The Problem Of Accountability In Judicial

Law Making: An Analysis Of India

By Sneha Singh / March 28, 2023
Every organization of the government has different roles and is accountable to some
other agency. Even every government officer and body is also fully answerable to the
Judiciary of the country. But when it comes to the Judiciary itself, a different set of rules
and a different set of levels are followed. The Judiciary has become a judge in its own
cause. Judicial corruption is not a new phenomenon and has always been a part and
parcel of the working of the judiciary but the recent scandals have created much
concern about the slowly rotting state of the Courts. The question that is raised that, to
whom do the Judges are accountable? It is a very valid and justifiable question. The
judiciary is neither accountable to the people as the people do not elect the members of
the judiciary nor responsible to the other bodies of the government due to the doctrine
of separation of power and Judicial independence.

Table of Contents

 The Backdrop
 Do Judges Make Law?
 Judiciary: A Tool of Law-Making
 Independence of The Judiciary
 Judicial Accountability And Its Concernment
 Judicial Accountability In Some Developing Countries In The World
o Australia
o United States
o Canada
 Constitutional Provisions For Making The Judiciary Accountable
 Problems Of Accountability In Judicial Law-Making In India
 Remediable Steps By The Government For Preventing The Problem Of Judicial
Accountability
 Dream of Judicial Accountability And The Shocking Reality Of The Judiciary
 Conclusion and Suggestions

The Backdrop
An active role of the Indian judiciary over the functions falling constitutionally within the
legislative competence raises certain serious and prominent issues in India. This aspect
of ‘Judicial Activism’ equally holds the debatable field amongst others since judge-made
law has gained vast recognition throughout the world. The Indian Supreme Court has
contributed to such recognition to a very large extent by giving directions to the
government from time to time seeking compliance under its contempt power and many
times by legislating exactly in a manner akin to the legislature. Such instances of judicial
intervention call for a need to closely scrutinize the essence and the constitutional
perspective of the lawmaking function of judges in distinction with the constitutionally
conferred legislative powers of the legislature.

Do Judges Make Law?

No informed citizen who is governed under a modern Constitution disputes the notion
that judges do make law, especially the judges of constitutional courts. This is so since
such courts have meticulously come at par with the expectations of the people and the
changing social circumstances by way of their ‘interpretative skills’. In the Indian
context, a glaring example of this fact can best be evidenced by the complete shift
accorded by the Supreme Court of India in interpreting Art.21 of the Constitution from
the A.K Gopalan to Maneka Gandhi case. Further, innovations in the field of Public
Interest Litigations (PIL) have also provided thrust to the undisputable notion that judges
do indeed make law through directions.

Judiciary: A Tool Of Law-Making

It is indeed true that within the given setup of separation of powers, the legislature under
the Indian Constitution acts as a prime mover in enacting laws to suit the changing
circumstances of society. However, the role of the judiciary is also largely
acknowledged since judges, while dealing with real-life situations to adjudicate upon, do
get opportunities to interpret the existing laws and apply them in a given situation to
cater to the changing needs and keep pace with varying societal situations. The chief
reason that can be attributed to such an important facet of the judicial function is the
undisputed fact that law by its very nature is organic. No legislature can foresee, with
reasonable certainty, the future and forthcoming contingencies that the law attempts to
address. Practically, every enacted law on a probing analysis reveals certain gaps
which the judiciary is expected to fill up by way of interpretation. This is popularly known
as Judicial Legislation.

Judicial law-making is a stark fact of the modern age. There are various techniques
adopted by judges in creating new rules. Precedent, construction of statutes, supplying
the omission of the legislature, or filling the gaps by using discretion are some of the
tools used by the judges for creating law.

Independence Of The Judiciary

Independence is a bulwark of rule of law. If the law is to be applied equally to all citizens
in the country, then it is equally important that the judges should be independent in
applying the law and rendering judicial decisions. Judges can be subject to threats and
pressures from litigants, including society’s criminal element. Independence of the
judiciary is a recognized principle adopted by most democratic countries.

