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“All the rights secured to the citizens under the Constitution are worth nothing, and a
mere bubble, except guarantee to them by an independent and virtuous judiciary.”

- Andrew Jackson, 7th U.S. President

INTRODUCTION

The twin principles of judicial independence and judicial accountability have been the
central theme of various debates and discussions in almost all the democratic
countries of the world, which cherish the golden principle of rule of law. The main
reason behind this is, perhaps, that these twin principles are generally viewed as
fundamentally opposite to each other, and constantly in tension.

The meaning of the term ‘judicial independence’ can be viewed from two different
perspectives. First, it means the absence of the dependence of judiciary on the other
two organs of the State, viz., the Executive and the Legislature. Second, it means the
power of the judiciary to administer justice impartially and honestly, in accordance
with the provisions of law, without any concern or fear of interference, control or
influence from the other two organs of the State.

As regards the first interpretation of ‘judicial independence’ is concerned, it is

practically not possible in any State to completely divorce the judiciary from the other
two organs, in the sense that the institution of judiciary has to depend largely on them
for developing itself as a whole. As regards the second interpretation is concerned,
various constitutional and statutory provisions have been provided in almost all the
States to minimize the executive and legislative interference in the adjudicatory
function of the judiciary.

Likewise, the term ‘judicial accountability’ can also be viewed from two different
perspectives. First, accountability of the judiciary in respect of its adjudicatory
functions, which is safeguarded by incorporating the provisions for appeals, revision
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and review of the orders in civil and criminal statutes of almost all the States. Second,
accountability for serious judicial misconduct by the judges, against which there is no
uniformity in the Constitutional and statutory provisions of the States, as regards the
mechanism for disciplining and punishing the errant judges.

Keeping in view the second perspectives of judicial independence and judicial

accountability, I have divided my research paper into two parts. First, I will discuss
the various Constitutional and statutory provisions in India and U.K. to further the
cause of judicial independence. Second, I will discuss the various Constitutional and
statutory provisions in India and U.K. for providing mechanism for judicial
accountability.

JUDICIAL INDEPENDENCE

INDIA

The Constitution of India has established a unified three-tier system for judiciary in
India, with Supreme Court at the top, followed by High Courts in States, followed by
Sub-ordinate Courts at District level, and has further made several provisions to
ensure independence of the same, some of which are as follows:-

Appointment of Judges

The Judges of the Supreme Court as well as High Courts are appointed by the
President of India, who is the Executive Head of the Union. However, the President,
in this matter, is required to exercise such power after consultation with Judges of the
Supreme Court and the High Courts.1 So, the Constitution, in this matter, does not
give free hand to the Executive.

1
Articles 124(2) & 217(1), Constitution of India
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Further, the Supreme Court in Supreme Court Advocates-on-Record Association v.

Union of India2 has evolved the principle of judicial independence to mean that no
other branch of the state – including the Executive and the Legislature – would have
primacy in the appointment of judges. The Apex Court created the collegium system
for appointment of Judges to the Higher Judiciary, thus, seizing the primacy from the
hands of the Executive to itself, which has been in vogue since then.

Security of Tenure of Office

The independence of the judiciary depends to a great extent on the security of tenure
of judges. If Judge’s tenure is uncertain, it would be difficult for him to perform the
onerous duties of his august office without fear or favour. The Constitution prohibits
the removal of Supreme Court and High Court Judges from their office, except by
impeachment on the specific grounds of proved misbehaviour or incapacity.3
z

Salaries and Allowances of the Judges

The salaries, privileges, allowances, rights in respect of leave of absence and pension
of the Judges are determined by Parliament by law. However, once a Judge is
appointed and his salary and allowances are determined by Parliament by law, these
cannot be varied to his disadvantage during the tenure of his office.4

Appointment of Staff

The Constitution empowers the Chief Justice of Supreme Court and the Chief Justice
of every High Court to recruit the officers and servants of their courts as well as to
regulate their conditions of service.5

2
AIR 1994 SC 268
3
Article 124(4), Constitution of India
4
Articles 125 & 221, Constitution of India
5
Articles 146 & 229, Constitution of India
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Expenditure of the Court

The administration expenses of the Supreme Court as well as of the High Courts,
including all salaries, allowances, and pensions payable to the officers and servants
are charged upon the Consolidated Fund of India and States, respectively and
therefore, not subject to vote of the Legislature.6
[

