Hypothesis

Can there exist, absolute independence and accountability in the realm on Indian Judiciary?

Reaearch Questions

Various modes before the Judges for practicing Judicial Independence?

How can Judicial Accountability and Judicial Independence be achieved?

What is the need of Independent Judiciary in Indian Democratic Set-up?

Challenges before Judges while Judicial Independence?

Need for Judicial Independence and Judicial Accountability ?

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 JUDICIAL INDEPENDENCE AND JUDICIAL ACCOUNTABILITY

The independence of the judiciary is not a new concept, but its meaning is still im-precise. The starting and the
central point of the concept is apparently the doctrine of the separation of powers. Therefore, primarily it means
the independence of the judiciary from the executive and the legislature. But that amounts to only the
independence of the judiciary as an institution from the other two institutions of the state without regard to
the independence of judges in the exercise of their functions as judges. In that case it does not achieve much.
The independence of the judiciary does not mean just the creation of an autonomous institution free from the
control and influence of the executive and the legislature. The underlying purpose of the independence of the
judiciary is that judges must be able to decide a dispute before them according to law, uninfluenced by any
other factor. bubugvftrukhjgv7dtgcytfvb
For that reason, the independence of the judiciary is the independence of each and every judge. But whether
such independence will be ensured to the Judge only as a member of an institution or irrespective of it is one
of the important considerations in determining and understanding the meaning of the independence of the
judiciary.1
To Shetreet, independence of the individual judge consists of the judge's substantive and personal
independence. The former means subjection of thejudge to no authority other than the law in the making of
judicial decisions and exercising other official duties, while the latter means adequate security of the judicial
terms of office and tenure. The independence of individual judges also includes independence from their
judicial superiors and colleagues.
Shetreet's treatment establishes that the independence of the judiciary means and includes the independence
of the judiciary as a collective body or organ of the government from its two other organs as well as
independence of each and every member of the judiciary-the judges-in the performance of their roles as
judges. Without the former the latter cannot be secured and without the latter the former does not serve
much purpose. Therefore, the two, even if separable, must be pursued together. A system which ignores one
or the other cannot make much progress towards, much less achieve, the independence of the judiciary.2
The question is never whether there should be judicial accountability, but how judicial accountability can be
balanced with judicial independence. The two values should be perceived as complementary rather than
antithetical. The quality of independence allowed to the judicial branch is also posted on the premise that the
person in whom it is vested will behave in an ethical manner in his judicial and personal life. a sense of
propriety is expected to accompany the assumption of office to which the independence attaches and attract
the public confidence necessary for continuation of judicial independence in that sense the independence of
judicial office attracts a person personal accountability. . Increased reliance on the judicial process has
provoked new interest in problems of judicial accountability and liability. The judicial function is inherently
free and ideally neutral, and the judge can therefore be the object neither of binding rules of law nor of any
form of civil, criminal, or disciplinary liability in the experience of judicial power. The continuing evolution
towards the independence of the judiciary is evidence of the power of these underlying. concepts. The

1 Securing the Indian Judiciary

2 S. Shetreet,TheChallengeofJudicial Independence
2
independence of judiciary precludes, however, neither disciplinary surveillance nor civil or criminal liability for
abuse of power. Because no immunity of function can be absolute, only the judiciary can control its member.
And given the inherent freedom of judges, the only possible criteria for judicial accountability is that of loyalty
to the judicial function. Defend as an ideal of free and neutral decision making. Not everything that counts can
be counted. Some results or outcome are incapable of measurement. They can only be judged on a
quantitative manner. Justice in sense of Fair outcome, arrived add by fair procedure, is in its essential nature
incapable of measurement. The judgment of courts are a part of broader public disclosure by which a society
and polity affirms its core values, applies them, and adapts them to changing circumstances. This is a
governmental function of a similar character to that provided by legislature, but which has no relevant parallel
in many other sphere of public administration. It is not possible to measure the success of the course in terms
of crimes not committed, accidents that do not happen, disputes avoided by proper advice on the compliance
or well informed drafting. There are other areas of public activity in which success may be measured in part by
things that do not occur. Perhaps some areas of public health are of this character. This reemphasis the
proposition that many important results or outcome cannot be measured at all. The disk cannot be
accountable to electorate as politicians are accountable. The duties of judiciary are not owned to the
electorate, they are owned to the law which is there for the peace, order and good government of all the
community. 3

