DHARMASHASTRA NATIONAL

LAW UNIVERSITY, JABALPUR

2019-20

Constitutional Law
PROJECT WORK ON
Judicial Accountability in India

SUBMITTED BY: SUBMITTED TO

Anoop Kumar Bardiya Ms. Sristhi Chaturvedi
BAL/015/18 (Assistant Professor of Law)
4th Semester, sec. -A
Ashit Shrivastav
(Assistant Professor of Law)

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 Acknowledgement
God gives us life to decorate it with knowledge. Life without knowledge is like
a river without water.

I would really like express my special thanks of gratitude to our Hon’ble

Vice Chancellor Prof. Shri Balraj Chauhan sir as well as our Head Of
Department Dr. V.S. Gigimon and my subject teacher Ashit Shrivastav and
Ms. Sristhi Chaturvedi mam who gave me the golden Opportunity to work on
this great or wonderful Project of the subject and only just Because of this
project I got the opportunity to understand how to do the Judicial
Accountability in India research on the topic and how to collect the data and
how to arrange the data in a research.
Secondly, I would really like to express my special thanks to my mentor Mr.
Ashutosh Singh and to my University.

Anoop Kumar Bardiya

BAL/015/18
DNLU, Jabalpur

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 Table of Content

Contents
Introduction .......................................................................................................................................................... 4
JUDICIAL ACCOUNTABILITY ....................................................................................................................... 5
Case of Justice V. Ramaswami ............................................................................................................................ 6
Justice CS Karnan case ........................................................................................................................................ 7
Arundhati Roy case. ............................................................................................................................................. 7
Exemption from the Right To Information (RTI): ............................................................................................ 7
Appointment system: ............................................................................................................................................ 8
Conclusion ........................................................................................................................................................... 11

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Introduction

The three organs of the Indian Democracy – Legislature, Executive and Judiciary perform
three essential functions of rulemaking, rule application and rule adjudication respectively.
The main principle behind this formulation is the separation of powers: which brings
accountability, keeps the government restrained and, in this way, our rights and liberties are
safeguarded.
Absolute power without accountability leads to corruption, Kofi Annan wrote, "Corruption is
an insidious plague that has a wide range of corrosive effects on society. corruption is not
new in Indian judiciary, it is always been there whether it was Calcutta High court Justice
Soumitra Sen guilty misappropriating large sum of money, and Karnataka High court chief
justice P.D Dinakaran, charged with land Grabbing and Corruption, another example is of
former CJI and present governor of Kerela is actively participating in political events which
shows his affiliations with a political parties which is reducing credibility of his own t
judgements and reducing the faith of people in Judiciary. Therefore, the question arises "Who
is judging the judges?"

Answer of this Lies in the checks and Balances Principal of our constitution. The theory of
checks and balances assuring that no organ should be given unchecked powers. The power of
one organ should be checked and restrained by the other two in direct or indirect manner. The
laws passed by the legislature are reviewed by the judiciary, if it goes against the
Constitution, the latter declares it null and void. Moreover, the legislature is of the
Constitution and protector of fundamental rights. In spite of this there is a sudden spate of
judiciary corruption accountable to the people who elect them for five years. it becomes clear
that the judiciary is the guardian which is proving to be self-defeating and is indicating
towards the lack of accountability in the institution, this is important because in the preamble
we give to ourselves JUSTICE- Social, Economic and Political this is what I will be
discussing

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JUDICIAL ACCOUNTABILITY

Judicial accountability is in fact a corollary of the independence of the judiciary. Simply put,
accountability refers to taking responsibilities for your actions and decisions. It generally
means being responsible to any external body. The word ‘accountable’ as defined in the
Oxford Dictionary means ‘responsible for your own decisions or actions and expected to
explain them when you are asked’. Accountability is the sine qua non of democracy.