Prohibition on Practice after Retirement

The Constitution debars the Judges of the Supreme Court from appearing or pleading
before any court or tribunal or judicial authority in India after retirement.7 A retired
Judge of the High Court is also prohibited from practicing before a Court where he
had been a Judge. A High Court Judge, however, can after retirement, practice in the
Supreme Court or in a High Court where he had not been a Judge.8

Restriction on Discussion in Parliament

The Constitution prohibits the discussion in Parliament or in the Legislature of any

State with respect to the conduct of any Judge of the Supreme Court or of a High
Court in the discharge of his duties. 9 Thus, the Constitution makers have attached
much importance to the independence of the Judiciary and they, therefore, placed
them beyond any controversy.10

Power to Punish for Contempt

The Supreme Court and the High Courts11 have been declared as Courts of Record
and conferred with power to punish any person for their contempt. The rationale
behind Contempt of Court is that Courts must have the power to secure obedience to
their judgments, in order to serve the purpose of administering justice. The purpose of
punishing under Contempt of Court is not to protect the dignity of the Court, but of
6
Articles 146 & 229, Constitution of India
7
Article 124(7), Constitution of India
8
Article 220, Constitution of India
9
Articles 121 & 211, Constitution of India
10
Shukla, The Constitution of India, 1995, 531
11
Articles 129 & 215, Constitution of India
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the process of justice itself. The power to punish for contempt of itself is very
essential for maintaining impartiality and independence of the Judges.

Power to make rules

The Constitution further empowers the Supreme Court of India to make rules for
regulating generally the practice and procedure of the Court, including the rules fixing
the minimum number of judges who are to sit for any purpose, and providing the
powers of single Judges and Division Courts.12

Separation of Judiciary from the Executive

The Constitution further directs the State to take appropriate steps to separate the
judiciary from the executive in the matters of public services of the State.13 The object
behind this separation is to provide for independence of judiciary which is one of the
basic tenets and a fundamental requirement of our Constitution. 14 This Article has
been held to be the conscience of the Constitution, its basic underpinnings and values
plainly reveal without any scope for doubt or debate, the intent of the Constitution
Makers to immunize the judiciary from any form of executive control or
interference.15

Protection from Prosecution

The Code of Criminal Procedure, 1973 further directs the magisterial courts not to
take cognizance of any offence alleged to have been committed by the judge or
magistrate, acting or purporting to act in the discharge of his official duty except with
the previous sanction of the Central or State Government, as the case may be.16

12
Article 145, Constitution of India
13
Article 50, Constitution of India
14
M.M. Gupta v. State of J&K, AIR 1982 SC 1579
15
Union of India v. Sankalchand, AIR 1977 SC 2328
16
Section 197, The Code of Criminal Procedure 1973
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UNITED KINGDOM (U.K.)

The United Kingdom does not have a single unified legal system – England and
Wales has one system, Scotland another, Northern Ireland a third. The English legal
system used to follow the principle of ‘Fusion of Powers’ instead of the ‘Separation of
Powers’, with the result that the Appellate Committee of the House of Lords was
designated as the Highest Court in the United Kingdom along with the Judicial
Committee of the Privy Council, which was the Highest Court of Appeal for certain
British territories and Commonwealth countries. Further, in the office of the Lord
Chancellor, the three arms of the Government were fused: the Lord Chancellor was a
Cabinet Minister, a member of the House of Lords, and Head of the Judiciary.

However, with the passage of Constitutional Reform Act of 2005, various changes
have been incorporated in the United Kingdom’s judicial system, which immensely
helped the judiciary to become separate from the other two branches. Some of the
remarkable changes restoring the independence of judiciary under English legal
system are as follows :-

Guarantee of Continued Judicial Independence

The Constitutional Reform Act, 2005 casts a statutory duty on the Lord Chancellor,
other Minister of the Crown and all with responsibility for matters relating to the
judiciary or otherwise to the administration of justice to uphold the continued
independence of judiciary.17

Office of the Lord Chancellor

The Lord Chancellor ceased to the head of judiciary. Instead, the Lord Chief Justice,
who holds the office of President of the Courts of England and Wales was made the

17
Section 3, Constitutional Reforms Act 2005
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Head of the Judiciary of England and Wales.18 Furthermore, the Lord Chancellor was
replaced as a Chairman in the House of Lords by a Lord Speaker.19

Creation of the Supreme Court

20
The independent UK Supreme Court was established , which assumed the
jurisdiction of the Appellate Committee of the House of Lords and the devolution
jurisdiction of the Judicial Committee of the Privy Council. It is an independent
institution, having its own building, the Middlesex Guildhall, on the other side of
Parliament Square, separate from Parliament.

