill a judicial vacancy. The pillars of the appointive
process, the judicial nominating commission suggests that all jurisdictions should
have judicial appointment commissions.

The task is a good judicial selection system is not simply to fill vacancies but
to select the best candidates for judicial positions. To accomplish this purpose using a
nominating commission scheme, the ideal judicial nominating commission system
developed. This system should possess (at least) three principal features: It should
adhere to democratic ideals; it should maintain as much independence as reasonably
possible, and it should enjoy public acceptance and support. Additionally, local
conditions and requirements design commission scheme. These features and
considerations conflict. Because of the tension between them, they complicate efforts
to design an ideal commission. Despite these difficulties, one should not compromise
on the principal features of an ideal scheme any more than necessary to reach the best
balance.

A delicate balancing of democratic ideals and independence garner public

support for a judicial nominating commission without the need to over compromise
any of these core principles.

Political elites should not control judicial appointments, and proper use of a
nominating commission approach reduces the concentration of power in political
officeholders by spreading the nomination and appointing powers. The commission
independence enhances both democratic ideals and judicial independence.
Commission independence encompasses both external and internal independence,
which includes external and internal capture. In sum, the spread of power among a
more representative group not only is more democratic, but it can also create a
significant degree of independence. Moreover, as noted, “judicial appointment
commissions must have the confidence and support of the public which it serves”. 81
Designing the appropriate appointments commission paradigm is not an easy task, but
with proper attention to detail, such impediments as commission capture eliminated or
reduced.

81
Available at: https://oxcon.ouplaw.com/view/10.1093/law-mpeccol/law-mpeccol-e339/*.

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 Judicial nominating commissions are the worthiest, critical, components of the
judicial selection process even in jurisdictions that elect their Judges. Nominating
commissions, though, are only as good as their organization, members, and
procedures permit. This raised, addressed, a number of the most challenging issues in
developing an appropriate judicial nominating system”.

Lemennicier, Bertrand, Claude & Wenzel, Nikolai (2014) studied “The Judge
and His Hangman: Judicial Selection and the Accountability of Judges” 82 in which he
asks questions like “who determine rights and justice and which mechanism of
judicial selection and accountability is optimal. But there is no answer for it. “If
Judges are independent experts, nominated and evaluated by their peers, they will be
immune from the pressures of electoral rent-seeking, but unaccountable to the people.
Elected Judges will be democratically accountable, but subject to the redistributive
pressures of the ballot box. If Judges are nominated and controlled by politicians, they
will face the temptations of bureaucratic self-interest and will not be democratically
accountable, but they will be shielded from the Public Choice problems of elections.
It used the death penalty in the United States, to measure and compare the impact of
different methods of judicial selection. In the end, there is no optimal solution – at
least not within a judicial monopoly that ignores the voices of the actual
participants”83.

Fohr, Anja-Seibert, (2010), studied “Constitutional Guarantees of Judicial

Independence in Germany” in which “Judicial independence constitutes one of the
fundamental principles of the German Constitution. As part of the German report to
the XVIIth International Congress on Comparative Law in Utrecht in 2006 elaborated
on the specific elements of the constitutional guarantee in Germany. Outlining the
interpretation by the German Constitutional Court it explains the meaning of this
concept in the German context. While Italy and Spain understand judicial
independence to be one of structural independence the German model with its primary

82
Available at: https://www.researchgate.net/publication/267508738/* _The_Judge_
and_His_HangmanJudicial_Selection_and_the_Accountability_of_Judges/*.. also available at
: https://www.ssrn.com/abstract=2485878/* . Fetched: 5/15/2021 5:46:00 AM
83
Available at: : https://www.ssrn.com/abstract=2485878/*. Fetched: 5/15/2021 5:46:00 AM
.

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concern for substantive and personal independence differs. Since structural
independence applies to judicial functions only, the administration of the judiciary as
a matter of democratic accountability is still within the competence of the Ministries
of Justice of the federal states. The appointment process for Judges, their tenure and
scope of authority, the relevance of their independence in disciplinary proceedings
and the limited scope for dismissals studied. It concluded with the observation that
despite the lack of self-governance the constitutional guarantee of judicial
independence has been elaborated substantially by the jurisprudence of German
Courts with the result that in terms of working conditions the German judiciary profits
from privileges unknown in foreign countries”.

Bunjevac, Dr. Tin, (2017) studied “From Individual Judge to Judicial

Bureaucracy:” 84 The Emergence of Judicial Councils and the Changing Nature of
Judicial Accountability in Court Administration” where his Article analysed “the
emergence of judicial councils and their role in facilitating greater judicial control of
Court administration in Australia and other countries. The Article scrutinised the
arguments in favour of greater judicial control of Court administration, before moving
on to examine the traditional policy challenges of Judge-controlled Court systems,
such as to develop an effective system of administrative accountability that does not
undermine judicial independence and to devise an institutional framework for a
judicial council and Courts that is effective, relevant, and accountable. The transfer of
responsibility for Court administration from the executive government to an
independent judicial council has the potential not only to safeguard judicial
independence but also to improve Court performance, achieve greater customer focus
in the Court system and bring about an institutional renewal of the judiciary. It argued
that the introduction of formal and transparent administrative hierarchies within the
judiciary is both justified and necessary to improve Court performance, enhance the
social legitimacy of the Courts and reinforce judicial independence. The final part of
the Article outlined the basic institutional contours of a modern judicial council that

84
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can assist the Courts achieve these goals and respond to the challenges of the modern
Court environment”85.

