DHARMASHASTRA NATIONAL LAW UNIVERSITY

(Session 2020-2021)
Topic

Judicial Accountability and Democracy

Submitted To: Submitted By:

Mr. Ankit Srivastava Sanskrati Jain

[Assistant Professor of Legal methods] Section B

BALLB/116/20
 Acknowledgement

The completion of this project required counselling and assistance from many people and I’m really
thankful towards them for their counselling in my project.

I would like to express my deep gratitude towards my teacher asst. professor Ankit Srivastava, who
took acute interest in my project and guided me all along. I’m feeling extremely privilege to have
him as my instructor in the project. I owe my deep gratitude to the vice-chancellor Prof. Balraj
Chauhan for his valuable support throughout the project. This project helped me in gathering a lot of
knowledge and becoming more aware of things related to my topic.

I would like to extend my gratefulness to my parents and friends for their valuable support and
advice.

I am making this project not only to get but also to enhance my knowledge. At the end I would like
thank everyone who helped me and invested their valuable time for this project.

Sanskrati Jain
 Table of Content

S.NO. NAME OF TOPIC

Synopsis
 Title
 Introduction
 Research problem
 Literature review
 Research methodology
1
 Objectives
 Research Questions
 Hypothesis
 Scope of project
 Limitations
 Data collection

Judicial Accountability
 Meaning
2  Concept
 Objectives

Lack of Judicial Accountability in India

3 and Problems arising of it

Judicial Independence & Judicial

4 Accountability

Recent Steps taken to make Judiciary

5
Accountable
6 Conclusion
7 Suggestions
8 Bibliography
 SYNOPSIS

 Title- Judicial Accountability and Democracy

 Introduction- The judiciary is one of the three organs of the state. The article 12 of the
Constitution of India though provides meaning of the state purposefully does not contain the
word judiciary. This kind of leaving of the word judiciary is purposefully done by the
Constituent Assembly to accord special and independent status to the judiciary. The Oxford
Dictionary of English Language defines the word ‘accountable’ as ‘responsible for your own
decisions or actions and expected to explain them when you are asked. Accountability is the
sine qua non of democracy. Transparency facilitates accountability. In modern democracy no
public institution or public functionary is exempt from accountability. The Constitution of
India guarantees the special status to the judiciary as it is an essential wing of the State, it is
also accountable. Judicial accountability, however, is not on the same plane as the
accountability of the executive or the legislature or any other public institution. The people
turn to the judiciary as it is the last bastion of hope to redress their problems when their
elected and executive authorities have failing in their duties. It is pain to note that even the
some of the officers in the judiciary are sailing in same directions as the elected
representatives and executive authorities in neglecting their sacred duties. The independence
and impartiality of the judiciary is one of the hallmarks of the democratic system of the
government. The Constitution of India provides many safeguards to maintain the
independence of judiciary.

“In order to achieve good result, a pious-objective is determined first and then followed by
good Karma for its accomplishment.” - Rig Ved

“Without courage, there cannot be truth, and without truth there can be no other virtue” -
Wavell, Viceroy Journal

 Research Problem- A considerable challenge has been posed for judicial administration is to
ensure that contemporary expectations of accountability and efficiency remain consistent
with the imperatives of judicial independence and the maintenance of the quality of justice. In
this respect, the measurement of what a court does is a perfectly legitimate and, indeed,
desirable activity.

 Literature Review – This project cannot be possible without going through literature
available on the topic under study. Before starting up the work on the problem the present
study aims to review the existing literature on the subject. The review of the existing
literature would provide clarity of concept, Introductory understanding of different aspects,
and would help in identifying problem zones and formulating research methodology.

S. P. Sathe’s “Judicial Activism in India Transgressing Borders and Enforcing Limits”

(2003) discusses about the judicial review and its role in democracy. His book is an important
contribution to the debate on the role of courts and the ramifications thereof. He has updated
 all the important judicial pronouncements in recent times which highlight the fact that the
Supreme Court of India has continued to play the role of a positivist court. Important
decisions have been critically analyzed by Prof. Sathe on issues of Secularism.

Dr. G.B. Reddy’s Judicial Activism in India (2012) analyzes the judicial activism of the
Supreme Court of India in the post 1980 era particularly. It gives a lucid analysis of the
concept of judicial activism, reasons therefore and the manifestations thereof. It also throws
light on how judicial activism is not good.

Venkat Iyer’s “Citizens' Rights And The Rule Of Law: Problems And Prospects Essays In
Memory Of Justice J.C. Shah” (2008)- the author discusses about the Justice J.C. Shah,
former Chief Justice of India who Introductory delivered many keynote judgments which
helped to develop the law in our fledgling democracy.

