Volume 4, Number 2, April – June’ 2015

ISSN (Print):2319-9059, (Online):2319-9067

INDEPENDENCE AND ACCOUNTABILITY OF JUDICIARY: AN OVERVIEW

ABSTRACT

Judiciary as much as organ of the government machinery as the legislators and executive. The judiciary is the last resort of the
common person for seeking justice when his legal rights are infringed. Judiciary independence is the priceless possession of
any country under the rule of Law. The protection of judiciary independence has been the focus of international resolution, the
most prominent of which are: (1) The United Nations‘ basic principles on the independence of judiciary and the role of
lawyers, 1990; (2) The Bangalore principles of judicial conduct, 2003; (3) A common set of standards adopted by Asia Pacific
Chief Justices, 1995; (4) Beijing Statement of Principles of the independence Judiciary. In India, independence through
separation of judiciary from the executives has been achieved in large numbers under Article 50 of the Constitution of India.
The National Judicial Appointment Act, 2014 in India is a step forward to minimize political interference and sustain the
independence and integrity of judiciary in matters relating to appointment of judges to the higher courts. In other parts of the
world U.K., U.S.A, and Australia recognizes judiciary independence to serve and protect not the governors but the governed.
The power of the court is very wide. The reality is that ‗the greater the power the more dangerous the abuse‘. There should be
some sorts of adequate checks and control on the power of the judiciary and judges. They should be made fully accountable to
the society for the mistakes committed by them. Some mechanisms in this regard is imperative in the interest of the society,
hence this paper strives to do the same.

KEYWORDS

Judiciary, Law, Independence etc.

INTRODUCTION

The spirit behind the constitution is a product of three distinct aspirations of the people - liberty, justice and socialism. But, it is
the justice which is the key-stone of the Constitution. The Preamble contains the resolve of the people of India to secure to all its
citizens justice – social, economic and political. It assures justice to the individual by declaring the basic human rights as
fundamental in Part III and justice for the masses by giving directives regarding the policies of the State. The Directive Principles
contained in Art. 39-A requires the State to ensure, by suitable legislation or schemes or in any other way that the opportunity for
securing justice is not denied because of a disability. The judiciary is expected to play a crucial role under the Constitution and is
the last resort of the common person for seeking justice when his legal rights are infringed. It is therefore, essential to consider the
significance of the judicial system i.e., independence of judiciary and its accountability.

INDEPENDENCE OF JUDICIARY

Independence of judiciary is most essential and vital attribute of the judicial function in a democratic system. Judicial
independence means the judges must be free to exercise their judicial power without interference from litigants, the state, the
media or powerful individuals or entities, such as large companies. This is an important principle because judges of a decide
matters between the citizens and the state and between citizens and powerful entities. Judicial independence is the priceless
possession of any country under the rule of law. Rule of law and independence of judiciary go hand in hand. No one can think of
rule of law without an independent judiciary.

Judicial independence in India

Independence of the judicial system is a cornerstone of the basic structure of the Constitution of India, which enhances the faith of
‗we the people of India‘ in the ―least dangerous branch of the government‖. Independence of the judicial system imbues the
prosperity and sustenance of democracy in India. Independence of the judicial system flourishes if it is free from fear or favour or
internal and external influences or power and purse or pliability; it embellishments rule of law which is a central component to
reform governance in the interest of growth, development, sustained economic growth and poverty alleviation. In India,
independence through separation of judiciary from the executive has been achieved in a large measure under the direction of
Article 50 of the Constitution. To keep the subordinate judiciary free from influence of the executive, the provisions in Chapter IV
of the constitution empower the High Courts to control over the District Courts and Subordinate thereto. A Judge of the Supreme
Court or High Court need not fear if he incurs the displeasure of the Government as the Government cannot curtail his tenure even
by law1. Article 121 provides that no discussion shall take place in Parliament with respect to conduct of a judge of the Supreme

