What is an independent judiciary

Introduction
“There can be no difference of opinion in the House that our judiciary must both be
independent of the executive and must also be competent in itself. And the question is how these
two objects could be secured.” – Dr B.R. Ambedkar
Judiciary is the system of courts of law that helps to ensure the supremacy of laws in any nation.
It plays a crucial role in the functioning of democracy.
Under the doctrine of separation of powers, the judiciary is one of the principal organs of the
state along with the executive and legislature. While the legislature and executive is concerned
with making the law and executing them respectively, the judiciary supervises whether the law
is properly followed and also interprets and applies the laws in various legal issues. The
separation of power further dictates that the judiciary should act independently without any
outside influences.
An independent judiciary is extremely important for a democracy to prosper. Hence, it is
expected that the judiciary should remain impartial and neutral. However, due to some external
factors and pressure from various influential quarters, the independence of the judiciary is often
compromised. Various features of an independent judiciary, why it is necessary and most
importantly why the independence of the judiciary often faces uncertainty as well as the status
of the independent judiciary in an Indian perspective are further explored in the article.

Concept of an independent judiciary

An independent judiciary implies that the executive and legislature should not interfere in the
work of the judiciary. The judiciary is expected to be free from all the influences and interests
of the government and the ruling party and should not act on its behalf. The judges, in an
independent judiciary, should have the freedom to exercise the judicial powers conferred upon
them without any influence, pressure or fear. The impartial judges play the most vital role to
ensure the independence of the judiciary and act as a foundation of a fair and impartial system
of courts.
In other words, an independent judiciary is a political principle that states that the judiciary
should interpret the law and the Constitution of the respective country while being completely
free from the influence of other branches of government, political parties or public opinion or
any partisan interests.
The separation of powers is a fundamental guarantee of the independence of the judiciary. In
the decision-making process, judges should have the freedom to decide cases impartially, in
accordance with their interpretation of laws and facts. They should be able to act without any
restriction, improper influence, fear or favour.
A classic example in this regard can be a landmark judgment delivered by the US Supreme
Court in the case of United States v. Nixon (1974), a unanimous decision was passed against
President Richard Nixon, asking him to submit the Watergate Trial Tapes, which upheld the
principle of Rule of Law and subsequently reminded that even the US President is not above
the law.
Similarly, in an Indian case of State Of U.P v. Raj Narain & Ors (1975), the Allahabad High
Court declared the then Prime Minister of India Indira Gandhi guilty of electoral malpractices
and therefore ordered to set aside the election.
The system of separation of powers has been adopted by the USA to ensure an independent
judiciary. But in cases of constitutional systems based on Parliamentary sovereignty such as in
the UK or India, the independence of the judiciary is mostly ensured by means of judicial
supremacy.
In India, to ensure the independence of the judiciary, judges in the High Courts, as well as the
Supreme Court, are appointed with very little interference from other branches of the
government. Once appointed, it is also very difficult to remove a judge.
An independent judiciary is the sine qua non to ensure the vibrant democratic spirit of any
nation.

Types of judicial independence

Judicial independence is mainly of two types. They are i) institutional or functional
independence and ii) decisional independence.

i. Institutional or functional judicial independence

Institutional or functional judicial independence refers to the fact that the other organs of the
government should not interfere in the judiciary by any means. It is solely based on the degree
of separation of power. The judiciary is free to decide the appointments, transfers and salaries
and amenities provided to the judicial officer or the judges. It is the independence of the
judiciary from the other institutions or organs of the State.
Institutional or functional judicial independence includes protection from interference and
freedom from influences of powerful individuals, groups and lobbies. Institutional or
functional independence of the judiciary from the executive and the legislature is fundamental
to the idea of rule of law.
 ii. Decisional judicial independence
Decisional judicial independence refers to the idea that a judicial officer should be impartial,
neutral and free from prejudices and any biases while deciding any particular case. The
independence of an individual judge is termed decisional judicial independence.
It also includes the fact that a judge should decide a case based on the concerning facts and
laws only without being affected by the opinions of the media, politics, pressure or interference
or influence from any quarter and fear of any penalty in their own careers.
Decisional judicial independence is again of two types. They are:
i) Substantive judicial independence which means that while deciding a case and exercising
judicial powers conferred upon them, the individual judges are not subordinate to any other
authority but are the law themselves.
ii) Personal judicial independence refers to the fact that judges should be impartial or neutral
without any influence or fear and they should decide the case based on the facts of the case and
existing laws.

Historical background of an independent judiciary

The concept of judicial independence has stemmed from the subject matter of the doctrine of
“Separation of Powers”, coined by the 18th-century French philosopher Montesquieu.
However, the concept of an independent judiciary was formally adopted by England in the Act
of Settlement, 1701, though the concept of an independent judiciary took time to flourish.
Before the enactment of the Act of Settlement, 1701, the Judges used to hold the position as
per the decision of the ruler. Like any other civil servant, the judges could also be dismissed
by the Crown when decided. Thus, the judges had to act subordinately to the executive and
legislature. This led the judges to favour the interests of the royal family and other influential
persons. The judicial independence was secured by the Act which formally recognised the
principles of security of judicial tenure, formal mechanisms for the impeachment of a judge
etc. Because of the Act of Settlement, 1701, it has been possible to impeach a senior judge
from office through an official address to the Queen after agreement by both Houses of
Parliament.
Other common law countries such as Canada and Australia also adopted the British model of
an independent judiciary.
The Act of Settlement was used as a foundation by the Founding Fathers of the Constitution of
the United States to formulate Article III of the US Constitution, which acts as a base of
American judicial independence.
Independent judiciary in an Indian perspective
After post-independence, the concept of an independent judiciary has been enshrined in
the Constitution of India itself. The idea of independence of the judiciary was adopted from the
laws of the United States of America. However, from ancient times, India had a well-
maintained judicial system free from any external influences.
According to Justice S. S. Dhavan of Allahabad High Court in the essay “Judicial System in
Ancient India”, “India has the oldest judiciary in the world. No other judicial system has a
more ancient or exalted pedigree.”
Smritis in Ancient India stressed the need for an effective judicial system to carry out justice
according to dharma. It also emphasised that the primary duty of the King was to administer
the rule of law and protect the people and punish the wrongdoer. Apart from that, the
Arthashastra by Kautilya also talked about the principles of judicial independence.
Ancient jurists like Manu, Yajnavalkya, Katyayana, Brihaspati etc, and later, commentators
like Vachaspati Misra also stressed the fact that the judiciary should be independent and judges
should solely decide a case based on facts and laws.

International instruments to secure the independence of a judiciary

Maintaining an independent judiciary has been the key focus of international instruments.
Some of the most prominent international instruments are as follows:

UN Basic Principles on the Independence of the Judiciary (1985)

The UN Basic Principles on the Independence of the Judiciary was adopted on 6th September
1985 by the Seventh United Nations Congress on the Prevention of Crime and the Treatment
of Offenders held in Milan, Italy.
The idea behind the adoption of the principles was to provide a framework to administer an
independent judiciary in every country and enable a judge to do his duty impartially by
following the principles.
The principles emphasised the selection, appointment, conduct and training of the judges since
they play the most important role in running the judiciary.
Following are the basic principles which were formulated to guide the governments of the
member states to secure and promote an independent judiciary:

Independence of a judiciary
 1. The State should guarantee the independence of the judiciary by enshrining the
following in its Constitution and the laws of that country. The duty of the government
is to ensure an independent judiciary by removing all interference from the organs of
the government.
2. On the other hand, the judiciary should observe all the cases based on facts and the
concerning laws relating to the cases without being influenced. The jurisdiction of the
judiciary is extended up to all judicial matters and matters contain serious questions of
law.
3. There should not be any kind of unsolicited interference in the judiciary and judicial
decisions should not be subjected to random revision. However, an individual can
always approach judicial reviews and also can appeal to reduce any sentences ordered
by the judicial officers.
4. Every member of society should have the right to approach the judiciary whenever
required.
5. An independent judiciary should ensure that the judicial proceedings are being
performed without any prejudices and biases toward any of the litigant parties.
6. The Member state should ensure that the judiciary has enough resources to run its
function properly.