Need for Judicial Accountability

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
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and revered as super humans . 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 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. The Supreme Court had rightly asserted that “A single
dishonest judge not only dishonours himself and disgraces his office but jeopardizes the
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integrity of the entire judicial system” This brings us the section on why do we need
accountability. The existing systems of accountability have failed, and the growing corruption
is eating away the vitals of this branch of democracy. This lack of accountability has been
best put forward by Pt. Nehru in a diatribe, “judges of the Supreme Court sit on ivory towers
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far removed from ordinary men and know nothing about them” The demi god’s image has to
be replaced, after all judges are also humans capable of making mistakes and committing
vices. But what has gone wrong?

There are several reasons that have been identified for the failure of accountability:
1. Impeachment:
According to the Indian Constitution, the only way through which the members of the
higher judiciary that is the Chief Justices and Judges of Supreme Court (SC) and High
Courts (HC) are accountable or can be removed is through impeachment. Under Article
124(4), the process of impeachment is carried out only on the grounds of proven
misbehaviour or incapacity.

1
Judicial Accountability in India written by heenavrum on legalsevicesindia.com
2
Anil Divan, ‘Judicial Integrity’, on
http://www.judicialreforms.org/files/Hindu_judicial_integrity_lessons_from_the_past.pdf, accessed on 19th of
feb, 2020
3
Mona Shukla, ‘Judicial Accountability: an aspect of judicial independence’ in Judicial Accountability
on ipsblog.com

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 The Judges Inquiry Act, 1968 states that a complaint against a judge is to be made through a
resolution signed either by 100 members of the Lok Sabha or 50 members of the Rajya Sabha
to their respective presiding officers. There is a three-member committee comprising two
judges one from SC and the other Chief Justice of India if it is against a HC judge; and two
SC judges if it is against a sitting judge at the apex court. Investigations are carried out before
making a recommendation to the house. If the committee has concluded for the impeachment
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process to take place, the matter is discussed in both houses.
The alleged judge is also given opportunity to rebut the charges. After the debate is done and
the judge is heard, the house decides to put the motion to vote, a resolution passed by 2/3rds
majority in both houses. This whole process has to be completed in a single session. After the
resolution is passed, it is sent to the president who then orders for removal. Given this
provision, the story ends with no one being judge has been impeached till date. However, it
will be a misjudgement if one thinks that the judiciary is free from corruption. The loophole
is the entire process of impeachment itself. It is undoubtedly lengthy and cumbersome. Many
have even regarded this as a complete failure.

In one of his interviews, Prashant Bhushan cites an example where in an impeachment

proceeding against Justice Bhalla, the BJP declined to sign because L.K. Advani had been
acquitted by him in the Babri Masjid demolition case. Another example is of Justice
Ramaswamy case, who had been charged with misusing of courts fund, yet the Congress
refused to cast their vote.

Case of Justice V. Ramaswamy

May 11, 1993 will be remembered as a black day for Parliament and for the judiciary in
this country. For on that day, 205 Lok Sabha members belonging to the Congress(I) and
its allies sabotaged the impeachment motion against Justice V. Ramaswamy of the
Supreme Court by abdicating their constitutional duty of voting for or against and thus
defeating the motion by ensuring that it did not receive the support of an absolute
majority of the total membership of the House. Each one of the 196 MPs, who voted, all
belonging to the Opposition parties, voted for the removal of the judge. Thus, despite the
motion for removal being passed unanimously by the members who voted, it failed,
bringing to a close the more-than-two-year old proceedings for the removal of
Ramaswamy. The result, therefore, is that despite a high-power inquiry committee of
three eminent judges having come to the conclusion that Ramaswamy was guilty of
several acts of gross misbehaviour which warranted his removal, the judge is still entitled
to discharge judicial functions from the highest court of the land. It is another matter that
after the impeachment motion failed, Ramaswamy was persuaded to resign by the
Congress(I) which belatedly realised that it would have to pay a heavy price for being
seen to have supported a corrupt judge. The failure of the motion, especially after the
tortuous course it went through, raises several grave issues for the future of the
administration of justice in this country and indeed for probity in public life in general.