To sum it up Judicial Accountability is a fundamental aspect of any democratic system. It involves individuals
or institutions taking responsibility for their actions, providing justifications or facing potential consequences.
When we talk about Judicial Accountability, we are referring to the responsibility of judges to answer for their
decisions and actions. This accountability can take many forms, from being answerable to the public through
electoral processes, to being accountable to political institutions such as legislatures or governors. Many
nations have incorporated judicial accountability into their constitutions to prevent the concentration of
power and to maintain a balance between different branches of government.
The concept of checks and balances, which complements the separation of powers or balance of power. The
checks and balances theory basically says that no organ should have uncontrolled power. A balance is ensured
by having the other two check and restrain the power of one organ. Power, after all, "may be the antidote to
power alone." We see press is accountable to both the executive and the legislative, individually and
collectively, though this accountability has decreased due to the anti-defection law, which threatens the
legislator with removal if he expresses even the slightest hint of discontent, which could result in his
constituency going unrepresented. 4 As a result, Parliament merely gives its approval to all choices made by
party leaders. The court reviews the laws passed by the legislature and considers them invalid if they conflict
with the Constitution. The people who elect the legislature for a five-year term also hold
them accountable. Given this, it is obvious that the court is responsible for protecting fundamental rights as well
as the Constitution. Despite this, there has been a dramatic uptick in judicial corruption, which is proving to be
counterproductive and pointing to a lack of accountability inside the institution. This is what I will be talking
about in my research. This is significant because we define justice—social, economic, and political justice—in
the preamble. Any organisation that has any sort of public power must answer to the people. Power with

3 NJA Bhopal India , Justice S.Rajendra Babu

4 Creating and Debating Judicial Independence and Accountability by G Alan Tarr
3
individual accountability is necessary in a "democratic republic" in order to prevent the collapse of any
democratic regime.

INDEPENDENCE OF THE JUDICIARY IN INDIA

In India President may remove a judge from office only after receiving an address from each house of the
parliament requesting it on the grounds of misbehaviour and incapacity. The President of India appoints
Supreme Court and High Court judges after consulting with the Chief Justice of India and any other Supreme
Court and High Court justices he may find essential. Additionally, the Supreme court is regarded as the court
of record. However, a lot of people have abused this independence, which has also contributed to the huge
power that has grown. The real issue is how independence is understood; rather than being viewed as
independence from accountability, it should be seen as independence from the government and legislature.

THE ACCOUNTABILITY OF JUDGES IN INDIA

In actuality, judicial independence follows from judicial responsibility. To put it simply, accountability means
accepting responsibility for your choices and actions. In general, it refers to having accountability to any external
body; yet, others may believe that accountability should be to one's own ideals or to one's own self rather than
to any authority with the potential to punish or reprimand. Article 235 of the Constitution provides for the High
Court's "management" over the Subordinate Judiciary, making it apparent that an effective method for
enforcing responsibility is available. Therefore, giving the High Court control over the lower courts preserves
independence because it is not answerable to either the government or the legislature. Additionally, the
provision of the challenging impeachment process has been made with this objective in mind. Because the
Constitution's framers believed "established norms" and "peer pressure" would serve as sufficient checks, there
is no system for the higher judiciary other than in extreme circumstances. However, not everything has
developed in that way. The basic issue is that neither the public nor the other two organs hold the judiciary
democratically accountable. A single dishonest judge not only disgraces his office and dishonors himself, but
also jeopardises the integrity of the entire legal system, as the Supreme Court correctly stated. This brings up
the subject about why accountability is important. The People's Convention on Judicial Accountability and
Reforms had stated in a campaign that "the judicial system of the country has transformed into a weapon of
harassment of the common people of the country far from being an instrument for preserving the rights of the
weak and the oppressed." The system continues to be broken for the weak and the underprivileged. They have
demonstrated their elitist leaning in the past.

Need of an Independent Judiciary in Democracy

India is the largest democracy in the world and any healthy democracy cannot thrive without an independent
Judiciary. As a safeguard against potential violations of the Rule of Law, an independent Judiciary provides the

4
guarantee that justice is carried out impartially. As Dr. B.B. Chawdhry writes, "Justice which is the soul of the
state must be administered without fear or favour."5
Various provisions have been included in the Indian Constitution to ensure an independent Judiciary. This
includes the appointment of judges, salary and allowances, procedures on removal and even the power to
penalise in case of violation of law.
The importance of an independent Judiciary is highlighted for various reasons. Firstly, the Judiciary serves as the
first line of defence against any excessive or unauthorised power of the Executive or the Legislative branch,
providing a system of checks and balances. Furthermore, the Judiciary examines and if needed, invalidates any
law that violates the Indian Constitution by declaring it null & void. This prevents any centralisation of power. An
impartial judicial system is essential for defending the rights of minorities & other marginalised groups in a
multicultural and diversified nation like India. In addition, a strong independent Judiciary is essential to
maintaining the Rule of Law. It ensures that everyone is governed by the same set of laws, irrespective of their
position or power.

