CHAPTER - 1

INTRODUCTION

1.1 Introduction

In the six decades of independence from alien rule, India, despite its

burgeoning population, grinding poverty, large-scale illiteracy and unparalleled diversity, has

not only remained successfully afloat in the democratic ark, remarkably so in a destabilizing

neighborhood, but can also rightfully boast of significant advances made in agriculture and

food production, science and technology, trained technical man power and higher education

to name a few areas of success. While these are the positive developments, there are other

areas where India is lagging as a nation. Still considered as a developing country, India ranks

132 out of 175 countries according to the UNDP's human development index (HDI). When it

comes to competitiveness on the global economic front, according to the world

competitiveness Index it ranks 58th out of 53 countries. And when it comes to corruption,

India's record is rather dismal as it is ranked 66th out of 85 in the corruption perception Index

by the German NGO Transparency International, which arranges nations in the order of

perception of corruption in the country.1 Needless to mention, the above three indices have a

direct bearing on governance.

Governance Discourses Etymologically and semantically, words like

'governance' and 'good governance' seem to belong to the same genus as very ancient terms

like 'state' and 'government'. In fact right from the recognition of the concept of government,

either for the community or for the nation state, value premises have been developed as to

how a government has to perform and how not to function. Thinkers and theorists have

pondered upon the concept continuously. 'Good governance' was traditionally related to

resource management. It has been a subject in the political discourse right from Socrates to

1
Mahatma Gandhi. Ancient literature provides ample evidence for the establishment of 'good

governance'.

Yet, there was no such intense discussion on this concept earlier. In fact it has

gained currency only in the last two to three decades as a descriptive label for some parts of

the policy packages associated with the 'conditionalities' of donor agencies viz. IBRD, IMF,

WB who have lent loans for development works etc. in the Third World. The lending

experiences in many developing countries soon brought home the realization that, despite

technical soundness, development programmes and projects, loans financed by them often

failed to produce desired results given the extreme diversity of the political culture and

administrative structures prevalent in most of the Third World countries. Often, it was felt

that the laws were not enforced properly. In the absence of proper accounting, budgetary

policies were not efficiently monitored. All this obviously encouraged corruption and lead to

distortion of investment priorities.

Operating on commercial principles of supporting 'bankable' projects, the

World Bank etc. were compelled to adopt prudential policies and devise new conditionalities

to ensure proper utilization of its loans. Thus was born the concept of 'good governance'

which became a critical component for determining a loan recipients' capacity for successful

implementation of carefully planned World Bank loan assisted projects. Thus the World

Bank and later the OCED identified significant list of 'good governance' dimensions which

entail explicitly or implicitly, reduction or curtailment of the existing functions traditionally

being performed by various governments. As per the World Bank definition 1992 the basic

function of governments should be 'management of country's economic and social resources

for development'. It would be pertinent to highlight the fact that while the Constitution of

India casts a wide array of welfare and regulatory functions upon the union and state

2
governments, the World Bank governance discourse focuses on 'developmental function' with

narrow economist and technicist dimensions, more in tune to its agenda of maintaining its

supply of loans with assured payback prospects.

Paradigm shift Paradoxically, this donor driven exercise, to reform

government and administration has successfully elicited strong-willed responses from

recipient countries, to the extent that academic and administrative analysts have been vying

with each other in highlighting the pathologies afflicting the politico-administrative system.

On the other hand, it cannot be denied that the success story of command

economies was critical in determining the 'interventionist' role of state in India in the early

decades of post independence. In keeping with the spirit of the times, India adopted the

'prescriptive planning' process. But unfortunately, the controlled economic system was

widely abused and infused with rampant corruption, inordinate delays and inefficiency. The

ominous result was a serious 'balance of payment crisis' owing to a steady decline in exports,

negative growth rates in industry and agriculture, decline in domestic productivity,

inadequate returns and continuing losses from massive investments in public sector

enterprises and economic populism resulting in increasing state subsidies, especially in

fertilizers, and hidden payments incurred though lower tariff rates of public sector enterprises

in power and transport sectors. Understandably, the need for change was inevitable.

Consequently the endeavours to 're-invent' government in accordance with the

World Bank agenda of 'good governance' included dismantling of its regulatory mechanisms,

disinvestment of its mammoth public sector enterprises and withdrawal from all business

activities. This also implied adoption of a new market-driven package of economic policies

popularly known as Liberalization, Privatization, Globalization (LPG) reforms. To

operationalize the above in consonance with good governance, 'new public management' has

3
been considered a vital input. The past couple of decades have witnessed a great deal of

structural adjustments, limiting of the role of state, downsizing of bureaucracy, devolution of

authority, cost reduction, contracting out some of the operative functions of the government,

developing and designing result oriented appraisal systems and commercialization as well as

market orientation of governmental activities. This has been supported by effective

accountability through an open reporting system.

The administration is apparently moving from rule to result orientation, from

systems to enterprise, from obedience to reward, from centralization to decentralization and

from the duties of administrators to the rights of citizens. Both in economy and polity an over

hauling has taken place, altering totally the paradigm of governance, administration and

development. A new paradigm has been developed by which new opportunities, which are

uncommon, can be harnessed by enhancing the capacity of the stake holders. Through this

paradigm power is given to the people to determine their destiny. People have been projected

as the major stakeholders and they have to decide their course of action in the process of

development. The government is no longer conventionalized as 'provider', but is instead

envisaged as 'facilitator' and therefore, is accorded a back seat, while the community or user

group is expected to take the front in development initiatives.

Good Governance: Indian Experiment For the success of any event or

programme a centralized drive is necessary to prepare the stake-holders to hold their hands on

to it. It could be called a descent and ascent process. Interestingly, the 73rd Amendment with

the proclaimed objective of democratic decentralization was not a response to pressure from

the grass roots, but to an increasing recognition that the institutional initiatives of the

proceeding decades had not delivered the desired results of ushering equity and social justice.

The growing conviction that big government cannot achieve growth and development in a

4
society without people's direct participation and initiative heralded the enactments of the 73rd

and 74th Constitutional Amendment Act and the subsequent state-wise Panchayati Raj Acts

in India. This process of decentralization of power, provision for participation of citizens in

local decision making and implementation of schemes affecting the livelihood and quality of

life was pushed vigorously with the aim to accelerate thus the 'top down', process of

government to an interactive process and thus make inroads in to the internationally

acclaimed standards of good governance.

There emerged a political consensus that governance has to extend beyond

conventional bureaucracies and involve actively citizen and consumer groups at all levels, to

inform the public and disadvantaged groups, so as to ensure service delivery and program

execution through autonomous elected bodies. That the traditional government-citizen

relationship, cast in a donor-recipient mold and the bureau-centric power-focused approach,

perforce has to undergo a change in the new scenario.

In a democratic system judiciary is very important organ for upholding and

protecting the rights of the people. Not only an organ of judiciary is required but it is also

very essential that this branch of government must be independent in its functioning.

Independence is required to ensure the impartiality in decision making process. Without

impartiality in the decision making process public cannot witness the sense justice. Along

with the independence, judicial accountability and transparency is also necessary. In absence

of judicial accountability, transparency and independence; justice will be an illusion for

public. Justice is one of the most important objects of a democratic system. Justice is a major

goal of law.

Justice is very important for flourishing any democratic system because

injustice with public ultimately leads to dissatisfaction, disaffection to government or ruler

5
and results in revolt against State. Judicial independence cannot be isolated to the

accountability for their work which judges carried out. Judges are also human being and they

work under the human fallibilities. Judges cannot be exempted from the institutional

supervisory mechanism. Judicial Independence seeks for adopting a proper mechanism for

transparency and accountability.  

It is well known fact that judiciary is one of the most important organ of the

government. It plays an important role in justice delivery system and in the governance of the

country. Indian judiciary has been praised for playing an active role for promoting good

governance in India but Indian judiciary itself is facing many challenges for true realization

of good governance by public at large. There is lack of transparency in the appointment of

judges and administrative functioning of judicial system in India.

In the history of Indian judiciary, on 12th January, 2018 an unexpected thing

was happened when four senior most judges of the Supreme Court held a press conference

for their dissatisfaction with the unjust administrative functioning of the Supreme Court.

They said to media that if judiciary will not be preserved as institution the democracy will not

survive in this country. Framer of the Constitution and our founding father has vested

enormous power in the judiciary for the protection of the civil liberties and Constitution itself

but they have not provided very effective mechanism for the accountability of judiciary.

Justice is one of the Constitutional mandate and most important human right of citizen. There

is a spreading rash of judicial delinquency in many forms. 

Trust and fiduciary is the main component of power which has been vested in

public authority. Accountability and trusteeship go together and constant monitoring and

social audit is most important factor in this regard. Executive branch is accountable to the

parliament and ultimately, the Parliament has been made accountable to the people.

6
Theoretically, under the Constitutional scheme, judiciary too has been made accountable to

the Parliament. Judiciary is one of the most important pillars of democracy; therefore it must

be subject to the democratic discipline. Any branch of the government which is not subject to

discipline of democratic principles may become uncontrolled and unaccountable. To save the

prestige, trust and confidence which have been posed by the public in judiciary it is necessary

that the working of the judiciary must be transparent and accountable.  Founding father of the

Constitution had thought that settled norms and peer pressure would act as adequate checks

upon the judiciary but it has not happened. It is rightly observed by the Supreme Court that a

single dishonest judge not only dishonors himself and disgraces his office but jeopardizes the

integrity of the entire judicial system. A scholar has listed three main benefits of judicial

accountability as follows –

1. It promotes the rule of law.

2. It promotes public confidence in judges

3. It promotes institutional responsibility.

The process of accountability can be promoted and facilitated through judicial

accountability. To achieve judicial accountability it is necessary that the judicial system must

be made accountable to the law.

Accountability means being “responsible for your decisions or actions and

expected to explain them, when you are asked”. In Webster’s dictionary, accountability is

defined as the quality or state of being accountable, liable, or responsible. Generally

speaking, accountability implies the necessity to justify or explain ones past conduct,

behaviour or action. Thus, the word “accountability” means responsibility with respect to the

powers, functions and duties which are assigned to a person. Judicial accountability makes

the judges accountable by holding them legally or politically responsible for their behaviour.

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In simple words accountability means to take responsibility for one’s own action, behaviour

or decision and to be responsible to an external body. It is concerned with the qualitative

work, quality of justice, conduct and behaviour of judges. It emphasizes upon the complete

integrity of judges which is very basic trait of justice delivery system. Unimpeachable

integrity, impartiality, fairness is utmost necessity for efficient functioning of judiciary. In

NJAC Case it was observed by Justice J. Chelameswar that deep learning in law, incisive and

alert mind to quickly grasp the controversy, energy and commitment to resolve the problem

are critical elements which make a Judge efficient and enable him to decide cases quickly.

However, every Judge who has all the above-mentioned qualities need not automatically be a

Judge who can generate confidence in the litigants unless the litigant believes that the Judge

is absolutely fair and impartial.  Judiciary is the watchdog of the Constitution and its

fundamental values.

It is also said to be the lifeblood of constitutionalism in democratic societies.

People have expectations that their cases should be decided quickly by judges. It will

generate confidence among people. Now, the question is that which is the formula and what

are the qualities which can make a judge to decide cases quickly thereby generate confidence

in the masses and litigants.  Transparency is a vital factor in constitutional governance. It is

well established fact that constitutionalism demands rationality in every sphere of State

action. It may be the process of appointment or the process of justice delivery system. 

Keeping in mind the concept of judicial accountability and independence it can be

divided into three categories. One is political accountability, second is decisional

accountability and third is behavioral accountability. Selection and appointment of judges,

their tenure is part of the political accountability. Decisional accountability is concerned with

the manner in which the judges are accountable for their judgments and ruling. Concept of

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judicial review, appeals, academic criticism of judicial actions is a part of decisional

accountability. Legislatures do not provide adequate funding for proper functioning of the

courts. Definitely, it adversely affects the decision making process of the court. Behavioral

accountability involves the conduct of judges. Transparency is an aspect of rationality. In

process of appointment, transparency is required. The process of appointment by Collegium

system in our country is absolutely opaque and inaccessible to public.  Ruma Pal, J; has

observed, that “Consensus within the Collegium is sometimes resolved through a trade-off

resulting in dubious appointments with disastrous consequences for the litigants and the

credibility of the judicial system.

Institutional independence has also been compromised by growing sweet talk and

‘lobbying’ within the system”. In the reference of judicial proceeding the Supreme Court has

observed that “Public trial in open court is undoubtedly essential for the healthy, objective

and fair administration of justice. Trial conducted by the court in open and which is  open to

public scrutiny and watch works naturally as a check against judicial caprice or vagaries, and

serves as a powerful instrument for creating confidence of the public in the fairness,

objectivity, and impartiality of the administration of justice. Public confidence in the

administration of justice has a such great significance that there can be no two opinions on

the broad proposition that in discharging their functions as judicial tribunals, courts must

generally hear causes in open and must permit the public admission to the court-room.

Jeremy Bentham has also observed that “In the darkness of secrecy sinister interest, and evil

in every shape, has full swing. Publicity is the very soul of justice. It is the keenest spur to

exertion, and surest of all guards against improbity. It keeps the Judge himself while trying

under trial (in the sense that) the security of securities is publicity.” 

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 CHAPTER – 2

ANALYSIS AND BACKGROUND

2.1 Accountability and Transparency: Definitions and Context

Accountability is the cornerstone of good public governance. In recent years,

the principles of accountability, transparency, participation, and inclusion have become

recurring features of policy statements and programs of international development

organizations. (Carothers and Brechenmacher, 2014). These principles are based on

reciprocally supporting concepts of voice, answerability and enforceability. Establishing

accountable institutions is a priority on the international development agenda and is singled

out under Goal 16 under the Sustainable Development Goals (SDGs).

In academic circles, the term accountability is made in reference to three main

elements; the need to be able to voice your preferences or demands; answerability or a

justification of actions; and enforcement, which is the sanction that could be imposed if the

action or justification of actions is found to be unsatisfactory (Schedler, 1999, Baez-Camargo

2013). In recent years there is a recognition that strengthening voice is not sufficient and a

fourth element is critical in any accountability relationship - namely responsiveness; the

ability of power holders to respond to demands made by citizens or pressure groups through

formal and informal mechanisms (Posani and Aiyar, 2009).

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 Definitions of accountability have also evolved in terms of the spatial

direction of relationships. Accountability can be vertical, wherein the relationship between

voting citizens and political incumbents determines the quality of public goods and elections

serve as a mechanism to induce responsiveness based on the incentives for leaders who want

to win and retain power. Accountability can also be horizontal, and within state institutions in

a political system based on the idea of the ‘separation of powers’ and checks and balances.