2
Professor, P.G. Department of Law, Berhampur University, Orissa, India, bhagirathi.panigrahi1960@gmail.com

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 Volume 4, Number 2, April – June’ 2015
ISSN (Print):2319-9059, (Online):2319-9067
PEZZOTTAITE JOURNALS SJIF (2012): 3.946, SJIF (2013): 5.017, SJIF (2014): 5.912

Court or of a High Court in the discharge of his duties except upon a motion for impeachment. Similar discussion is barred in
State Legislature under Article 211 of the Constitution. The independence is further strengthened by empowering the Court to take
immediate action for contempt of court against those who want to influence them and interfere with ordinary course of justice.
Section 228 of the Penal Code empower the Court to take action for contempt against contempt committed outside the court can
be suitably dealt with under the provisions of the Contempt‘s of Courts Act, 1971. Besides the Judicial Officers Protection Act,
1850 gives due protection in the Judges for their acts in the discharge of their judicial functions. The founding authors of the
Constitution conceived to balance the power of appointment of judges to the higher judiciary. Dr. B. R. Ambedkar expressed the
views on the balanced-power approach between the executive– legislature on the one side and the judiciary on the other side.
However, unfortunately from controversy arose in respect of appointment of judges after a reference made to the Supreme Court
of India by the President under Art. 143 of the Constitution of India, inviting opinion of the Supreme Court in respect of certain
questions and the Supreme Court decide the same on 28.10.1998. 2 The Supreme Court‘s nine Judge Bench penned down its
advisory opinion on the Judicial Supremacy as follows:

 ―The expression consultation with the chief Justice of India requires consultation with a plurality of Judges in the
formation of the opinion of the Chief Justice of India. The sole individual opinion of the chief Justice of India does not
constitute consultation within the meaning of the constitutional provisions.

 Recommendations made by the Chief Justice of India without complying with the norms and requirements of the
consultative process are not binding upon the government of India 3

In this respect, a million dollar vital question remains as to how the penal of would be judges regarding which consultation with
the Chief Justice of India would take place, should be prepared. The process is well known as to how the panel is prepared. For
Supreme Court judges they are appointed either by elevation of the High Court judges or by selection of Supreme Court
Advocates with 10 years of practice in the Supreme Court. In the same day, High Court judges are appointed either by elevation
of judges of various District Courts or by selecting Advocates with 10 years Bar Experience in the High Court. It is expected that
the process of selection must be just, fair and transparent.

National Judicial Appointment Commission: A New Avatar

The National Judicial Appointment Commission (NJAC) vide 99th constitutional amendment 2014 and the National Judicial
Appointment Act, 2014 is a step forward to minimize political interference and sustain the independence and integrity of
judiciary in matters relating to appointment of judges to the higher courts. The NJAC Act, 2014 is passed in pursuance of the
newly inserted Article 124A and 124B, which establishes and gives to the National Judicial Appointments Commission
constitutional status, while at the same time describing its composition, functions and powers. Under the NJAC Act, the procedure
to be followed for appointments to the High Court as well as the Supreme Court is clearly spelt out. Most importantly, in
furtherance of the newly inserted Article 124C, the NJAC Act, vests both the Central Government as well as the Commission
itself, with rule making power to further define the manner in which appointments are to be made.