Freedom of expression and association

According to the Universal Declaration of Human Rights (UDHR), every individual has the
right and freedom to express, believe and associate etc. The judicial officers, as members of
the society, also have the same rights as any other common citizen. However, while exercising
those rights, the judges should maintain and preserve dignity and impartiality.
The judges are also free to form any kind of association with fellow judges for representing
their own interests as well as promotion of judicial independence.

Qualifications, selection and training of the judicial officers

The judicial officers should be persons with high morale and integrity as well as should have
appropriate qualifications in law and proper training.
The selection of judicial officers should not be done following any method with “improper
motives”.
The judges should be selected based on their qualifications and should not be discriminated
against on any grounds such as “race, colour, sex, religion, political or other opinions, national
or social origin, property, birth or status”. However, the candidate should be a citizen of the
concerned country and this requirement should not be termed discriminatory.

Conditions of service and tenure

The conditions of service and tenure of the judges such as the term of office, security, salary
and pensions and also the age of retirement should be secured by the law.
The appointed or elected judges should have a particular retirement age or the end of the term
as a judge.
The promotion of the judges should be based on the ability, integrity and experience of an
individual judge instead of any other preferences.
The internal judicial administration should decide the types of cases to be assigned to a
particular judge.

Professional secrecy and immunity

In the judiciary, the maintenance of professional secrecy should be prioritised. Under no
circumstances, a judge should be forced to testify any confidential information other than the
information acquired in public proceedings.
Judges, while exercising their judicial powers, should have personal immunity from civil suits
for monetary damages. However, any disciplinary proceedings, right to appeal or the
compensation provided by the State are not subject to this.

Discipline, suspension and removal

In case of any complaint against any judge, he should have the right to a fair hearing. The
complaint should be examined ‘expeditiously’ and be kept confidential initially.
A judge should only be suspended or removed in accordance with proper judicial conduct only
if he is found unfit to discharge concerned duties.
However, these should be subjected to an independent review. But it is not applicable in cases
of the decisions of the highest court and in impeachment.

Bangalore Principles of Judicial Conduct (2002)

The Bangalore Principles of Judicial Conduct (2002) was officially adopted at the Peace
Palace in The Hague, Netherlands. The Principles established the basic ethical standard for
working of the judiciary and provided a framework of judicial conduct. It dealt with six
mandatory ethical values namely judicial independence, impartial discharge of judicial duties,
integrity, propriety, equal treatment to all and lastly performance of judicial duties with
competence and due diligence and the ways to implement them.

Latimer House Principles

Latimer House Principles (2008) are the principles adopted by Commonwealth countries
dealing with the three branches of the government. It also emphasises the independence of the
judiciary to strengthen democratic values.

The necessity of an independent judiciary

Judiciary is the most important organ of the government and it keeps the overreach and abuse
of power by the Executive and Legislature in check. Judicial independence is vitally important
in a democracy. Individual judges and the judiciary as a whole must be impartial and
independent of all external pressures and of each other so that those who appear before them
to seek justice and the public, in general, can have the confidence that their cases will be
decided fairly and in accordance with the law.
While carrying out their judicial function, judges must be free from any improper influence.
Such influence can come from any number of sources such as the executive, legislators, the
media as well as the particular litigants, especially the particular pressure groups.
The responsibilities of individual judges have increased with the growth in the role of the
government in our daily lives over the last century. Disputes between the citizens and the state
have also increased together with the growth of governmental functions. Now, the judiciary,
apart from providing justice, also protects the common citizen from the unlawful acts of the
government. Thus, the requirement for an independent judiciary has increased ever since.
An independent and impartial judiciary is one of the cornerstones of democracy and this
principle was endorsed by the UN General Assembly in 1985 and 1990.

Judicial independence in India

In the post-independent era, the concept of judicial independence has been enshrined in
the Constitution of India itself. There are several constitutional provisions that help in securing
the independence of the judiciary. The provisions are discussed below:

Security of the tenure of judges

Article 217 of the Constitution states the conditions and appointing a judge of a High Court.
Once appointed, the Supreme Court and high court judges have the tenure to continue their
services until reaching the age of sixty-five years and sixty-two years respectively.
However, the age of retirement of the High Court judges was proposed to increase to 65 through
the Constitution (114th Amendment) Bill, 2010. But it was not passed.
Article 124(2) lays down that the President should appoint every Supreme Court judge and
they will remain in office until the age of sixty-five years.
For the appointment of the judges in the High Court and Supreme Court, the President shall
consult the Chief Justice of India and here consultation means concurrence and this was held
in the case of Supreme Court Advocates on Record Association v. Union of India (1993), also
known as the Second Judges Case (1993).

Salaries and Allowances of judges

Article 125 of the Constitution of India deals with the salaries and allowances of judges. The
salary is specified in the Second Schedule and may be decided to change by the Parliament by
law.
In the cases of judges in the Supreme Court, their salaries are provided by the Consolidated
Fund of India and the judges of the High Court of the respective states are paid by the
consolidated fund of that state.

Powers and Jurisdiction of the Supreme Court

Under Article 32, the Supreme Court of India has the power to issue writs and an individual
may move to the Supreme Court to access proper justice. Though the Parliament can change
the pecuniary jurisdiction in civil matters, it cannot curtail any powers of the Supreme Court.

No discussion of judicial conduct in the Parliament or state legislatures

Article 211 of the Constitution states that there should be no discussion of the judicial conduct
of any High Court or Supreme Court held in the Legislature of a State.

Contempt of Court
Under Article 129, the Supreme Court has the power to punish for contempt of itself.
Similarly, Article 215 confers the power to the High Court to punish for contempt.

Complete independence of the judiciary

Article 50 of the Constitution ensures complete independence of the judiciary and frees it from
executive control. It contains one of the Directive Principles of State Policy and states that the
state shall take steps to separate the judiciary from the executive.
One of the most recent and landmark cases regarding judicial independence is the case
of Supreme Court Advocates-on-Record Association and another v. Union of India (2015), the
constitutionality of the Constitution (99th Amendment Act), 2014 was challenged by the
Supreme Court Advocates-on-Record Association. The amendment sought to form the
National Judicial Appointment Commission (NJAC) to appoint judges. National Judicial
Appointment Commission would have been a body containing the following six persons:

• Chief Justice of India acting as ex officio Chairperson;

• Two other senior judges of the Supreme Court acting ex officio;
• The Union Minister of Law and Justice also acting ex-officio; and
• Two eminent persons are to be selected by a committee consisting of the Chief Justice
of India, Prime Minister of India, and Leader of Opposition in the Lok Sabha for a period
of three years once only. One such person would be from the Scheduled Castes or
Scheduled Tribes or OBC or minority communities or a woman.
The Supreme Court held it unconstitutional and struck it down since the amendment is a threat
to the independence of the judiciary.

Challenges to judicial independence in India

An independent judiciary cannot be taken for granted. It is important to keep in check that the
judiciary is not politicised and is free from political influences as much as possible. Otherwise,
judicial independence will be at stake. The basic challenges faced by the judiciary are as
follows:

Possible biases
It is expected that the judges should be completely impartial and free from biases while
declaring any verdict. The maxim Nemo Judex In Causa Sua originated from this idea. It means
‘no one should judge their own cause’ because this is the main reason for biases.
However, there are mostly three types of biases of the individual judge which may hamper the
impartiality of judicial proceedings. The biases are listed below as follows:

• Personal bias in the judiciary is the bias created due to a relation (friendship, grievance
or egoism) between both the parties, adversely affecting the verdict. In the case
 of Nanjundappa (B.N.) vs State Of Mysore (1964), the Karnataka High Court declared
that while appealing a case on the ground of personal bias, it must be proved effectively.
• The issue of pecuniary bias arises when the deciding party has any kind of monetary or
financial interest in the subject matter of the dispute.
• Subject matter bias arises when the authority is directly involved in the subject matter
of the case. In the case of M/s Chetak Construction Ltd. v. Om Prakash & Ors. (1998),
the court set aside an impugned order and assigned the appeal to another judge to decide
without being influenced.