Checks between institutions can prevent the excessive centralisation and abuse of power. In

addition, it can also be diagonal, wherein elements of horizontal and vertical accountability

combine. Thus, civil society organisations, NGOs, citizens, judiciary and media all engage

directly with the state to enable better service delivery, such as media exposure, social media

campaigns, protests etc. (Mechkova et al, 2017).

In formal settings which are more application based, such as the United

Nations, Accountability is defined as the obligation to (i) demonstrate that work has been

conducted in accordance with agreed rules and standards and (ii) report fairly and accurately

on performance results vis-à-vis mandated roles and/or plans. (UNDP Accountability

Framework, 2021). According to DFID, accountability is an institutionalised (regular,

established, accepted) relationship between different actors, one set of people/organisations

are held to account (accountees) and another set do the holding (accounters) (Transparency

and Accountability Initiative, 2021).

Accountability is also used in tandem with the depth of democracy. In

democratic regimes, public governance is characterised by the relationship between

institutions and civil society, pertaining especially to responsibility and accountability for the

management and control of public resources and the delivery of public services. It is

therefore within the mandate of good public governance toeffectively manage public

11
resources at high levels of accountability and transparency. This includes a free flow of

information, control of corruption, citizen participation and equity, as the quintessential

principles of democratic institutions. 

One critical way of enabling accountability is through greater transparency.

Transparency as a concept focuses on resolving information asymmetries. It is the

dissemination of regular and accurate information, and widely recognized as a core principle

of good governance. (Mitchell 1998) The information must be freely accessed, however, in

addition to the same, it must also be timely, relevant, accurate and complete for it to be used

effectively. Simply put, a transparent regime is one that provides accurate information about

itself, its operations, and the country as a whole, or permits that information to be collected

and made available in a manner that is relevant to evaluation.

In several instances, the government or state can be the sole producer and

repository of data, with complete discretion on the manner, quality and timing of

dissemination. (Stiglitz 2002) Hence, the release of information alone is not in itself enough

to assess the transparency of a regime. Regulation to enable transparency is critical. The flow

of information is regulated by laws, regulations and procedures, such as administrative

reviews such as Freedom of Information Acts (Right to Information in the case of India),

Protections of media and speech freedoms, or more generally protections of the public’s right

to know.

Greater transparency may also contribute to lower rates of corruption by

facilitating legal, administrative or electoral mechanisms of punishment. Transparency serves

two other important functions: protection of individual rights and facilitation of the

individual’s involvement in governance. Also, transparent governance may create greater

12
public trust and legitimacy in government actions. While the public values transparency, it is

also an end in itself.

Accountability and Transparency in Government are mutually reinforcing.

However, actual implementation of accountability and transparency-related reforms on the

ground, while not devoid of stellar examples and progress in some countries, remains

chequered globally.

An independent, objective and unbiased judiciary is one of the most important

pillars of democracy. In fact, it is supposed to be one of the strongest pillars that people can

depend upon and trust above all others. When aggrieved by the legislature, the executive or

the media, people trust the judiciary to come through for them. When such great powers are

vested in this function, its responsibility to retain the trust of the people also multiplies many

folds. Therefore, when the judiciary is at the receiving end of mockery, it is a cause of

concern. It is an indication that people’s trust in the institution is wavering.

However, when such concerns are raised, they are met with hostility. Instead

of evaluating the causes, several times, there are hopes expressed for the parliament to curb

public dissent by enacting laws to that effect. This is an undesirable approach.

The judiciary in India has been beyond reproach for a very long time. While

this was designed to ensure the independence of the judiciary, however, one realises

increasingly that such independence should not be without checks and balances. Having been

left to its own accords, the judiciary has developed certain chronic imperfections that must be

urgently corrected. Some of these deformities are highlighted below:

1. Nepotism has buried its roots deep within the Indian judicial system. A recent

article in a leading newspaper highlighted how every 3rd judge was an ‘uncle’ of

13
 another judge in High Courts. This “Uncle Judges Syndrome” was even

highlighted by the Law Commission of India in their 230th report. Relations

precede talent in the appointment of judges – a system that needs overhauling. An

objective real-time marking and grading system should be developed to average

out the impact of favouritism and grudges that may determine the career path of a

judge in the present collegium system.

2. As Shri Arun Jaitley had once most famously put it, “The temptation of post-

retirement appointments influences pre-retirement judgments.” This is a serious

threat to the independence of the judiciary – the foremost requirement for its

effectiveness. The parliament must enact a strong law that prevents judges from

taking up any kind of post-retirement engagements/ appointments/ jobs

whatsoever.

3. Of late, we have seen many instances of judges exceeding the judicial brief. One

may argue that there is no such ‘Laxman rekha’ that applies to a judge, but that

premise is instinctively invalid because no one should be above the law, not even a

judge. It is therefore very important that the roles and responsibilities of a judge

are well-defined, as also the boundaries within which a judge must operate.

Many judicial overtures have been with respect to interference in the

legislative functions. And many of these overtures have been when the judiciary allowed

personal opinions to overshadow merit-based judgement in a case. The

recent outburst blaming Nupur Sharma for the Kanhaiyalal beheading is an example of such

fallacies. A similar incident happened when a judge of the Madras High Court blamed the

Election Commission for the surge in Covid cases and proclaimed that the Election

14
Commission should be tried for murder! Neither of these ‘oral observations’ made it to the

final order.

Some people argue that oral observations have no legal standing. To them, I

ask what is the need for oral remarks that do not form a part of the final judgement? And if

there is a need, then why is it not included in the final judgement? Judges must be

impassioned if they want to be fair. Judges must not allow emotions to cloud the objectivity

of their judgement. If they do, it shakes the trust that people have in the judiciary. It is

remarks like these that lower the dignity of the courts and must be prevented with the help of

a well-defined enforceable judicial brief.

Despite being legally irrelevant, oral observations have far-reaching

ramifications. For one, oral observations from the highest guardians of the legal system are

almost always interpreted as having been endorsed by the institution. Secondly, such remarks

almost always go viral and lead to a media/ public trial of the case itself. Even in the case of

the EC, the counsel for EC argued in the Supreme Court that the remarks made by the High

Court were widely reported in the media and tarnished the image of the EC as an independent

constitutional body, and caused undue prejudice to EC. Such oral observations can impact

public opinion and lead to stigmatization. They also open the door to the public mockery of

our courts.

The role of a judge is that of objective evaluation as per procedures hard-wired

in the constitution. A judge must give their judgement, not their opinion.

Accountability is another grey area in our judicial system. This is perfectly

reflected in the Latin phrase – “Quis custodiet ipsos custodes?” implying ‘who will judge the

judges?’ While judges are required to depend solely on evidence to deliver verdicts, it is

important to make them accountable for their decisions. Systems and procedures should be
15
put in place that removes all elements of ‘whims and fancies’ from a judgement. Allowing/

disallowing evidence, witnesses, etc. should all be process-driven instead of being person

driven. This will bring greater transparency to the system, and make it more accountable, and

thereby more trusted.

The term Accountability means being responsible for decisions or actions.

Generally, it means being responsible to any external body. Transparency in the functioning

and decision-making process is one of the crucial aspect that ensures accountability.

The term judicial accountability thus means that the judges are responsible for

the decisions they deliver. It also means that Judges be held accountable for their conduct. 

The Judiciary is not subjected to the same level of accountability as the

Executive or the Legislative wings of the Government. The reason is that the principles of

Judicial Independence and Accountability are sometimes regarded as fundamentally opposed

to one another. Judicial independence is considered ‘an essential pillar of liberty and the rule

of law’. So if Judiciary is made accountable to the Legislature or the Executive it will impact

its Independence. So special provisions have been provided to ensure judicial accountability.

The Constitution of India provides for the removal of the judges of the

Supreme Court of India and the High Courts for misbehaviour and incapacity by means of

impeachment. The provisions of impeachment have been provided in the Article 124(4) (SC

Judge) and Article 217(1)(b) (HC Judge) of the Constitution. To date, only one impeachment

proceeding was initiated against a Supreme Court judge but the procedure failed. Similarly,

no High Court Judge has been impeached so far.

16
 Judges (Inquiry) Act, 1968 was passed to regulate the investigation procedure

and to find proof showing incapacity and misbehavior on the part of the judges of the

Supreme Court and the High Courts. 

Article 235 of the Constitution provides for the ‘control’ of the High Court

over the subordinate judiciary. It provides an effective mechanism to enforce accountability

of the lower judiciary.

The Supreme Court of India adopted a Charter called the Restatement of

Values of Judicial Life in 1997. It is the restatement of the pre-existing and universally

accepted norms, guidelines and conventions observed by Judges. All the High Courts of the

country have also adopted the same. The Charter contains guidelines for general behaviour of

the Judges. However, it is not an instrument of judicial accountability in strictest terms.

A resolution of the Supreme Court in December 1999 declared that an ‘in-

house procedure’ would be adopted to take action against judges who act against accepted

values of judicial life. In case of a complaint against a judge, the procedure allows the Chief

Justice of that Court to set up an inquiry with a 3-judge committee. If the allegations are

serious, the committee may recommend initiating proceedings for removal.

In all of the above, you may notice that emphasis is laid on the trust that

people have in the judiciary. This can never be overstated. Law is black and white. Law is

written, recorded and preserved. Law demands proof. Law is liberal – it considers a person

innocent until proven guilty. Law protects all. All this is to ensure transparency and promote

trust. And if people cannot trust the judiciary then it is the biggest failure ever. Therefore, in

moments such as now, when the judiciary is being mocked, egos must be set aside and

retrospection must be resorted to. It is easy to charge someone with contempt, and jail or

penalise them, but that does not erase the underlying cause of such mockery.
17
 The current judicial system in India has become regressive, collapsing under

the weight of the British era baggage that it still carries. Baggage of both redundancy and

privileges that are unhealthy for a progressive society. Redundancies that must be removed,

and privileges that must be moderated. The current judicial system needs a breath of fresh air.

Judicial reforms must be brought about in India on an urgent basis.

We need a vibrant judiciary in the country because it is the judiciary that

people turn to when all else fails. We need a vibrant and evolving judiciary so that it comes

through in every trial that it faces. After all, it was Justice J.R. Midha who famously said, “In

the Court of Justice, both the parties know the truth, and it is the judge who is on trial.

CHAPTER - 3

NATIONAL AND GLOBAL PERSPECTIVES

3.1 What is Transparency

1. Transparency can be seen as a fundamental characteristic of modern democracies.

2. Transparency helps to ensure the citizens’ control of and participation in public

matters.

3. In reality, Transparency should include the ability of citizens to request access to

public information and the state’s duty to generate information and make it broadly

accessible to citizens.

4. Another crucial pillar of transparency is empowering citizens to hold states

accountable to these obligations.

18
 5. The Indian Judiciary plays an increasingly important role in the life and the

governance of the country.

6. However, the issue of transparency has been a sticking point for the judiciary in

India.

7. The use of material produced in a ‘sealed cover’ as an aid to adjudication is

something to be strongly discouraged and deprecated.

3.2 Why Transparency is Important in Judicial Institution

1. Because it promotes accountability, combats corruption, and helps eliminate

arbitrariness, Transparency is particularly important in judicial institutions.

2. It facilitates greater judicial independence and enhances public confidence in this

way.

3. The level of trust and the legitimacy of judges and others operating in the justice

system can be enhanced by a policy of transparency and access to public

information, thereby enabling the society to understand its operation, challenges,

and limitations.

4. Thus, Transparency fundamentally reassures society that justice is served.

5. It promotes accountability, combats corruption, and helps eliminate arbitrariness.

6. It facilitates greater judicial independence and enhances public confidence.

7. The level of trust and the legitimacy of judges and others operating in the justice

system can be enhanced.

8. Policy of transparency and access to public information enables the society to

understand its operation, challenges, and limitations.

9. Transparency also leads to the proper functioning of a democratic country whereby

people have the right to receive information and make informed decisions.

10. Thus, Transparency fundamentally reassures society that justice is served.

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3.3 Concern and Challenges

1. Appointment and Transfer of Judges: Due to lack of transparency in the

appointment of judges, the procedure adopted by Collegium system is being

criticized

2. Transfer of Judges: The policy of transfer is also criticized because many transfers

of judges of different High Courts has been made on extraneous motive.

3. Transfer of Judges: The policy of transfer is also criticized because many transfers

of judges of different High Courts has been made on extraneous motive.

4. Practice of Sealed Envelop: In case of sealed cover submission, the information is

accessible only to the court and only to the party who has submitted it. There are

so many cases where the Court had sought detailed report in sealed cover envelope

such as in case of former Chief of CBI Alok Verma, 2G Spectrums and Board for

Control of Cricket in India etc.

5. RTI Act: The Supreme Court, in a recent decision in the Chief Information

Commissioner v. High Court of Gujarat (2020), barred citizens from obtaining

access to court records under the RTI Act. Though this ruling does not restrict the

RTI Act from being used to the administrative side of the court, it does effectively

close the door to accessing the millions of court records submitted on the judicial

side under the RTI Act.

6. Judicial independence: Judicial independence is employed as a blanket over all

difficulties and as a shield against accountability for the problems that have arisen.

There is a lack of openness in the court system’s operation.

3.4 What is Accountability

20
 1. Accountability is a position where the person takes responsibility for its actions

and performances by either giving reasons or for avoiding punishment.

2. Accountability only arises when you have a certain responsibility towards

someone.

3. It is a relational term that arises between two individuals.

4. An important feature of accountability is that the person held accountable is for

some sort of performance, he has done or supposed to be done, basically a task or

his duty that he is entitled to.

3.5 What is Judicial Accountability

1. It describes the view that judges should be held accountable in some way for their

work. This could be public accountability like getting approval from voters in

elections or accountability to another political body like a governor or legislature

2. A clear example of the judiciary being unaccountable is itself being exempted

from the Right to Information Act,2002 till the recent judgement of the Supreme

Court by which it brought the office of CJI Under RTI. This was fogging way the

transparency till then.

3. A clear example of the judiciary being unaccountable is itself being exempted

from the Right to Information Act,2002 till the recent judgement of the Supreme

Court by which it brought the office of CJI Under RTI. This was fogging way the

transparency till then.

4. This Act was a main legislative change to bring in more transparency and

accountability to which the higher judiciary did not comply with.

5. The Supreme Court in Manohar s/o Manikrao Anchule v. State of Maharashtra &

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 Anr stated that it is undoubted that transparency is important or rather say sine qua

non to democracy, and if an authority is made accountable, probability of errors

becomes less The protection of Rule of Law in the country has also been assigned

to the bold and independent judiciary, for which the judiciary needs to be

transparent and constitutionally sound.

6. The judiciary when setting down standards of morality and behaviour for others

should also make sure that they follow it on their own.

7. For example, the Indian judiciary has the power of Contempt of Court if anything

said or done to lower the reputation of the judiciary, the courts apply the standard

of New York Times Co v. Sullivan standards against public officials in defamation

cases.