The constitution of the National Judicial Appointment Commission consisting of (a) the Chief Justice of India, Chairperson, ex
officio; (b) two other senior Judges of the Supreme Court next to the Chief Justice of India, Members, ex officio; (c) the Union
Minister of Law and Justice, Member, ex officio; (d) two eminent persons to be nominated by the committee consisting of the
Prime Minister, the Chief Justice of India and the Leader of the Opposition in the House of the People or where there is no such
Leader of Opposition, then, the Leader of the single largest Opposition Party in the House of the People, Members, and one of the
eminent person shall be nominated from amongst the persons belonging to the Scheduled Castes, the Scheduled Tribes, Other
Backward Classes, minorities or Women for a period of three years. Clause (2) of Article 124A states: No act or proceedings of
the National Judicial Appointments Commission shall be questioned or be invalidated merely on the ground of existence of any
vacancy or defect in the constitution of the Commission. Article 124B enjoins the functions of NJAC, namely, ―It shall be the
duty of the National Judicial Appointments Commission to (a) recommend persons for appointments as Chief Justice of India,
Judges of the Supreme Court, Chief Justice of High Courts and other Judges of High Courts; (b) recommend transfer of Chief
Justices and other Judges of High Courts from one High Court to any other High Court; (c) ensure that the person recommended is
of ability and integrity.

____________________________________________
1
Article 217 of the Constitution provides, The Judge of the High Court once appointed are entitled to hold office until he attain the
age of 62 years and similarly a Judge of the Supreme Court until he attains the age of 65 years. Article 146(3) and 229(3) enjoin
that administrative expenses including all salaries, allowances and pensions shall be charged upon the Consolidated Fund of India.
Article 222 states that the President may, after consultation with the CJI, transfer a Judge from one High Court to any other High
Court. Article 224 authorizes the President to appoint additional and acting Judges in the High Courts if there appears to be
temporary increase in the business of a High Court or arrears of work in a High Court.
2
AIR 1999 SC 1
3
Id. at p. 22.

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 Volume 4, Number 2, April – June’ 2015
ISSN (Print):2319-9059, (Online):2319-9067
PEZZOTTAITE JOURNALS SJIF (2012): 3.946, SJIF (2013): 5.017, SJIF (2014): 5.912

International Resolutions

The protection of judicial independence has been the focus of international resolutions, the most prominent of which are:

 The ‗United Nations Basic Principles on the Independence of the Judiciary and the role of lawyers‟. These were
endorsed by the UN General Assembly in 1985 and 1990. 4

 The ‗Bangalore Principles of Judicial Conduct‘. They were endorsed in 2003 and set out a code of judicial conduct.
They are intended to complement the UN‘s Basic Principles on the Independence of the Judiciary and the role of
lawyers. The first of its principles states, ―Judicial independence is a prerequisite to the rule of law and a fundamental
guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and
institutional aspects5

Other bodies have endorsed judicial independence. For instance, in 1995, the group of Asian – Pacific Chief Justices adopted a
common set of standards for the promotion and protection of their judicial institutions, which included judicial independence.
These are known as the ‗Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA region‘6

Judiciary independence in England

The fundamental concept of judicial independence came into being in England and Wales in 1701 with the enactment of the Act
of Settlement. This statute formally recognized the principles of security of judicial tenure by establishing that High Court Judges
and Lords Justice of Appeal hold office during good behaviour. Appropriate and formal mechanisms had to be in place before a
judge could be removed.

Before 1701, senior judges held office at the sovereign‘s pleasure and there are many examples of judges being removed from
office for failing to decide cases in accordance with the wishes of the King or Queen. Since the Act of Settlement, it has only been
possible to remove a senior judge from office through an Address to the Queen agreed by both Houses of Parliament.

 In a Crown Court criminal trial in England and Wales:

 The judge does not decide guilt or innocence. That decision is made by the jury, which is made up of resident
citizens and registered electors selected at random.

 If the jury decides that the defendant is guilty, it is then the task of the judge to pass sentence. In doing so the
judge will have to take into account the sentencing scheme, which has been enacted in legislation by
Parliament, and the various sentencing guidelines, which have been agreed and published by the Sentencing
Guidelines Council. The Guidelines and the decisions of the Court of Appeal (Criminal Division) set out key
considerations which must be taken into account by the judge when determining any sentence and provide a
framework of appropriate sentences for the judge to apply. The judge is entitled to depart from the guidelines
or a decision of the Court of Appeal (Criminal Division) only when the interests of justice require such a
departure.