4
‘Judicial Accountability: an aspect of judicial independence’ in Judicial Accountability, written by Mona
Shukla on judicia reforms.com

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Justice CS Karnan case

Justice Karnan is facing the contempt case after he accused 20 judges of the high
judiciary including those currently serving in the Supreme Court of corruption.

Justice Karnan wrote letter to Prime Minister Narendra Modi seeking

appropriate action against all the judges named by him. Justice Karnan has not
produced evidence to back his allegations. The seven judges hearing the
contempt case against Justice Karnan are CJI JS Khehar, Justices Dipak Mishra, J
Chelameswar, Ranjan Gogoi, M B Lokur, P C Ghose and Kurian Joseph. justice
Karnan was transferred to Calcutta High Court after he had frequent run ins with
the fellow judges at the Madras High Court. In 2011, Justice Karnan caused a
huge controversy when he called a press conference in Chennai to accuse one of
his fellow judges of caste discrimination. Justice Karnan alleged that the fellow
judge 'deliberately' touched him with his foot as he was a Dalit. In 2015, Justice
Karnan initiated a Suo motu contempt proceeding against the then Chief Justice
of Madras High Court Sanjay Kishan Kaul. Justice Karnan accused Justice Kaul of
harassing him for being a Dalit. Justice Karnan alleged that he was 'insignificant
and dummy' portfolios in the Madras High Court by Justice Kaul. Later, the
Supreme Court stayed the contempt proceedings.

In another incident, Justice Karnan had stormed into a courtroom in the Madras
High Court hearing a case of judicial appointment. Justice Karnan demanded that he
be allowed to hear the case. Later he was found guilty of contempt of court and
sentenced for 6 month of Imprisonment and also SC directed for his mental check-
up. This case of Justice karnan shows lacuna of judicial accountability in India.5

Arundhati Roy case:

the problem arose as a result of the decision of the SC, which ordered the concerned state
governments to raise the height of the Sardar Sarovar Dam up to 90 ft. This came as a great
disappointment to the Narmada Bachao Andolan as it would lead to more submergence of the
nearby villages. This was severely criticized and a notice of contempt was served against
Arundhati Roy, Medha Patkar and advocate Prashant Bhushan. The three however asserted
that they were exercising their freedom enshrined in the Constitution. The court held
Arundhati Roy guilty and sentenced her to one day imprisonment and a fine of Rs. 20006.

Exemption from the Right to Information (RTI):

One of the ways the Judiciary can be held accountable is when the people have the right to
know what exactly they are doing. This comes naturally in a democratic form of government.
In the famous “Raj Narain Vs Indira Gandhi” case, the foundation for the RTI was laid by the
SC. It stated “the people of the country have the right to know about every public act … this
is derived from the concept of freedom of speech… To cover it with the veil of secrecy the
common routine business is not in the interest of the public.” This is chief safeguard against

5
Curious case of Justice Karnan: A history of controversies and mystery on india today website.
6 Markandey Katju, “Contempt of Court” on www.judicialreforms.org accessed on 16th feb2020

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 7
corruption . Exemption from the disclosure of information- the information specified under
section 8 of the act shall not be disclosed and made available and in particular the following
information shall not be disclosed:- (a) Such information which is not in the domain or does
not relate to Judiciary functions and duties of the court and matters incidental and ancillary
thereto.”