Raj Nath Bhat’s “Judicial Nemesis: A Critical Study of the Indian Legal System” (1997) –
this book in depth elaborates what role is played by Indian judiciary in building and
sustaining of our democracy & how it has evolved with time. How writ of mandamus has
been critical in evolution of our democracy. Also elucidates on contempt laws against court.
It categorically covers the whole judicial system and analyses it.

Sudhanshu Ranjan’s “Justice vs Judiciary” is a pincer attack on what ails the judiciary and
the zeniths of the legal profession. The book explores delays and corruption in the justice
administrative system and the ‘art’ of getting adjournments ad nauseam. It discusses instances
of lack of accountability and conflict of interest in the higher judicial ranks. It refers to
serious allegations of sexual harassment brought against judges and how the media was
gagged through judicial orders from reporting these cases.

 Research Methodology- Doctrinal research also known as, theory-testing or knowledge

building research has been done to shape the project. The research was done mainly by
e-resources. A lot of researches have already been conducted on the same topic so some
research papers have also been gone through. With the help of internet various books’
summary and their excerpts were read. Various magazine and articles are also taken into
account to know various opinions and point of views on the same topic. Various materials
that are available on e-sources have been critically analyzed and the similar ideas have been
put forward in the project. All the primary as well as secondary documentary sources will be
utilized to make the study up-to-date, orderly and scientific. Various reports, books, articles,
journals, judicial decision, website, international, constitutional norms and national measures
will be taken as important research tools. Besides these methods, some other methods will
also be applied according to the need of the study.

 Objectives-

 To evaluate the issue of judicial accountability in a democratic set up informed

by rule of law and separations of powers.
  To evaluate the constitutional and legislative mechanism related to the issue of
judicial accountability.

 To take a view of corruption among judges and to suggest an appropriate

mechanism, if required.

 To discuss the condition of services of judges and their impact on judge’s

functions.

 Research Questions-

 How the dispute between independence and accountability of judiciary can be solved
and balanced?

 What are the reasons for lack of judicial accountability in India?

 What effects do an unaccountable judiciary have in a democratic set up?

 Hypothesis-

 There is a lack of an independent credible institution which could entertain complaints

against judge, investigate them and take action against errant judges.

 There is inordinate delay in disposal of the cases.

 There is a lack judicial objectivity, fairness and therefore, democracy is not

functioning properly.

 There is a lack of effective disciplinary mechanism as well as machinery for taking

action against the judges.

 The problem of corruption in the system exacerbated has been (make worse) by a total
lack of accountability of the higher judiciary.

 The law of contempt is just one of the shields used by the judges in order to silence
criticism and muzzle dissent.

 Scope of the project- The Preamble to the Constitution enshrines the ideals of securing social,
economic and political justice to all its citizens. The judiciary of India is the pious pillar on which
rests the noble edifice of democracy and ideals of justice. It also ensures prosperity and stability
of society. So, the project tries to throwing some light on the judiciary and its working and how it
is accountable to others? And the scope of the project is restricted to understanding its meaning
and various interpretations of judicial accountability in Indian context only. However the other
meanings also don’t vary much and are very close to it.

 Limitations-

 The scope of project is limited to Indian context only.

 The sampling done is mainly from secondary sources, so can be called unreliable.
  The project is made after going through various sources and opinions, which can be
biased; same could be reflected in project.

 Data collection- The data is mainly collected through e-sources and various books and
research papers available on the same topic. In order to make my project more informative
and reliable I have tried my best to collect the data from its source only and use primary data
as far as possible.
Judicial Accountability- Meaning, Concept & Objectives
Accountability is one of the cornerstones of good governance. The word ‘accountability’ and the
word ‘judicial’ should be read together to form a meaning of judicial accountability. Judicial
accountability expects immunity of judges from internal infirmities with total independence. Judicial
accountability must be in consonance with the Article 235 of the Constitution of India which
empowers the higher judiciary to control subordinate judiciary. India is a democratic country where
judges are treated as a “God” in the judicial system. This implies that everything in terms of
decisions depends upon the judges in our system of justice. This is because justice has supreme place
in our democratic system. So the judges may use these powers for their benefit. They can enjoy
benefits like:

1. By terrorizing anyone on the basis of contempt of court, who would criticize the court.

2. Judges are immune from the word “why” as we citizens of India don’t have any right to ask any
questions against their decisions.