Henckels, Caroline, (2017) studied “Public-Private Arbitration in Australia:

Public Law Concerns, Private Law Responses” where “Unlike investor-state
arbitration, the phenomenon of commercial arbitration between governments and
private actors have largely flown under the radar in Australia. By interpreting and
applying domestic law to exercises of power by government, arbitrators contribute to
governance, but without the hallmarks of the judicial process. There are no
restrictions on federal or state governments’ ability to enter contracts providing for
arbitration of disputes. Moreover, the law regulating arbitration in Australia does not
distinguish between public-private arbitrations and purely private arbitrations; as
such, it cannot account for the public law dimension of some public-private disputes
or account for the involvement of arbitrators in controlling government action.
Meanwhile, although the past two decades have seen a growing awareness of the
implications of the contracting out of public functions to private bodies in terms of
public law accountability, Australian Courts have not subjected decisions made under
or according to contracts to constitutional or administrative law review. As such, the
choice of arbitration as the dispute resolution mechanism can operate to insulate
exercises of public power from the already limited prospect of judicial scrutiny even
further. Although the time might not yet have come for Australian law to confront
these issues, any appreciable increase in the uptake of contracts relying on arbitration
by government and one or two more high profile arbitration cases might well raise the
spectre of domestic legislative reform to better protect the public interest”.

Dodek, M. Adam, (2009), studied “Judicial Independence as a Public Policy

Instrument” in which the contribution of Judges in commissions of inquiry has been
an important part of the public policy process in Canada and elsewhere. However, the
use of Judges for these and other extra-judicial functions is not positive and the other
side of the balance also considered. It chronicled the dramatic rise of the use of Judges
by governments for such policy functions, arguing that it has resulted in a
‘judicialization of politics’ of a different sort from the standard conception of that

85
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term. The current political culture of independence and accountability has made
judicial independence a highly valued political commodity that is frequently in
demand by government officials. It argued that what public policymakers are seeking
is not simply the expertise of Judges but also the political capital of judicial
independence which has become an increasingly valued political good in Canadian
society (and in others as well). It analysed and evaluated this trend from the
perspective of judicial independence and argued that the unreflective reliance on
Judges for various extra-judicial functions has the potential to undermine the bedrock
principle of judicial independence if not managed by the judiciary in concert with the
executive. It analysed two cautionary tales from the use of judicial independence for
public policy purposes: the Gomery Inquiry 86 and the controversy over the Chief
Justice’s involvement in the award of the Order of Canada to abortion activist Dr.
Henry Morgentaler. Finally, the argument that taking judicial independence seriously
necessitates that Judges develop a framework for the consideration of extra-judicial
functions and begin to exercise greater discretion in refusing to take on executive
functions at times, lest the political currency of judicial independence become
devalued over time”.

Levy, Ron (2007) studied “Judicial Selection: Trust and Reform” in which
“The Ad Hoc Committee to Review a Nominee for the Supreme Court of Canada held
unprecedented public hearings in advance of the appointment of Justice Marshall
Rothstein to the Court. The author assessed the work of the Committee using the
interdisciplinary literature on assorted institutional design models and their effects on
public trust and decision-maker trustworthiness. This literature informed efforts to
ensure that judicial selectors select, or aspire to select, new justices impartially. The
Committee adopted a comparatively ineffective and risky model of democratization
that relies on accountability tools such as political party dýtente. Past examples
suggest that an alternative approach is preferable: Reforms should focus not on
increasing accountability for selections but on building trust and trustworthiness in

86
The Gomery Commission also known as Commission of Inquiry into the Sponsorship
Program and Advertising Activities was a Federal Canadian royal commission headed by
Justice John Gomery for investigating sponsorship scandal and corruption against the
Canadian government.

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selections. The author offered specific recommendations to enhance trust and
trustworthiness in the selection process using a permanent Supreme Court of Canada
appointments body. The body proposed can enable robust rather than token levels of
public involvement while preserving or broadening judicial independence”.

Ziegel, Jacob, (2009) studied “Promotion of Federally Appointed Judges and

Appointment of Chief Justices: The Unfinished Agenda” in which the author
mentions about “Canada over the appointment of Judges by the federal government
under its power under Section 96 of the Constitution Act and other sources and the
shortcomings of the existing procedures. Much less written about the promotion of
Judges from the trial level to provincial appellate Courts and the Federal Court of
Appeal, and the appointment of chief justices of provincial Courts and the Federal
Court. This study filled the gaps. The gaps are important because, for most purposes,
the provincial appellate Courts and the Federal Court of Appeal are the final Courts of
the decision in litigated matters. Political connections appear to play a prominent role
in the appointment of chief justices and a smaller role in the appointment of appellate
Judges. Nevertheless, the appointment of appellate Judges raises important questions
of transparency and accountability since Judges promoted by the federal government
from the trial bench to an appellate Court are not subject to scrutiny by the
provincially based judicial appointments advisory committees”.

