Name: T.

Krithiga

class: 1-st Year LL.M

Subject: Judicial Process

College: Government Law College

Thiruchirappalli.

JUDICIAL PROCESS
TOPIC;

“Problems of accountability and judicial law making”

SYNOPSIS:

1.INTRODUCTION.
2.NATURE AND MEANING OF JUDICIAL
ACCOUNTABILITY.
3.NEED FOR JUDICIAL ACCOUNTABILITY.
4.LACK OF JUDICIAL ACCOUNTABILITY IN
INDIA.
5.JUDICIAL ACCOUNTABILITY AND
DISCIPLINE: CONSTITUTION OF INDIA.
6.IMPLEMENTATION OF JUDICIAL
ACCOUNTABILITY
CODE OF CONDUCT FOR JUDGES.
CODE OF ETHICS OF A JUDGES.
1.Judicial decision to be honest.
2.No man can be a judge in his own
cause.
3.Administer justice.
4.Equal oppurtunity.
5.Maintenance of distance from
relatives.
6.Too much of activity and
participation in social functions be
avoided.
7.Media publicity must be avoided.
7.PROBLEMS IN JUDICIAL
ACCOUNTABILITY.
8.JUDICIAL ACCOUNTABILITY AND
JUDICIAL INDEPENDENCE.
9.PROBLEMS OF ACCOUNTABILITY.
1.The contempt of courts act.
2.Appointment and seletion of judges.
3.Impeachment.
4.Disciplinary mechanism.
5.Other problems(law making) regarding
accountability.
6.Politics.
10.JUDICIAL RESPONCE:JUDGING THE
 JUDGES(CASE LAWS).
1.Case of justice V.Ramaswami.
2.The case of justice Ashok Kumar.
11.JUDICIAL ACCOUNTABILITY BILL.
12.CONCLUSION.

1.INTRODUCTION:
The constitutional changes reflected in the constitutional
reform act 2005(“CRA”), in particular the displacement of the lord
chancellor as the head of the judiciary and the creation of a supreme
court, led to new interest in the judiciary as an institution and in the
issue of the accountability of judges and the judiciary.

Both individual judges and the judiciary as a branch of the state are
subject to anumber of forms of accountability which are not
incompatible with their individual and institutional
independence.these are,however, not always understood: nor are the
necessary limits to judicial accountability required to product that
individual and institutional independence.

So in what sense ,if any,are they “accountability”,and to whom?

The forms of accountability and their limits are discussed below. The
limits result from the acknowledgement need in a democracy for an
independent and impartial judiciary which is free from improper
influence.

2.NATURE AND MEANING OF JUDICIAL ACCOUNTABILITY:

The word “Accountable” as defined in the oxford

dictionary means ‘responsiple for your own decisions or actions and
expected to explain them when you are asked’. It is the sine qua non
of democracy.
The judiciary and the judges have been accorded a
distinct position in keeping up truth and justice and for that the
constitution provides that “there should be an impartial and
indepentent judicial body to adjudicate upon the matters and to act as
the interpreter and guardian of the constitution”.
Faith of the people in the quality,integrity and
efficiency of governmental institutions stands seriously eroded. It is
a fact that authority cannot be absolute and unaccountable if it is
from the same source. It has to be accountable either to the sources
of its origin, to the institution and more importantly to the people.

3.NEED FOR JUDICIAL ACCOUNTABILITY:

Judicial accountability and answerability of the judges

is not a new concept. several countries in their constitution have
already provided for ensuring accountability of judiciary. This to
prevent concentration of power in the hands of a single organ of the
state especially in countries where judicial activism interferes with
and invades into the domain of other organs. But at the same time
judicial independence is a pre-requisite for every judge whose oath
of office requires him to act without fear or favour, affection of ill-
will and to uphold the constitution and laws of the country.
Former judge of the supreme court chinnappa Reddy
have expressed the view that if all the sections of the society are
accountable for their actions, there is no reason why the judges
should not be so.