Judicial corruption
Judicial corruption is the exertion of inappropriate influences and situations which affect the
impartiality and neutrality of the judicial system. An increase in judicial corruption leads the
general public to lose their trust in the judiciary and weakens public morale.
According to the Central government, over 1600 complaints have been received on the
functioning of the judiciary, some of which are on judicial corruption.

Influence of political parties

Political influences on the judiciary are a matter of grave concern. The political parties often
try to malign and disparage the Indian judiciary for personal and political interests. The
members of any political party often interfere to stop the working of the judiciary if their
interest is not satisfied. Recently, the members of the ruling party in West Bengal protested in
front of the court of a judge in Calcutta High Court and blocked the litigants from entering the
courtroom, apparently because they were not satisfied with the judgements passed by the
Hon’ble judge.

Security issues while discharging judicial duty

The judges are also human beings and naturally, they are concerned with the safety and security
of their families. It is not uncommon for a judge to receive threats for the honest discharge of
judicial duties.
Life-threatening situations faced by individual judges for mere discharging of judicial duties
are not uncommon. There have been several instances where a judge has been murdered in
open daylight for passing an unfavourable verdict.
In 1989, Justice Neelkanth Ganjoo, a judge in the Jammu & Kashmir High Court was
assassinated by militants. In 2021, Additional Sessions Judge Uttam Anand in Jharkhand was
brutally murdered in an open street. The Supreme Court took suo moto cognisance of the issue
of the safety of judges and the persons involved in his murder have been awarded rigorous life
imprisonment till death. These incidents raise serious concerns regarding the safety of the
judges while performing their judicial duties.

Interference of other two organs

Even though the doctrine of separation of powers is followed in India, the other two organs of
the government often try to encroach on and limit judicial powers. Alternatively, the judiciary
also tries its best to keep the executive and legislature in check. However, the functional overlap
of the organs may take place sometimes which hampers the impartial working of the judiciary.

Lack of transparency in the appointment of judges

The appointment of a judge is done following the collegium system in India to safeguard
judicial transparency. However, there are flaws in the collegium system that need to be
rectified. Former Chief Justice P.N. Bhagwati, known for introducing Public interest litigation
(PIL) was not satisfied with the collegium system for appointing the judges because of the
involvement of the Executive. A former Supreme Court judge AK Sikri stated that the
appointment of judges is mostly done based on personal “impressions” rather than the
qualifications and integrity of the individual judge.

Influence on the judiciary from powerful quarters

The influence exerted by powerful quarters for personal and private gains greatly hampers the
working of the judiciary. Examples of offering bribery to judges are very common. A Senior
Civil Judge Rachna Tiwari Lakhanpal of Tis Hazari Court, Delhi and her husband have been
booked by the CBI for disproportionate assets under the Prevention of Corruption Act. Apart
from that, the personal political or ideological influences of the individual judges may affect
the nature of the verdict passed.