Appointment system:
The framers of our Constitution did not intend the judiciary to be “superior” to Parliament
and the executive, but intended it to be the sentinel on the qui vive should the other two
wings overstep the boundaries of their jurisdiction or omit to discharge their duty as
public trustees. the judiciary is not accountable in the manner that the executive is
accountable, even though all the three limbs source their power to the people. Over the
years, there was a tradition of appointing judges of the Supreme Court of India largely on
the basis of seniority. However, when this tradition was violated in 1973 and 1976 and
the senior most judge was overlooked in appointment as Chief Justice of India, even the
best explanation from the executive could not submerge the public feeling that injustice
has been done. Subsequent decisions have ensured that the Supreme Court is now
virtually the final decision maker in the appointment process. However, of late, the issue
of seniority has again come alive when the President returned the recommendation of the
Supreme Court Collegium for elevation of 3 judges to Supreme Court on the ground that
seniority has been overlooked without any explanation. Articles 124 and 217 of the
Constitution of India deal with the appointment of Supreme Court and High Court Judges
respectively. Article 124(2) of Constitution of India deals with appointments of Supreme
Court judges and reads as follows: -
“Every Judge of the Supreme Court shall be appointed by the President by warrant under his
hand and seal after consultation with such of the Judges of the Supreme Court and of the High
Courts in the States as the President may deem necessary for the purpose and shall hold office
until he attains the age of sixty-five years. Provided that in the case of appointment of a Judge
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other than the Chief Justice, the Chief Justice of India shall always be consulted :Article 217
deals with the appointment of High Court Judges and reads as follows:-“(1) Every Judge of a
High Court shall be appointed by the President by warrant under his hand and seal after
consultation with the Chief Justice of India, the Governor or the State, and, in the case of
appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and
[shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and
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in any other case, until he attains the age of (sixty two years) Until 1991, Judges were
appointed to the High Court on the basis of a panel of advocates whose names were
recommended by the Chief Justice of that High Court. These names were forwarded to the
Chief Minister of the particular State and to the Home Ministry at New Delhi. If there was a
serious objection of the executive to a particular name, it could be dropped. As far as the
appointment of Supreme Court Judges was concerned, this was usually done from amongst
the Chief Justices of various High Courts.

7
Prashant Bhushan, “judicial accountability”, Economic and Political Weekly,accessed on 18th feb2020
8
Article 124(2) of Indian constitution
9
Article 217 of Indian constitution

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When the Indian Constitution came into being, the tradition was that the senior most judge of the
Supreme Court was to be appointed as the Chief justice of India. And as far as the other judges of
the Apex Court and the High Courts are concerned, the President used to appoint them in
consultation with the Chief Justice of India and such other judges of the Supreme Court and the
High Courts as he thinned fit. In 1973, this practice suddenly broke and a junior judge of the
Supreme Court was appointed by the President superseding three senior most judges of the Court.
This resulted in the senior judges resigning their posts. The reason given by the then Government
was that the word “may” in the Article meant that it was under the discretion of the President
whether or not to consult the Chief Justice of India and other judges and that Chief Justice of
India should not be only selected on the basis of seniority but on the merit basis. However, the
truth was that the three senior judges of the Apex Court who resigned had given bold judgements
against the Government and the Government in turn decided to play favouritism. Thus, the saga
of controversies over appointment of judges began. The ruling party in 1981 issued a circular
letter dated 18 the of March, 1981 to the Governor of Punjab and the Chief Ministers of other
states asking them to seek consent of the Additional judges working in their respective High
Courts to make them permanent judges in any other High Courts in India. They also were to give
names, in order of preference, of any three High Courts to which they would prefer to be
transferred as permanent judges. The Government of India reasoned that it wanted to abolish the
discrimination on the basis of caste and kinship and hence one third of the strength of any High
Court should be of any other High Court of a different state in India. the letter had a rider that the
Government was not bound by the consent and the preferences. This meant that the executive had
taken away the independence of judiciary. Different advocate associations passed a resolution
that the circular subverted the independence of judiciary and the Government of India should
withdraw the circular. Since the Government of India did not withdraw, a chain of petitions were
filed in different High Courts challenging the validity of the circular and seeking a declaration
that any consent received by any additional judge or any person whose name had been or was to
be given for appointment as a judge and their preference given in consequence and arising from
that circular , should be held null and void. Since all these petitions filed in different High Courts
were addressing the same issues and as they were of great constitutional importance, they were
transferred to the Apex Court under article 139 of the Constitution and heard together. This was
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the first case in the row of three cases that gave birth to the collegium system of appointment .