4.LACK OF JUDICIAL ACCOUNTABILITY IN INDIA:

Thus, the judiciary was given the powers to interpret

the laws and the constitution and also to strike down executive
action which violated any law are the fundamental rights of
citizens.it was also the authority to examine whether laws framed by
parliament are constitutional or unconstitutional and declare them
void if they violated it. The judiciary by way of this creative
interpretation as provide by the constitution in 1973 also acquired
the power to strike down even constitutional amendments which
were held by the court to violate the basic structure of the
constitution. Many laws and some constitutional amendments have
been struck down by the courts during this period.
If a motion containing charges of serious
misconduct with the requisite signatures is submitted and admitted
by the speaker of the house of people or the chairperson of the
council of states,an inquiry committee of 3 judges is constituted to
hold a trial of the judge. Only if he is found guilty,the motion is
placed before each house of parliament where it has to be passed by
a 2/3 majority of each house.
5. JUDICIAL ACCOUNTABILITY AND DISCIPLINE:
CONSTITUTION OF INDIA

According to the preamble of the indian constitution ,

WE ,THE PEOPLE OF INDIA ,having solemnly resolved

to constitute india in to a ( sovereign,socialist,secular,
democratic,republic) and to secure to all its citizens ;

JUSTICE, social,economic and political;

LIBERTY ,of thought ,expression,belief,faith and worship;

EQUALITY of status and of opportunity ; and to promote among

them all

FRATERNITY assuring the dignity of the individual and the ( unity

and integrity of the nation )

IN OUR CONSTITUENT ASSEMBLY this 26 th day of November

1949 ,do HEREBY ADOPT ,ENACT AND GIVE TO OURSELVES
THIS CONSTITUTION…

unfortunately , because of indifference on the part of the executive

and the legislature to discharge their duties constitutionally , courts
have been compelled to correct institutional abuses, restrain
individual defiance, minimize oppression and discrimination and
enforce the rule of law. Often legislation inadvertently leaves many
open questions that must be resolved during the course of litigation .
The courts and the judges resolved such issues by judicial
pronouncements .it is clear that unless the community lives under the
rule of law. It will tend to be lawless.

In the judgment in VEERASAMY CASE (1991) 3scc655, prohibited

the police from registering a criminal case against a judge of a
supreme court unless the chief justice of india is consulted in the
matter and if the chief justice is of the opinion that it is not a fit case
for further proceeding the case is not to be registered and
investigated.

6. IMPLEMENTATION OF JUDICIAL ACCOUNTABLITY :

For proper implementation of this concept of judicial

accountablity , it is necessary that the judges should follow the code
of conduct which may be broadly called as ethics for judges.

CODE OF CONDUCT FOR JUDGES :

The basic code of ethics is the principle that no man can be judge in
his own cause , it means that a judge should not adjudicate those
cases in which he has any kind of interest. A judge should follow the
motto of “ Fiat justicia ,ruat caelum” that is “let justice be done
though the heavens fall”.

CODE OF ETHICS OF A JUDGE :

➢ judicial decision to be honest
➢ No man can be judge in his own cause.
➢ Administer justice
 ➢ equal opportunity
➢ maintenance of distance from relatives
➢ too much of activity and participation in social functions be
avoided (ram pratap sharma vs.daya nand)
➢ media publicity be avoided

7.PROBLEMS IN JUDICIAL ACCOUNTABLITY :

In a democracy ,the constitution is supreme which resolves to

secure to all its citizens justice . The judiciary is thus, appropriately
one of the most important agencies to any democratic government. It
is an independent body protecting the rights of the citizens and
guarding the constitution zealously.

The people hold a great stake in the administration of justice

.despite the value of judicial accountability in any free democratic
republic , the judiciary in india is at vest completely and un
accountable to any institution in the country.