Porter, Bruce, (2014), studied “Inclusive Interpretations: Social Rights and

Judicial Accountability” in which “Using Canada as a case study, a
reconceptualization of the role of the judiciary in interpreting human rights is
suggested. The traditional paradigms of rights as originating outside of Courts, by
way of constitutional agreements or international human rights treaties, nuanced by a
better understanding of human rights practice -- a process through which rights re-
constituted through the historical act of claiming and re-interpreting rights. Social
rights claims understood as claims to goods or entitlements but they should equally
have understood as claims to meanings that speak to and address the experience of
previously excluded claimants and evolving socio-historical struggles. Judiciaries
must be independent of the political branches of government but the Courts’ role not
construed as independent of historical struggles or the evolving social construction of

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the meaning of rights; if it was, judicial interpretation of rights starved of nourishment
and disconnected from the broader human rights project that gives legitimacy to the
judicial role within a democracy. Courts are accountable to the obligation to provide
full and fair hearings of claims to more inclusive meanings.

Considering these issues in the context of the struggle for social rights in
Canada, the political struggle seen intricately linked to a struggle for fair hearings of
claims to inclusive interpretations of broadly framed rights in the Canadian Charter of
Rights and Freedoms. Attempts to demarcate the role of Courts from that of
legislatures based on a negative rights paradigm have often denied marginalized
groups in Canada effective participation in the interpretation of the meaning of
Charter rights. Exclusive meanings of rights to life, the security of the person and
equality adopted not based on reasonable interpretations but to exclude types of
claims (and therefore types of claimants) from the courtroom. These types of
decisions raised the question of whether Courts are accountable to broader principles
of democratic inclusion in the interpretation of rights.

Criticism by UN human rights bodies of Canadian Courts when they have

failed to adopt inclusive interpretations provides an opportunity for enhanced judicial
accountability. Obligations of State parties to progressively realize social rights
include important obligations of the judicial branch. International human rights bodies
play a key role by engaging directly with domestic Courts’ interpretive
responsibilities and by promoting more coherent principles of rights interpretation.
The role of international human rights bodies is not to dictate to domestic Courts an
authoritative interpretation but to ensure that Courts do not become agents of social
exclusion in the performance of their interpretive roles. The fact that there is no
ultimate authority to provide definitive interpretations of rights is not the problem. It
is the solution”.

Mackay, Wayne, A., (2017) studied “Judicial Free Speech and Accountability:
Should Judges”87 Be Seen but Not Heard?” in which “Before exploring the reasonable
limits of judicial free speech, it is important to understand the role of the Judge in

87
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Canadian society. An expansion of judicial freedom of expression enhanced the
impartiality and independence of the Judge, rather than detract from these traditional
pillars of the judiciary. Judges do have views and perspectives and expressing them
may engender more respect and confidence than maintaining a monastic silence. The
traditional view of the objective Judge modified by the human traits of subjectivity,
that stop short of pre-judgment. It is the “out-of-Court” judicial speech that gave
greater reign, while the “in-Court” speech of Judges should be more restrained. While
Judges not preoccupied with “political correctness”, they should ensure that their
expressions do not violate the principles of the Charter, such as its guarantees of
equality”88.

Judicial free speech accompanied by improved mechanisms of accountability

at both the formal and informal levels. The performance of the Canadian Judicial
Council, and explores in some depth the 1980s treatment of Justice Berger in contrast
to the 1990s treatment of the Nova Scotia Court of Appeal Judges 89 (Marshall
Affair).90 At the informal level, the Ben, the Bar, academics, the media, and lobby
groups assessed as checks upon judicial misconduct. The author calls for significant
reforms of both the formal and informal mechanisms of accountability, including
more formalized rules, increased lay input, improved remedies, canons of judicial
speech and conduct, and opening the judicial process.

Judges are seen well as heard, held accountable for what they say both inside
and outside the courtroom. The role of the Judge in Canada has evolved to the point
where Judges have become significant policy-makers, and Canadians have a right to
know their views on the issues of the day. It is not desirable that Judges cloister
themselves away from the real world of affairs from which their cases arise. by
expressing their views and engaging in a form of dialogue (albeit one restrained by
the judicial role) with various segments of society, Judges can form a better basis for

88
Ibid.
89
Court of Appeal for Nova Scotia (Nova Scotia Court of Appeal or NSCA) is the highest Court
in Nova Scotia, Canada. There are Seven Justices and One Chief Justice.
90
“Mistress Testifies at Broker’s Murder Trial in Jersey”, The New York Times, (1986),
available at: http://www.nytimes.com/1986/02/16/nyregion/mistress-testifies-at-broker-s-
murder-trial-in-jersey.html/*.

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judgment. The expansion of judicial speech and accountability can produce better-
quality judging and increased public confidence” 91.