8. This standard was laid down in a decision of the U.S Supreme Court where even a

neglected statement said against a public official will not be defamatory unless it

has been stated with “actual malice” and completely careless of the truth.

9. However, this standard of the New York Times does not apply to the speech

implicating judges of the Indian Courts. That is for everybody else, this standard is

applied, but when there is an issue regarding a judge the weapon of contempt of

court is used without a second thought. For example the recent

suo moto proceedings for criminal contempt against Advocate Prashant Bhushan

for his tweets against judges of Supreme Court and CJI.

10. One of the greatest threats that the independence of the judiciary is the erosion of

the credibility of the judiciary from the minds of right-minded people. And like

Lord Lanning stated, it’s a sad day when the right-minded people walk away

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 thinking that the judge is biased.

3.6 Need for Judicial Accountability

“All power is a trust – that we are accountable for its exercise – that from the

people and for the people, all springs and all must exist”. In a ‘democratic republic’ power

with accountability of the individual enjoying it, is essential to avert disaster for any

democratic system. The accountability must be comprehensive to include not only the

politicians, but also the bureaucrats, judges and everyone invested with power. Power and

position in a democracy is depicted as attendant with responsibility, and every incumbent of

a public office must remain constantly accountable to the people, who are the repository of

political sovereignty. The judicial system deals with the administration of justice through the

agency of courts. Judges are the human stuff which presides over the courts. They are not

merely visible symbols of courts; they are actually their representatives in flesh and blood.

The manners in which judges discharge their duties determine the image of courts and the

creditability of judicial system itself.

In India from time immemorial judges have been held in high esteem and

revered as super humans but coming across recent incidents in Bihar (like killing of an under

trial in the court itself and lynching a suspected thief to death) depicts that frustrated by the

failure to get justice, people are slowly losing faith in judiciary and are taking law into their

hands. This is highly deplorable. A need definitely is there to make judiciary accountable, as

derogation of values in judiciary is far more dangerous than in any other wing of the

government as judiciary has to act as the guardian of our constitution. Judicial accountability

and answerability of the judges is not a new concept. Several countries in their constitutions

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

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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.

3.7 Global Perspectives in The Measurement of Accountability and Transparency

Broadly defined, transparency concerns the full flow of information within a

polity. In much of the theoretical literature on political accountability, policy outcomes drive

the decisions of citizens to support or oppose incumbent governments. One might expect

scholars therefore to employ a measure of data dissemination that captures the transparency

of policy outcomes in their empirical research. So far, however, this has not been the case.

While several measures of institutional transparency and media freedom are commonly used

in empirical studies, few projects employ measures of data dissemination with some notable

exceptions. Perhaps scholars have ignored this facet of transparency in their empirical work

because a thorough and theoretically rigorous measure of data disclosure has not been

available.

In 1990, 13 countries had ‘right to information’ laws in place. Today this

number stands at over 100. Since the 1990s, “transparency” has become a maxim for national

governments, international institutions, and civil society groups around the world. Research

that brought to light the importance of information provision in the functioning of the

markets have won Nobel Prizes. Amartya Sen won the 1998 Nobel Prize for highlighting the

role of entitlement and information provision in market functioning. George Akerlof,

Michael Spence and Joseph Stiglitz received the Nobel Prize in 2001 for their analysis of

how imperfect information can lead to market failures. The towering conceptual

contributions of the Nobel-laureates in putting forth a framework linking the citizen’s right to

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know and to access information with development are indisputable and have already had a

significant influence in various fields.

Globally, accountability and transparency are measured using these key frameworks or

indices to measure progress over time.

1. Corruption Perception Index (CPI) by Transparency International: One way of

measuring transparency and accountability, is by ascertaining levels of corruption.

The CPI measures perceived levels of public sector corruption according to experts

and businesspeople using a scale of 0-100 where zero is highly corrupt and 100 is

very clean. In 2020, average scores of 180 countries (amounting to 43) indicate that

despite some progress, countries still fail to tackle corruption effectively. It puts

emphasis on strong oversight institutions, open and transparent contracting, measures

of civic space and democracy, and relevant open access data. In 2020, India ranked

86 out of 179 countries, indicating a need for improvement in measures taken to

reduce corruption.

2. Open Budget Index (OBI) by the International Budget Partnership: It assesses the

public’s access to information on how the central government raises and spends

public resources. This index is published with the intention of providing people

access to relevant information on how public resources are raised and spent,

opportunities to contribute to policy decisions that may influence jobs and security,

and robustness of budget oversight by independent well-informed legislatures and

audit institutions. A transparency score of 61 (out of 100) or higher indicates a

country is likely publishing sufficient material to support informed public debate on

the budget. In OBS 2019, the global average transparency score is only 45 out of 100.

Nearly 75% of the surveyed countries score at insufficient levels. It measures

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 progress on three key themes. In 2020, India ranked 53 out of 117 countries, with a

score of 49 indicating limited information is available and hence, needs improvement

in publishing budgetary information. The three key parameters considered by this

index are: Transparency: Comprehensive budget information from the central

government available to the public in a useful time frame. Participation: Presence of

formal and meaningful opportunities for the public - including the most

disadvantaged - to engage in the national budget process. Oversight: Presence of

oversight institutions - the legislature, the national audit office, independent fiscal

institution(s) - in place and enabled to function properly.

3. HRV Index (Hollyer et al, 2018)- This is an index of transparency that attempts to

measure the state’s tendency to disclose data using the missingness/non-missingness

of data on 240 variables from the World Development Indicators (WDI) data series.

The index has a consistent meaning over time and covers 125 countries from 1980 to

2010. Other relevant indices and include the World Press Freedom Index, Voice and

Accountability Index and the World Bank CIPA Indicators. While a repository of

indicators, frameworks and normative literature on Accountability and Transparency

emanate from the West, there is a dearth of indigenous theoretical approaches

towards the same which warrants further exploration through deeper research.

3.8 Sectoral Evaluation Perspective

The Government of India (GoI) spends close to Rs. 10 lakh crores annually on

development activities, through nearly 750 schemes implemented by Union Ministries. Of

these 750, 126 are Centrally Sponsored Schemes (CSS), implying that they are funded jointly

by the Centre and the States, and implemented by the States. Over the years, federalism and

the expectations of government service delivery in India have evolved, and this vast

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proliferation of schemes is in sore need of rationalization. The rationalisation of schemes is

expected to improve Centre-State relations, the effectiveness and efficiency of public

finance, and the quality-of-service delivery to Citizens. To this end, all schemes were

mandated to undergo third party evaluations, and provided supplementary evidence to the

15th Finance Commission for scheme continuation from 2021-22 to 2025-26. The task of

conducting these CSS evaluations was granted to NITI Aayog, specifically to the

Development Monitoring and Evaluation Office (DMEO). This report is thus a part of a

historic exercise undertaken by DMEO between April 2019 and August 2020, to evaluate

126 CSS, under 28 Umbrella CSS, under 10 Packages or Sectors.

The studies together cover close to 30% of the GoI’s development

expenditure, amounting to approximately Rs. 3 lakh crores (USD 43 billion) per annum. To

fulfil this mandate to the highest standard possible, to optimize both the robustness and the

uptake of the evidence generated, DMEO adopted a nationally representative mixed-methods

evaluation methodology and a consultative review process for the reports. Altogether, the

project incorporates the direct input of approximately 33,000 individuals, through 17,500

household interviews, 7,100 key informant interviews, and 1,400 focus group discussions.

The views of Central, State, district, block, ward, and village administrations, as well as non-

governmental experts and civil society organizations were elicited. Through qualitative and

quantitative analysis of secondary literature, validated by this primary data collection, the

analysis was done at three levels: the sector, the umbrella CSS, and the scheme itself. The

key parameters for analysis, including relevance, effectiveness, efficiency, sustainability,

impact, and equity (REESI+E), have been selected based on international best practices in

evaluation. Besides, across 10 packages, certain cross-cutting themes have been identified for

analysis, including transparency, sustainability, gender, technology, role of private sector,

etc. The reports thus produced underwent a consultative review process involving NITI
27
Aayog subject matter divisions, concerned Ministries and Departments, and external experts.

3.9 What Is Need to Enhance Judicial Accountability?

1. First, it will induce the judges to improve efficiency and deliver quality

judgements thereby ensuring justice in the society. There have been several

‘shocking‘ judgments in recent times e.g., a Bombay High Court Judge ruled that

groping a child without ‘skin-to-skin contact with sexual intent’ does not amount to

the offence under the POCSO Act.

2. Second, It will help in ensuring an impartial functioning that would augment public

trust in the institution of judiciary. For instance, a major controversy erupted when

a sitting Chief Justice of India was accused of sexual harassment. The CJI, instead

of ordering external enquiry, set up an internal Committee to look into the matter.

The CJI himself appointed the Judges, raising concerns of conflict of interest. The

Committee absolved him, while the complainant was not allowed to be represented

by a lawyer.

3. Third, the scope of information which the courts are willing to share under RTI is

not too wide. For instance, the Bombay High Court recently ruled that its ‘file

notings’ on administrative matters are not required to be disclosed under the RTI

Act. The reluctance of Judiciary to subject itself to greater transparency became

evident when a former CJI remarked that the “institution of Judiciary can’t be

destroyed in the name of transparency“.

4. Fourth, Unlike the executive, the judiciary is not under any legal obligation to

prepare annual reports or table them before Parliament or the State Legislature.

Only the High Courts of Madras, Himachal Pradesh and Tripura had published an

annual report in the last two years.

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 5. Fifth, there exists no provision in the Indian Constitution which directs in

reviewing the Supreme Court’s decision. Except for the Supreme Court itself, there

exists no other body or council to have a check on the decisions passed by the

Apex Court. 

6. Sixth, in the absence of any accountability, the pendency of cases has reached

unprecedented levels (> 4 Crore cases in lower courts). Since, Judges are not

accountable to the people or to any other organs of the State, no concrete action has

been undertaken to address this pendency. Judicial Accountability might have

provided an element of external pressure on the Judiciary to reduce pendency.

7. Seventh, the process of appointment of judges to higher judiciary lacks

transparency. There is no visibility about what importance is given to credentials of

judges in their ideological adherence to the constitutional ideals of a secular,

socialist democratic republic etc.

8. Eighth, there are several shortcomings in the in-house procedure. There is no

statutory basis for the procedure. No judge (who faced such committee) has agreed

to resign because there was an adverse report by the committee. In some cases,

allegations requiring further investigation were dismissed by such committees.

9. Ninth, a prominent news portal reported that in 2019, only 7 Judges of the Supreme

Court voluntarily declared their assets. So self-regulation appears to have some

limitations.

3.10 Lack of Judicial Accountability in India

1. The most important challenge for the regulation of judicial accountability is that

the judiciary is an independent organ and the independence of the judges cannot be

done away with. Any attempt to make the Judiciary accountable to the Legislature

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 or Executive will make it susceptible to external pressure. It is very difficult to

balance the Judicial Accountability vis-a-vis Judicial Independence.

2. There exists no other way in which a judge can be removed except

through impeachment and the process is long and complex. Due to this, it is

difficult to augment judicial accountability. Again, the process can’t be diluted as it

will impinge on judicial independence.

3. Moreover, the SC and HC have the power of contempt that prevent imposition of

anything on the judiciary without their consent. The judiciary is the final interpreter

of laws, policies, rules etc. and can easily strike down anything as per its will.

4. What steps can be taken to enhance Judicial Accountability?

5. First, Parliament can enact a law that mandates Judiciary to publish an annual

report. This law should clearly outline the expected content of the report and

establish a clear timeline for its publication.

6. Second, In India, the Judicial Standards and Accountability Bill was floated in

2010, but eventually lapsed. A new Bill on setting judicial standards is necessary.

As suggested by a former Chairperson of the Law Commission, the new Bill must

address the concerns with the old Bill and should avoid giving excessive control to

the Legislature or the Executive.

7. A permanent disciplinary committee should be set up at the central level to deal

with complaints against judges. This committee should recommend further course

of action based on the seriousness of misconduct (e.g., setting up a judicial inquiry

committee under the Judges Inquiry Act for major misconduct).

8. Third, the SC should clarify the extent and scope of RTI applicability to the

judiciary. This will help in avoiding divergence in RTI response across the states.

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 9. Fourth, the judiciary can also be brought under the scope of Lokpal to enhance

accountability as seen in countries like Sweden where judiciary comes under the

scope of the ombudsman.

10. Fifth, a regular performance evaluation system for judges should be established.

There is a mechanism of evaluation at lower judicial level. There is no

performance evaluation for higher judiciary. It is difficult to create such a system.

Best practices from global experience can be suitable adapted as a first step.

The framers of the Indian Constitution would not have imagined that within 60

years of the framing of the Constitution, the Indian Judiciary would emerge as the most

powerful institution of the State. The Constitution established the High Courts and the

Supreme Court as watchdog institutions, independent of the executive and the legislature, to

not merely dispense justice, but also to ensure that the executive and the legislature did not

exceed the authority conferred upon them by the Constitution. 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 or the fundamental rights of citizens. It was also the authority to

examine whether laws framed by Parliament conformed to the Constitution and declare them

void if they violated it. By a creative interpretation of the provision authorizing the

Parliament to amend the Constitution, the Supreme Court 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.

Through all this, the superior courts in India have emerged as perhaps the most

powerful courts in the world, exercising virtually Imperial & unchecked powers. While

executive action and even legislation could often be struck down by the courts, the directions

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of the courts, sometimes issued without even notice to the affected parties, were beyond

question, and had to be obeyed by all executive officers on pain of contempt of court.

Of course, often these powers were wisely exercised to correct gross executive

inaction. While the Court was acquiring these powers, by an even more inventive (called

purposive) interpretation of the provision regarding appointment of judges by the

government, it took over the power of appointment of judges. Thus judges of the High Court

and Supreme Court are now appointed by a collegium of senior judges of the Supreme Court.

The judiciary has thus become like a selfperpetrating oligarchy. There is no system followed

in the selection of judges and there is no transparency in the system. In particular, no regard

is given to examining the record or credentials of judges in their ideological adherence to the

constitutional ideals of a secular, socialist democratic republic or their understanding of or

sensitivity towards the common people of the country who are poor, marginalized and unable

to fight for their rights.

Thus, the courts in India enjoy virtually absolute and unchecked power

unrivalled by any Court in the world. In these circumstances, it is absolutely vital that judges

of the superior judiciary be accountable for their performance and their conduct – whether it

be for corruption or for disregard of constitutional values and the rights of citizens.