 Any sentence that is unduly harsh or in the case of offences that are more serious is unduly lenient may be
corrected by the Court of Appeal, on an appeal by the convicted person or a reference to the Court of Appeal
by the Attorney General.

 In civil cases any errors by the trial judge may also be corrected by the Court of Appeal and

 In cases raising important points of law, the decisions of the Court of Appeal may be appealed to the Supreme Court. 7

Judiciary Independence in Australia

Judicial independence does not exist to serve the judiciary; nor to serve the interests of the other two branches of government. It
exists to serve and protect not the governors but the governed.8
____________________________________
4
www.abanet.org/rol/docs/judicial_reform_un_principles_indepencence_judiciary_english.pdf
5
www,un.org/docs./ecosoc/documents/200.resolutions/Resolutions2006-23.pdf
6
www.legislationonline.com
7
Judicial Independence and Parliaments, Dame Mary Arden DBE, in Ziegler, Baranger & Bradley, Constitutionalism and the Role
of Parliaments (Hart Publishing, 2007)
8
www.hcourt.gov.au/assets/publications/speeches./former-justices/brennanj/brennanj_ajc

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 Volume 4, Number 2, April – June’ 2015
ISSN (Print):2319-9059, (Online):2319-9067
PEZZOTTAITE JOURNALS SJIF (2012): 3.946, SJIF (2013): 5.017, SJIF (2014): 5.912

The judiciary does not require the power of the purse or the power of the sword to make the rule of law effective, provided the
people it serve have confidence in the exercise of the power of judgment. In earlier times in this century, the institutions of
judiciary were not questioned and the work of the judiciary was not well understood. Judges were the revered symbols of justice.

You may remember Lord Devlin's observation that "the English judiciary is popularly treated as a national institution, like the
navy, and tends to be admired to excess"9. That is no longer the position in Australia as Madam Justice McLachlin said at a recent
Commonwealth Law Conference. "Judging is not what it used to be. Judges are more important now; judges are more criticized.
10
And judges face more difficult tasks than they ever have before faced in the history of the Commonwealth."

Judiciary Independence in the United States of America

Article-III of the USA constitution states: ―The judicial power of the United States shall be vested in one Supreme Court, and in
such inferior Courts as the Congress may from time to time ordain and establish. ―The article goes on to describe what kinds of
cases the ―judicial power‖ would be empowered to hear. The article suggests that the framers wanted the judicial branch to serve
an independent role free from political pressure. It stated that judges should ―hold their Offices during good Behaviour.‖ These
meant judges could only be removed for misconduct. It also stated that judges should receive a salary that could not be reduced
during the time they held office. Though the framers created an independent judiciary in Article III, they also included some
checks and balances against too much judicial power. The Constitution gave the president the power to appoint judges with the
―Advice and Consent of the Senate.‖ It gave Congress the power to create or eliminate lower federal courts and determine what
cases could be appealed to them11. In recent years, proposals have been made to limit the jurisdiction of federal courts in certain
matters. The Senate has also shown its willingness to carefully scrutinize presidential appointments to the Supreme Court and to
the lower federal courts under its ―advice and consent‖ power.

Judiciary Independence in other countries

In other parts of the common law world, courts have been expected to protect minority and individual rights in situations that were
once not thought to be justiciable. In Canada, the Charter of Rights and Freedoms has conferred on the Courts a wide jurisdiction
touching issues that were once reserved to the political branches of government. In New Zealand, a nation with a unitary
Constitution, an appellate judge has suggested, "some common law rights presumably lie so deep that even Parliament could not
override them".12

ACCOUNTABILITY OF JUDICIARY

Judiciary is as much as organ of the Government machinery as the legislature and executive. The former, therefore, has to be no
less accountable in the people as the latter. The power of the Court is very wide. Edmund Burke in a speech in the House of
Commons said, ―The greater the power, the more dangerous the abuse‖. Reality is that the judicial process in fact operates in such
a way that it is far from meeting its constitutional obligation specially justice to the poor.