Appointment of Judges

Previously, Judges were appointed by the Queen on the advice of Lord Chancellor,
which made those appointments appear subject to political influence. The
Constitutional Reform Act, 2005 created the Judicial Appointments Commission.21
This independent Commission proposes a candidate, and the Secretary of State for
Justice can only say Yes or No. This will increase the feeling that judicial
appointments are being made on merit rather than on political grounds.

JUDICIAL ACCOUNTABILITY

INDIA

The thought of Supreme Court and High Court Judges indulging in misconduct was
anathema to the Founding Fathers of our Constitution. The very thought could not be
entertained. As a result, we had only what are best termed as hard accounting tools –
such as impeachment and removal – in our Constitution.

18
Section 7, Constitutional Reforms Act 2005
19
Section 18, Constitutional Reforms Act 2005
20
Section 23, Constitutional Reforms Act 2005
21
Section 61, Constitutional Reforms Act 2005
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Impeachment Process

This is the main accountability mechanism available in India today. The process of
impeachment of judges is contained in Articles 124 (4), (5), 217 and 218 of the
Constitution of India, as well as the Judges Inquiry Act, 1968, and its rules. The
various provisions come into play for the removal of a Supreme Court or High Court
Judge on the grounds of “proved misbehaviour or incapacity”. A complex structure is
laid in these provisions, primarily to ensure that the judiciary remains independent of
executive action.

A judged can be removed only through a motion in parliament, which must have
minimum of two-thirds support of each House. The motion itself can be brought in
either House of parliament only with the support of requisite number of
parliamentarians. If the motion is admitted, an enquiry committee is set up,
comprising a Supreme Court Judge, a High Court Chief Justice and an eminent jurist.
The inquiry committee examines the charges. It is not a trial, but the judge can
provide a written response and examine witnesses. The committee submits its report
to the parliament on whether the charges can stand or not. If the committee holds the
Judge not guilty, the process ends there.

If the inquiry committee finds the judge guilty, the motion for removal must be put to
vote in both Houses of parliament. The judge has the right to be represented. To be
successful, the motion must be supported by a majority of that house and by a
majority of not less than two-thirds of the members present and voting. If these
hurdles are crossed, parliament asks the President of India for the judge’s removal.

In-house Mechanism

In 1999, a resolution of the full court of Supreme Court declared that an ‘in-house
procedure’ would be adopted to take action against judges who act against “accepted
values of judicial life” – a document prepared under Justice J.S. Verma. This
document was prepared after the Supreme Court held in public interest litigation case
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of C. Ravichandran Iyer vs. Justice A.M. Bhattacharjee22 that an in-house ‘peer-

review’ procedure could be laid down for correcting deviant behavior and where the
allegations do not warrant removal, the in-house mechanism could impose ‘minor
measures”.

In short, the procedure provides that when a complaint is made against a judge, the
Chief Justice of that Court decides whether it is serious or not. If not, it ends there. If
yes, it goes to the Chief Justice of India for further action. If a complaint is against the
Supreme Court Judge, it goes directly to the Chief Justice of India. A Three-member
committee of either High court or Supreme Court judges examines the complaint. If
the allegations are serious, the committee may recommend initiating proceedings for
removal, although the committee or CJI cannot themselves directly commence such
proceedings.

The Judicial Standards and Accountability Bill, 2010

The Judicial Standards and Accountability Bill was floated in 2010, but eventually
lapsed. It tries to lay down enforceable standard of conduct for the judges. It also
requires judges to declare details of their and their family members’ assets and
liabilities. Importantly, it creates mechanisms to allow any person to complain against
judges on grounds of misbehaviour or incapacity, by establishing the National Judicial
Oversight Committee, the Complaints Security Panel and an Investigation Committee.