Lamer, Antonio, (1996), studied “Singapore Academy of Law Annual Lecture

1996: “The Tension between Judicial Accountability and Judicial Independence: A
Canadian Perspective”92 in which the author proposes to say the “the sources and the
meaning of judicial independence as a core constitutional value in Canada and a few
words about judicial accountability, and explain why judicial accountability is said to
be in tension with judicial independence. Then the two of the issues discussed in the
Friedland Report from the perspective of the way the tension between judicial
independence and judicial accountability plays itself out with them examined. The
issues selected are judicial discipline and judicial education”.

Antharvedi, Usha, (2008), studied “Judicial Review of Administrative Actions

and Principles” in which the author studied “Administrative law has a tremendous
social function to perform. It is the body of reasonable limitations and affirmative
action parameters, which developed, and operationalised by the legislature and the
Courts to maintain and sustain the rule of law. The Courts, through writs of habeas
corpus, mandamus, certiorari, prohibitio and quo warranto, control administrative
action. The source of Administrative law is the statutes, statutory instruments,
precedents, and customs. The doctrine of legitimate expectation, Public
Accountability, and the doctrine of proportionality discussed. The increased power of
the administrative judicial control has become a key area of administrative law,
because Courts have proved more effective and useful than the legislative or the
administrative powers”.

Law, David S., (2010), studied “Judicial Independence” in which “the

International Encyclopaedia of Political Science, explains why the concept of
“judicial independence” has demonstrated famously hard to characterize. It gaged the
term employed, discussed the factors to design a definition that is intelligible and
familiar with contrasts between Courts in various nations.

91
Available at: https://www.ssrn.com/abstract=2991717/*.
92
Available at https://www.ohchr.org/documents/publications/training9chapter4en.pdf/*. Fetched:
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 Judicial independence refers “to the ability of Courts and Judges to perform
their duties free of influence or control by other actors”.93But, the term is utilized as a
part of a standardizing sense to allude the type of freedom considered necessary for
Courts and Judges. So, there are two sources of perplexity over its significance. The
first is theoretical, as an absence of lucidity to the sorts of autonomy that Courts and
Judges can have. The second is regularizing, as contradiction over what sort of
autonomy Courts and Judges should have.

To be both extensive and sound, a meaning of legal autonomy must address a

few inquiries. The first is the subject of autonomy for whom; the second is the topic
of freedom from whom, and the third is the topic of autonomy from what. To answer
these questions, depending on some regulating hypothesis, express or something else,
of why legal autonomy is profitable and what expected to achieve. In short, it is
important to address the subject of freedom for what reason.

Oldfather, Chad, M., (2010), studied “Judging and the Judicial Process” 94
explained “a set of course materials for a seminar entitled Judging and the Judicial
Process. The materials intended to be useful to both teachers and scholars. The focus
of the course is on Courts as institutions and Judges as the primary actors within those
institutions. In their present incarnation, the materials open by outlining what one
might call the standard model of judging, which calls for Judge-umpires to apply
determinate law via formalist analysis. The course then works through a series of
critiques of that model, including the work of the legal realists, public law theorists,
political scientists, cognitive scientists, and so on. Much of the remainder of the class
devoted to considering the various procedural constraints that work to ensure judicial
accountability. These include judicial opinions, the doctrine of precedent, and the rest
of Karl Llewellyn’s”95 major steadying factors. The materials also consider judicial
activism and judicial independence, the relative merits of specialized versus generalist
Judges, the continued existence of non-lawyer Judges, judicial ethics, and judicial
selection at both the federal and state levels. Future versions will include sections on

93
Available at: https://oxcon.ouplaw.com/view/10.1093/law-mpeccol/law-mpeccol-e339/*.
94
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95
Karl Nickerson Llewellyn was an American Jurisprudential Scholar.

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discretion, deference, managerial/bureaucratic judging, and the inherent powers of
Courts”96.

Burbank, Stephen B. (2006) studied “Judicial Independence, Judicial

Accountability and Inter branch Relations” in which he explained “the main reason of
the noxious condition of inter branch relations including the federal law, as of the
continuous and strident outbreaks on Courts, federal and public, are strategies figured
to induce the general population that Courts are a part of common politics and that
Judges are policy specialists to be considered responsible accordingly. Although
breakdown in standards of interdependency is an important characteristic of modern
politics, the present circumstance including the federal judiciary is perilous because of
the likelihood that a slanting point of “no return to the conventional balance in inter-
branch relations reached” 97. That prospect recommends the understanding “tradition
of judicial independence” depended on the people’s help of the Courts regardless of
the results they influence “diffuse support”, and research provides reason to expect
that the qualification between diffuse help and support contingent upon those choices
“specific support” will vanish, driving individuals to ask of the judiciary only “what
have you done for me lately?” In the management of inter-branch relations, the Judges
should reply to the instincts and motivations, both legal and illegal, that brought to
this unfortunate point. Effective inter-branch relations needs the institutional legal to
keep away from the insolences and systems of modern politics, yet not to stay away
from politics, and the fundamental task in such manner as to maintain a strategic
distance from the observation that the federal law is one more interest group. Utilizing
the works and occupation of the late Richard Arnold98 to represent the need in the
politics of judging, for Judges to provide direction to reach to standards of custom,
discussion, and negotiation in inter-branch relations. More federal Judges should
follow Arnold’s case in perceiving that a presidential commission does not present
good predominance, that legal responsibility appropriately considered, is fundamental
for legal autonomy, and that both “posterity worship”, the endeavour to control the

96
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97
Available at https://scholarship.law.upenn.edu/faculty_scholarship/98/* Fetched: 5/15/2021
5:46:00 AM
98
Richard Sheppard Arnold was a Judge of U.S. District Court.