Judicial Accountability And Its Concernment

The word ‘accountable’ as defined in the Oxford Dictionary means ‘responsible for your
own decisions or actions and expected to explain to them when you are asked.’
Accountability is the sine qua non of democracy. It is a well-settled principle of modern-
day governance that an authority deriving its existence from the same source cannot
claim to be absolute and unaccountable. It must be accountable either to the source of
its origin, to the institution, and more importantly to the people. Judicial accountability is
in fact a corollary of the independence of the judiciary. Simply put, accountability refers
to taking responsibility for your actions and decisions. It generally means being
responsible to any external body; some may insist on accountability to principles or to
oneself rather than to any authority with the power of punishment or correction. Since
accountability is a facet of independence the Constitution has provided in Article 235,
for the ‘control’ of the High Court over the Subordinate Judiciary clearly indicating the
provision of an effective mechanism to enforce accountability. All wings of Government
belong to the people, when the legislature and the executive both are accountable, the
judiciary cannot remain unaccountable and absolute. No person, howsoever high is
above the law similarly, no institution howsoever sanctified can claim to be
unaccountable. Ultimately, every institution is accountable to the people in every
democratic polity like ours. At the same time, judicial independence is a pre-requisite for
every judge whose oath of office requires him to act without fear and to uphold the
constitution and laws of the country. Thus, there arises a tension between Judicial
Independence and Judicial Accountability.

Judicial Accountability In Some Developing Countries In

The World
Australia

The federal judiciary enjoys constitutional protection in terms of appointment and

removal of judges by virtue of Section 72 of the Federal Court of Australia Act. Removal
can only occur through proven misbehaviour or incapacity. Removal must be effected
by the Governor General on an address from both houses of parliament in the same
sitting on either of the two grounds listed above. A more formal mechanism for
considering complaints was established to address the Judicial Commission of New
South Wales. The New South Wales statute requires the Commission to dismiss
complaints in a number of specified circumstances: including where there is a right of
appeal, where the complaint is frivolous or trivial, or where further consideration is
unnecessary or unjustifiable.

United States

Article III of the US Constitution establishes the judiciary as an independent third branch
of government. Article III gives the judiciary the power to hear and adjudicate all cases
arising out of the Constitution and laws of the USA with impartiality. Article III also states
that federal judges can only be removed through impeachment by the House of
Representatives and conviction by the US Senate for “treason, bribery or other high
crimes. or misdemeanours.” Short of removal, federal judges can be disciplined for
violations of the Code of Conduct for United States Judges-a set of ethical principles
and guidelines adopted by the Judicial Conference of the United States.

Canada

In Canada, the independence of the federally appointed judiciary is guaranteed by the

Canadian Constitution (namely sections 96 to 100 of the Constitution Act, 1867) which
provides for the appointment, security of tenure, and financial security of superior court
judges. This provision aims to ensure judicial independence by making it extremely
difficult to remove judges from office for political or other reasons. The 1971
amendments to the Judges Act created the Canadian Judicial Council and gave it
statutory authority to investigate complaints against federally appointed judges. Judicial
Independence is also guaranteed by the Canadian Charter of Rights and Freedoms,
Schedule B to the Constitution Act, 1982. Under Section 63(2) of the Judges Act, any
member of the public (including a provincial attorney general or the federal Minister of
Justice) may make a complaint about a federally appointed judge by writing to the
Canadian Judicial Council.

Constitutional Provisions For Making The Judiciary

Accountable
The fact that the powers of judges are very wide is in itself an indication that the powers
may not be allowed to be absolute. Among the constitutional limitations on the judges,
the most important one is the provision for the ‘removal’ of judges of the High Court’s
/Supreme Court by the address of the Houses of Parliament to the President on the
ground of ‘proved misbehavior or incapacity. This is provided in the Constitution of
India, Article 124(2) and (4) in respect of judges of the Supreme Court, and in view of
Article 217, that procedure is attracted to the ‘removal’ of judges of the High Court also.
In pursuance of the provisions of Article 124(5) of the Constitution the Judges (Inquiry)
Act, 1968 was enacted to regulate the procedure for investigation and proof of the
“misbehavior” or incapacity of a Judge of the Supreme Court or of a High Court and for
the presentation of an address by Parliament to the President and for matters
connected therewith.