Judicial Review
The Judiciary has the power to review any law or executive action that it considers violating the provisions of the
Constitution. This power is exercised through the process of judicial review, which is the power of the Judiciary
to declare a law or executive action unconstitutional. This power of judicial review has been instrumental in
shaping the Constitution of India and ensuring that the provisions of the Constitution are implemented
effectively. Judicial review is adopted by the Constitution of India from the Constitution of the USA.
In India, judicial review is broad in scope and deals with a variety of issues. The Supreme Court has the power of
Judicial Review in various ways, including when there is a conflict between the Centre and States, or when there
is a violation of the jurisdiction exercised by the Legislature and Executive. Most importantly, the Supreme Court
is the guardian of Fundamental Rights. It protects the fundamental rights of Indian citizens, through issuing
various writs provided under Article 32.

Some landmark cases are as follows;

• Keshavananda Bharati vs. State of Kerala (1973)6

An important turning point in Indian constitutional history was highlighted by this landmark case when the
Supreme Court established the "basic structure doctrine." The Court ruled that although Parliament has the
authority to amend the Constitution, it cannot change its basic structure. This historic decision outlined basic
principles that serve as the cornerstone of Indian constitutionalism

5 Indian Constitution at Work

6 Kesavananda Bharati v State of Kerela (1973) 4 SCC 225...
5
 • Indira Gandhi vs. Raj Narain (1975) 7
In this instance, the Supreme Court rendered a significant decision that made the proclamation of an emergency
in India unlawful. The Court's ruling upheld the fundamental idea that nobody- not even the Prime Minister is
above the law and the Constitution.

• Maneka Gandhi vs. Union of India (1978)8

By emphasising that any law denying a person their life or personal liberty must be just, fair, and reasonable,
this case broadened the definition of personal liberty. It developed the idea of "procedure established by law"
under Article 21, to ensure that any procedure established by law must be fair and just.

• Vishakha vs. State of Rajasthan (1997)9

This significant case involved workplace sexual harassment and prompted the creation of guidelines (known as
the Vishaka guidelines) to address and avoid it. Through this ruling, the Court closed a gap in the law and set the
stage for legislation to deal with workplace harassment.

• Union of India v. Navtej Singh Johar (2018)10

By invalidating Section 377 of the Indian Penal Code, which classified homosexuality as a crime and described it
as ‘carnal intercourse against the order of nature’, the Supreme Court in this case decriminalised homosexuality.
The ruling marked a key turning point in the acceptance of the LGBTQ+ community's rights.

Judicial Activism and PIL

Judicial Activism, born in the United States, empowers the judiciary to proactively protect citizens' rights by
going beyond rigid interpretations of laws or the Constitution. It bridges legislative gaps, ensuring the
safeguarding of fundamental rights when the legislature falls short. It adapts legal principles to evolving societal
needs and acts as a check on executive authority, preventing overreach. This activism defends democracy,
minorities, and marginalized groups while promoting equality, social justice, and good governance.
Public Interest Litigation (PIL) in India empowers citizens to address issues affecting the public at large, not just
individually. The judiciary has actively used PILs to champion environmental protection, sustainable
development, and wildlife preservation. It has been instrumental in upholding individual liberties, including the
right to privacy, freedom of speech, and combating discrimination. Landmark judgments have also advanced
education, women's rights, and decriminalized homosexuality, leading to significant social change.

7 The State of Uttar Pradesh v. Raj Narain (1975 AIR 865, 1975 SCR (3) 333)
8 Maneka Gandhi v. Union of India, AIR 1978 SC 597
9 Vishakha vs. State of Rajasthan (1997) AIR 1997 SC 3011
4 Union of India v. Navtej Johar 2018 INSC 790

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The Imperative of Judicial Accountability
• In a democratic system, it is crucial for every individual who wields power to be accountable for their
actions. This includes not only politicians but also judges and bureaucrats. The judiciary is entrusted with
the task of administering justice and hence, its accountability is paramount.
• While the role of judges is highly respected, there have been instances where judicial decisions have led
to public disillusionment with the justice system. In some cases, people have even taken the law into
their own hands to seek justice. To prevent such scenarios, judicial accountability is essential.
• In India too, judicial accountability is deeply ingrained in the system. Judges are expected to discharge
their duties fearlessly, without any bias , favoritism or nepotism upholding the laws and constitution of
the country.
• The Indian Constitution, through Article 235, establishes accountability as an integral part of judicial
independence. This provision empowers the High Court to exercise control over the subordinate
judiciary to ensure their accountability.