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future and official glorification are antagonistic to the long-standing interests of the
federal Courts and the federal Judges” 99.

Peerenboom, Randall (2008) studied “Judicial Accountability and Judicial

Independence: An Empirical Study of Individual Case Supervision” in which the
Article investigated the pressure between legal freedom and legal responsibility in
China, by looking at the growth, benefits and drawbacks of management of ultimate
Court decisions by individuals’ congresses, the procuracy and the Courts themselves.
With a systematic empirical study, significant changes required, wiping out individual
case supervision (ICS) now would prevent justice from claiming many individuals
consistently. The politics of whether to remove or improve ICS and if so how to
represent the troubles of China’s legitimate change project, why changes in
developing nations often fail, and why changes in light of transplants of foreign
models neglect to flourish.

Voigt, Stefan, (2005) studied “The Economic Effects of Judicial

Accountability - Some Preliminary Insights” in which “Judicial independence is not
only a necessary condition for the impartiality of Judges, it can also endanger it:
independent Judges could have incentives to remain uninformed, become lazy or even
corrupt. Judicial independence and judicial accountability are competing for ends. It
is, however, hypothesized that they are not necessarily competing for ends but can be
complementary means towards achieving impartiality and, in turn, the rule of law.
Judicial accountability can increase per capita income through various channels one
of which is the reduction of corruption. First tests concerning the economic effects of
JA carried out drawing on the absence of corruption within the judiciary as well as
data gathered by the U.S. State Department as proxies. Based on 75 countries, these
proxies are highly significant for explaining differences in per capita income”.

Collett, Teresa, Stanton, (2009) studied “Judicial Independence and

Accountability in an Age of Unconstitutional Constitutional Amendments” in which
appointment of American Judges is one of a war zone in the modern culture, mainly
because of legal involvement in argumentative matters for example “abortion,
99
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5:46:00 AM

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pornography, the death penalty, racial discrimination, the role of religion in public
life, and the definition of marriage”. Thus, the systematized bar and numerous legal
leaders sternly advise that legal autonomy is “in jeopardy”, while social conformists
alert that judicial accountability lessened or absent and the “end of democracy” has
reached or is quickly forthcoming.

There have been several arguments on relative value and relationship of legal
autonomy and accountability since the commencement of this country. While this is a
significantly interesting and important argument, a reason to join that discussion
directly. To investigate the effect of an inexorably legitimate contention, there can be
an “unconstitutional constitutional amendment” on legal autonomy and
accountability.

The first Section gives a review of the distinctive procedures for revising a
constitution. The second Section discussed the technical analysis of constitutional
revisions, while substantive analysis studied in the third segment. The two segments
investigated the issues identified with the legal survey. Consequently, decided that
judicial review of the procedural consistency of the revision procedure, while that
functional analysis should be restricted to post-passage cases.

Geyh, Charles, G., (2006) studied “Judicial Independence, Judicial

Accountability, and the Role of Constitutional Norms in Congressional Regulation of
the Courts”100 in which the author seeks to explain “why some incursions on judicial
autonomy are deemed acceptable and others are not. Part I defined judicial
independence in a way that not only accommodates but necessitates an approach that
is political and developmental in its orientation: the contours of judicial independence
delineated less by the Court made doctrine than by informal norms or customs that
Congress has gradually come to respect over time. Part II chronicled the development
of customary independence through the cyclical attacks on the Courts that punctuate
phases in the relationship between the federal Courts and the political branches in
ways that justify their use. Part III discussed how fights to control the Courts are
easier for Congress to win in the appointments arena, where independence norms
100
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have not constrained Congressional behaviour as they have in other contexts. As the
opportunities to control the Courts via impeachment, defiance, Court-packing,
jurisdiction-stripping, and budget-slashing have diminished with the ascendance of
customary independence, the appointments process has emerged as the one remaining
avenue for Congress to exert control over judicial decision-making. The dawning
realization that a politicized appointments process now stands alone as a viable device
for promoting prospective judicial decision-making accountability, ongoing efforts to
de-politicize the appointments process are likely to be fruitless and undesirable”.