Judicial accountability is as an old concept as the independence of the judiciary. Independence and
impartiality of the judges have always been considered to be the essential qualities of a judge. The
founders of the Constitution of India kept provisions in the Third Schedule of the Constitution for the
accountability of the judges. The Third Schedule imposes a duty on judges to preserve sovereignty
and integrity keeping in view the nature of the function of the judges; it was not thought desirable to
make judges directly accountable to the people for their actions. The quality of the judgments,
disposal of arrears, delay in decisions, complicated judicial proceedings, inequalities and equalities in
accessing of justice and good governance are the subject that are covered in the term
‘accountability’. Judicial accountability includes the balance of power in regard to the selection,
appointment, and transfer of the judges from higher courts. Concept of accountability has ancient
roots in record keeping activities related to governance and money and land. It first developed in
Israel, Babylon, Egypt, and Greece and Rome. Judicial accountability is not defined in the dictionary.
It has come recently in force to reach at correct decision.

Indian judiciary exercising democratic power enjoys independence of high order. But for keeping the
faith of the people in judiciary, the independence of the judiciary should not become dangerous and
undemocratic. The absence of constitutional discipline with rules of good conduct and accountability
make the judiciary arrogant. Justice V.R. Krishna Iyer in his one article stated that “our founding
fathers have laid down for us a constitutional jurisprudence of judicial power, but the integral
component of judicial accountability has not been designed with a sense of principled pragmatism.
As a result the escalating misconduct of judges has often gone unpunished. Barring the extreme
measure of impeachment, the law is silent, so much so that one might well say that the accountability
of the judiciary is the vanishing point of jurisprudence. This void, unless competently covered by
well thought-out legislation, is bound to undermine the democratic credibility of the judiciary. The
place of justice is a hallowed place; and therefore, not only the bench, but the foot-pace and precincts
thereof, ought to be preserved without scandal and corruption.

Judicial accountability maintains the trust of the people in the judges and the judiciary in the country
and also preserves democracy. Accountability of the judges preserves the rule of law and also
promotes it by deterring conduct that compromises integrity, impartiality, and independence of
judiciary. The judge who is facing impeachment process in the allegation of taking bribe with
impurity, in spite of all, he is employed. Then accountability decreases his literal independence as he
is enjoying making himself dependent on external and internal influences that might interfere with
his ability to follow the concept of rule of law. Judicial accountability promotes the independence
and transparency which is very important for judges to adhere to the rule of law. Accountability
makes it possible by deterring the bias, nepotism, bribery and so on from judiciary.

Lack of Judicial Accountability in India and Problems arising of it

Article 19(1) (a) envisages freedom of speech and expression. To this freedom, reasonable
restrictions had also been added under Article 19 (2) to safeguard the functioning of democratic
organs. Also, this safeguard is to maintain the independence and integrity of the Judiciary and public
confidence in the administration of justice. Therefore, power has been specifically conferred on the
Supreme Court under Art 129 as well as on the High Court under Art 215, to punish for its contempt.
The Contempt of Court Act 1971 punishes scandalizing of the court. The Supreme Court has held
that the fundamental right of a citizen to free speech and expression has not abolished the offence of
scandalizing the court.

However, of lately, this privilege of contempt orders is used by the court to suppress any voice which
is raised against its functioning. Recent orders of contempt of courts highlight this issue. A strong
criticism of judgments or a judge’s point of view is being regarded as contempt of court. Recent
victim of these contempt orders are social activist Ms. Arundhati Roy and eminent lawyer of
Supreme Court Prashant Bhushan. This is just an example of how the fundamental right of citizens
and the power of democratic organ are misbalanced.

One of the basic elements of democracy is the accountability. The organs of democratic country are
accountable to one another and this maintains a system of checks and balances. However, the system
of checks and balances seems to be blurred by the separation of powers. The concept of “separation
of power between the legislature, the executive and the judiciary” and “independence of judiciary”, a
fundamental concept, have now been elevated to the level of the basic structure of the constitution
and are the very heart of the constitutional scheme.

An independent judiciary is the sine qua non for a vibrant democratic system. The judiciary is the
protector of the constitution and, as such, it may strike down executive, administrative and legislative
act of the government. For Rule of Law to prevail, judicial independence is of prime necessity.
However, under the garb of judicial independence and from the weapon of contempt orders, the
judiciary seems to be almost insulated from any kind of accountability and transparency. This has
given rise to the presumption that judiciary is one of the most powerful organ having unbridled
powers. These perceptions might be one of the reasons of the increasing cases of corruption in
judiciary.
Unaccountability of judiciary has been posing a serious threat to the democracy and it leads to
corruption. The only remedy, for any offence committed by a judge, is ‘Impeachment’. However, the
impeachment process as prescribed in the Constitution has proved as unworkable.