Code of Ethics for Judges

Judges are expected to adhere to a stringent code of ethics through which judicial accountability and judicial
independence can be achieved. Some of the key ethical principles include:

• Ethical Decision-making: Judges should strive to make honest and fair decisions. Their judgments
should be based on facts and law, as public confidence in the judiciary largely depends on the integrity
of judicial decisions.
• Administration of Justice: Judges should be fearless in administering justice, without any bias or
prejudice.
• Maintaining Professional Distance: Judges should maintain a professional distance from the parties
involved in a case and their lawyers to avoid any potential conflict of interest.
• Equal Opportunity: Judges should ensure that all parties involved in a case are treated equally, in
accordance with the principles of law and equity. They should not be influenced by any individual's
personality or status.
• Impartiality: Judges should not preside over cases in which they have a personal interest. This principle
of impartiality is one of the cornerstones of the judiciary.

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Need For Judicial Independence
The need for judicial independence and judicial accountability of courts in India is fundamental to the
functioning of a robust and fair legal system. These two principles, though seemingly contradictory, are
essential for upholding the rule of law and ensuring justice. The independence of the judiciary and its
accountability work in tandem to safeguard the integrity of the legal process and maintain public trust in the
judicial system.

1. Safeguarding Democracy:
Judicial independence is a cornerstone of democracy as it ensures that the judiciary can act as a check on the
powers of the other branches of government. An independent judiciary is crucial for upholding the
Constitution and protecting citizens' rights from potential abuses of power by the executive or legislative
branches.

2. Impartial Adjudication:
Judicial independence guarantees that judges can adjudicate cases without fear or favor. This is essential for
impartial decision-making, ensuring that judgments are based solely on the law and facts presented in a case,
free from external influences or pressures.

3. Rule of Law:
An independent judiciary is indispensable for upholding the rule of law. It prevents arbitrary actions by the
government and ensures that legal principles are consistently applied, fostering a predictable legal
environment.

4. Protection of Fundamental Rights:

Judicial independence is vital for protecting fundamental rights. Judges must have the freedom to interpret
and apply the law in a manner that safeguards individual liberties without succumbing to political or public
pressures.

Need for Judicial Accountability:

1. Maintaining Public Trust:
Accountability ensures that the judiciary remains transparent and accountable to the public. Trust in the
judiciary is essential for citizens to have confidence in the legal system. Mechanisms for accountability, such as
ethical standards and disciplinary procedures, help address any concerns about the conduct of judges.

2. Preventing Abuse of Power:

While independence is crucial, accountability prevents the abuse of judicial power. It ensures that judges are
answerable for any misconduct or deviation from established ethical standards. This accountability is vital for
maintaining the balance between judicial independence and preventing judicial overreach.

3. Enhancing Efficiency and Effectiveness:

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 Accountability mechanisms contribute to the efficiency and effectiveness of the judicial system. It encourages
judges to adhere to established norms and standards, fostering a culture of responsibility and continuous
improvement within the judiciary.

4. Adapting to Evolving Societal Values:

Accountability allows the judiciary to adapt to evolving societal values and expectations. Judicial decisions
must be reflective of the changing needs and values of society, and accountability mechanisms help in
ensuring that judges remain attuned to these dynamics.

In conclusion, the coexistence of judicial independence and judicial accountability is indispensable for a fair
and effective legal system in India. Striking the right balance between these principles reinforces the rule of
law, protects fundamental rights, and maintains public trust in the judiciary. It is a delicate equilibrium that
contributes to the overall strength and legitimacy of the legal framework in the country.

Challenges Faced
• Judicial Activism vs. Separation of Powers: Critics argue that Judicial Activism could weaken the
separation of powers, leading to Judicial Overreach when the Court obstructs the legislative and
executive branches.
• Backlog of Cases: The Indian judicial system faces a significant backlog of cases, delaying justice and
eroding public confidence. While some reforms have been initiated, more extensive changes are
needed.
• Access to Justice: Many Indians, especially disadvantaged groups, struggle to access legal services due
to factors like limited legal knowledge, financial constraints, and inadequate infrastructure. To address
this, efforts are needed to enhance legal literacy, provide affordable legal assistance, and make the
legal system more user-friendly.