8.JUDICIAL ACCOUNTABILITY AND JUDICIAL

INDEPENDENCE :

judicial accountability and judicial independence are

complimentary to each other. Judicial accountability helps safeguard
the independence and integrity of the judges. Sometimes judicial
accountability can be misconstrued as it is context-based. It is very
difficult to define judicial accountability and it has to be appreciated
from the view of its objectives. It can be said to have three main
function.
 a. to promote the rule of law by deterring any conduct that
might hinder judicial independence.
b. to advance public confidence in the judiciary
c. to promote institutional responsibility of the judiciary as
a whole towards the public.

PROBLEMS OF ACCOUNTABILITY:

The people hold republic, a great reasons for the low

accountability of justice. Despite the value of judicial accountability
in any free democratic, the judiciary in india is at best completely
unaccountable to this dire situation and the problem of
accountability is wide and complex.
1. The contempt of courts act.
2. Appointment and selection of judges.
3. Impeachment.
4. Disciplinary mechanism.
5. Politics.

THE CONTEMPT OF COURTS ACT:

One of the critical reasons for the low accountability of

judges in india is the power of the courts to punish for its contempt.
The contempt of court act defines contempt as civil or criminal. It
further states that civil contempt means willful disobedience to any
judgment, decree, direction, order, writ or other process of a court or
willful breach of an undertaking given to a court.
Criminal contempt means the puplication( whether by
words, spoken or written,or by signs,or by visible representations,or
otherwise) of any matter or the doing of any other act whatsoever
which-scandalizes or tends to lower the authority of any court; or
prejudices, or interferes or tends to interfere with the due course of
any judicial proceedings; or interferes or tends to interfere with, or
obstructs or tends to obstruct, the administration of justice in any
other manner.

APPOINTMENT AND SELECTION OF JUDGE:

The court being such an important institution in the

country. It is imperative to select judges of high veracity who can
uphold the constitution. Four qualifications described for a judge
are-he should be able to here courteously,answer wisely, consider
soberly and decide impartially. This only indicates the consequences
of a bad appointment arrangement for a judge.

In the case of S.P.GUPTA Vs UNION OF INDIA, it

was held that the president has the right of differ from the advice
provided by the judges and it can only be challenged if it is based on
mala-fide and irrelevant consideration. This decision was reversed in
SC Advocates on Record Association Vs Union of India. Where by
it was held that in the matter of appointment of judges of judges of
high courts and supreme court, the chief justice should have the
primacy and the appointment of the chief justice should be based on
seniority. It further held that the chief justice must consult his two
senior most judges and the recommendation must be made only if
there is a consensus among them.

Further the Third Judge Transfer case held that an

advice given by the chief justice without proper consultation with
other judges is not binding on the govt. These two judgments
practically make india the only democracy where judges select
themselves. The second judge transfer case is a truly sad decision
which undermines any kind of accountability in the appointment
procedure of the judges.
IMPEACHMENT:

The impeachment procedure for a judge in india is one

of the most impractical and difficult procedure to put into motion.
The motion has to be addressed to both the honest of the parliament
and should be passed by a simple majority of the whole house and
also by a 2/3rd majority of members present and voting. No member
of parliament is willing to sign and vote for such a motion unless
there is hard proof against the judges. This is not possible unless an
investigated is conducted to gather evidence. But due to the decision
in K.Veeraswamy’s case this is not a possible unless a special
permission by chief justice of india is granted to investigate the
judge. Now such permission is again not given unless the change has
substantial proof backing it. And proof cannot be obtained with out
an investigation. This is the lacuna in the law.

DISCIPLINARY MECHANISM:

Many a times the government has tried to enact a bill

bringing in force a suitable disciplinary instruments but field
miserably. There is a recommendation of having a national judicial
council in this regard which is a very positive step in providing a
disciplinary mechanism of the judge. This is although still awaited.
There is a need for a workable mechanism for disciplining erring
judges and it should constitute both corrective and punitive
measures.
Different types of misconduct should be dealt with
differently. For this purpose accountability can be divided into three
kinds.there are;
1.Collective or institutional accountability.
2.Behavioral accountability.
3.Decisional accountability.
POLITICS:

These are not only problems faced by the indian

judiciary. The increasing role of politics in the realm of justice has
only amplified the crisis of accountability. Such nexes between
corrupt politicians and the judiciary have grown over the years. The
task of the judiciary is to only decide the cases before it. It is in this
scenario that separation of power products the integrity and
independences of the judiciary.