Introduction
The word accountability suggests taking responsibility by a person or a body or country
for its action for punishment avoidance or by giving valid reasons. Judicial accountability can
be described as the judges’ view where they should be held accountable for their work. This
could be in different ways, like being accountable to the public to get voters’ approval in the
election or being accountable to some political body like the legislature or governor. Several
countries have judicial answerability and accountability of the judges in their constitutions.
This is done so there that power is not concentrated on one hand, especially in countries the
activism of the judicial body invades the domain of other organs.
The judicial system in any country is an independent and impartial set up in any nation
to remedy injustice. Justice is declared to be blind and therefore, it is on the judges to decide
how to provide justice, keeping in mind that justice should be rendered to each and every citizen
of the nation. Therefore, there comes the need to hold these judges to be accountable for their
verdicts as it is the decision taken by the judges that decide the fate of the parties involved in a
case being heard by the court.
Accountability is declared to be the sine qua non (an essential condition) of any
democratic nation as it secures the rights provided to the citizens and delivers justice that is
meant to be equal for all. It is true that the judiciary is an independent body and it does have
the authority to decide on its own way over a case. But the decisions that are made subsequently
affect the public at large and therefore the judges should be held accountable for the decisions
they make. Therefore, in order to regulate its function and promote impartiality among the
judges while making a decision, the judiciary must strike a balance.
Remembering the important role of the judiciary and its influence on the public, there
arises a necessity to judge the judges to safeguard the judiciary from abusive powers of the
judges. Internal conflicts in the judiciary affecting the role of the judiciary are detrimental for
the entire nation. An increase in such conflicts calls for the need for stronger judicial
accountability so that justice that is to be delivered is not compromised. Judicial accountability
is a two-fold mechanism. The two folds are provided below:
1. The necessity of the judges to provide reasons for the decisions they make in order
to maintain transparency in decision-making.
2. The circumstances associated with the judges relating to their tenures, which also
give rise to the disciplinary measures to be undertaken by them.
Judicial accountability
Meaning
• By the term judicial accountability, it means that the judges are responsible for the
decisions they deliver all by themselves. It is the transparency in the decision-
making process that helps in bringing the accountability. Every public body is
 responsible for answering the public for the decision they take and the function they
carry out.
• The extent of accountability differs in terms of the work being carried out and the
functions that are discharged by the public body or institutions. Similarly, the
judiciary which is one of the wings of the government is to be held accountable as
well. But the judiciary is not subject to the same level of accountability as the
executive or the legislative wings of the government.
• The judiciary is supposed to be an independent body responsible for delivering
justice and holding the integrity of the Constitution and therefore it has to be
impartial in its action as well. But all seems to be not well in the judiciary as well.
Conflicts associated with appointment procedure, execution of the functions and
powers are arising between the judges or between the judges and the Chief Justice
of India which have become a common sight nowadays.
• Judicial accountability takes place by means of the provisions that have been laid
down relating to the review, appeal and revision. The Constitution of India provides
for the removal of the judges of the Supreme Court of India as well as the High
Courts for misbehaviour and arbitrary regulation of power by means of
impeachment. The provisions for the removal of judges rests on Articles
124(2) and (4) for the judges of the Supreme Court whereas for the judges of the
High Courts the removal provision rests on Article 217.
• The removal is carried out by two-third of the votes provided by the members of
each House of the Parliament. To date, only one impeachment proceeding was
initiated against a Supreme Court judge but the procedure failed as the limit of the
two-thirds vote was not achieved as one of the political parties in the parliament
abstained from casting vote against the judge. This incident reflected that the
procedure to carry out impeachment was indeed filled with several stumbling blocks
in the form of political, social, economical aspects that harmed the independence
and the integrity of the judiciary. This became a reason to bring a stronger system
of judicial accountability.
• Judicial independence provides the judges with an ample amount of freedom but
does not provide them with the authority to misuse the freedom affecting the public
interests. Whenever judges or judicial officers are found to regulate corrupt practices
in delivering justice or carrying out the legal procedure which results in
 contravention with public trust, the same must be subjected to investigation by a fair
procedure to prohibit and restrict the judge from doing so.
• Article 124(5) of the Constitution of Judges (Inquiry) Act, 1968 came into force in
order to regulate the investigation procedure and to find proof showing incapacity
and misbehaviour on the part of the judges of the Supreme Court and the High
Courts which are supposed to be presented in front of the Houses of Parliament
while they cast a vote. But a fact not to be ignored is that the implementation of this
Article is subjected to several loopholes as well.
Requirement
India is a democratic country and the Preamble in the Constitution is painted with the word
called justice which has been guaranteed to all citizens of the country in terms of social,
political, and economical. The people of this democratic country are entitled to certain rights
which include the right to be informed as well. Accountability is necessary for those possessing
power and a dignified position and therefore is a need in order to maintain democracy and
prevent it from getting eroded. In any democracy, power and position are associated with
responsibilities otherwise the same goes against the very establishment of the democracy.
Judges are the representatives of law holders in the courts which is an agency of the judicial
system. The credibility of the judicial system, therefore, lies in the hands of these judges.
Due to several loopholes and drawbacks of the court system recent instances that have taken
place in India reflect the frustration and distress the public have developed towards the courts.
Judiciary which is one of the most important wings of the government should, therefore, be
held accountable for the evolving derogative values within it that are causing severe effects on
the country and its people. Several countries all across the world have the provision for
accountability of the judiciary and therefore this concept of judicial answerability is not a new
one. Several renowned judges themselves have held that as every profession has some ethics
and values to be abided with, the profession of a judge should also have ethics and morality
that every judge mandatorily should follow while conducting in the court. Some of these ethics
have been listed below:
1. Honest decisions: The whole question of judicial accountability arises due to the
influence and biases involved in judicial pronouncement. A judge has to be neutral
in his approach thereby ensuring that justice is provided to all. Any wrong decision
by the judge that has been made with honesty, good faith, and fairness can no longer
remain wrong.
 2. Abiding by the principle of natural justice: The two basic rules of the principle
of natural justice that are Audi Alteram Partem and Nemo judex in causa sua should
be applied in every decision taken by the judges. This eliminates any kind of
irrational and arbitrary action on the part of the judges along with being impartial.
3. Administration of justice: One of the most recognised ethics of all judges is to
administer proper justice without any kind of fear or influence. In a recent incident
that took place in Bihar which involved the killing of the person under trial during
the court session which was followed by the lynching of a person who was suspected
of being a thief shows that the administration and regulation of justice are not taking
place in a correct manner and the same should be put under check.
These codes help in moving a step forward towards the attainment of judicial accountability.
A judge is also said to avoid too much socializing in terms that prohibits the judge from
functioning independently for being social, making the judge be influenced to a greater extent.
Although this should not be counted as an ethical value to be followed by the judges, the
Supreme Court in the case of Ram Pratap Sharma v. Dayanand opinionated that a judge should
avoid accepting invitations from any business, political party, commercial entities to avoid
getting influenced in any way. It is rather an act of caution that needs to be followed.
At present, the judges of the Supreme Court and the High Courts are appointed by a collegium
system which includes all the senior judges of the Supreme Court. Although there have been
many debates associated with this method of appointing judges, the collegium system is one
where transparency is absent in totality. Some refer to this system as a system of bias as well
for the credentials of the judges are not taken into concern in this system. Therefore, the courts
in India are provided with an excessive amount of unchecked powers compared to any other
court in the world. Removal of judges can take place in no way other than impeachment which
again depends on the majority of votes of both the Houses of the Parliament.
Therefore, the need for stronger judicial accountability is increasing on an everyday basis.
Whenever an allegation that is supported by documents as evidence, is brought against a judge,
the same gets very less coverage by the media for there exists the fear of contempt of court.
The judges of the Supreme Court and the High Courts are manifested with the power to charge
any person for the criminal contempt of court and subsequently send him behind bars. Setting
up of judges associations with a strong framework can help the judges to deliver judgment with
independence but with a check in the same.
Challenges
Accountability can be considered as one of the cornerstones for establishing good governance.
Judicial accountability can be termed as a corollary to judicial independence. Some of the
challenges in implementing judicial accountability are listed below:
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. Article 235 of the Indian Constitution provides for the authority any
High Court has over the Subordinate Courts which clearly hints on the effective
mechanism necessary to enforce accountability.
2. There exists no other way in which a judge can be removed except through
impeachment. Impeachment is a process that involves a lot of hurdles. This is the
other challenge faced by the judiciary in bringing in judicial accountability.
3. The influence of politics in the judicial system is another challenge for the judiciary
to perform with integrity. The judges failed to make decisions with transparency and
fairness if they are dominated largely by the political bodies in the country. This
indeed becomes a challenge for the judiciary to implement accountability alongside
securing the independence of the judiciary.