UNITED KINGDOM

After passing of the Constitutional Reform Act of 2005, the Lord Chancellor and the
Lord Chief Justice are jointly responsible for considering and determining complaints
about the personal conduct of all the judges in England and Wales (and some judges
who sit in Tribunals in Scotland and Northern Ireland). The Lord Chief Justice has the
right to give a judge a formal advice, a formal warning, or a reprimand, or to suspend

22
1995 SCC (5) 457
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him from office in certain circumstances.23 The vital principle is, however, that none
of these actions can be taken unless the Lord Chancellor and the Lord Chief Justice
agree on it.

The Lord Chief Justice and the Lord Chancellor take these complaints very seriously,
and consider it important to maintain public confidence by ensuring such complaints
are dealt with by an independent authority. The Office for Judicial Complaints (OJC)
was set up on 3rd April 2006, to handle these complaints and provide advice and
assistance to the Lord Chief Justice and the Lord Chancellor in their performance of
this joint responsibility. The said Office was replaced by the Judicial Complaints
Investigations Office (JCIO), which was established on 1st October 2013. The JCIO
further publishes ‘Disciplinary Statements’ when they issue a disciplinary sanction to
a judicial officer holder upon finding of misconduct. However, the Lord Chief Justice
and the Lord Chancellor may, at their discretion, decline to publish a disciplinary
statement.

Complaints about judicial misconduct are considered by nominated judge, who will
either make a recommendation straight away to the Lord Chief Justice and the Lord
Chancellor, or refer the case to an investigating judge. Ultimately a recommendation
will be made to the Chief Justice and the Lord Chancellor, who will have to decide
what action, if any, to take. The judge who is the subject of the complaint has a right
to make submissions at every stage, and if he or she is not content with the decision,
can refer the case to a Review Body.

Complaints about magistrates follow a different course, as they are considered by

Advisory Committees of Magistrates, which recommend the appropriate action to the
Chief Justice and the Lord Chancellor.
[

The Judicial Appointments and Conduct Ombudsman24 investigates the handling of

complaints about the judicial conduct process. The Ombudsman can only look at

23
Section 108, Constitutional Reforms Act 2005
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whether or not the relevant first-tier body investigated a complaint about judicial
conduct properly or if there was any maladministration in the process. However, the
Ombudsman does not act in an appellate capacity, and cannot review or consider the
original complaint about a judge’s conduct.

For a government minister to be involved in this way in judicial discipline may appear
to strain the principle of judicial independence. However, the procedure helps to
dispel any suspicion that the judges would not wish to take an action against a fellow
judge, and also provides safeguard. Equally, making the responsibility for discipline,
a joint responsibility of the Lord Chief Justice and the Lord Chancellor ensures that
the suspicion cannot arise that judges can be disciplined on political grounds – a
further safeguard of judicial independence and the rule of law.

CONCLUSION

For upholding the Rule of Law in any Democratic country, it is of utmost importance
that the individual judges and the judiciary as a whole should be independent of all
external pressures and of each other so that those who appear before them and the
wider public can have confidence that their cases will be decided fairly and in
accordance with the law.

India has done everything possible to protect the Judges against any influence,
whether political or personal, so essential, for effectively securing impartiality and
independence of judiciary, through a number of Constitutional and statutory
provisions. With the passage of Constitutional Reform Act of 2005 in United
Kingdom, a stricter separation of powers has been achieved between the judiciary and
other two organs of the government, which is an important step towards achieving
greater independence of judiciary.

24
Section 62, Constitutional Reforms Act 2005
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However, in any country governed by the rule of law, every organ of the State,
whether Executive, Legislature or Judiciary must be made accountable to the citizens
of the country. Every attempt for ensuring the accountability in the institution of
judiciary should not be viewed as antithetical to the concept of judicial independence.
Rather the independence of Judiciary should be perceived as a means to an end, i.e.,
impartiality, instead of an end in itself.

Indian judiciary lacks softer tools to tackle circumstances that do not warrant
impeachment but do require some kind of disciplinary action. Judiciary is indulging in
some form of self-governance, which is a troubling characteristic of Indian judiciary,
which believes it is a law and world unto itself. On the other hand, the United
Kingdom by way of robust mechanism in place for disciplining the judicial officers
ensures that the independence of an individual judge is not improperly infringed,
either by the Executive or internally by other senior members of the judiciary.
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REFERENCES

1. Kumar, Narender, Constitutional Law of India, Allahabad Law Agency

(2011)

2. www.financialexpress.com

3. www.judiciary.uk

4. www.politics.co.uk

5. www.studocu.com

6. www.supremecourt.uk

7. www.tutor2u.net