Spigelman, James, (2001) in the study “Judicial Accountability and

Performance Indicators” author found that an extensive task for legal management
confirms with modern anticipations of accountability and effectiveness stay steady
with the necessities of legal autonomy and the support of the nature of justice. In this
regard, the Court proceedings are legal and, certainly desirable. Though, insights on
Courts’ exercises are hard to assemble and translate, with estimations of cost and
deferral inalienably difficult. Further, the utilization of performance indicators to
decide if a Court is giving “value for money” neglects to perceive that justice, for
reasonable results arrived at by reasonable actions, is, in its fundamental nature,
unequipped for measurement. There is no quantifiable performance indicator for the
nature of legal basic leadership. Furthermore, the performance indicators are partial.
They misrepresent the conduct of the organization measured. The utilization of
performance measurement to Courts represents a danger to legal autonomy and the
rule of law. There is no employment performance indicators or perceptions of
“productivity” from different scopes of action, for purposes like assigning resources
or the assurance of legal compensation.

Salem, Jamil, & Botmeh, Reem Al., (2010) studied “Judicial Responsibility
and Accountability” in which “Judicial responsibility is one of the sensitive issues to
discuss. It is an institutional and individual matter related to the judiciary and its
institutional function as well as the Judge’s exercise of these functions. The debate
over the qualities that make a good Judge seems intractable because there is no shared
set of expectations about a Judge’s role in society. Some accept as a political
inevitability that Judges are decision-makers and de facto legislators, and accordingly

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evaluate Judges by the political impact of their decisions. Others expect Judges to
fight to preserve their complete independency as if any form of accountability would
pose a threat. It is thus fully appropriate to evaluate how they perform their duties,
always bearing in mind that they are part of the judicial system, which considered.

A professionally responsible judiciary reconciles the twin goals of democratic

legitimacy and legal legitimacy. This requires much more than restating platitudes
about independence and accountability. It elaborates on aspects such as the rational of
judicial independence, the relation between judicial performance systems and
promotion, recruitment procedures, evaluation during initial and continuing education
programs, codes of ethics, and the role of the judiciary towards other state branches
and society in general.

The judicial responsibility at three levels, theoretical, comparative empirical

and finally the Palestinian case studied. It is divided into three parts; the first one is
the conceptual framework of judicial responsibility whereby attempting to bring a
clear understanding of the concept of judicial responsibility and its link with other
concepts and doctrines, this part discussed the meaning of judicial responsibility, the
tension between judicial accountability and judicial independence. It tackled into the
link between judicial responsibility and immunity and judicial responsibility and
accountability in the context of judicial education. The second part is mapping out
models and kinds of judicial responsibility through examining the several types of
accountability as well as the different models in various legal systems. There are
many ways to classify types of judicial accountability; it can be individual and
collective, formal or scrutiny by civil society, or content, process, and performance
accountability. It takes as well different categorization which finds literature classified
accountability into, political accountability, societal accountability, legal
accountability of the state and legal accountability of the Judge. From these types of
accountability emerge various models in different legal systems. The diverse types of
judicial responsibility tackled by classifying it into three main categories; and finally,
the third part examined the concept of judicial responsibility in the context of the

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Palestinian judicial system in order first to illustrate the elements of this
responsibility, establish to which model does it fellow, and asses its efficiency”. 101

Hakeem O. Yusuf, (2008) studied “Democratic Transition, Judicial

Accountability and Judicialization of Politics in Africa: The Nigerian Experience”
examined the occurrences of judicialization of politics in Nigeria’s democratisation
against the background of dubious judicial accountability. The legal, political, and
comparative law studied. The judiciary faced a “daunting task in deepening
democracy and re-instituting the rule of law”. The difficulties derived from “structural
problems within the judiciary, deficient accountability credentials and the
complexities of a troubled transition. Effective judicial mediation of political
transition requires a transformed and accountable judiciary. The need for judicial
accountability is a cardinal and integral part of political transitions”.

Kosar, David, (2010), studied “Judicial Accountability in the

(Post)Transitional Context: A Story of the Czech Republic and Slovakia” 102 in which
“the notion of judicial accountability and argued that judicial accountability is as
important as judicial independence for fostering the rule of law and effective judicial
mediation of political transition. In the subsequent case studies, it focuses on the
‘large scale’ institutional design of administration of Courts in the Czech Republic
and Slovakia. The aim of this inquiry into the ‘large scale’ institutional design is two-
fold: (1) to test whether Slovakia, a country with a strong judicial council, has
performed better than the Czech Republic, a country without a judicial council, and
(2) to explore how both states fare when it comes to judicial accountability in
genera”103.

“Part 1 placed judicial accountability in the context of transitional justice,

tentatively defined the notion of judicial accountability, and discussed its relationship
with judicial independence with a focus on the period of transition to democracy. Part
2 focused on ‘large scale’ institutional design of the administration of justice in the

101
Available at: https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1689530_ code145962/*
0.pdf?abstractid=1689530&mirid=3 .
102
Available at Judicial Accountability in the (Post)Transitional Context: A Story of the Czech
Republic and Slovakia by David Kosar :: SSRN/*
103
Ibid.