Unfortunately, neither the Constitution, nor any other law has created any institution or

system to examine the performance of judges or examine complaints against them. The

Constitution provides that High Court and Supreme Court judges cannot be removed except

by impeachment. That process requires signatures of 100 MPs of the House of People or 50

MPs of the Council of States for its initiation. If a motion containing charges of serious

misconduct with the requisite signatures is submitted, and admitted by the Speaker of the

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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. Our experience has

shown that it is practically impossible to remove a Judge through impeachment even if one is

somehow able to get documentary evidence of serious misconduct. This is because MPs and

political parties to which they belong are very reluctant to take on a sitting Judge because

virtually all of them have pending cases in courts. The judges often behave like a trade union

and do not take kindly to brethren being accused of misconduct. It is, therefore, virtually

impossible to get an impeachment off the ground unless the matter has become a big public

scandal. Only in those cases, is it possible to get enough MPs to sign an impeachment

motion. The only impeachment of a Judge to have gone far was that of Justice V.

Ramaswami in the early 90’s. After the motion was presented, a Judges Inquiry Committee

found him guilty of several charges of misconduct when the matter went up for voting to

Parliament.

The ruling Congress Party directed all their MPs to abstain from voting. Thus,

though the motion was unanimously passed in the Lok Sabha, it did not get the support of the

majority of the total membership of the House and, therefore, failed. The Judge remained in

office till he retired, but was not assigned any judicial work by the then Chief Justice. Only

last month, we have seen a second motion against a Judge of the Calcutta High Court signed

and submitted to the Chairman of the Council of States. Allegations and charges against a

Judge even when supported by documentary evidence, rarely get any coverage in the media

because of the widespread fear of contempt of court.

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 The contempt law in India allows any judge of the High Court and Supreme

Court to charge any one with criminal contempt and send him to jail, on the ground that

he/she has “scandalized the Court or lowered the authority of the Court”. What “scandalizes

or lowers” the authority of a Court is also the subjective judgment of each Judge. In

Arundhati Roy’s (the well known writer) case, a bench of 2 judges of the Supreme Court

charged her with contempt and sent her to jail merely because she criticized the Court in her

affidavit.

Earlier, the Supreme Court has declared that a person charged with

“scandalizing the Court” will not be permitted to prove the truth of his allegation against a

Judge. Though Parliament has recently amended the Contempt of Courts Act to expressly

allow truth as a defence, nothing has been done to prevent judges against whom allegations

are made from charging the person with contempt and hauling him to jail. The criminal

contempt jurisdiction of the Court and the cavalier manner in which it is exercised, is another

example of the enormous and unchecked power of the superior courts in India Our campaign

for Judicial Accountability has since long been demanding that the courts’ power to punish

for “scandalizing and lowering the authority of the Court” must be taken away by legislation.

Of course, this demand has been stoutly resisted by the courts who claim that deleting this

provision would greatly encourage baseless allegations and abuse of judges by disgruntled

litigants and would thereby erode public confidence in the courts.

But then, there is the law of civil and criminal defamation to protect judges

against vilification. Moreover, public confidence in the courts as in any person or institution,

is generated or eroded by the actions of the courts and not by any baseless allegations by

disgruntled litigants. However, with such fierce opposition by the courts, the legislature has

not had the courage to delete this provision from the Contempt of Courts Act. In 1991, the

34
Supreme Court by another ingenious judgment, involving Justice Veeraswami (the father-in-

law of Ramaswami), who was Chief Justice of the Tamil Nadu High Court who was caught

with assets, vastly disproportionate to his income, laid down that no judge of a superior court

could be subjected to a criminal investigation without the written permission of the Chief

Justice of India.

This judgment has been use to prevent the investigation and prosecution of

many judges against whom there was documentary evidence of corruption, fraud,

misappropriation, etc. This has also increased the impunity of judges who have now got used

to the feeling that they can get away with any kind of misconduct or even criminal conduct,

without any fear of any criminal action or action for removal. Armed additionally with the

power of contempt, they also have little fear of public exposure. All this makes for an

alarming picture of lack of accountability of the higher judiciary in India. You cannot

practically take any disciplinary or criminal action against misconduct or crimes committed

by judges.

If you expose them publicly, you run the risk of contempt. This lack of

accountability coupled with the enormous unchecked powers that the courts have acquired

and are exercising make the judiciary a very dangerous institution and indeed a serious threat

to Indian democracy. This lack of accountability has led to considerable corruption of the

higher judiciary which is evident from the recent spate of judicial scandals which have

erupted in India.

The recent report of TI on corruption perception index shows that the judiciary

is perceived to be the second most corrupt institution in India after the Police. Judicial

The judiciary needs to be independent of outside influence, particularly of political and

economic entities such as government agencies or industry associations. But judicial

35
independence does not mean that judges and court officials should have free rein to behave as

they please. Indeed, judicial independence is founded on public trust and, to maintain it,

judges must uphold the highest standards of integrity and be held accountable to them.

In everyday terms, accountability is simply the ability to hold an individual or

institution responsible for its actions. The question for the judiciary is accountability to whom

and for what? Broadly speaking, the judiciary must be accountable to the law, in the sense

that the decisions made are in accordance with the law and are not arbitrary. Like other

branches of government, it must also be accountable to the general public it serves.

Fostering a culture of independence, impartiality and accountability among

judges is a vital step towards ensuring the overall integrity of the judiciary. This is

particularly the case in countries where there is a lack of accountability in other branches of

government. Developing codes of judicial conduct can also provide an important means of

fostering judicial accountability, since they serve as both a guide to and a measure of judicial

conduct. Strong and independent judges associations, meanwhile, can provide a safe point of

reference for judges,allowing them to interact with the state in an accountable, yet robustly

independent manner. Ultimately, though, the judiciary must be responsible to the citizens of a

country, and civil society actors, including the media and NGOs, must play an enhanced role

in demanding

Judges are expected to take decisions about breaches of law by individuals,

governments and companies, but what happens if it is the judge who breaks the law? While

judicial independence requires that judges have some limited measure of immunity and that

they should be protected from trivial or vexatious complaints, mechanisms must be in place

to ensure that corruption by judges or court personnel is detected, investigated and properly

sanctioned. Incorporating whistleblower protection or anti-corruption telephone hotlines as

36
part of judicial systems can help improve detection of corruption in the judiciary. It is often

courageous members of the public or individuals of integrity within the judicial system itself

who speak out against specific instances of corruption. Such action can be encouraged by

developing a confidential and rigorous formal complaints procedure so that lawyers, court

users, prosecutors, police, media and civil society organisations can report suspected or actual

corruption.

There are different models for judicial discipline, though all models tend to

operate at two levels: first, a disciplinary system that can admonish, fine or suspend judges

for misdemeanours; and, second, a system of removal of judges for serious misconduct,

including corruption. It is essential that any disciplinary mechanism is independent, fair and

rigorous. In particular, a judge has the right to a fair hearing, legal representation and an

appeal in any disciplinary matter. In some instances, an appellate body or judicial council

may have disciplinary functions. In others, supreme courts may be responsible for

disciplining lower court judges, while supreme court judges themselves may be removed by

parliament. All types of procedures should be balanced to, on the one hand, protect judicial

independence and, on the other, provide accountability to command public confidence.

Importantly, mechanisms for judges’ removal from office must be fair, transparent and take

the principle of security of

In the light of the above discussion, and in the absence of a proper, specific

law, to effectively check the power and scope of ‘judicial activism’ or laying down codes of

conduct (based on the call for the accountability of the judges), the Right to Information Act.

A distinguished American judge Louis Brandeis had said “Sunlight is the best

disinfectant and electricity is the best policeman”. The ‘Seven Principles of Public Life’

indicated in Lord Nolan Committee’s report on standards in public life include objectivity,

37
accountability and openness.” “After all public power is derived from ‘we the people of

India…’ Its exercise must be subject to legitimate scrutiny by the people who are the source

of that power. The people have a participatory role in a republican democracy as they are “the

keepers of the Constitution”.

In such circumstances there is no justification for such any amendment to the

RTI Act being proposed which seeks to unreasonably and unconstitutionally restrict the

peoples Having said this, the reaction of the Judiciary, as far as the application of the Act on

itself is concerned, strongly recommending that it should be left out of its ambit, seems

preposterous. If the amendments suggested by SC are enacted by Parliament, they will strike

at the root of the safeguard contained in the Act: all public authorities, including courts

This Act should be seen as only a step towards enforcing the accountability of the Judiciary

directly to the people, until a specific and more detailed law is enacted in this regard.

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 CHAPTER - 4

INSTITUTIONAL FRAMEWORKS

4.1 Institutional Frameworks Promoting Accountability and Transparency

Accountability and Transparency as terms, are used in tandem with the depth

of democracy. Therefore, it is necessary to delve into the institutional frameworks which

promote them normatively and in practice.

Institutional frameworks can be seen as intervening variables between

citizens’ capacity to exercise voice and demand accountability. However, while political legal

systems which are constitutionally designed to be open and responsive may create the space

for making claims for accountability, accountability of service delivery systems is ensured

when certain basic elements are in place.

According to some, historical patterns of institutional accountability building

display an overwhelming trend, that substantive time is taken for de-jure mechanisms of

accountability to evolve after de-facto mechanisms have been strengthened and start working

efficiently in practice. This usually takes place after vertical mechanisms such as free and fair

elections and horizontal mechanisms such as institutional oversight and balance of powers

develop, after which diagonal mechanisms such as media, and civil society interactions are

strengthened over time.

Institutional frameworks within the domain of government which facilitate

accountability and transparency include three important areas of focus

1. Right to information laws – this establishes the constitutional/legal right for a

citizen to access the information that they want.

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 2. Proactive transparency – this commits governments to publishing as much

information as possible in an accessible form.

3. Open data approach – this enables us to reconfigure government data into forms

that provide usable and accessible information.

India has several Constitutional and legal mechanisms which aim to ensure

transparency and accountability in Governance; a brief of some these mechanisms is as

below:

4.2 Comptroller and Auditor General of India (C&AG):

The Comptroller and Auditor General (CAG) of India is an authority instituted

vide Article 148 of the Constitution of India. The prime responsibility of this authority is to

audit the receipts and expenditures of the state governments and the union government in

India including those of the entities and corporations financed by the government. The reports

generated by the CAG are crucially important for the Public Accounts Committees (PACs)

and Committees on Public Undertakings (COPUs), which are part of the state and central

governments

As part of its responsibilities, the CAG audits g overnment accounts and ensures that public

funds are utilised appropriately. In addition, the CAG is responsible for ensuring that all

financial transactions are transparent and accountable. Vakilsearch can indirectly contribute

to the CAG’s role in ensuring accountability. The CAG conducts financial and performance

audits of various government agencies to ensure that public funds are used effectively and

efficiently. The CAG’s audits are comprehensive and examine the audited agencies’

accounting practices, financial statements, and systems and procedures. Parliament reviews

the CAG’s reports and takes appropriate action based on the findings. Vakilsearch has highly

40
skilled Chartered Accountants who can efficiently manage your accounting and bookkeeping

needs.

To ensure transparency in governance, the CAG plays a significant role. As a result of the

CAG’s audits, irregularities or discrepancies in the government’s financial transactions are

brought to light, leading to increased transparency in the government’s operations. CAG

reports also highlight areas where the government needs to improve its financial management

practices, thereby enhancing transparency and accountability. Audits conducted by the CAG

assist in identifying areas of financial mismanagement, corruption, or fraud. As a result of the

CAG’s reports, the government can take corrective action that will improve the overall

functioning of the government. Further promoting governance transparency, the CAG can

investigate any suspected irregularities or corruption in government departments.

1. The Constitution authorises Parliament to prescribe the duties and powers of the

CAG in relation to the accounts of the Union, States, and other bodies (Article

149).

2. The CAG Duties, Powers, and Conditions of Service (DPC) Act was passed in

1971 and amended in 1976 to separate accounts from audits in the Government of

India.

4.3 The Constitution specifies the following duties and functions of the CAG:

1. Auditing expenditure from the Consolidated Fund of India, states, and union

territories with Legislative Assemblies.

2. Auditing expenditures from Contingency Fund of India, the Public Account of

India, and those of states.

3. Auditing trading, manufacturing, profit and loss accounts, balance sheets, and

subsidiary accounts of Central and state departments.

41
 4. Auditing receipts and expenditures of governments to ensure effective checks on

revenue assessment, collection, and allocation.

5. Auditing bodies and authorities substantially financed from Central or state

revenues, government companies, and other corporations as required by law.

6. Auditing debt-related transactions, sinking funds, deposits, advances, suspense

accounts, and remittance business.

7. Auditing accounts of any other authority as requested by the President or

Governor.

8. Advising the President on accounts of Centre and states (Article 150).

9. Submitting audit reports on accounts of Central Government and state governments

to the President/Governor, who shall place them before Parliament or the state

legislature (Article 151).

10. Certifying the net proceeds of any tax or duty (Article 279).

11. Guiding the Public Accounts Committee of Parliament and maintaining accounts

of state governments.

12. Submitting three audit reports to the President: Appropriation Accounts, Finance

Accounts, and Public Undertakings.

4.4 Power of the Comptroller and Auditor General of India

1. The CAG is appointed by the President of India and can only be removed from

office in the same way as a Judge of the Supreme Court

2. The person appointed to this office must take an oath of office before the President

or another appointed representative.

3. The CAG’s salary, service conditions, leaves of absence, pension, and retirement

age are determined by the Parliament of India and are specified in the Second

42
 Schedule. These cannot be modified to the disadvantage of the incumbent during

their tenure

4. The CAG cannot hold any further office after their tenure, either in the

Government of India or any State Government Department. The President

prescribes the rules governing these in consultation with the incumbent

5. The expenses related to the administration of the CAG’s office, including

allowances, salaries, and pensions, are charged to the Consolidated Fund of India

6. The CAG is appointed for a period of 6 years or until they reach the age of 65,

whichever comes earlier.

4.5 Central Vigilance Commission (CVC):

The Central Vigilance Commission was set up by the Government in

February, 1964 on the recommendations of the Committee on Prevention of Corruption,

headed by Shri K. Santhanam, to advise and guide Central Government agencies in the field

of vigilance. CVC are conceived to be the apex vigilance institution, free of control from any

executive authority, monitoring all vigilance activity under the Central Government and

advising various authorities in Central Government organizations in planning, executing,

reviewing, and reforming their vigilant work. Consequent upon promulgation of an

Ordinance by the President, the Central Vigilance Commission has been made a multi

member Commission with “statutory status” with effect from 25th August, 1998.

1. Creation of credible deterrence against corruption through prompt enforcement of

anti-corruption laws and regulations

2. Undertaking effective preventive measures to minimize the scope of corruption.

3. Raising public awareness to inculcate ethical values and reduce society’s tolerance

toward corruption.

Under the Central Vigilance Commission Act, 2003 the roles and functions of the CVC are:
43
1. To give directions and exercise superintendence over the functioning of the Delhi

Special Police Establishment (CBI) by the investigation of offenses under the

Prevention of Corruption Act, 1988.