Need for stronger judicial accountability
The demand for stronger judicial accountability with respect to today’s scenario is arising due
to the following factors:
1. Change in demands of the public belonging to a welfare State: India as a
democratic country is fast changing with more and more citizens are seeking
education which is raising the awareness of the rights and obligations among them.
Public participation has also taken a rise from what was a decade before. The
willingness to know as to how things being regulated in the country is required to
be fulfilled by increasing the accountability on the part of public officials and
institutions which is inclusive of the judiciary also.
2. Absence of remedy for regulating misbehaviour among judges: In several
judgments delivered by the courts, the one thing that has come under notice is that
there are no remedies to regulate the misbehaviour or mistakes committed by the
judges except just removing them through impeachment which is again a long
process. The court in the case of Sub-Committee on Judicial Accountability v. Union
of India took into the observation that there exists no provision in any statutes to
charge a judge of the Supreme Court or the High Courts for their misbehaviour
 during a court proceeding. This absence calls for stronger judicial accountability to
keep intact the uprightness of the judiciary.
3. The legitimacy of a judicial procedure: Constitutional legitimacy is essential to
be present and abided by in any decision taken by the judges or any law passed by
the judiciary. In order to ensure legitimacy, the judiciary should be held accountable
as well to show that the decisions are taken by then or the law brought to force by
them is abiding by the Constitution of India.
4. Knowledge about the standard of the judges practising in the courts: The
credentials of the judges practising in the Supreme Court of India or the High Courts
are kept private from the public in general. There has also been the appointment of
several judges based on political connections, biases which are disadvantageous for
the judiciary. In order to avoid the same in the future, stronger judicial accountability
is necessary to ensure the delivery of justice with fairness and clarity.
5. Reservation of seats in the judiciary: In light of the presence of both the minorities
as well as the majorities in India, demand as to reservation of seats in the judiciary
for the weaker and the depressed section of the society has been brought to focus.
Accountability on the part of the judiciary is necessary to ensure that such a thing is
carried out in some way or the other. The only way to carry out the same is to treat
the judicial service examination as the sole examination to enter the judiciary for all.
6. The necessity of efficiency: At present, there is a presence of thirty-one judges in
the Supreme Court of India but astonishingly only a few judgments passed by the
court have brought in differences and change in the existing framework. Therefore
this system filled with loopholes and deficiencies calls for efficiency in the judges
and in the system. Accountability helps in keeping a check on the judges and their
activities. If the judges are checked and are restricted from accessing excessive
power then the efficiency of the judicial system will automatically be restored.
7. The necessity of transparency: Judiciary is the only organ of the government that
delivers justice to the common citizens. Therefore, in order to successfully achieve
this role of the judiciary, there comes a requirement for accountability on the part of
the judicial system. It is not that accountability was absent from the system but
negligence on the part of the judges in delivering judgment existed and still exists.
This calls for stronger judicial accountability as the Chief Justice of India has clearly
mentioned that the judiciary will not be subjected to the Right to Information Act,
2005.
 8. Absence of provision to review the Supreme Court’s decisions: 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. But the three organs of
the government are not interdependently independent therefore the judiciary cannot
resist the want for security, accountability, and transparency. In this 21st century,
there is not only the necessity for the speedy delivery of justice but also justice that
will include honesty, fairness and accountability on the part of the judiciary.
These are some of the instances that call for stronger judicial accountability in recent times.
Judicial independence and judicial accountability: the balance
Judicial independence is a need to ensure the efficient delivery of justice to the common people
of the nation. Judges are supposed to protect the law and remedy injustice without any favour
or fear on their part. Judicial accountability as has been mentioned earlier also is reasoning the
judges, the regulators of law about their decisions and verdicts which has an impact on the
entire nation. With a microscopic view on both these terms, it can be said that both are contrary
to each other. But both have a similar level of importance to be present in the judicial system
of the country. One of the reasons for having stronger judicial accountability is to strike a
balance between judicial accountability and judicial independence.
Both these concepts are believers of the rule of law that is the supremacy of law over all men.
Further judicial accountability is necessary to bring in fair and impartial hearings by the judges
similar to judicial independence which promotes fair and transparent hearing and does not
benefit the judges as having been perceived in several cases. But these similarities are handled
by the two concepts in different ways and therefore independence can never be equated with
absolutism. Rather they can be considered to be complementary with each other. The aim of
both these concepts is to bring about judicial courage and judicial integrity is to be enforced
together to increase the efficiency of the working of the judicial system. Both judicial
independence and judicial accountability first take a look at finding correct judges who can
work with courage, diligence and fairness to correctly carry out their job.
This is the essence of both these concepts which are required to be taken into concern. The
balancing of these two concepts should be out on the basis of the needs of the country and the
quality of judges already functioning in the courts. Rather than competing with each other,
judicial accountability and judicial independence should be regulated together to bring in
impartial justice to the citizens of the nation. It is only through balancing these two concepts,
can stronger judicial accountability be brought into the nation.
Doctrine of Separation of Powers
As India is a democratic country, all the three organs of the government are supposed to be
accountable for their very function and duties. The judiciary cannot be allowed to remain
absolute and unaccountable. The doctrine of separation of powers provides that the three organs
of the government are independent of each other and are subject to their own functions. In
India, as the doctrine does not have a stronghold, the organs of the government are
interdependent with each other. It is only through the process of checks and balances can the
organs of the government allow the doctrine of separation of powers to be activated. The checks
and balances should be carried out on one organ by the other two organs in order to bring in an
equitable relation among the three organs of the government to restrict arbitrary use of powers
by any one organ of the government. The doctrine of separation of powers provides help to the
judiciary to bring in strong accountability on its part to uphold the correctness of the judiciary.
The doctrine instead makes the work easier for stronger judicial accountability to take a shape.
Therefore a need for stronger judicial accountability can be met if the doctrine of separation of
powers is carried out effectively.
Landmark judgments
• The Supreme Court in S.P. Gupta v. Union of India rejected the claim made by the
Central Government to extend protection against disclosure of confidential
documents to the public in general. The court clearly mentioned that disclosure of
documents is only restricted to those documents that are contrary to the interest of
the public in general and not any other documents. In this case, the petitioner had
asked for information about the transfer of judges and their appointments by the
Chief Justice of India.
The court observed that in this situation, the knowledge about transfer and appointment of
judges is immensely important for the public to have. This is one very essential judgment
delivered by Justice Bhagwati regarding the essentiality of strong judicial accountability. The
court agreed to the fact that they are accountable to the public to answer queries related to the
decisions they take for the interest of the public. This has been granted to the public by Article
19(1)(a) of the Constitution. It is not that the courts always adhered to being accountable for
their judgments.
In the Mid-Day Journalists case, there was the involvement of corruption in the decision made
by the judges. The Midday journalists were convicted for contemplating the court for
publishing certain evidence against one Justice who had passed the order to seal all commercial
properties in and around the residential areas of Delhi. This order was passed after Justice’s
sons were involved in a partnership with some of the recognized shopping malls.
Therefore the order passed by the Justice was made in consideration with the benefits of his
sons. Although no actions were taken on the part of the court against the Justice, it is only after
the journalists were convicted the general public could come to know about the same. This
incident reflects that there exists a fear in part of the media fir regulation of arbitrary powers
by the Judges whenever an investigation involving the judiciary is carried out. Therefore this
kind of situation calls for the need for strong judicial accountability.
• In the case of K. Veeraswami v. Union of India and Others, the Supreme Court of
India compounded the problem associated with judicial accountability. The
Supreme Court held that no investigation of a civil or criminal offence can be carried
out by a judge belonging to the Supreme Court or the High Courts without taking
the written approval from the Chief Justice of India. This judgment of the court was
indeed detrimental for the entire judiciary and raised questions on the integrity of
the court system. Due to such a judgment, it has been very rare that a judge has been
subjected to investigation. This, therefore, deletes the concept of judicial
accountability as well. This judgment had overturned the decision taken by the court
in S.P. Gupta v. Union of India and Others. It has been long known that the only
way of removing a judge from his duty is by impeachment. But this process has not
been successful yet.
• In the case of Sarojini Ramaswami v. Union of India & Ors, also known as the
Ramaswamy case, the impeachment issued by the apex court failed badly due to the
lack of majority vote from the Houses of the Parliament. Justice Ramaswamy was
charged with misusing the court’s fund but was not impeached for the refusal of one
of the parties to cast a vote. This case brought to light the drawbacks of the judiciary
and the need for strong judicial accountability to keep in check such issues
happening in the future. The judgments that have been listed above makes us realize
that stronger judicial accountability is welcoming because it ensures the correct and
fair delivery of justice to the people. Great scholars have said that justice must not
only be delivered but also must see to have been delivered. Therefore for the
judiciary to be certain in its decision-making activity, the judiciary must be
accountable for its activities.