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Czech Republic and Slovakia. It started with a brief overview of institutional models
adopted in former Czechoslovakia, a predecessor of both states, and then proceeds to
the contemporary institutional design of the administration of justice in the Czech
Republic and Slovakia. Part 3 first identified the deficiencies and anomalies of the
models of administration of justice in both countries. Subsequently” 104. “it provided
an assessment of how both models fare when it comes to judicial accountability and
draws tentative conclusions from the functioning of these models. Finally, Part 4
places the Czech and Slovak scenarios into the broader context of judicial reforms in
the post-communist countries and identified issues for further research” 105.

Pankhuri Agrawal, (2011) studied “Judicial Independence and Accountability:

Because of the Case of J. Soumitra Sen” in which “Judiciary is deemed to be an
image of blindfolded justice holding balanced scales embodying the idea of
impartiality and fair set up in it. To understand the importance of “Judicial
independence” to maintain the ‘image’ of the judiciary and the rationality of judicial
accountability has become an issue for debate today and further deliberate on the
formulation of various laws in this arena. The procedure of selection, appointment and
transfer of Judges many questions being raised about their honesty before, during and
after their tenure. To find out the flaws in the impeachment procedure, appointment
procedure and the much-awaited Judicial Standards and Accountability Bill 2010 and
insights are taken from the Constitution Review Commission Report of 2002. Since
Judges are ‘Justice deliverers’, the level of the trust reposed in them by the common
citizens is quite high. It became a mandatory responsibility for them to maintain it. To
answer the questions triggered by a recent case of J. Soumitra Sen: Is the judiciary
holding the same value, as it had earlier? Is the judiciary abusing its privilege of
judicial independence? Is the judiciary responsible and can it be held accountable?
Hence, there is an urgent need for efficient laws to be formulated and effective

104
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105
Available at: https://www.researchgate.net/publication/285589237 _
The_Untouchables_The_Politics_of_Judicial_Selection_and_Turnover_in_Slovakia_between_
1989_and_2013/*. Also available at https://www.ssrn.com/abstract=1689260/*

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complaint mechanism to be triggered to avoid the occurrence of these unfortunate
cases”106.

Alfini, James J., Brietzke, Shailey Gupta, et al. (2015) studied “Dealing with
Judicial Misconduct in the States: Judicial Independence, Accountability and
Reform”107 in which “Inherent in Roscoe Pound’s 1906 speech to the American Bar
Association is the basic premise that American Courts and Judges, as public
institutions, and officials in a representative democracy, must be responsive to the
public and held accountable for their actions. Only in a democracy would concerns
the causes of popular dissatisfaction with the administration of justice gave a public
airing. Pound’s speech premised on the notion that developments that compromised
judicial independence, a basic tenet of American democracy, would similarly erode
public confidence in the Courts”108.

“Maintaining confidence in the judiciary anticipates that Judges are held to

standards of conduct. However, at the time Roscoe Pound delivered his 1906 speech
to the American Bar Association, published standards, rules, or guidelines
establishing ethical norms for the state judiciaries were virtually non-existent. One
hundred years later, all state judiciaries are not only subject to officially adopted
codes of judicial conduct or canons of judicial ethics but are also subject to modern
disciplinary mechanisms for enforcing these ethical standards. Although Pound might
applaud this development as far as it promised greater accountability, he might also
have expressed concerns over the possibility that it might intrude on judicial
independence”109.

The Article has two features: (1) to make preliminary observations concerning
the tension between judicial independence and accountability in establishing and
enforcing standards of conduct for the state judiciaries, and (2) to offer preliminary
thoughts on the factors that gave rise to the development of the judicial conduct
commission, the predominant disciplinary body for addressing misconduct in the state

106
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107
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108
Ibid.
109
Ibid.

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judiciaries. The literature on factors gave rise to, or encouraged, judicial reform
measures during the twentieth century is sparse. These thoughts and observations will
encourage further inquiry. Part I described this reform measure and trace the history
of its adoption in the states; Part II provided the structural details of this reform
measure and examined its adoption and implementation in selected states, and Part III
offered observations and conclusions about this reform in the broader context of
representative democracy”110.

IAALS, (2009) surveyed on “The Bench Speaks on Judicial Performance

Evaluation: A Survey of Colorado Judges” in which “Colorado has maintained a
state-operated judicial performance evaluation (JPE) program for appellate and trial
Court Judges. The program serves four purposes: (1) providing voters in retention
elections with information about the Judges seeking retention; (2) educating the
public about qualities and levels of performance expected of Judges; (3) recognizing
and highlighting the individual and collective strengths of Judges; and (4) providing
information to sitting Judges to help them improve their performance on the bench.
While there is widespread agreement that JPE advances these goals, that agreement is
based primarily on anecdotal information and informal observation. By contrast, there
has been very little empirical analysis of whether (and to what extent) JPE is
informing and educating the public, or usefully demonstrating professional strengths
and weaknesses to Judges.

The survey was the first part of a multi-stage study concerning the
effectiveness of JPE in Colorado. It was designed to elicit feedback from sitting
Colorado Judges regarding the extent to which JPE provides them with useful
feedback that can be used for professional self-improvement, and to determine
whether the existence of JPE has had any effect on judicial independence and
accountability”.