2. To inquire or cause an inquiry or investigation to be made on a reference by the

Central Government.

3. To inquire or cause an inquiry or investigation to be made into any complaint

received against any official belonging to such category of officials specified in

sub-section 2 of Section 8 of the CVC Act, 2003.

4. To review the progress of investigations conducted by the DSPE into offenses

alleged to have been committed under the Prevention of Corruption Act, 1988 or

an offense under the CrPC.

5. To review the progress of the applications pending with the competent authorities

for sanction of prosecution under the Prevention of Corruption Act, 1988.

6. To tender advice to the Central Government and its organizations on matters

referred to by them.

7. To exercise superintendence over the vigilance administrations of the various

Central Government Ministries, Departments, and Organizations of the Central

Government.

8. It has all the powers of a Civil court while conducting any inquiry.

9. To respond to Central Government on mandatory consultation with the

Commission before making any rules or regulations governing the vigilance or

disciplinary matters relating to the persons appointed to the public services and

posts in connection with the affairs of the Union or to members of the All India

Services.

44
 10. The Central Vigilance Commissioner (CVC) is the Chairperson and the Vigilance

Commissioners are members of the Committee, on whose recommendations, the

Central Government appoints the Director of Enforcement.

11. The Committee for the appointment of the Director of Enforcement is also

empowered to recommend, after consultation with the Director of

Enforcement appointment of officers to the posts of the level of Deputy Director

and above in the Directorate of Enforcement.

12. The Central Vigilance Commissioner (CVC) is also the Chairperson and the

Vigilance Commissioners are members of the Committee empowered to

recommend after consultation with the Director (CBI), the appointment of officers

to the post about the level of SP and above except Director.

13. The committee can also recommend the extension or curtailment of the tenure of

such officers in the DSPE (CBI).

4.6 Right to Information Act, 2015 (RTI):

The Right to Information Act is an Act of the Parliament of India which sets

out the rules and procedures regarding citizens’ right to information. It replaced the former

Freedom of Information Act, 2002. Under the provisions of RTI Act, any citizen of India may

request information from a “public authority” (a body of Government or “instrumentality of

State”) which is required to reply expeditiously or within thirty days. In case of matter

involving a petitioner’s life and liberty, the information has to be provided within 48 hours.

The Act also requires every public authority to computerize their records for wide

dissemination and to proactively publish certain categories of information so that the citizens

need minimum recourse to request for information formally, Section 4 of the Act also focuses

on proactive disclosure. The RTI Bill was passed by Parliament of India on 15 June 2005 and

came into force with effect from 12 October 2005.

45
 Also Right to information is the landmark legislative act in the Indian history

of governance also in the Indian parliamentary system. RTI was aimed to increase the level of

transparency & accountability in governance and also aimed at dual role of empowering

common man to know about various administrative processes & at the same time instilled a

pressure upon the executive to act legitimately.RTI gave more power to roots of this country

i.e., people from where Constitution derive is power. Certain departments were left away

from the reach of RTI as it would compromise security & Secrecy which is must

constitutionally & legally. Including higher judiciary in the ambit of RTI will have its own

pros & cons

Pros.:

1. It will increase the amount of transparency in judiciary in case of appointment of

judges.

2. Chances are that would decrease nepotism and despotism as criticized to be present

in judiciary.

3. It will increase accountability of judiciary. Judges can be held accountable for their

decisions.

4. It will decrease the no. of case pendency as judiciary will have given solid reasons

& explanations for it.

5. Timely conclusion of cases.

6. It will increase the faith of people if they could also know about judicial working.

7. Decrease need of people to intervene in judicial appointments.

8. Vacant seats in various judicial constituencies will become transferable &

recruitment for those posts will take pace.

9. It will give more power to people to get their answers easily without any delay &

informal paperwork.
46
 10. Corruption will be checked with increasing lucidity.

11. Courts have always been questioned for pending cases. RTI can place yardstick

among judicial for timely disposure of justice.

12. Judiciary as watchdog of constitution as drawn boundary for public officials but it

itself is not willing to be under purview of RTI.

Cons.:

1. It will compromise independence of judiciary as specified by constitution.

2. It will challenge the decision making power of Supreme Court.

3. It will create extra burden on judiciary as every filed will be answerable by

judiciary

4. .It will compromise secrecy & security involved in certain cases. This may prove

detrimental for our country.

5. Judiciary will become puppet in the hands of people rather than being the sole

justice provider of the country.

6. It will increase the political involvement in judiciary.

7. Challenging decisions of Supreme Court means pointing finger every time at

constitution.

8. Delay in judicial appointments & transfers as a over conscious approach can be

adopted to avoid conflicts.

4.7 E-Governance initiatives across schemes:

E-Governance in India has steadily evolved from computerization of

government departments to the finer points of citizen centric service orientation and

transparency. Lessons from previous E-Governance initiatives have played an important role

in shaping the progressive E-Governance strategy of the country. Due cognizance given to

the notion that to speed up e-Governance implementation across the various arms of
47
Government at National, State, and Local levels, a programme approach needs to be adopted,

guided by common vision and strategy. This approach has the potential of enabling huge

savings in costs through sharing of core and support infrastructure, enabling interoperability

through standards, and of presenting a seamless view of Government to citizens. The

National e-Governance Plan (NeGP), takes a holistic view of e-Governance initiatives across

the country, integrating them into a collective vision, a shared cause. Around this idea, a

massive countrywide infrastructure reaching down to the remotest of villages is evolving, and

large-scale digitization of records is taking place to enable easy, reliable access over the

internet. The ultimate objective is to bring public services closer home to citizens, as

articulated in the Vision Statement of NeGP. “Make all Government services accessible to

the common man in his locality, through common service delivery outlets, and ensure

efficiency, transparency, and reliability of such services at affordable costs to realise the basic

needs of the common man”

Social audits within schemes such as the National Rural Employment

Guarantee Act, 2005 (MGNREGA): As per the act, the first step is to gather all the records

regarding the scheme such as muster rolls, maintained by the administration. Based on these

readings, surveys are prepared and social auditors administer the surveys across the

geographical area of the audit and also conduct spot inspections. During the survey,

awareness about the scheme is also generated, letting the recipients themselves bridge the gap

between what the scheme offered and what they actually got (which might throw up glaring

disparities in service delivery). The participants in the survey are then called for a ‘jan

sunwai’ (public hearing) which is attended by Gram Sabha members, local administrative

officers, the point person for the scheme and sometimes even local politicians. Based on the

findings from the survey and their newly realised grievances, citizens are in a position to

question lacunae in fund and work allocation, completion reports on status of work and
48
distribution of benefits. An attempt is then made to reconcile issues on the spot and where

relevant, future administrative action is promised, with scope for follow-up on such actions.

In the context of the COVID-19 pandemic, institutional response to a rapidly

evolving global health crisis can also imbibe the principles of accountability and transparency

by adopting a risk based prioritization framework which determines which governance,

transparency and accountability mechanisms are to be subsumed within the planning and

design of response policies not just in the avenue of public health, but also essential social

protection such as food security, education, skill building, and insurance. This could involve

the adoption of an oversight body with multiple stakeholders across government, civil

society, academia, audit and oversight institutions to raise awareness. Certain practices such

as Ukraine’s anticorruption reforms which mandate that all emergency contracts are

published as open data including terms of payment, delivery and value, Colombia’s e-

procurement platform which complies with the open data contracting standard which also

discloses technical comments from potential suppliers during emergency times.

In addition to governments’ institutional frameworks for transparency and

accountability, community frameworks also exist to strengthen responsiveness. This may

involve community led monitoring through bottom-up social accountability, improved

transparency of data and decision making, channels for grievance reporting and redressal.

Other community driven frameworks of accountability include citizen report cards,

participatory budgeting, and public expenditure tracking surveys.

49
 CHAPTER - 5

JUDICIAL CASES

5.1 Prasad K. Amonkar vs. S.K. Land Developers and ors.: 2012 (4) CPR 15

The complaint has been filed for recovery of possession of a flat agreed to be

purchased by the complainant by virtue of the said agreement. The complainant has also

sought for compensation. On notice having been given to the O.Ps, O.P. No. 1 has filed an

application dated 12/03/12 under Section 8 of the Arbitration and Conciliation Act, 1996 for

referring the dispute to arbitration. There is no dispute that the said agreement between the

parties dated 3/6/08 contained an arbitration clause which reads as follows: All disputes

which may arise between the parties to this agreement, whether in relation to the

interpretation of the clauses and the conditions of this agreement, and or, about the

performance of these presents or concerning any act of omission or commission of the other

party to the disputes, or to any act which ought to be done by the parties in disputes, or in

relation to any matter whatsoever concerning this agreement shall be referred to arbitration in

accordance with the provisions of the Indian Arbitration and Conciliation Act, 1997.

Shri. N.G. Kamat, the Lr. Advocate appearing on behalf of the O.P. No. 1,

would submit that once a dispute resolution machinery by way of arbitration is already agreed

to by and between the parties, a complaint cannot be filed before this Commission. According

to Lr. Advocate, the complaint is not maintainable in law and on facts and this Commission

has no jurisdiction to entertain or decide the dispute in view the said arbitration clause in the

agreement.

The Apex Court had rendered the above decision in the light of Section 156 of
50
Tamilnadu Co-operative Societys Act 1983 & Section 3 of the C.P. Act, 1986. Section 156 of

the said Tamilnadu Co-operative Societys Act, 1983 stated that notwithstanding anything

contained in any other law for time being in force no order or award passed, decision or

action taken for direction issued under this Act by an arbitrator, a liquidator, the Registrar or

an officer authorized or empowered by him, the Tribunal or the Government or any officer

subordinate to them shall be liable to be called in question in any Court and no in junction

shall be granted by any Court in respect of anything which is done or intended to be done by

or under this Act.

In Branch Manager, Magma Leasing & Finance Ltd., & anr., (2009) 10 SCC

103, the Apex Court has held that Section 8 of 1996 Act is in the form of a legislative

command to the court and once the prerequisite conditions are satisfied, the court must refer

the parties to arbitration. In Agri Gold Exims Ltd., (2007) 3 SCC 686, the Apex Court has

held that Section 8 of 1996 Act is peremptory in nature and in case where there exists an

arbitration agreement, the court is under obligation to refer the parties to arbitration in terms

of the arbitration agreement.

In view of the above discussion, and considering the mandate of Section 8 of

the 1996 Act, we hereby direct the parties to act in terms of the said agreement between them

by referring the present dispute to arbitration. With the above observations, we allow the

application under consideration and proceed to dismiss the complaint, with no order as to

costs.

5.2 Government of Tamil Nadu v. K.N. Ramamurthy: AIR 1997 SC 3571

Hon'ble Mr.Justice K.Venkataswami Hon'ble Mr.Justice V.N.Khare

S.Aravindha and V.Krishnamurthy, Advs. for teh appellant J U D G M E N T The following

Judgment of the Court was delivered: The respondent herein was working as a Deputy

51
Commercial Tax officer, Cuddalore (Town) at the relevant time. Under Rule 17(b) of Tamil

Nadu Vicil Services (Classification, Control & Appeals) Rules, the following charges were

framed against the respondent:

1. That he failed to analyse the facts involved in each and every case referred to

above:

2. that he failed to check the accounts deeply and thoroughly while making final

assessment:

3. that he failed to subject the above turnover to tax originally; and

4. That he failed tosafeguard the Government revenue to a juge extent of Rs. 44,850/-

After a due and proper enquiry, it was found that the charges weere proved.

Accordingly, a punishment of stoppage of increment for three years with cumulative effect

was impsed.

The respondent challenged the above-said punishment by filing O.A. No. 1400/90

before the Tamil Nadu Administrative Tribunal. This Tribunal vide its order dated April 9,

1992, set aside the said punishment holding as follows:- "As laid down in the decision of the

Madras High Court, the hierarchy of authorities is constituted for correction if the original

order of assessment is wrong even if palpably wrong, it cannot be subjected to disciplinary

proceedings since while passing such orders, he exercises the quasi judicial functions

conterred on him under the General Sals Tax Act. In the light of the principles laid down in

the above decision, the disciplinary proceedings initiated against the applicant heein is not

warranted and also the consequential punishment imposed on his is liable to be set aside.

Accordingly, this application is allowed.”

In the case on hand, the finding accepted by the disciplinary authority was to

the effect that by the act of negligence in making the assessment, the delinquent caused loss
52
to the Government exchequer to the extent of 44,850/-. This finding of the isciplinary

authority is not open to challenge on the facts of the case. This Court in Upendra Singh's case

(supra) has rule that the Tribunal has no jurisdiction to go into the correctness or truth of the

charges and the Tribunal cannot take over the functions of the disciplinary authority. This

Court in the said case furthe observed that the function of the Court/Tribunal is one of

judicial review, the parameters of which are repeatedly laid down by this Court. This Court

further held that in case of charge framed in a disciplinary enquiry, the Tribunal or the Court

can interfere only if on the charge (read with imputation or particulars of the charges. If any)

no misconduct or other irregularity alleged can be said to have been made out or the charges

framed are contrary to any law.

Accordingly, the contention of the respondent has to be rejected. It is

important to bear in mind that in the present case, we are not concerned with the correctness

or legality of the decision of the respondent but the conduct of the respondent in discharge of

his duties as an officer. The legality of the orders with reference to the nine assessments may

be questioned in appeal or revision under the Act. But we have no doubt in our mind that the

Government is not precluded from taking the disciplinary action for violation of the Conduct

Rules. Thus, we conclude that the disciplinary action can be taken in the following cases :

1. Where the officer had acted in a manner as would reflect on his reputation for

integrity or good faith or devotion to duty:

2. It there is prima facie material to show recklessness or miscounduct in the

discharge of his duty:

3. If he has acted in a manner which is unbecoming of government servant

4. If he had acted negligently or that he omitted the prescribed conditions which are

essential for the exercise of the statutory owers:

53
 5. If he had acted in order to unduly favour a party; If he had been actuated by corrupt

motive, however small the bribe may be because Lord Coke said long ago though

the bribe may be small, yet the fault is great.

1. The instances above catalogued are not exhaustive. However, we may add that for a

mere technical violation or merely because the order is wrong and the action not

falling under the above enumerated instances, disciplinary action is not warranted.

Here, we may utter a word of caution. Each case will depend upon the facts and no

absolute rule can be postulated." In the premises and in the light of the finding of the

disciplinary authority, the view taken by the Tribunal to set aside the punishment

cannot be sustained. Accordingly, the order of the Tribunal is set aside and that of the

disciplinary authority is restored, However, there will be no order as to costs.