Nemo debet esse judex in propria causa

This principle “Nemo debet esse judex in propria causa” of natural justice is also known as the
Rule of Bias or the Doctrine of Bias. The first principle of impartiality roughly translated into
English means nobody shall be a judge in his own cause or in a cause in which he is interested.
That is the authority sitting in judgment should be impartial and act without bias.
The maxim ” Nemo debet esse judex in propria causa” is based on three well-known principles:
o No man can be judge and the prosecutor at the same time.
o It is not enough that justice is done; it is also necessary that it must be seen to be done.
o Judges, like Caesar’s wife, should always be above suspicion.
In R v. Bath Compensation Authority, (1925) 1 KB 635 case, the Court observed: “the object
is not merely that the scales be held evenly; it is also necessary that they may not appear to be
inclined”.
Bias:
According to the ‘Lectric Law Library’s Lexicon, “Any mental condition that would prevent a
judge or juror from being fair and impartial is called bias. A particular influential power which
sways the judgment; the inclination or propensity of the mind towards a particular object. It
may be ground for disqualification of the judge or juror in question.”. Bias is also defined as,
“A predisposition or a preconceived opinion that prevents a person from impartially evaluating
facts that have been presented for determination; a prejudice.”
The concept of bias is based on the maxim “Nemo debet esse judex in propria causa”. If a judge
or adjudicating authority is biased either in favour of one party or against the other, he cannot
be expected to do justice in the matter. Such a person is disqualified from adjudicating and
since such proceedings stand vitiated, any decision taken by him is liable to be set aside. This
basic rule applies to all judicial authorities as well as to all administrative authorities who are
required to act judicially or quasi-judicially. The rule is of wide application and means that a
judicial or quasi-judicial authority should not only himself not be a party but must also not be
interested as a party in the subject matter of the dispute which he has to decide.
Thus, in addition to the direct personal interest, the test laid down by the court is to consider
the real likelihood of bias. In other words, the probability of bias is sufficient to invalidate the
right to sit in judgment and there is no need to have the proof of actual bias.
In Metropolitan Properties Co (FGC) Ltd v Lannon [1969] 1 QB 577 case, the Court held
that A man may be disqualified from sitting in a judicial capacity on one of the two grounds.
First, a “direct pecuniary interest” in the subject matter. Second, “bias” in favour of one side
or the other.
In c AIR 1976 SC 2428 case, the summary of Supreme Court judgment is as follows:
 o Any inquiry conducted by a biased Inquiring Authority is ab initio void.
o If there is an actual bias, it will be sufficient to quash the inquiry.
o Courts will look at whether there is a reasonable ground for believing that he was likely
to have been biased.
o Some actions may themselves indicate malafide, like a disproportionate penalty. They
will be by themselves constitute proof of bias.
o Even if one member of the committee is biased, the decision of the Committee will be
rendered illegal
o Anybody who has a personal stake should keep himself aloof from the inquiry.
o If a person is aware of bias and does not raise that issue, he creates an estoppel against
himself, and will not be allowed to raise it once the said body has taken a decision
Exceptions to the Rule of Bias:
The following exceptions are to the rule against bias:
o Necessity: Where the judge is the ultimate court. The situation is, however, rare since
an alternative forum is usually created or sought.
o Statutory Authority: Those cases which are specifically exempted by the statute.
o Waiver: As in the case of arbitration where parties have agreed upon an arbitrator, who
may have an interest or bias in the subject matter of the dispute.
Subject to the aforesaid exceptions, the rule against bias is applied by Common Law in England
to arbitrations, enforcement of foreign judgments, as far as possible to the proceedings of
domestic and administrative tribunals.
Classification of Bias:
Bias can be categorized into three categories namely personal, pecuniary, and official.
o Personal Bias: Personal bias may arise out of friendship, relationship, professional
grievance or even enmity. Here again likelihood of bias is to be given more credence
than for the actual bias. it is difficult to prove the state of mind of a person. Therefore,
we have to see whether there is a reasonable ground for believing that he was likely to
have been biased.
o Pecuniary Bias: It is obvious that the decision of the adjudicator would be affected if
he is having a pecuniary interest in the subject matter of the proceedings. There is a
presumption that any direct financial interest, however small, in the matter in dispute,
disqualifies the person from adjudicating. Membership of a company, an association or
other organization in which he is financially interested may operate as a bar to
 adjudicate, whereas mere bare liability to costs where the decision itself will involve no
pecuniary loss will not.
o Official or Subject Matter Bias: Another type of bias is as to the subject matter; such
a situation arises when the judge possesses a general interest in the subject matter of
dispute. It may, however, be noted that a mere general interest in the general object to
be pursued would not disqualify a judge from deciding the matter. There must be a
direct connection with litigation.
Test: Real Likelihood of Bias:
o According to de Smith a real likelihood of bias means at least a substantial possibility
of bias. In fact in assessing the real likelihood of bias the court will have to judge the
matter as a reasonable man would judge any matter in the conduct of his own business.
In Manak Lai V Dr. Rrem Chand, AIR 1957 SC 425 case, a petition was submitted by A
against B, an advocate for an alleged act of misconduct. A committee was appointed for an
enquiry into the allegations made against B. It was also shown that the Chairman had earlier
represented A in a case. According to the decision of the Supreme Court, the enquiry conducted
in this case was vitiated. Even if it were assumed that the Chairman had no personal contact
with his client and did not remember that he had appeared on his behalf at any time in the past,
yet the fear of likelihood of bias existed in the matter.
Fiat justitia ruat caelum
Fiat justitia ruat caelum is a Latin legal phrase, meaning "Let justice be done though the
heavens fall." The maxim signifies the belief that justice must be realized regardless of
consequences. According to the 19th-century abolitionist politician Charles Sumner, it does
not come from any classical source, though others have ascribed it to Lucius Calpurnius Piso
Caesoninus (see "Piso's justice"). The concept is cited in Somerset v Stewart.
Classical forms
The ancient metaphor of the falling sky
The falling sky clause occurs in a passage of Heauton Timorumenos, by Terence, suggesting
that it was a common saying in his time. In the scene, Syrus suggests a scheme through which
Clinia might deceive another into taking actions that would further his love interests. Syrus
lays out his plan, while Clinia, who must act it out, finds faults with it, finally asking, "Is that
sufficient? If his father should come to know of it, pray, what then?" To which the Syrus replies,
"Quid si redeo ad illos qui aiunt, 'Quid si nunc cœlum ruat?'"—"What if I have recourse to
those who say, 'What now if the sky were to fall?'", the suggestion being that Clinia has no
other options available, so to worry that the plan will, obviously, fail if the father finds out
makes no more sense than worrying about the fact that it will also fail if the world were to
suddenly end.
This concern recalls a passage in Arrian's Campaigns of Alexander, Book I, 4, where
ambassadors of the Celtae from the Adriatic sea, tall men of haughty demeanor, upon being
asked by Alexander what in the world they feared most, answered that their worst fear was that
the sky might fall on their heads. Alexander, who hoped to hear himself named, was
disappointed by an answer that implied that nothing within human power could hurt them, short
of a total destruction of nature.
In a similar vein, Theognis of Megara urges "May the great broad sky of bronze fall on my
head / (That fear of earth-born men) if I am not / A friend to those who love me, and a pain /
And irritation to my enemies." Whereas Aristotle asserts in his Physics, B. IV, that it was the
early notion of ignorant nations that the sky was supported on the shoulders of Atlas, and that
when he let go of it, it would fall.
On the other hand, Horace opens one of his odes with a depiction of a Stoic hero who will
submit to the ruin of the universe around him: "Si fractus illabatur orbis, / impavidum ferient
ruinae"—"Should the whole frame of Nature round him break, / In ruin and confusion hurled,
/ He, unconcerned, would hear the mighty crack, / And stand secure amidst a falling world."
(Odes 3.3.7–8, translated by Joseph Addison.)
Seneca: "Piso's justice"
In De Ira (On Anger), Book I, Chapter XVIII, Seneca tells of Gnaeus Calpurnius Piso, a Roman
governor and lawmaker, when he was angry, ordering the execution of a soldier who had
returned from a leave of absence without his comrade, on the grounds that if the man did not
produce his companion, he had presumably killed the latter. As the condemned man was
presenting his neck to the executioner's sword, there suddenly appeared the very comrade who
was supposedly murdered. The centurion overseeing the execution halted the proceedings and
led the condemned man back to Piso, expecting a reprieve. But Piso mounted the tribunal in a
rage, and ordered the three soldiers to be executed. He ordered the death of the man who was
to have been executed, because the sentence had already been passed; he also ordered the death
of the centurion who was in charge of the original execution, for failing to perform his duty;
and finally, he ordered the death of the man who had been supposed to have been murdered,
because he had been the cause of the death of two innocent men.
In subsequent versions of this legend, this principle became known as "Piso's justice", a term
that characterizes sentences that are carried out or passed from retaliation—whose intentions
are theoretically defensible, but technically and morally wrong—and this could be construed
as a negative interpretation of the meaning of Fiat justitia ruat caelum according to Brewer's
entry on Seneca. However, the phrase Fiat justitia ruat caelum does not appear in De Ira; and,