Judicial Independence & Judicial Accountability

“No Courts decision should be a hostage to the times, prompted by current political, economic or
other motives”.

The independence of judiciary plays vital role in controlling the arbitrary act of the administration. It
is also necessary in maintaining the rule of law and fair judicial administration in the country. The
virtue of judicial system depends upon its independence maintaining human rights and civil liberties.
In the absence of independence of judiciary the rights and liberties shall have no meaning. They shall
be reduced to the level of no more than ornamental show-pieces. A constitution which has no
provision to enforce the rights in true spirit is no constitution at all. There should be enough
provisions in the constitution of the country that the judges work independently and protect the rights
of the citizens. In fact, the judiciary is tested at the time of abnormal conditions in the country.

Indian constitution has given power to the Supreme Court to interpret the constitution and even to
declare a law framed by the Parliament or the legislature of the state to be ultra vires of the
constitution. The result of this power given to the Supreme Court and the High Courts has made
them accountable to none. Indian judiciary enjoys independence but sometimes in the name of
independence the judiciary misuses its power and privileges. The concept of judicial accountability is
now-a-days a matter of controversy. The judicial accountability of the Indian judiciary may be
compared with the judicial accountability in other nations of the world like USA, Canada etc.

Legislature and executive are accountable to the people of the nation but the judiciary is accountable
to none. This is not good situation in real sense. Every wing of the state must be accountable to the
people of the nations. Judiciary should not be also unbridled. No wing of the government should
interfere and invade into the domain of other organs maintaining together judicial independence. The
judges take oath to act without fear, favour, affection and ill-will. They take oath to uphold the
constitution at the large. In the name of judicial independence sometimes judge acts beyond their
domain even then they are accountable to none. In Union of India v. Sankalchand Himmatlal Seth ,
Untwalia J. called the judiciary as a “watching tower above all the big structures of the other limbs of
the state from which it keeps a watch like a sentinel on the functions of the other limbs..”. Therefore,
the presence of a strong, independent and efficient judiciary, both in letter and spirit, is an absolute
necessity to achieve the laudatory goals imbibed in the Constitution, for it is an established principle
of natural justice that justice is not only to be done but should be manifestly seen to be done. In S. C.
Advocates on Record Association v. Union of India17 the Supreme Court has delivered important
judgment for the maintenance of judicial independence in India.
 Recent Steps taken to make Judiciary Accountable
 99th Constitutional Amendment- In the interesting turn of events, the 99th Amendment of the
Constitution, establishing the National Judicial Commission to appoint Supreme Court and
High Court judges, has been set aside by the Supreme Court. The Lok Sabha and Rajya
Sabha have respectively passed the NJAC in month of August, 2014 and The NJAC Bill and
the Constitutional Amendment Bill, was ratified by 16 of the state legislatures in India, and
subsequently assented by the President of India Mr. Pranab Mukherjee on 31 December 2014.
The NJAC Act and the Constitutional Amendment Act came into force from 13 April 2015.
On 16 October 2015 the Constitution Bench of Supreme Court by 4:1 Majority upheld the
collegium system and struck down the NJAC as unconstitutional after hearing the petitions
filed by several persons and bodies with Supreme Court Advocates on Record Association
(being the first and lead petitioner). Justices J S Khehar, MB Lokur, Kurian Joseph and
Adarsh Kumar Goel had declared the 99th Amendment and NJAC Act unconstitutional while
Justice Chelameswar upheld it.

 Prevention of Corruption Act, 1988 (POCA) - Its main thrust is to prohibit public servants
from accepting or soliciting illegal gratification in the discharge of their official functions. In
addition, bribe-givers and intermediaries may be held liable under POCA for bribing public
officials. However, prosecution under POCA requires prior approval of high authorities
which severely limits its usefulness particularly where there is collusive activity within
government branches.