Problems Of Accountability In Judicial Law-Making In India

There are so many problems of Judicial accountability shown in India. These are as
follows:

1. The Contempt of Courts Act

One of the critical reasons for the low accountability of judges in India is the power of
the Courts to punish for its Contempt. The Contempt of Court Act defines Contempt as
Civil or Criminal. The main purpose of the Contempt Power has been to enable the
court to be able to enforce its orders and to punish obstruction in the administration of
justice. But over the years this power has been considerably widened and freely used
by the courts. Today, in countries like UK and U.S.A. the concept has been liberalized.
But India still follows the old British-rule norms, which undoubtedly was not a free
democracy. The power of contempt cannot be the answer to the sincere critique of the
working of the judiciary. The argument that the court’s integrity and esteem can be
injured if appropriate action is not taken does not hold any water. When the courts
decide to use the contempt power, they ordinarily tarnish their reputation further by
showing a bigoted attitude. It is high time that the Courts interpret the Contempt of
Courts Act more liberally and realize that justice is more important than individual egos.
In a healthy democratic state public opinion, discussions, awareness, and debates are
imperative to the progress of the nation. This is impossible in a system where the
media, jurists, and other citizens are silenced due to the fear of being subjugated to
contempt laws. Judiciary has to earn reverence through the test of truth and not by fear.
So, there is a need for serious reforms in the law of contempt to make the Judiciary
more accountable.

2. Appointment and Selection of Judges

The Indian Constitution states that the Supreme Court of India will comprise the Chief
Justice of India and at the most 7 other judges. This number has now been increased to
25. The Supreme Court judges are appointed by the President in consultation with other
judges of the Supreme Court and High Court. Other than in the case of the appointment
of the Chief Justice of India himself, the President has to consult the Chief Justice of
India when appointing the other judges. High Court judges are also appointed by the
President on the recommendation of the Chief Justice of India and the Governor of the
concerned state. The Chief Justice of the High Court is also consulted for appointing the
judges, other than for the appointment of the Chief Justice himself. The whole
procedure is ad hoc and arbitrary. There are no clear grounds according to which the
judges are recommended. There is such secrecy surrounding the whole modus
operandi and it is defended with ambiguity. The only trend that emerges is that well-
connected people are appointed. Proximity to power has become a criterion. What is
amazing to note is that, in the lack of a mechanism for making judges accountable, a
judge with doubtful integrity and motives is also appointed as the judge even after
questions are raised regarding the suitability of him as a judge. This is well illustrated by
the case of Justice Ashok Kumar. The collegium of three senior judges of the Supreme
Court unanimously decided not to confirm him as a permanent judge in August 2005
because of serious doubts regarding his integrity. Despite this, his appointment was
confirmed in February 2007 on the Chief Justice’s recommendation.

3. Limited Mechanism for Removal

Impeachment is the only mechanism through which a judge can be removed and there
are many limitations found in this process making it very difficult in bringing judicial
accountability. When there is no majority to oust a judge in the parliament, the judge
cannot be removed. In the case of Justice v. Ramaswamy, the former chief justice of
Punjab and Haryana high court, the inquiry committee found him guilty on most of the
charges but he was not removed from his office as the motion did not attain the required
majority in the parliament.

4. Judges Inquiry Act

The judiciary is under immense pressure when it deals with any high-profile case that
would have an impact on society or would completely turn the tables for the political
domains. This was witnessed by the people of the country during the Sabarimala
judgment, the Adhaar judgment, and the Keshavnanda Bharti case. This pressure or the
crumbling atmosphere creates immense external pressure on the judiciary not to
compromise with any of these external factors the judiciary came up with an in-house
mechanism to investigate corruption within the judiciary. This was proposed by the
Judges Inquiry Act Amendment Bill 2006 which provided for a National Judicial Council
consisting of the Chief Justice of India, two senior-most judges of the Supreme Court,
and two Chief justices of High courts as members to enquire into the allegations of
“proved misbehaviour” or “incapacity”.18 What is more objectionable in this report is
Section 33 of the act which states not to disclose any information relating to the
complaint to any person in any proceeding except when directed by the Council. This
somehow is a flaw in the whole process as the things investigated are never publicized
and never under the public domain and even if it finds or gets to prove misbehaviour or
incapacity, it can only suggest introducing the process of impeachment in the house
which can again be struck down which was seen earlier in Ramaswamy’s and Justice
Bhalla’s case. Thus, the only positive which can be drawn out of the Act is that the
committee can only recommend initiating the process of impeachment.