in fact, Seneca used the story as an example of anger leading people to ignore right and do
wrong, as Piso's decisions trampled on several legal principles, particularly that of Corpus
delicti, which states that a person cannot be convicted of a crime unless it can be proven that
the crime was even committed. Piso's verdict could never be an example of justice because of
these fatal flaws: he could not charge a suspect with murder because he lacked physical,
demonstrative and testimonial evidence to establish that the missing individual has indeed died
(the physical body of the deceased being the most important of these absences).
Piso was put to trial a short time after this episode, accused of a long list of crimes, and
committed suicide. Among the charges brought against him was summary judgment, the crime
of sentencing a suspect with undue haste and without proper investigation, thus ignoring the
legal procedures of justice.
The phrase is sometimes attributed to a different Piso, Lucius Calpurnius Piso Caesoninus,
possibly a confusion with this case.
Modern origins
The exact phrase as used for approval of justice at all cost—usually seen in a positive sense—
appears to originate in modern jurisprudence. In English law, William Watson in "Ten
Quodlibetical Quotations Concerning Religion and State" (1601) wrote "You go against that
general maxim in the laws, which is 'Fiat justitia et ruant coeli.'" This is its first known
appearance in English literature.
The maxim was used by William Prynne in "Fresh Discovery of Prodigious Wandering New-
Blazing Stars" (1646), by Nathaniel Ward in "Simple Cobbler of Agawam" (1647), and
frequently thereafter, but it was given its widest celebrity by William Murray, 1st Baron
Mansfield's decision on 8 June 1768, on the case concerning the outlawry of John Wilkes (and
not, as is commonly believed, in Somerset v Stewart, the 1772 case concerning the legality of
slavery in England). Another famous eighteenth-century usage appears in David Hume's 1748
essay "Of Passive Obedience". Hume rejects it as false, although he argues that justice must in
extraordinary cases of necessity be sacrificed to the public interest.
In 1860 this maxim was placed on the flag of the Alamo City Guards Texas Militia.
The maxim is given in various forms:
Fiat justitia, ruat cœlum/coelum/cælum/caelum (spellings)
Fiat justitia et ruant coeli (Watson)
Fiat justitia et coelum ruat (John Manningham, Diary, 11 April 1603)
Fiat justitia, ruat coelum (Lord Mansfield)
Famous modern uses
In British India, this phrase was used by Sir S. Subramania Iyer during a case ("Tirupati (or
Tirupathi) Mahant case") in Madras High Court. It was a case regarding religious faith versus
the law, where a Hindu Temple administrator (called the 'mahant') was accused by the high
priest of misappropriation of donations, replacing a vessel full of gold with base metals, like
copper and placing it beneath the flagstaff of the temple. The barrister representing the high
priest used this phrase in his speech to justify digging up the flagstaff to check the vessel. More
recently, Judge James Edwin Horton referred to the maxim when he recalled his decision to
overturn the conviction of Haywood Patterson in the infamous Scottsboro Boys trial. In 1933,
Judge Horton set aside the death sentence of Patterson, one of nine black men who were
wrongfully convicted of raping two white women in Alabama. Horton quoted the phrase when
explaining why he made his decision, even though he knew it would mean the end of his
judicial career.
Joseph Conrad's 1899 novella Heart of Darkness contains a possible reference to the maxim at
the very end of the text. Protagonist Marlow says, "It seemed to me that the house would
collapse before I could escape, that the heavens would fall upon my head. But nothing
happened. The heavens do not fall for such a trifle."
George Eliot has Mr. Brooke mangle and misattribute this phrase in Middlemarch, where he
says, "You should read history – look at ostracism, persecution, martyrdom, and that kind of
thing. They always happen to the best men, you know. But what is that in Horace?—fiat justitia,
ruat ... something or other."
In the Better Call Saul episode "Chicanery", the character Charles McGill utters the phrase "Let
justice be done though the heavens fall!" before making an argument to appear in open court
in a trial against his brother Jimmy.
Audi Alteram Partem
The rule of natural justice has evolved with the growth of civilization. Natural justice
is the concept of common law which implies fairness, reasonableness, equality and equity. In
India, the principles of natural justice are the grounds of Article 14 and 21 of the Constitution.
Article 14 enshrines that every person should be treated equally. Article 21 in its judgment of
Maneka Gandhi vs. The Union of India, it has been held that the law and procedure must be
of a fair, just and reasonable kind. The principle of natural justice comes into force when no
prejudice is caused to anyone in any administrative action. The principle of Audi Alteram
Partem is the basic concept of the principle of natural justice. This doctrine states the no one
shall be condemned unheard. This ensures a fair hearing and fair justice to both the parties.
Under this doctrine, both the parties have the right to speak. No decision can be declared
without hearing both the parties. The aim of this principle is to give an opportunity to both the
parties to defend themselves.
Introduction:
Audi alteram partem means ‘ hear the other side’, or ‘no man should be condemned
unheard’ or ‘both the sides must be heard before passing any order’.
Principle Explained:
The second fundamental principle of natural justice is audi alteram partem, i.e., no man
should be condemned unheard, or both the sides must be heard before passing any order. De
Smith says, ‘ no proposition can be more clearly established than that a man cannot incur the
loss of liberty or property for an offence by a judicial proceeding until he has had a fair
opportunity of answering the case against him’. A party is not to suffer in person or in purse
without an opportunity of being heard’. This is the first principle of civilized jurisprudence and
is accepted by laws of men and god. In short, before an order is passed against any person,
reasonable opportunity of being heard must be given to him. Generally, this maxim includes
two elements: (i) Notice; and (ii) Hearing.
(A) Notice:
Before any action is taken, the affected party must be given a notice to show cause
against the proposed action and seek his explanation. It is a sine qua non of the right of fair
hearing. Any order passed without giving notice is against the principles of natural justice and
is void ab initio. Before taking any action, it is the right of the person to know the facts. Without
knowing the facts of the case, no one can defend himself. The right to notice means the right
of being known. The right to know the facts of the suit or case happens at the start of any
hearing. Therefore, notice is a must to start a hearing. A notice must contain the time, place
and date of hearing, jurisdiction under with the case is filed, the charges, and proposed action
against the person. All these things should be included in a notice to make it proper and
adequate. Whenever a statute makes it clear that a notice must be issued to the party and if no
compliance or failure to give notice occurs, this makes the act void. The article should contain
all the essentials to it. If it only contains the charges but not the ground or time or date, then
the notice must be held invalid and vague. Non-issue of the notice or any defective service of
the notice do not affect the jurisdiction of the authority but violates the principle of natural
justice.
In bagg case, James Bagg, a Chief Burgess of Plymouth had been disfranchised for
unbecoming conduct in as much as it was alleged that he had told the Mayor, ‘ you are a
cozening knave. I will make thy neck crack’ and by ‘turning the hinder part of his body in an
inhuman and uncivil manner’ towards the mayor, said, ‘come and kiss’ he was reinstated by
mandamus as no notice or hearing was given to him before passing the impugned order.
In a case of Punjab National Bank v. All India Bank Employees Federation, the notice
contained certain charges but the penalty was imposed on the charges other than those
mentioned in the notice. Thus, the charges on which the penalty was imposed were not
contained in the notice served on the person concerned. The notice was not proper and,
therefore, imposition of penalty was invalid. It is to be noted if the person concerned is aware
of the case against him and not prejudiced in preparing his defense effectively the requirement
of notice will not be insisted upon as a mere technical formalities and proceeding will not be
vitiated merely on the technical ground. That the person concerned was not served notice before
taking the action as in case of Keshav Mills Co. Ltd. V. Union of India, The notice is required
to be clear and unambiguous. If it is ambiguous or vague, it will not be treated as reasonable
and proper notice. If the notice does not specify the action proposed to be taken, it is taken as
vague and, therefore, no proper as in case of Abdul Latif v. Commr. The notice will also be
vague if it does not specify the property proposed to be acquired as in case of Tulsa Singh v.
State of Haryana. As regards the detention under any law providing for preventive, Clause (5)
of Article 22 provides that in such condition the making the order for such detention must, as
soon as may be, communicate to the detenue the grounds on which the order has been made
and must give him the earliest opportunity of making a representation against the order. The
grounds communicated to the detenue must not be vague or insufficient or irrelevant, vague or
in adequate, the detenue is entitled to be released.
(B) Hearing: - Oral or Personal Hearing- How Far Necessary:
The second ingredient of audi alteram partam (hear the other side) rule is the rule of
hearing. If the order is passed by the authority without providing the reasonable opportunity of
being heard to the person affected by it adversely will be invalid and must be set aside as in the
cases of Harbans Lal v. Commissioner, National Central Co-operative Bank v. Ajay
Kumar and Fateh Singh v. State of Rajasthan. The reasonable opportunity of hearing which
is also well known as 'fair hearing' is an important ingredient of the audi alteram partem rule.
This condition may be complied by the authority by providing written or oral hearing which is
the discretion of the authority, unless the statue under which the action being taken by the
authority provides otherwise. Thus like U.S.A. and England, the Courts in India do not consider
the right to oral or personal hearing as part of the principle of Audi Alteram Partem unless the