5.3 Inspector Prem Chand v. Govt. of NCT of Delhi & Ors.: (2007) 4 SCC 566

The appellant was at all material times and still is working with the Delhi

Police. He was posted in Anti-Corruption Branch in 1997. While posted in the said Branch,

he was detailed as a Raid Officer. Allegedly, the complainant Kamlesh Kumar Gupta s/o

Prabhu Dayal Gupta, resident of Lajwanti Garden, Delhi, lodged a complaint with the Anti-

Corruption Branch of Delhi Police that Preet Pal Bansal, Inspector (Malaria), MCD, was

demanding a sum Rs.3,000/- by way of illegal gratification from him for not challaning the

godown of the complainant (PW-2). The complainant wanted a raid to be conducted in the

said Preet Pal Bansal. Appellant constituted a raiding party consisting of the complainant

Kamlesh Kumar Gupta (PW-2) and Devender (PW-4) and other police officers including

himself. In the preparation of the said operation, the complainant produced a sum of

Rs.3000/- in denomination of Rs.500/- each whereupon Phenolphthalein powder was applied

and the tainted money was handed over to the complainant. When the complainant attempted

54
to pay the said amount to Shri Preet Pal Singh at his godown, he did not accept the same. The

tainted money was, therefore, not seized. It was allegedly given out by him that the

complainant may give the same to one Devender (PW-4) and he in turn would accept the

money from him. Whereafter, PW-4 sat on the pillion of the scooter and they reached at the

Petrol Pump situate at the Mall Road, Delhi. He was arrested.

However, the tainted money was returned to the complainant by the

Investigating Officer. In the criminal proceedings which was initiated against Preet Pal

Bansal, the Criminal Court recorded a judgment of acquittal holding : "These inconsistencies

in respect of place of return of tainted money to the complainant raises speculation if at all

the money was returned to PW-2 by PW-4 or the same was handed over to him as claimed.

Thus, different versions with regard to talks in the godown and place with regard to return of

the money by PW-4 to PW-2 coupled with the fact that the accused did not accept the bribe

money either from PW-2 or PW-4 sans requisite corroboration as to the testimony of PW-2

complainant in respect of the prior demand of the bribe money and with regard to demand of

money by the accused from PW-4 at the time of petrol pump and that the accused had already

challaned the complainant previously on 2/3 occasions cast shadow of doubt on the veracity

of the testimony of PW-2, PW-4 and PW-5 and creates doubt about the claim of the

prosecution that the accused ever demanded the bribe from the complainant. The possibility

of P-2 having grudge against the accused on account of having challaned the complainant for

2/3 occasions in respect of his godown and got him fined which fact is not disputed, cannot

be ruled out. In my opinion, it would not be expedient to act, accept or rely upon the

testimony of PW-2 and PW-4. In addition to this, it is also possible that the mind of PW-4

was not free from at the time of deposing in the court due to fear of departmental enquiry."

55
 He was held guilty of the said charges. A second show-cause notice was

issued to the appellant to which cause was shown by him. By an order dated 28.3.2005, a

punishment of forfeiture of one year's approved service was imposed upon the appellant. He

preferred an appeal thereagainst. The appellate authority, being the Commissioner of Police,

while dismissing the appeal of the appellant held:

"I have examined the appeal, the D.E. File and other relevant documents

available on the file. Due procedure was followed by the E.O. During the departmental

proceedings. The appellant was given mandatory opportunities to defend his case and he had

availed of the same. The E.O. While submitting his findings had proved the charge framed

against the appellant. The disciplinary authority after having gone through the D.E. file

evidence on record as well as written/oral submissions of the appellant had passed his final

order awarding him the punishment under appeal which is self speaking and reasoned order.

The appellant being a raiding officer should have seized the tainted money as case property

but he had failed to bring an important piece of evidence on record, resulting the acquittal of

the accused by the Hon'ble Court. Though, the trial court had not passed any adverse remarks

against the appellant while passing the judgment, it is quite clear that the appellant had failed

to discharge of his official duties as per law, which amounts to serious misconduct on the part

of the appellant. Therefore, the punishment awarded to him is justified and is commensurate

with the gravity of misconduct committed by him. No infirmities were committed either by

the E.O. or by the disciplinary authority. None of the appellant's pleas has any force. Hence,

the appeal of the appellant is rejected."

The Tribunal opined that the acts of omission on the part of the appellant was

not a mere error of judgment. On what premise the said opinion was arrived at is not clear.

We have noticed hereinbefore that the appellate authority, namely, the Commissioner of

56
Police, Delhi, while passing the order dated 29.8.2003 categorically held that the appellant

being a raiding officer should have seized the tainted money as case property. In a given case,

what should have been done, is a matter which would depend on the facts and circumstances

of each case. No hard and fast rule can be laid down therefor.

The Criminal Court admittedly did not pass any adverse remarks against the

appellant. Some adverse remarks were passed against the Investigating Officer, who

examined himself as PW-4 as he had handed over the tainted money to the complainant PW-

2.

"Initiation of disciplinary proceedings against an officer cannot take place on

information which is vague or indefinite. Suspicion has no role to play in such matter. There

must exist reasonable basis for the disciplinary authority to proceed against the delinquent

officer. Merely because penalty was not imposed and the Board in the exercise of its power

directed filing of appeal against that order in the the Appellate Tribunal could not be enough

to proceed against the appellant. There is no other instance to show that in similar case the

appellant invariably imposed penalty."

We, therefore, are of the opinion that in the peculiar facts and circumstances

of this case, the appellant cannot be said to have committed any misconduct.

Impugned judgment, therefore, in our opinion cannot be sustained, It is set

aside accordingly. The appeal is allowed.

5.4 Union of India vs. Upendra Singh: 1994 SCC (3) 357, JT 1994 (1) 658

This appeal is preferred against the judgment of the Central Administrative

Tribunal, Principal Bench, New Delhi quashing the charges (charge-sheet) framed on

February 7, 1991 against the respondent. The respondent is a member of the Indian Revenue

57
Service (IRS) and is presently working as Deputy Commissioner of Income Tax. On

February 7, 1991, a memorandum of charges was issued to him accompanied by a "Statement

of imputations of misconduct or misbehaviour in support of article of charges" framed against

him.

The Bench further opined that "the present case is fully covered by the

aforesaid decision of this Court and considering the facts and circumstances of the present

case, in the light of 'the said decision, the impugned order passed by the Tribunal cannot be

upheld". Evidently because the said appeal was preferred against an interlocutory order made

by the Tribunal, the Bench directed the Tribunal to deal with the original application in the

light of the decision in A.N. Saxena2. The Bench directed expressly that the disciplinary

proceedings against the respondent were to continue.

When the matter went back to the Tribunal, it went into the correctness of the

charges on the basis of the material produced by the respondent and quashed the charges

holding that the charges do not indicate any corrupt motive or any culpability on the part of

the respondent. We must say, we are not a little surprised at the course adopted by the

Tribunal. In its order dated September 10, 1992 this Court specifically drew attention to the

observations in A.N. Saxena2 that the Tribunal ought not to interfere at an interlocutory stage

and yet the Tribunal chose to interfere on the basis of the material which was yet to be

produced at the inquiry. In short, the Tribunal undertook the inquiry which ought to be held

by the disciplinary authority (or the inquiry officer appointed by him) and found that the

charges are not true. It may be recalled that the jurisdiction of the Central Administrative

Tribunal is akin to the jurisdiction of the High Court under Article 226 of the Constitution.

Therefore, the principles, norms and the constraints which apply to the said jurisdiction apply

equally to the Tribunal. If the original application of the respondent were to be filed in the

58
High Court it would have been termed, properly speaking, as a writ of prohibition. A writ of

prohibition is issued only when patent lack of jurisdiction is made out. It is true that a High

Court acting under Article 226 is not bound by the technical rules applying to the issuance of

prerogative writs like certiorari, prohibition and mandamus in United Kingdom, yet the basic

principles and norms applying to the said writs must be kept in view, as observed by this

Court in T. C. Basappa v. T. Nagappa3. It was observed by Mukherjea, J. speaking for the

Constitution Bench : "The language used in Articles 32 and 226 of our Constitution is very

wide and the powers of the Supreme Court as well as of all the High Courts in India extend to

issuing of orders, writs or directions including writs in the nature of 'habeas corpus,

mandamus, quo warrant, prohibition and certiorari' as may be considered necessary for

enforcement of the fundamental rights and in the case of the High Courts, for other purposes

as well. In view of the express provisions in our Constitution we need not now look back to

the early history or the procedural technicalities of these writs in English law, nor feel

oppressed by any difference or change of opinion expressed in particular cases by English

Judges. We can make an order or issue a writ in the nature of ,certiorari' in all appropriate

cases and in appropriate manner, so long as we keep to the broad and fundamental principles

that regulate the exercise of jurisdiction in the matter of granting such writs in English law."

The said statement of law was expressly affirmed by a seven-Judge Bench

in Ujjam Bai v. State of Up.4 The reason for this dictum is selfevident. If we do not keep to

the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of

granting such writs in 3 (1955) 1 SCR 250: AIR 1954 SC 440 4 AIR 1962 SC 1621,

1625 English law, the exercise of jurisdiction becomes rudderless and unguided,it tends to

become arbitrary and capricious. There will be no uniformity of approach and there will be

the danger of the jurisdiction becoming personalized. The parameters of jurisdiction would

vary from Judge to Judge and from Court to Court. (Some say, this has already happened.)
59
Law does advance. Jurisprudence does undoubtedly develop with the passage of time, but not

by forgetting the fundamentals. You have to build upon the existing foundations and not by

abandoning them. It leads to confusion; it does not assist in coherence in thought or action.

In the case of charges framed in a disciplinary inquiry the tribunal or court can

interfere only if on the charges framed (read with imputation or particulars of the charges, if

any) no misconduct or other irregularity alleged can be said to have been made out or the

charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go

into the correctness or truth of the charges. The tribunal cannot take over the functions of the

disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary

authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the

matter comes to court or tribunal, they have no jurisdiction to look into the truth of the

charges or into the correctness of the findings recorded by the disciplinary authority or the

appellate authority as the case may be. The function of the court/tribunal is one of judicial

review, the parameters of which are repeatedly laid down by this Court.

"Judicial review, it is trite, is not directed against the decision but is confined

to the decision-making process. Judicial review cannot extend to the examination of the

correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review

is to ensure that the individual receives fair treatment and not to ensure that the authority after

according fair treatment reaches, on a matter which it is authorized by law to decide, a

conclusion which is correct in the eyes of the Court. Judicial review is not an appeal from a

decision but a review of the manner in which the decision is made. It will be erroneous to

think that the Court sits in judgment not only on the correctness of the decision making

process but also on the correctness of the decision itself."

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 The gravamen of the charges against the respondent is that he conducted a

survey under Section 133-A of the Income Tax Act, 1961 in respect of Raghuvanshi group of

builders on January 9, 1987; during the course of survey, several incriminating documents

were found; the assessee also gave a statement (referred to as confessional statement in the

memo of charges) admitting unaccounted receipts of Rs 1.56 crores and also admitting

unaccounted income of Rs 46.60 lakhs; the respondent initiated proceedings under Section

144-A of the Income Tax Act against the said group in illegal and improper manner and that

in spite of voluminous evidence gathered, he neither examined the incriminating documents

and evidence nor passed any order under Section 144-A but improperly and illegally

acquiesced in the assessees' offer to disclose a far smaller amount; further the respondent

gave directions to the assessing officer to complete the assessments of the said builder

under Section 143(1) (summary assessment procedure) even though at the relevant time the

proceedings under Section 144-A were pending; during the pendency of such proceedings, no

such direction could have been issued by the respondent. On the above basis it was alleged

that the respondent has violated Rules 3(1)(i), 3(1)(ii) and 3(1)(iii) of CCS Conduct Rules,

1944. The statement of imputations elaborately sets out the evidence and material in support

of the said charges. It is alleged that the conduct of the respondent "shows an intention to

confer undue and improper benefits on these assessees. 

Shri Jain submitted that the allegations made against the respondent do not fall

within any of the six clauses. It is not possible to agree. In any event, the truth or otherwise of

the charges is a matter for inquiry.

For the above reasons, the appeal is allowed, the order of the Tribunalis set

aside, the disciplinary inquiry against the respondent shall proceedunhindered and

expeditiously. It is in the interest of everyone concerned that the truth or otherwise of the

61
charges is determined at the earliest. The respondent shall pay the costs of the appellant in

this appeal assessed at Rs 5000.

5.5 In Government of A.P. v. P. Posetty, JT: 1999 (10) SC 524, (2000) 2 SCC 220

The respondent was working as a Sub-Inspector of Police at Togta Police

Station in Medak District of the State of Andhra Pradesh from 1975 to 1977. There were

certain allegations of illegal detention of certain persons in police custody, their torture etc.

by the respondent for corrupt motives. On being satisfied that a prima facie case against the

respondent was made out, the case of the respondent was referred to the Tribunal constituted

under Section 3 of the Andhra Pradesh Civil Services (Disciplinary Proceedings Tribunal)

Act, 1960. The Tribunal framed the following charge against the respondent: "That you,

while working as SI of Police, Togta, from 1975 to 1977, in abuse of your official position,

and actuated by corrupt motives, harassed S/Shri S. Bal Reddy, Janki Sathaiah, Kambam Bal

Reddy, Katnbam, Lakshmi Reddy, Gadila Malla Reddy, Pogula Rami Reddy and Kambam

Veera Malla Reddy by keeping them in illegal police custody and thereby you are guilty of

misconduct within the meaning of Rule 2(b) of the rules framed under the Andhra Pradesh

Civil Services (Disciplinary Proceedings Tribunal) Act, 1960."

After enquiry the Tribunal came to the conclusion that the charge of abuse of

official position actuated by corrupt motives was proved against the respondent. The Tribunal

sent a report dated 10-12-1981 to the State Government. The State Government thereupon

served a second show-cause notice dated 1-4-1982 on the respondent asking him to show

cause why the punishment of dismissal from service should not be imposed on him. On

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receipt of the show-cause notice the respondent filed a proceeding before the Andhra Pradesh

State Administrative Tribunal challenging the show-cause notice.

The respondent challenged the second show-cause notice on two grounds: (7)

the respondent was denied a reasonable opportunity to be heard in the course of the

disciplinary proceedings against him by the Tribunal; and (2) the Tribunal had no jurisdiction

to enquire into the allegation in question against the respondent. The State Administrative

Tribunal has decided the first question against the respondent holding that a reasonable

opportunity had been given to the respondent of being heard in the disciplinary proceedings.

On the second question, however, the Tribunal came to the conclusion that the Tribunal for

disciplinary proceedings had no jurisdiction to enquire into the allegation in question.