Remediable Steps By The Government For Preventing The

Problem Of Judicial Accountability
There are some steps have been taken by the Government for preventing the problem
of judicial accountability. These are as follows-

 Judicial Standard and Accountability Bill, 2010

The Judicial Standards and Accountability Bill, 2010 replaces the Judges Inquiry Act,
1968. It seeks to create enforceable standards for the conduct of Judges of High Courts
and the Supreme Court, change the existing mechanism for an investigation into
allegations of ‘misbehavior’ or incapacity of Judges of High Courts and Judges of
Supreme Courts, change the process of removal of Judges, enable minor disciplinary
measures to be taken against Judges, enable minor disciplinary measures to be taken
against judges, and require the declaration of assets of Judges.

 Loopholes in the Bill

The Scrutiny Panel is to consist of three members, two of whom will be judges sitting in
the same court as the judge against whom the complaint is made. Since these judges
would be colleagues sitting in the same court, it is likely that this will, either way,
influence their conduct. The idea of “minor” punishments is unworkable and has the
potential to seriously undermine judicial status. The Bill completely excludes the
operation of the RTI. This establishes an atmosphere of total secrecy more regressive
than the present system, and for which, there does not appear to be any rational reason
to make a change. The Bill makes no mention of whether a judge who has been
removed has a right to appeal to the Supreme Court. The Standing Committee has
stated that there should not be any provision for appeal as the finality of a Presidential
order should not be challenged. Thus, it is totally impermissible for the legislature to
strike upon the independence and fearlessness of the judiciary. A judge of a superior
court cannot be treated as an employee of the government. The present Bill is
incapable of salvage and must be rejected in totality. In a system where half the litigants
must necessarily lose their cases, and where most of the complaints against judges are
frivolous and made by disgruntled litigants, this bill, if implemented, would mark the
beginning of the ends of the judiciary.

 Lokpal Bill
With the Lokpal bill being in news, it becomes necessary to look at what it thinks about
judicial accountability. To begin with there are two versions of the Lokpal bill. In the
Government version, the judges are not brought under scrutiny. It will be only an
advisory body and therefore the Lokpal cannot register an FIR on any complaint. The
Lokpal will comprise three members and all will be retired judges, now this committee
will be selected by politicians themselves. So, Naturally, there will be political
interference. It will be very honest sayings if said that, Lokpal should only take matters
relating to politicians and bureaucrats and not judges. For the judges, an entirely
different, independent, and exclusive mechanism should be there. On the other hand, if
the judges are included, then the public shouldn’t be allowed directly to initiate action,
the grievance should be processed by the committee, this will then manage frivolous
cases from infringing the independence of the judiciary.

Dream Of Judicial Accountability And The Shocking Reality

Of The Judiciary
In the 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 in 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. 2000. What was
shocking and rather patriarchal was condescendingly referring to her as a “woman”
whom they had treated leniently by giving her one-day punishment.24 The additional
immunity with which the judges have cloaked themselves was in the Justice R.
Veeraswamy case, in which it was declared that judges of SC or HC cannot be
subjected to investigation in any criminal offense of corruption, or an FIR being
registered against them without the prior permission of the CJI. Again it’s not likely that
the CJI will allow such permission, as it can bring shame to the entire Judiciary.

Conclusion And Suggestions

Here are a few suggestions:

1. The Principle of the Rule of Law should be applied to the Judges also.
2. There should be a transparent procedure for the appointment of Judges.
3. Ethics and a Model Code of Conduct must be followed by the Judges.
 4. There should also be an impartial procedure for the removal of judges. There
should be a Separate Commission for the removal of Judges. The process
should not depend only on the Politicians. Though only the legislature has the
law-making power, in reality, we see that the Judiciary is creating so many laws
through judgment. The duty of the Judiciary is nothing but to interpret the Laws
made by the legislature whether the Law is according to the constitution or not.
But the higher Court has given so many judgments which are contrary to the
existing law and the interesting thing is that the maximum number of times the
Court does not declare that the existing law is unconstitutional. Even sometimes
Court said that the existing law is constitutional. But when they are giving
judgment, the judgment is contradictory to the existing law. This attitude of the
judiciary is very harmful to democracy. Judicial Independence in India has put a
question on the Public Accountability of the Judges, which cannot be solved
easily in the absence of concrete laws on the subject. Hence, the creation of new
laws on the issue is the need of the hour for the sake of establishing
transparency in the activity of the Judges.
SNEHA SINGH
LLM BATCH
LOVELY PROFESSIONAL UNIVERSITY PHAGWARA
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