Mathew Stephenson studied on “Court of Public Opinion: Government

Accountability and Judicial Independence” in a model characterized by separation of
powers and judicial dependence on government and information voters and

110
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government and political accountability. The voters force the government to cede
powers over the legislative decisions of the judiciary. The public uses its ability “to
hold the elected branches of government accountable to enforce a judicial veto when
judicial opposition to legislation provides more reliable information to voters than
government support for legislation does”. The model provides theoretical justification
and suggests that judicial decision is costly for elected representatives. The model
demonstrates the pattern of judicial politics, rubber-stamping the government decision
and the government passing the buck back to Court arises the equilibria in the
framework.

From the above studies, it could be concluded that judiciary in India and all
across the world has a hairline difference. Accountability is the core of the system in
federal countries with strict code of conduct, self-enforced legal and ethical rules,
proper management of public funds and assets and effective use of resources. In India,
the judiciary has no accountability up till now. In India, the Court extended its part in
the domain of rights and administration, affirming the ability to nullify established
revisions under the essential structure convention, control legal arrangements, and
represent in the ranges of natural strategy, observing, and researching government
debasement, and advancing discretionary straightforwardness and responsibility. The
public has demonstrated disappointment, both during the stage of executive and
judiciary hold in appointments.

1.13 Chapter Scheme

The chapters are strictly in its order starting with Introduction. It will comprise
of the rationale of the theme, objectives, research question, hypothesis, universe of
study, research methodology and chapter scheme.

Chapter 2 would be the over view of judicial accountability –its introduction,

meaning, nature and concept of judicial accountability, principles and standards of
judicial accountability, Factors for demand of judicial accountability& transparency,
Constitutional provisions making judiciary accountable, Different types of
accountability i.e Legal Accountability, Political Accountability, Institutional

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Accountability, Professional Accountability, Managerial or Administrative
Accountability, Social Accountability l and Conclusion.

Chapter 3 International convention on Independence of Judiciary and Judicial

Acountability. It would comprise all the convention conducted at national and
international level on this topic. Various declarations and conventions which
advocated judicial accountability, Universal declaration of Human Rights 1948,
“European convention on Human Rights and Fundamental Freedoms, International
covenant on civil and political Charter on Human and Peoples Rights, United nations
basic principles on independence of judiciary, World conference of independence of
judiciary at Montreal 1993, The Beijing statement of principles of independence of
judiciary, Council of Europe committee of ministers, European charter on the statute
for Judges, Caracas conference 1999, Kosovo Judicial and Prosecutorial Council,
United Nations Convention against corruption, Bangalore Principles of Judicial
Conduct, 2002, All India Seminar on Judicial Reforms at New Delhi, 2008.

Judicial Accountability in other countries at International Level -United

Kingdom, U.S.A, Russia, Sweden, Germany, Australia, France, Canada, Japan,

Chapter 4 would be Constitutional provision for Independence and

Accountability of Judiciary and Statutory Provisions, Judges Inquiry Act 1968,
Judges Inquiry Bill 2006, Judges (Declaration of Assets &liabilities) Bill 2009,
Judicial Standards &Accountability Bill 2012—A fresh attempt (Important points of
the bill, Mechanism under the bill, Key issues under the bill, Main loopholes
&shortcomings under the bill.

Chapter 5 contains discussion about Role of Civil Society in Independence

and Accountability of Judiciary problems and solutions. The problems are: Difficult
impeachment procedure, Contempt of Court powers, Exemptions from RTI, Judges
Inquiry Act, 1968 & Judges Inquiry Bill, 2006, Judicial Activism, Others. The
solutions would be based on: Restatement of values of judicial life: Code of conduct,
National Judicial Commission, Judicial Standards and Accountability Bill 2010,
Judicial restraint against activism, Amendment of contempt of Court Act, Role of
Media, Role of NGO”s, Law Commission Report No. 230 August, 2009, Increase in

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number of days, Speedy justice, ADR, Commission on judicial performance. Chapter
6 INDEPENDENCE AND ACCOUNTABILITY OF JUDICIARY IN INDIA –
INSTANCES OF MISUSE OF POWER BY JUDICIARY would be on Judicial
accountability & Judicial independence: Touchstone Of Indian Democracy. The study
will focus on Necessity, Concept and objective of judicial independence: A critical
study of case law,. In Chapter 7 we discuss collegiums system, First Judges Case,
Second Judges Case, Third Judges Case, Effect of 2nd &3rd Judges Case.

Chapter 8 The final chapter 8 deals with the Conclusion arrived at by the
researcher from the entire study. Based on the conclusions, suggestions have been
given for future research work on this topic. The accountability of Judges has not
achieved its zenith though the government is trying to put various restrictions on
them. The Supreme Court is not willing to digest the restrictions put on them by
National Judicial Appointments Commission Act, 2014 on the ground that it
interferes with the independence. This thesis is intended to fill the gaps in judiciary
which could be an extra–ordinary contribution in the field of law. Judicial misconduct
and incapacity amongst Judges led the conclusion to hold them accountable.

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