Under Section 4 of the Andhra Pradesh Civil Services (Disciplinary

Proceedings Tribunal) Act, 1960 the Government shall refer to the Tribunal for enquiry and

report such cases as may be prescribed of allegations of misconduct on the part of the

government servants. Misconduct is defined in the Andhra Pradesh Civil Services

(Disciplinary Proceedings Tribunal) Rules, 1961 in Rule 2(b). Under Rule 2(b) any wilful

contravention of rules made under the proviso to Article 309 of the Constitution to regulate

the recruitment and conditions of service of persons appointed to such service and post until

provision in that behalf is made, would be a misconduct. Such rules are framed by the State

of Andhra Pradesh being the Andhra Pradesh Civil Services Conduct Rules, 1964 which

apply to the respondent also.

The charge against the respondent is abuse of his official position actuated by

corrupt motives which would clearly amount to a violation of the conduct rules and, in

particular, Rules 3(1), 3(2) and 3(3). We, therefore, do not find any substance in the State

Administrative Tribunal's finding that the Tribunal for disciplinary proceedings had no

63
jurisdiction to enquire into these charges. The impugned order of the Tribunal is, therefore,

set aside. The appellant will be at liberty to proceed with the second show-cause notice and

after considering the representation of the respondent, if any, to pass such appropriate order

as it may deem fit.

The respondent has submitted that after the impugned order of the State

Administrative Tribunal and before the stay granted by this Court in the present proceedings

the respondent has been promoted. Hence, disciplinary proceedings should not now be

continued against him. We do not find any merit in this contention. The promotion of the

respondent was on account of the disciplinary proceedings being quashed. Since we have

come to the conclusion that the proceedings were wrongly quashed, the Government is

entitled to proceed further in the disciplinary proceedings in accordance with law. The appeal

is, therefore, allowed with costs.

5.6 C. Ravichandran Iyer vs Justice A.M. Bhattacharjee & Ors: 1995 SCC (5) 457, JT

1995 (6) 339

The petitioner, a practising advocate, has initiated the public interest litigation

under Article 32 of the Constitution seeking to issue an appropriate writ, order or direction

restraining permanently the Bar Council of Maharashtra and Goa [BCMG], Bombay Bar

Association [BBA] and the Advocates' Association of Western India [AAWI], respondents 2

to 4 respectively, coercing Justice A.M. Bhattacharjee [the 1st respondent]. Chief Justice of

Bombay High Court, to resign from the office as Judge. He also sought an investigation by

the Central Bureau of investigation etc. [respondents 8 to 10] into the allegations made

against the 1st respondent and if the same are found true, to direct the 5th respondent,

Speaker Lok Sabha to initiate action for his removal under Article 124 (4) and (5) read

with Article 218 of the Constitution of India and Judges (Inquiry) Act, 1968 [for short, `the

64
Act']. This Court on March 24, 1995 issued notice to respondents 2 to 4 only and rejected the

prayer for interim direction to the President of India and the Union of India [respondents 6

and 7 respectively] not to give effect to the resignation by the 1st respondent.

We have also issued notice to the Attorney General for India and the President

of the Supreme Court Bar Association [SCBA]. The BBA filed a counter- affidavit through

its President, Sri Iqbal Mahomedali Chagla. Though respondents 2 and 4 are represented

through counsel, they did not file any counter-affidavit. The SCBA informed the Court that

its newly elected office bearers required time to take a decision on the stand to be taken and

we directed them to file their written submissions. Shri F.S. Nariman, learned senior counsel

appeared for the BBA and Shri Harish N. Salve, learned senior counsel, appeared for AAWI,

the 4th respondent. The learned Attorney General also assisted the Court. We place on record

our deep appreciation for their valuable assistance.

The SCBA, instead of filing written submissions sent a note with proposals to

reopen the case; to issue notice to all the Bar Associations in the country and refer the matter

to a Bench of not less than five, preferably seven, Judges for decision after hearing them all.

We do not think that it is necessary to accede to this suggestion.

The petitioner in a well-documented petition stated and argued with

commitment that the news published in various national newspapers do prove that

respondents 2 to 4 had pressurised the 1st respondent to resign from the office as Judge for

his alleged misbehaviour. The Constitution provides for independence of the Judges of the

higher courts, i.e., the Supreme Court and the High Courts.

It also lays down in proviso [a] to clause (2) of Article 124; so too in Article

217 (1) proviso (a) and Article 124 (4), procedure for voluntary resignation by a Judge, as

well as for compulsory removal, respectively from office in the manner prescribed therein
65
and in accordance with the Act and the Rules made thereunder. The acts and actions of the

respondents 2 to 4 are unknown to law, i.e., removal by forced resignation, which is not only

unconstitutional but also deleterious to the independence of the judiciary. The accusations

against the 1st respondent without proper investigation by an independent agency seriously

damage the image of judiciary and efficacy of judicial adjudication and thereby undermine

credibility of the judicial institution itself. Judges are not to be judged by the Bar. Allowing

adoption of such demands by collective pressure rudely shakes the confidence and

competence of judges of integrity, ability, moral vigour and ethical firmness, which in turn,

sadly destroys the very foundation of democratic polity. Therefore, the pressure tactics by the

Bar requires to be nibbed in the bud. He, therefore, vehemently argued and requested the

Court to adopt such procedure which would safeguard the independence of the judiciary and

protect the judges from pressure through unconstitutional methods to demit the office.

Shri Chagla in his affidavit and Shri Nariman appearing for the BBA

explained the circumstances that led the BBA to pass the resolution requesting the 1st

respondent to demit his office as a Judge in the interest of the institution. It is stated in the

affidavit that though initially he had in his custody the documents to show that the 1st

respondent had negotiated with Mr. S.S. Musafir, Chief Executive of Roebuck Publishing,

London and the acceptance by the 1st respondent for publication and sale abroad of a book

authored by him, viz., "Muslim Law and the Constitution" for two years at a royalty of

US$80,000 [Eighty thousand U.S. Dollars] and an inconclusive negotiation for US$75,000

[Seventy five thousand U.S. Dollars] for overseas publishing rights of his book "Hindu Law

and the Constitution" [2nd Edn.], he did not divulge the information but kept confidential.

From about late 1994, there was considerable agitation amongst the members of respondents

3 and 4 that certain persons whose names were known to all and who were seen in the court

66
and were being openly talked about, were bringing influence over the 1st respondent and

could "influence the course of judgments of the former Chief Justice of Bombay".

"The names of such persons though known are not being mentioned here since

the former Chief Justice of Bombay has resigned as Chief Justice and Judge of the Bombay

High Court". It was also rumoured that "the former Chief Justice of Bombay has been paid a

large sum of money in foreign exchange purportedly as royalty for a book written by him,

viz., "Muslim Law and the Constitution". The amount of royalty appeared to be totally

disproportionate to what a publisher abroad would be willing to pay for foreign publication of

a book which might be of academic interest within India [since the book was a dissertation of

Muslim Law in relation to the Constitution of India]. There was a growing suspicion at the

Bar that the amount might have been paid for reasons other than the ostensible reason". He

further stated that the 1st respondent himself had discussed with the Advocate General on

February 14, 1995 impressing upon the latter that the Chief Justice "had decided to proceed

on leave from the end of February and would resign in April 1995".

The Advocate General had conveyed it to Shri Chagla and other members of

the Bar. By then, the financial dealings referred to above were neither known to the public

nor found mention in the press reports. Suddenly on February 19, 1995, the advocates found

to their surprise a press interview published in Times of India said to have been given by the

1st respondent stating that "he had not seriously checked the antecedents of the publishers

and it was possible that he had made a mistake in accepting the offer". He was not

contemplating to resign from judgship at that stage and was merely going on medical leave

for which he had already applied for and was granted. The BCMG passed a resolution on

February 19, 1995 seeking "resignation forthwith" of the 1st respondent. On February 21,

1995, the BBA received a requisition for holding its General Body meeting to discuss the

67
financial dealings said to have been had by the 1st respondent "for a purpose other than the

ostensible purpose thereby raising a serious doubt as to the integrity of the Chief Justice" The

meeting was scheduled to be held at 2.15 p.m. on February 22, 1995 as per its bye- laws. The

1st respondent appears to have rung up Shri Chagla in the evening on February 21, 1995 but

he was not available. Pursuant to a contact by Shri W.Y. Yande, the President of AAWI, at

the desire of Chief Justice to meet him, Shri Chagla and Shri Yande met the 1st respondent at

his residence at 10.00 a.m. in the presence of two Secretaries of the 1st respondent.

The founding fathers of the Constitution advisedly adopted cumbersome

process of impeachment as a mode to remove a Judge from office for only proved

misbehaviour or incapacity which implies that impeachment process is not available for

minor abrasive behaviour of a Judge. It reinforces that independence to the Judge is of

paramount importance to sustain, strengthen and elongate rule of law. Parliament sparingly

resorts to the mechanism of impeachment designed under the Constitution by political

process as the extreme measure only upon a finding of proved misbehaviour or incapacity

recorded by a committee constituted under Section 3 of the Act by way of address to the

President in the manner laid down in Article 124 (4) and (5) of the Constitution, the Act and

the Rules made thereunder.

Judicial office is essentially a public trust. Society is, therefore, entitled to

except that a Judge must be a man of high integrity, honesty and required to have moral

vigour, ethical firmness and impervious to corrupt or venial influences. He is required to keep

most exacting standards of propriety in judicial conduct. Any conduct which tends to

undermine public confidence in the integrity and impartiality of the court would be

deleterious to the efficacy of judicial process. Society, therefore, expects higher standards of

conduct and rectitude from a Judge. Unwritten code of conduct is writ large for judicial

68
officers to emulate and imbibe high moral or ethical standards expected of a higher judicial

functionary, as wholesome standard of conduct which would generate public confidence,

accord dignity to the judicial office and enhance public image, not only of the Judge but the

court itself. It is, therefore, a basic requirement that a Judge's official and personal conduct be

free from impropriety; the same must be in tune with the highest standard of propriety and

probity. The standard of conduct is higher than expected of a layman and also higher than

expected of an advocate. In fact, even his private life must adhere to high standards of probity

and propriety, higher than those deemed acceptable for others. Therefore, the Judge can ill-

afford to seek shelter from the fallen standard in the society.

Bearing all the above in mind, we are of the considered view that where the

complaint relates to the Judge of the High Court, the Chief Justice of that High Court, after

verification, and if necessary, after confidential enquiry from his independent source, should

satisfy himself about the truth of the imputation made by the Bar Association through its

office bearers against the Judge and consult the Chief Justice of India, where deemed

necessary, by placing all the information with him. When the Chief Justice of India is seized

of the matter, to avoid embarrassment to him and to allow fairness in the procedure to be

adopted in furtherance thereof, the Bar should suspend all further actions to enable the Chief

Justice of India to appropriately deal with the matter.

This is necessary because any action he may take must not only be just but

must also appear to be just to all concerned, i.e., it must not even appear to have been taken

under pressure from any quarter. The Chief Justice of India, on receipt of the information

from the Chief Justice of the High Court, after being satisfied about the correctness and truth

touching the conduct of the Judge, may tender such advice either directly or may initiate such

action, as is deemed necessary or warranted under given facts and circumstances. If

69
circumstances permit, it may be salutary to take the Judge into confidence before initiating

action. On the decision being taken by the Chief Justice of India, the matter should rest at

that.

This procedure would not only facilitate nibbing in the bud the conduct of a

Judge leading to loss of public confidence in the courts and sustain public faith in the efficacy

of the rule of law and respect for the judiciary, but would also avoid needless embarrassment

of contempt proceedings against the office bearers of the Bar Association and group libel

against all concerned. The independence of judiciary and the stream of public justice would

remain pure and unsullied. The Bar Association could remain a useful arm of the judiciary

and in the case of sagging reputation of the particular Judge, the Bar Association could take

up the matter with the Chief Justice of the High Court and await his response for the action

taken thereunder for a reasonable period.

In case the allegations are against Chief Justice of a High Court, the Bar

should bring them directly to the notice of the Chief Justice of India. On receipt of such

complaint, the Chief Justice of India would in the same way act as stated above qua

complaint against a Judge of the High Court, and the Bar would await for a reasonable period

the response of the Chief Justice of India.

It would thus be seen that yawning gap between proved misbehaviour and bad

conduct in consistent with the high office on the part of a non cooperating Judge/Chief

Justice of a High Court could be disciplined by self-regulation through inhouse procedure.

This inhouse procedure would fill in the constitutional gap and would yield salutary effect.

Unfortunately, recourse to this procedure was not taken in the case at hand, may be, because

of absence of legal sanction to such a procedure. Since the 1st respondent has already

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demitted the office, we have stated as above so that it would form a precedent for future. The

writ petition is accordingly disposed of.

5.7 Registrar, High Court Of Gujarat vs B.J. Patel, Chief Judicial: (1997) 2 GLR 1660

Could the collective, consensual and coherent managerial wisdom on

administrative side of the appellant-High Court of Gujarat, in passing the impugned order of

transfer of a judicial officer exercising its Constitutional powers under Article 235, be

supplanted or implanted by the judicial wisdom, by the High Court, on its judicial side,

exercising its Constitutional powers of extraordinary, prerogative, special and equitable writ

jurisdiction enshrined in Article 226, that too at an interlocutory stage, in a matter of transfer,

is the solitary but the substantial question for our appreciation and adjudication in this Letters

Patent Appeal. Since the main writ petition is awaiting final verdict before the learned single

Judge, we would like to mention only the skeleton projection of facts which are relevant and

material for the purpose of appreciation and adjudication of the aforesaid dispute raised in

this appeal.

The respondent, herein, questioned the legality and validity of an order of

transfer recorded by the appellant - High of Gujarat - exercising its powers under Article 235,

by filing Special Civil Application No. 983 of 1997, invoking the powers of Article 226 of

the Constitution of India. The transfer order was recorded by the High Court, on 24th

January, 1997, whereby, the respondent Judicial Officer, who was working at the relevant

time as Chief Judicial Magistrate (C.J.M.) in Baroda district came to be transferred, as

Second Joint Civil Judge (S.D.) and J.M.F.C. in the city of Rajkot with immediate effect

along with other incidental transfers. By filing the aforesaid petition, the respondent, inter

alia, contended that she received the said order on 27th January, 1997 and left the charge of

the office of the Chief Judicial Magistrate on the same day within no time so as to join at the

71
transferred station. She, however, has challenged the order of transfer, mainly, on the ground

that it was motivated and initiated on account of the representation made by the

Commissioner of Police, Baroda, Mr. Brar and thereby causing injury to the independence of

Judiciary. In that, she also alleged that in connection with one criminal case, she had issued

notices which were not properly responded by the Commissioner of Police, Baroda, and,

therefore, she was constrained to issue a notice for contempt. It was, therefore, contended that

during the aforesaid period when said case was in progress, she received the order of transfer

in the middle of the term though the transfers are, normally, effected on or about the period of

summer vacation. It was also contended that she will suffer hardship on account of transfer as

her children are receiving education and were preparing for examinations and as her husband

is also working in Baroda as Joint District Judge in the higher Judiciary. It was also

contended that the transfer order is not legal as it was not the order of the Full Court as it was

only passed by Standing Committee.