statue under which the action is taken by the authority provides for the oral or personal hearing
unless it is not indicated at without oral or personal hearing the person cannot adequately
present. Personal or oral hearing is important when the context requires it was required in the
case of A.K. Gopalan v. State of Madras. It is the duty of the authority who will ensure that the
affected party may be given an opportunity of oral or personal hearing if the context requires
otherwise. However, the above rule of fair hearing requires that the affected party should be
given an opportunity to meet the case against him effectively and this may also be achieved by
providing opportunity to the affected person by making 'written representation' instead of oral
or personal hearing as was provided in the case of Union of India v. J.P. Mitter.
(C) Evidence:
Evidence is an important part which is to be brought properly before the Court in the
presence of both the parties and a judicial or quasi-judicial authority must have to act on the
evidence produced as in the case of a R v. Bodmin and not merely on any information which
the authority may receive otherwise as in the case of Collector of Central Excise v.
Sanwarmal. Ordinarily, no evidence personal or oral should be received at the back of other
party and if any such evidence is recorded, it is duty of the authority that such evidence must
be made available to the other party as in the case of Stafford v. Minister of Health and in
another case of Hira Nath v. Principal. The principle is not confined to formal evidence but
extends to any material including information regarding previous conviction, upon which the
Tribunal may act, without giving opportunity to the affected party to rebut it. In case of Keshav
Mill Co. v. Union of India the Supreme Court was not ready to lay down an inflexible rule
that it was not necessary to show the report of enquiry committee to the affected person. The
court made it clear that whether the report of the enquiry committee should be furnished or not
depends in every individual case on merits of the case.
(D) Cross Examination;
The adjudicating authority in a fair hearing is not required only to disclose the person
concerned the evidence or material to be taken against him, but he should be provided an
opportunity to rebut the evidence or material. The important question before the authority is
that the witness should be cross-examined or not.
In another case of Kanungo & Co. v. Collector of Customs the business premises of a person
were searched and certain watches were confiscated by the authority under Sea Customs Act.
The said person was not allowed to cross-examine the persons who gave information to the
authority. There was no violation of the natural justice and the Court held that the principles of
natural justice do not require the authority to allow the person concerned the right to cross
examine the witnesses in the matters of seizure of goods under the Sea Customs Act. If the
person concerned is allowed the right to cross-examine, it is not necessary to follow the
procedure laid down in the Indian Evidence Act.
(E) Legal Representation;
An important question is whether right to be heard includes right to legal
representation? Fairly speaking, the representation through a lawyer in the administrative
adjudication is not considered as an indispensable part of the fair hearing. But, in certain
situations if the right to legal representation is denied, then it amounts to violation of natural
justice. Thus, where the case involves question of law as in case of J.J. Mody v. State of
Bombay and in another case of Krishna Chandra v. Union of India, the denial of legal
representation will amount of violation of natural justice because in such conditions the party
may not be able to understand the question of law effectively and, therefore, he should be given
an opportunity of being heard fairly.
Exceptions to Audi Alteram Partem:
The word exception in the context of natural justice is really a misnomer, but in the below
mentioned exclusionary cases, the rule of audi alteram partem is held inapplicable not by way
of an exception to “fair play in action”, but because nothing unfair can be inferred by not
affording an opportunity to present or meet a case. But such situations where nothing unfair
can be inferred by not affording a fair hearing must be few and exceptional in every civilized
society.
(1) Statutory Exclusion:
Natural justice is implied by the Courts when the parent statute under which an action is being
taken by the Administration is silent as to its application. Omission to mention the right of
hearing in the statutory provision does not ipso facto exclude a hearing to the affected Maneka
Gandhi vs. Union of India, Karnataka Public Service Commission vs. B.M. Vijay
Shankar, Ram Krishna Verma vs. State of U.P.
A statute can exclude natural justice either expressly or by necessary implication. But such a
statute may be challenged under Art.14 so it should be justifiable. In Charan Lal Sahu vs UOI
(Bhopal Gas Disaster case) is a classical example of the application of this exception. In this
case the constitutional validity of the Bhopal Gas Disaster (Processing of Claims) Act, 1985,
which had authorized the Central Government to represent all the victims in matters of
compensation award, had been challenged on the ground that because the Central Government
owned 22 percent share in the Union Carbide Company and as such it was a joint tort feasor
and thus there was a conflict between the interests of the government and the victims. The court
negative the contention and observed that even if the argument was correct the doctrine of
necessity would be applicable to the situation because if the government did not represent the
whole class of gas victims no other sovereign body could so represent and thus the principles
of natural justice were no attracted.
(2) Legislative Function:
A ground on which hearing may be excluded is that the action of the Administrative in question
is legislative and not administrative in character. Usually, an order of general nature, and not
applying to one or a few specified persons, is regarded as legislative in nature. Legislative
action, plenary or subordinate, is not subject to the rules of natural justice because these rules
lay down a policy without reference to a particular individual. On the same logic, principles of
natural justice can also be excluded by a provision of the Constitution also. The Indian
Constitution excludes the principles of natural justice in Art. 22, 31(A), (B), (C) and 311(2) as
a matter of policy. Nevertheless, if the legislative exclusion is arbitrary, unreasonable and
unfair, courts may quash such a provision under Art.14 and 21 of the Constitution. In Charan
Lal Sahu vs. UOI, the constitutional validity of the Bhopal Gas Disaster (Processing of
Claims) Act, 1985 was involved. This legislation provide for details of how to determine claims
and pay them. The affected parties approached the SC and contended that no hearing was
provided to them and it was violative of Audi Alteram Partem. The SC held, “For legislation
by Parliament no principle of natural justice is attracted, provided such legislation is within the
competence of the Legislature. "Emergency In India, it has been generally acknowledged that
in cases of extreme urgency, where interest of the public would be jeopardizes by the delay or
publicity involved in a hearing, a hearing before condemnation would not be required by
natural justice or in exceptional cases of emergency where prompt action, preventive or
remedial, is needed, the requirement of notice and hearing may be obviated. Therefore, if the
right to be heard will paralyze the process, law will exclude it. In Mohinder Singh Gill vs. CEC,
whether notice and right to be heard must been given or not was been laid down before the SC.
In Firozhpur Constituency Parliamentary Election counting was been going on where in some
segments counting were going on and in some it was over. One candidate was having a very
good lead but before the declaration the very purpose of surveillance and there is every
possibility of the ends of justice being defeated instead of being served.
(3) Impractibility:
Natural justice can be followed and applied when it is practicable to do so but, in a situation,
when it is impracticable to apply the principle of natural justice then it can be excluded. In
Bihar School Examination Board vs. Subhash Chandra, the Board conducted final tenth
standard examination. At a particular centre, where there were more than thousand students, it
was alleged to have mass copying. Even in evaluation, it was prima-facie found that there was
mass copying as most of the answers were same and they received same marks. For this reason,
the Board cancelled the exam without giving any opportunity of hearing and ordered for fresh
examination, whereby all students were directed to appear for the same. Many of the students
approached the Patna HC challenging it on the ground that before cancellation of exam, no
opportunity of hearing was been given to the students. The HC struck down the decision of the
Board in violation of Audi Alteram Partem. The Board unsatisfied with the decision of the
Court approached the SC. The SC rejected the HC judgment and held that in this situation,
conducting hearing is impossible as thousand notices have to be issued and everyone must be
given an opportunity of hearing, cross-examination, rebuttal, presenting evidences etc. which
is not practicable at all. So, the SC held that on the ground of impracticability, hearing can be
excluded.
(4) Academic Evaluation:
Where nature of authority is purely administrative no right of hearing can be claimed. In
Jawaharlal Nehru University v. B.S. Narwal, B.S Narwal, a student of JNU was removed
from the rolls for unsatisfactory academic performances without being given any pre-decisional
hearing. The Supreme Court held that the very nature of academic adjudication appears to
negative any right of an opportunity to be heard. Therefore, if the competent academic
authorities examine and asses the work of a student over a period of time and declare his work
unsatisfactory, the rules of natural justice may be excluded.
(5) Inter-Disciplinary Action:
In Inter- Disciplinary action like suspension etc. there is no requirement to follow the principle
of natural justice. In S.A Khan vs. State of Haryana, Mr. Khan an IPS Officer holding the post
of Deputy Inspector General of Haryana; Haryana Govt., was suspended by the Haryana
Government due to various complaints against him. Thus, he approached the Supreme Court
on the ground of violation of PNJ as he was not given an opportunity to be heard. The SC held
that the suspension being interim-disciplinary action, there is no requirement to afford hearing.
It can be ordered without affording an opportunity of hearing.