First Judges Case: S P Gupta Vs. Union of India

It was held in this case that where a judge of the Supreme Court is to be appointed, the Chief
Justice of India is required to be consulted, but again it is not concurrence but only consultation
and the Central Government is not bound to act in accordance with the opinion of the Chief
Justice of India. The ultimate power of appointment rests with the central Government and that is
in accord with the Constitutional practice prevailing in all democratic countries. To the
contention of the petitioners that Clause 2 of Article 124 used the word “may” and hence the
Central Government may or may not consult the judges of the High Court and the Supreme Court
in appointing judges; And when it does not, the opinion of the Chief Justice of India should be
held final- The Court said that the word “may” in the Article only makes it optional to the Central
Government as to which of the judges it should consult. It does not make it optional for the
Central Government to consult or not. Hence the Central Government must
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Supreme But Not Infallible: Essays in Honour of the Supreme Court of India edited by Gopal subramanium

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consult but ultimately the power of appointment should rest on the Central Government. The case
also suggested that there should be a collegium of judges for appointment and transfer of judges.
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This this case upheld the Primacy of Executive in appointment and transfer of judges .
Second Judges Case: - Supreme Court Advocates on Record Association Vs. Union of
India (1993)

By overruling the first judges’ case, the second judges case decided that, the CJI should make
proposal and appointment, but it is not only him but there should be a collegium consisting of
him and two other seniors most judges of the Supreme Court for making proposal and
appointment of judges. The CJI must consult the other members of the collegium in making
proposal for appointment and transfer of judges. The collegium then should send its proposal
to the President for his consent. The 9 judges’ bench with the majority of 7:2 ruled that the
Articles 124 and 217 of the Constitution in this regard had to be interpreted with “purposive
and contextual” construction method. So, this finally set up a collegium of judges for
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appointment of judges as previously only suggested by the first judges case .
Third Judges Case: - In Re Special Reference Case (1998)

In 1998, President K R Narayanan issued a presidential reference to the Supreme Court as to

what the term "consultation" really means in Articles 124, 217 and 222 (transfer of HC
judges) of the Constitution. The question was if the term "consultation" requires consultation
with a number of judges in forming the CJI's opinion, or whether the sole opinion of the CJI
constituted the meaning of the articles. In reply, the Supreme Court laid down nine guidelines
for the functioning of the Coram for appointments/transfers; this came to be the present form
of the collegium. Besides, a judgment dated October 28, 1998, written by Justice S P
Bharucha at the head of the nine-judge bench, used the opportunity to strongly reinforce the
concept of "primacy" of the highest judiciary over the executive. This was the "Third Judges
Case”. and the collegium strength increases.

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First Judges Case: S P Gupta Vs. Union of India And Ors. AIR 1982 SC 149
12
Supreme Court Advocates on Record Association Vs. Union of India (1993) 4 SCC 441. Oct 6. 1993 .

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Conclusion
act that independence may need some interference shows that there are other ideals i.e. unbiased
and fair trials, more important than the former and these ideals can be achieved only through an
accountable judiciary. Independence should be used only as a means to achieve this end and not
an end in itself. If accountability is not taken seriously, we can witness a dangerous nexus
between corrupt judges and politicians which will bring an end of democracy. It is also important
to keep in mind that accountability in judiciary is different from the other two organs, the
distinctive nature of the office demands separate treatment and this is in view of the nation’s
benefit. The main task of judiciary is to dispense speedy justice and bring relief to the litigant. It
was once said by the former President K.R. Narayan that, “It is not an exaggeration to say that the
degree of respect and public confidence enjoyed by the SC is not matched by any other institution
in the country.” This trust can be maintained only when the judiciary is constantly subjected to
people’s ‘ombudsmanning’.61It has to accept that criticism is a way of reinforcing accountability
and therefore it must be tolerant. The best judicial reform would be the one where judiciary
functions according to the philosophy of the Constitution. An organized public opinion and
campaign is required to bring about greater accountability.

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