It appears from the record and the impugned order of the learned single Judge

that the personal grounds were not agitated. The maintainability of the transfer order was

raised before the learned single Judge, which was not accepted. The learned single Judge has

held that the impugned order of transfer cannot be said to be incompetent or without

jurisdiction. It is also held that the order of transfer is not in violation of the provisions

of Article 235. However, the learned single Judge has upheld the contention for interlocutory

injunction against the implementation of the transfer order during the pendency of the

petition, inter alia, holding that the perception of the Standing Committee which took the

decision of transfer was not proper, as a result of which, the interlocutory order staying the

execution and the operation of the order of transfer came to be issued on 18th February, 1997.

Though request was made to stay the order, it was not accepted as a result of which, the

respondent took charge of the office of the Chief Judicial Magistrate, Baroda, without any
72
formality, under the shelter of the interlocutory order granted by the learned single Judge.

The manner and mode in which the charge came to be taken by the Chief Judicial Magistrate

in the evening of 18th February, 1997, i.e., the same day on which the impugned order came

to be passed, alleged to be not only unpleasant and unhappy, but ugly, unusual, shocking and

startling to which further reference may be made hereinafter, if required.

It could very well be seen from the aforesaid provision that complete control is

vested in the High Court on its administrative side. Article 235 of the Constitution of India,

undoubtedly, prescribes control over the subordinate Judiciary. There is purpose and policy

behind it. The Constitution makers have designedly provided provision in Article 235 for

complete control over the subordinate Judiciary by the High Court so that independence of

Judiciary doctrine could be very well subserved. The control over the subordinate Judiciary

by the High Court is exclusive in nature, comprehensive in extent and effective in operation.

The High Court is, thus, the sole guardian and custodian as mandated by Article 235. We do

not propose to enunciate or indicate that the administrative exercise of powers under Article

235 is beyond the purview of the provisions of Articles 226 and 32 of the Constitution of

India.

The powers of this Court under Article 226 of the Constitution of India are, no

doubt, very wide, but are circumscribed in certain parameters and are to be exercised in a

limited circumference. Any and every administrative order is notchallengeable with the aids

of Article 226. Extraordinary, special, prerogative, plenary, equitable powers of writ Court

are required to be exercised essentially for the prevention of violation of Constitutional

provisions or statutory provisions. They are also required to be exercised in the light of the

recent developments in the administrative law. Article 226, therefore, can be employed in a

given case when illegality is perpetrated or manifest injustice is done in violation of the

73
principles of natural justice. The powers under Article 226 are discretionary. They are

circumscribed. When an administrative order is challenged before the Court under the help or

aids of the provisions of Article 226, what is required to be shown is that the person,

management or the authority or decision making institution has taken the decision which is

vitiated either because of non-observance of principles of natural justice or in violation of the

principles of law or on the ground of proved strong case of mala fides.It is not designed to

substitute the just and meritorious administrative orders or decisions. It is not devised to

supplant the managerial action or discretion. What is designed is to see as to whether the

"decision making process"is just, proper and legal and without any contamination. If the

decision making process is found to be free from any vice or quite fair or quite reasonable, it

is not for the High Court to question the nature of the decision, the type of the action and the

quality of the action. Otherwise, the role of the Court under Article 226 would not be

supervisory but it would become a role of an appellate Court.

It was contended on behalf of the appellant High Court by learned Addl.

Advocate General Mr. Shelat that interim order, which amounts to virtually allowing the writ

petition for interim purpose should not be granted and in support of his contention, reliance is

placed on a decision of the Apex Court in Engineer-in-Chief v. ASI Reddy, 1987 (Supp) SCC

139. It has been, clearly, held in the said decision that interim order which amounts to

virtually allowing of writ petition for interim purposes should not be issued by High Court

while dealing with service dispute. It squarely applied to the facts of case on hand.

In the course of submissions and hearing of this appeal, we have noticed some

averments in para 3 in affidavit of the respondent dated 2nd March, 1997. The bracketed

portion of the said para was sought to be deleted by learned Sr. Counsel Mr. Mehta when it

74
was brought to his notice. We, therefore, do not propose to deal with such objectionable

observations at this stage.

After having considered the various divergent submissions raised by the

learned Additional Advocate General and learned Sr. Counsel Mr. Mehta and after giving our

dispassionate thoughts to the relevant facts required for the purpose of our decision, since the

main Special Civil Application is pending and considering the proposition of law enunciated,

hereinbefore, we are of the opinion that the impugned mandatory interlocutory order of the

learned single Judge staying the transfer passed by the appellant High Court against the

respondent-C.J.M. and permitting to resume her is required to be quashed and set aside. We

have not been able to persuade ourselves to agree and substantiate the impugned order

challenged in the appeal.

With the result, we are left with no alternative but to quash and set aside the

Impugned order of the learned single Judge while allowing this appeal. Accordingly,

impugned order is quashed and this appeal is allowed. Considering the facts and

circumstances, there shall be no order as to costs. Since the main matter is pending before the

learned single Judge, we clarify that the observations made by this Court on factual aspects

are, obviously, and purely made at the interlocutory stage for the decision of the interim order

only.

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 CHAPTER - 6

CONCLUSION AND SUGGESTIONS

6.1 Conclusion

The strategies to achieve 'good governance being forwarded by international

lending agencies are being applied to realities prevailing in The Third World. The concept is

being touted as a panacea for all political ills the march afflicting nations on democracy good

governance is characterized as a participatory, consensus arrived, accountable, transparent,

responsive, effective and efficient government based on the rule of law. The government of

76
the day, viz. of the Third World is expected to move in a specific direction, obviously in

consonance with LPG.

The 'recipient' state no longer retains its autonomy to deliberate on its own

model of good governance, which prescribes to its conditions. In the specific case of India,

good governance is primarily an agenda for restructuring the on-going state driven

governance into market friendly governance which may, euphemistically, be disguised as

people-friendly governance. Good governance, thus, seems to be a synonym for effective

government in the sense that the basic government functions are 'developmental' whereas the

fact remains that all governments carry out several more important extra developmental

functions e.g. defence of country's frontiers, conduct of diplomacy and maintenance of

domestic peace and world order.

After six decades experience of democratic governance in India, academics

and intellectuals have started exercising on the theme of good governance by accepting the

fact that it is not in vogue and further that governance has become bad also. Nevertheless,

there are numerous ailments that have afflicted the functioning of the political system in

India. Criminalization of Politics, poverty, illiteracy, backwardness political instability,

corruption and unaccountability of bureaucracy are but a few of them. Several significant

initiatives have been launched to combat these ills even though at the behest of donors. The

path breaking Right to Information Act (2005) which has come into effect recently has been

heralded as the most significant reform in public administration in India in the last 60 years.

This far reaching law is the light of hope which can dispel the darkness of secrecy and storms

of corruption, and ensure transparency and accountability which are hallmarks of efficient

governance. It can act as a catalyst to facilitate the onset of a new value system, rejuvenation

of hope to establish a better society.

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 Keeping in mind the concept of judicial accountability and independence it

can be divided into three categories. One is political accountability, second is decisional

accountability and third is behavioral accountability. Selection and appointment of judges,

their tenure is part of the political accountability. Decisional accountability is concerned with

the manner in which the judges are accountable for their judgments and ruling. Concept of

judicial review, appeals, academic criticism of judicial actions is a part of decisional

accountability. Legislatures do not provide adequate funding for proper functioning of the

courts. Definitely, it adversely affects the decision making process of the court. Behavioral

accountability involves the conduct of judges. Transparency is an aspect of rationality. In

process of appointment, transparency is required.

The process of appointment by Collegium system in our country is absolutely

opaque and inaccessible to public.  Ruma Pal, J; has observed, that “Consensus within the

Collegium is sometimes resolved through a trade-off resulting in dubious appointments with

disastrous consequences for the litigants and the credibility of the judicial system.

Institutional independence has also been compromised by growing sweet talk and ‘lobbying’

within the system”. In the reference of judicial proceeding the Supreme Court has

observed that “Public trial in open court is undoubtedly essential for the healthy, objective

and fair administration of justice. Trial conducted by the court in open and which is  open to

public scrutiny and watch works naturally as a check against judicial caprice or vagaries, and

serves as a powerful instrument for creating confidence of the public in the fairness,

objectivity, and impartiality of the administration of justice. Public confidence in the

administration of justice has a such great significance that there can be no two opinions on

the broad proposition that in discharging their functions as judicial tribunals, courts must

generally hear causes in open and must permit the public admission to the court-room.

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 Jeremy Bentham has also observed that “In the darkness of secrecy sinister

interest, and evil in every shape, has full swing. Publicity is the very soul of justice. It is the

keenest spur to exertion, and surest of all guards against improbity. It keeps the Judge himself

while trying under trial (in the sense that) the security of securities is publicity.” 

To create confidence and faith of the public it is necessary to adopt the

principal of transparency and fairness in the functioning of any democratic institution.

Judiciary has forced too many other organs of State and institutions to be transparent in its

functioning. But eyebrows have been raised by different stakeholders and thinkers about the

lack of transparency in the functioning of Indian judiciary itself.

The judiciary should have not given this opportunity to others. It is necessary

for the judiciary to adopt the transparency in its functioning. The ultimate object of judicial

accountability is to maintain public confidence in the judiciary because a legal system works

only if the decisions given by the court are being widely acceptable by public. Public will

accept the decisions of the court if they are convinced that judiciary is fair, impartial and

independent. It means that justice not only should be done but it also must appear to be done.

Therefore judges not only should avoid not only any type of impropriety but it should be

appear that they do not indulge any type of impropriety.  One of the major criticisms against

higher judiciary is about the lack of transparency in the appointment and transfer of judges. In

this regard, judiciary has failed in maintaining the standard of accountability. Principal of

good governance demands transparency in the all sphere of functioning of judiciary. Not only

appointment of judges, all over functioning of the judiciary should be transparent and fair. It

will increase the faith and confidence of the public in judiciary. It is equally important that

while taking the major of judicial accountability the judicial independence should not be

compromised.

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 Corruption in the judiciary is hardly a new phenomenon, though 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 persons and institutions, particularly the media. Not

wanting to suffer criticism, the judiciary has used its power of contempt to stifle criticism.

More than 50 editors, publishers and journalists have been issued contempt notices by the

Karnataka High Court for having written stories about a judicial sex scandal, reportedly

involving three judges of the High Court.

Small wonder then, that the media is enjoying every bit of the juicy judicial

scandals that have exploded. That there has been corruption in the judiciary for many years

One reason why judges have been treated as demigods in this country is because of the power

of contempt wielded by them. This is a jurisdiction in which a judge against whom an

allegation has been made can himself act as the complainant, prosecutor and judge. The judge

can even refuse to allow the maker of the allegation to prove its truth. The very existence of

this power has been enough to silence the media and inhibit them from exposing judicial

misbehavior or corruption. The amendment recently moved in Parliament to make truth a

defense in a contempt action is not an adequate safeguard for the citizens and the press. As

the case involving the journalists who wrote about the Karnataka sex scandal shows, though

the allegation may be made bona fide and on a reasonable basis, it may not always be

possible to prove its truth. This could be because the witnesses are won over or the evidence

disappears for some other reason.

6.2 Suggestions

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 Limited immunity for actions relating to judicial duties should be in place.

This allows judges to make their decisions free from fear of civil suit; though immunity

should not apply in corruption-cases.

Disciplinary rules should ensure that the judiciary carries out initial rigorous

investigations of all allegations. An independent body must investigate complaints against

judges and give reasons for its decisions. Strict and exacting standards should apply to the

removal of a judge. Removal mechanisms for judges of all levels must be clear, transparent

and fair, and reasons need to be given for decisions. If there is a finding of corruption, a judge

is liable to prosecution. A judge should have the right to a fair hearing, legal representation.

A code of judicial conduct serves as a guide to and measure of judicial

conduct, and should be developed and implemented by the judiciary. Breaches of the code

must be investigated and sanctioned by a judicial body. A confidential and rigorous formal

complaints procedure is vital so that lawyers, court users, prosecutors, police, media and civil

society organisations can report suspected or actual breaches of the code of conduct, or

corruption by judges, court administrators or lawyers. An independent judges association,

elected by judges, should represent them in their interactions with the state and its other

organs. It should be accessible to all judges; support individual judges on ethical matters; and

provide a safe point of reference for judges who fear that they may have been compromised

in some way.

In a country like India, there is need for providing better and customized

services to the customers. The usage of E-banking is all set to increase among the people.

Some people at the moment are not using the services thoroughly due to various

hurdling factors like insecurity and fear of hidden costs etc. So banks should come forward

with measures to reduce the apprehensions of their customers through awareness

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campaigns and more meaningful advertisements to make E-banking popular among all the

age and income groups. Further, with increasing consumer demands, banks have to

constantly think of innovative customized services to remain competitive. E-Banking is

an innovative tool that is fast becoming a necessity. It is a successful strategic weapon

for banks to remain profitable in a volatile and competitive marketplace of today.

BIBLIOGRAPHY

Websites

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 1. https://www.legalservicesindia.com

2. https://blog.subharti.org

3. https://indiankanoon.org

4. https://glslawjournal.in

5. https://www.google.com

6. https://www.wikipedia.com

7. https://www.wikihow.com

Articles

1. N Vittal : Better Governance through H.C. Mathur Memorial lecture delivered in

August 16, 1999 at HCM, RIPA, Jaipur.

2. O.P. Dwivedi, "Common Good and Good Governance", The Indian Journal of

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1994.

4. M. Ajit Banerjee, and K.A. Chidambaram (eds.) Renewing Governance : Issues and

Options, New Delhi : Tata McGraw Hill Publishing House, 1996.

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Strategies to eradicate poverty in the 1990's : Draft working Paper ICPE 1989.

6. Rajesh Tandon and Ranjita Mohanty Civil Society and Governance, New Delhi :

Sanskrit 2002.

7. Evolving Grass Roots Democracy, G. Pattanithurai, Concept Publishing Company,

New Delhi, 2007.

8. Minocha, O.P. (1997), Good Governance : Concept and Operational Issues :

Management in Government.

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9. Harsh Mander and Abha Joshi : The Movement for Right to Information in India,

Peoples Power for the Control of corruption.

10. R.P. Sood, Right to Information Sublime Publications Jaipur, 2008, p.2.

11. Guha, Roy Jaytilak, 1990, "Open Government and Administrative Culture in India",

Indian Journal of Public Administration, Vol. 36 No.3 (July - Sept.) 493.

12. R.P. Sood, Right to Information Sublime Publications Jaipur, R.P., p.8.

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