 Judicial Standards and Accountability Bill 2010 - The Judicial Standards and Accountability
Bill tries to lay down enforceable standards of conduct for judges. It also requires judges to
declare details of their and their family members' assets and liabilities. This Bill creates
mechanisms to allow any person to complain against judges on grounds of misbehaviour or
incapacity. All these details will be put up on the websites of the Supreme Court and high
courts. It will further require judges not to have close ties with any member of the Bar,
especially those who practice in the same court. The Bill will replace the Judges Inquiry Act
retains its basic features, contemplates setting up of a national oversight committee, to be
headed by former Chief Justice of India, with which the public can lodge complaints against
erring judges, including the Chief Justice of India and the Chief Justices of the High Courts.
At present, there is no legal mechanism for dealing with complaints against judges, who are
governed by ,Restatement of Values of Judicial Life,' adopted by the judiciary as a code of
conduct without any statutory sanction. Many recent judgments of both the High Courts and
the Supreme Court have enhanced the regard of the judiciary, paving the way for citizen
friendly legislation and protection of Human Rights. It is increasingly realized that the
fearlessness of these judicial pronouncements is predicated on the constitutionally mandated
judicial independence from the executive which should in no instance be undermined.
 Conclusion
The legal system in India and the judiciary has reached a stage now where the public openly criticize
the judiciary and the News Channels debate even the judgments delivered by the Constitutional
Courts. Democratic government is designed with checks and balances, not only to protect ourselves
from scoundrels, but also to protect ourselves from well-intentioned individuals who simply have
erroneous conceptions of American constitutionalism or who have become intoxicated by their own
alleged insight and brilliance. Absence of effective accountability prevents consent from legitimizing
judicial practice. Independence should be used only as a means to achieve particular end and not an
end in itself. If accountability is not taken seriously we can witness a dangerous nexus between
corrupt judges and politicians which will bring an end of democracy. It is also important to keep in
mind that accountability in judiciary is different from the other two organs, the distinctive nature of
the office demands separate treatment and this is in view of the nation’s benefit. In a democratic set
up if we accept the good governance how the other two organs of the state is accountable in the same
way the judiciary made accountable. Than only the common citizens faith in the judiciary will
improves. The concept of accountability and good governance are considered as two faces of same
coin. In the present system it is necessary to maintain the transparency in the judiciary.

‘Power corrupts and absolute power corrupts absolutely’

Suggestions
"If corruption is a disease then transparency is it's the cure" says the former UN chief Kofi Anan.
Our judiciary which is so called flag bearer of transparency in governance, ironically is itself is an
intransparent organisations. As per the SC, Right to be informed is a fundamental right, as an
informed citizenry is essential for a vibrant democracy. But SC always tries to neglect transparency
and accountability in its own bastion. Many allege higher judiciary being a product of nepotism and
redtepism, but no one is accountable to answer these questions. Judicial appointments have always
been covered in the veil of secrecy, which begets many questions on the working of collegium
system and rationale behind its decisions. In India, neither any statute nor any constitutional
provision deals with transparency in working of the judiciary; it is unfortunate that we can't access
them under RTI as well.

At many instances, judiciary has countered this flaw in it's working by mentioning this information
as sensitive and that it has the potential to harm the independence of judiciary. In some cases SC was
very correct in pointing out the actual threat to independence of judiciary, but in some cases it uses
this as a catchphrase which is arbitrary. If the apex court of our nation is covered with fog and haze,
then how the common man is supposed to have faith in judiciary. Yes we can't rule out the attempts
of our political masters to encroach upon the independence of the very institution created to have a
check on them. But taking this thing as an excuse every time is also not correct as well. Judicial
appointments can't be made on the whims and fancies of our political masters. Our judicial system
shouldn’t become a puppet of the politicians of ruling party. And we would have been not so far
from sabotage of our democracy. The power of judicial review has been tagged as ‘a jewel of the
Constitution’ by Dr. B.R. Ambedkar. If its appointment and transfer would have been handed over to
our legislators then judicial decisions would have been a mockery of the justice, which is at least not
a case as of now.

The transparency in judiciary must be up to that extent at least from where we can get the rationale of
their decision. And some steps have already been taken in this direction. Such as recently the office
of CJI has been brought under RTI as a public authority. Independence of judiciary is essential for
keeping the democracy alive but it must not be used as a catchphrase to overrule even positive
reforms in working of judiciary. And it is only higher judiciary that can take a tough call if it has the
required will power to bring changes. It is like choosing between two evils intransperant judiciary
and politically driven judiciary, so till now we have opted for the smaller evil which is intransparent
judiciary. But now time has come to distinguish the things that are not threat to judiciary and make
them transparent.

Bibliography

 E-shodhganga (http://hdl.handle.net/10603/258834)

 Legal Service India.com

 International Journal of Law

 Legal Era (https://www.legaleraonline.com/)

 The Wire newspaper

 http://jsslawcollege.in/

 https://www.researchgate.net/

 http://www.lawjournals.org/