• Impeachment

The only method now available is too impractical. The Chief Justices and Judges of the Supreme Court
(SC) and High Courts (HC), as well as other members of the higher judiciary, can only be held accountable
or removed through impeachment, according to the Indian Constitution. Many people consider
impeachment as a failure, but it's vital to look at the constitutional provisions before going there.
According to Article 124(4), the impeachment procedure is only used in cases of proven misconduct or
incompetence. As a result of this clause, the story concludes with no judges having ever been removed
from office. However, believing that the judiciary is free from corruption would be a mistake. The entire
impeachment procedure itself constitutes the loophole. Without a question, it is drawn out and difficult.
Many others even think this is a total failure.

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 • Contempt of Court:
Although it is generally believed that the court has exploited this as a means of protecting itself from
criticism, contempt of court can be considered as a way to protect the independence of the court. Any
behaviour that is disrespectful of courts' power and dignity is referred to as contempt. Oswald claims
that because contempt of court can take many forms, it is challenging to define the offence precisely.

• Exemption from the Right to Information (RTI):

When the public has the right to know exactly what the judiciary is doing, one of the ways it can be held
accountable is. In a democratic type of government, this is normal. The Supreme Court (SC) created the
groundwork for the RTI in the well-known "Raj Narain vs. Indira Gandhi" 11case. The phrase "the people
of the country have the right to know about every public act" was used, and it was deduced from the
idea of freedom of expression. The public is not served by concealing regular daily activity under a
shroud of sections.

Hypothesis Tested

In India, judicial independence is a foundational principle, protected by constitutional safeguards, a

collegium system for appointments, and the separation of powers. This autonomy ensures an impartial
judiciary committed to upholding the rule of law and individual rights. However, judicial independence
does not imply absolute immunity from accountability. Internal mechanisms, including peer reviews and
inquiries, maintain ethical standards. External checks, such as the National Judicial Oversight Committee,
address complaints, striking a balance between autonomy and scrutiny. The impeachment process
reinforces accountability. Transparency is key, with publicized decisions fostering accountability and
public trust. The delicate equilibrium between independence and accountability ensures a responsive
judiciary that adapts to societal changes while upholding democratic values in India.

11 Raj Narain vs. Indira Gandhi 1975 AIR 1590

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 CONCLUSION

The discussion revolves around the intricate issues of absolute independence and accountability within the
Indian Judiciary. Examining the independence aspect, the constitutional framework, appointment processes,
security of tenure, judicial activism, and public trust are highlighted as key elements ensuring autonomy. On the
accountability front, in-house mechanisms, legislative efforts like the Judicial Standards and Accountability Bill,
public scrutiny, and the parliamentary impeachment power are noted.
Several challenges and considerations are acknowledged, such as judicial delays, lack of transparency in
appointments, and concerns about potential executive influence. The conclusion emphasizes that while the
Indian judiciary is designed for independence, achieving absolute autonomy and accountability is an ongoing
process. Maintaining the delicate balance between independence and accountability is crucial for the integrity
of the judicial system, requiring continuous evaluation and potential reforms to adapt to the evolving legal
landscape.
In conclusion, the need for judicial accountability and judicial review in India is not a mere legal formality but a
reflection of the democratic ethos enshrined in the Constitution. It is an acknowledgment that power, no matter
how sacred its source, must be subject to scrutiny and that justice can only thrive in an environment of
transparency, accountability, and constitutional fidelity.
As India marches forward, the unwavering commitment to these principles will not only fortify the foundations
of its legal system but also ensure that justice remains a beacon guiding the nation towards a more equitable
and democratic future. The harmonious coexistence of accountability and review encapsulates the essence of a
judiciary that stands tall, not in isolation, but as an integral and indispensable component of India's democratic
fabric.

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 BIBLIOGRAPHY

Books Referred

• Indian Polity by jLaxmikant

• Creating and Debating Judicial Independence and Accountability by G Alan Tarr
• Indian Constitution at Work

Articles
https://www.drishtijudiciary.com/judicial/condition/of/courts/in/India
https://testbook.com/ias-preparation/judicial-accountability

https://www.drishtiias.com/blog/democracy-and-the-role-of-judiciary
https://nja.gov.in/Jounals_Publications_Newsletters/NJA%20Ocacasional%20Paper%20Series%20No.1.pdf
https://articles.manupatra.com/article-details/judicial-accountability

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