In ancient India, a potent check on monarchy was exercised by Dharma. There are numerous texts in Dharan Shastra which
declares that the king will not only obtains the goodwill of his subjects but also attain heaven for proper administration of justice
and for miscarriage of justice, he will not only lose the goodwill of his subjects but also incur punishment for sin. 13 Religion
having lost its hold on the people, a system of checks and balance operating on the various organs of the State invested with
power has been considered imperative in the interest of the society. 14

Judges who are also human beings deliver the judgments, hence it cannot be said that judges are infallible and make no mistake or
they have no shortcomings. Supreme Court in Prativa Rani v. Saroj Kumar15 has observed that sometimes the law which is meant
to impart justice and fair-play to the citizens or people of the country is so torn and twisted by a morbid interpretative process that
instead of giving heaven to the disappointed and dejected litigants, it negatives their well-established rights in law. Allahabad
High Court has indicated that many of the judges of the subordinate judiciary are not discharging their duty properly and are not
speedily disposing of the cases.16 In ancient times the judge was to be fined, if he made unnecessary delay in discharge of his
duty, including malafide postponement of cases and for imposing unjust fine. 17
_____________________________________
9
Ibid
10
Ibid
11
www.en.wikipedia.org/wiki/Judicial_independence
12
Sir Robin Cooke P in Taylor v New Zealand Poultry Board [1984] NZLR 394 at 398.
13
Varadachariar, The Hindu Judicial System, P. 122.
14
Raina, S.M.N. Law Judges and Justice, 1979, P. 3.
15
AIR 1985 SC 628
16
Ayodhya Sahu v. District Judge, Jaunpur, 1997 Allahabad High Court, 1220
17
See Legal and Constitutional History of India, Vol. 1, 1990 (Edn.), PP. 382-383

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 Volume 4, Number 2, April – June’ 2015
ISSN (Print):2319-9059, (Online):2319-9067
PEZZOTTAITE JOURNALS SJIF (2012): 3.946, SJIF (2013): 5.017, SJIF (2014): 5.912

CONCLUSION

The independence and impartial judiciary is the price of democracy. Indeed, it is one of the estates of democracy. Effective role of
judiciary is called for to build up a dynamic society. In this connection, the most important weapon in the hands of judiciary to
maintain its independence is the provision of the constitution. However, in the ultimate judiciary independence rests on the caliber
and their character of the judges themselves. There should be a some sort of adequate checks and control on the power of
judiciary without which it may lead misuse of power. Judges should be made fully accountable to the society, for the mistake
committed by him. Some mechanism in this regard is imperative in the interest of the society. The role of the judiciary may
become more transparency and accountability in the public functionaries with the following suggestions is carried out:

 Free criticism about the judicial system or to the judges should be welcomed and it should not constitute contempt so
long as such criticism does not hamper the administration of justice.

 For good judiciary selection of good, honest with extraordinary prudence judges is very important. This can be achieved
by means of scientific method of legal education, giving importance to practical aspects and by proper selection of good
students to pursue legal education. The legal education in India is now is at cross roads and far below the standards
when compared to legal education in other countries therefore the policy makers must think of suitable steps to ensure
better standards of legal education so that the quality of would be judges of High Courts and Supreme Courts can be
assured.

 The judicial ombudsmen may be appointed with sufficient power, which can play an important role to check the
judiciary misusing its power

REFERENCES

1. Retrieved from http://www.asianlii.org/asia/other/CCJAPRes/1995/1.html

2. Retrieved from http://www.hcourt.gov.au/assets/publications/speeches/former-justices/brennanj/brennanj_ajc.htm

3. Retrieved from http://www.article2.org/mainfile.php/0205/104/

4. Retrieved from http://www.article2.org/mainfile.php/0205/104

*****

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