OTHER PROBLEMS (LAW MAKING) REGARDING

ACCOUNTABILITY:

a)immune from any authority’s scrutiny and

empowered with judicial review, the courts have started interpreting
laws to suit their aims and fortify themselves from any external
scanning. They have invented their own laws,rules,and methods of
implementation, and have used contempt of court as a threat for
disobedience of their orders.
b) Also every judges tries to impose his own personal
philosophy and ideas in his judgments. This has led to a vast number
of contradictory judgments on the same issues. Somehow many of
them have forgotton that their decisions should be backed by reasons
and not by personal ideas.
c) In the absence of any responsibility of the judiciary
to anyone but itself, the judge have started considering themselves as
demi-gods. It only goes to show on that ‘corruptio optima pessima’-
corruption of the best is the worst of all.

JUDICIAL RESPONSE: JUDGING THE JUDGES (CASE LAW)

 Recently, the judiciary has been greatly in the
news, but for all the wrong reasons. A string of judicial scandals
have erupted in the recent past, starting with chief justice
sabharwal’s case, and then going on to the ghaziabad district court
provident fund scam, the 15 lakh cash-at-judge-door scam of
chandigarh, and the justice soumitra sen case of calcatta. Some of
these have arison due to the lack of transparency in the seletion and
appointment of judges.

1)CASE OF JUSTICE V. RAMASWAMI:

The result, therefore, is that despite a high-power

inquiry committee of three eminent judges having come to the
conclusion that Ramaswami was guilty of several acts of gross
misbehaviour which warranted his removal, the judges is still
entitled to discharge judicial function from the highest court of the
land. It is another matter after the impeachment motion failed,
Ramaswami was persuaded to resign by the congress which
belatedly realised that it would have to pay a heavy price for being
seen to have supported a corrupt judge. The failure of the motion,
especially after the tortuous course it went through, raises several
grave issues for the future of the administration of justice in this
country and indeed for probity in public life in general.

2) THE CASE OF JUSTICE ASHOK KUMAR:

In the case of justice Ashok kumar, who was

appointed an additional judge in April 2003, the collegium of three
senior judges of the supreme court unanimously decided not to
confirm him as a permanent judge in August 2005 because of
adverse reports regarding his integrity. Despite this, he was given
extentions as additional judge, and finally came to be confirmed in
february 2007 on the chief justice’s recommendation, which was
made without consulting other members of the collegium of judges,
in complete violation of several judgments of the supreme court.
These had clearly laid down that in a matter of appointment of
judges, the chief justice cannot act alone and must go along with the
majority view the collegium of senior judges of the supreme court.

JUDICIAL ACCOUNTABILITY BILL:

The judicial standards and accountability bill will set

judicial standards and make judges accountable for their lapses. It
will also mandate that judges of the high courts and the supreme
court declare their assets and liabilities, including those of their
spouses and dependents. The union cabinet has approved the draft
judicial standards and accountability bill, 2010 that provides for
settting up a five-member oversight committee to deal with
complaints against members of the higher judiciary. Official sources
said judges would also be required to declare their assets and file
annual return of assets and liabilities. All these details will be put up
on the websites of the supreme court and high courts. It will further
require judges not to have close ties with any members of the bar,
especially those who practise in the same court.

CONCLUSION:

Corruption in the judiciary is hardly a new phenomenon,

through it has certainly increased over the years. It is worthwhile
however to examine the reasons for the sudden spate of exposures of
judicial corruption. Having enjoyed enormous powers, including the
power of contempt, without any accountability, the higher judiciary
has over the years; tread on the toes of many of many persons and
institutions, particularly the media. Not wanting to suffer critism, the
judiciary has used its power of contempt to stifle criticism.