LLM Notes: Challenges of Judicial Accountability and Judicial Law-Making in India

 The problem of accountability of judges and judicial law-making in India revolves around the tension between maintaining judicial independence and ensuring judges are responsible for their decisions and conduct.

Key Issues in Judicial Accountability in India

• Lack of Effective Accountability Mechanisms: The Indian judiciary is largely insulated from external accountability. The only formal mechanism for removing judges of the Supreme Court and High Courts is impeachment, which is highly impractical and rarely used due to its complex and political nature. Other mechanisms, such as in-house procedures for complaints against judges, lack statutory backing and have proven ineffective.

• Judicial Independence vs Accountability: Judicial independence is constitutionally protected to ensure impartiality and freedom from executive or legislative interference. However, this independence has sometimes been misinterpreted as immunity from accountability. This has led to a lack of transparency and difficulty in holding judges responsible for misconduct or poor judicial performance.

• Opaque Appointment Process: The process of appointing judges to higher judiciary lacks transparency and public scrutiny. This raises concerns about the criteria used for selection and the ideological leanings of judges, which can affect judicial law-making.

• Judicial Law-Making Without Accountability: The judiciary in India often engages in law-making through judicial activism and interpretation. However, there is no external body to review or check Supreme Court decisions, leading to concerns about unchecked judicial law-making power.

• Fear of Contempt and Lack of Criticism: The judiciary wields the power of contempt of court, which can suppress criticism and public scrutiny, further reducing accountability.

• Asset Declaration and Transparency: Few judges voluntarily declare their assets, and there is no mandatory system for transparency in this regard, limiting public trust.

• Case Pendency and Performance Evaluation: Judges are not accountable to any body for the backlog of cases or judicial efficiency. There is no formal performance evaluation system for judges of the higher judiciary.

Proposed and Existing Measures

• Judicial Standards and Accountability Bill: Various versions of this Bill (2010, 2022) have been proposed to set judicial standards, mandate asset declarations, and establish complaint and disciplinary mechanisms involving committees with judicial and non-judicial members. However, these Bills have faced criticism for potentially compromising judicial independence or lacking clarity on appeal rights and procedural safeguards.

• Calls for a National Judicial Commission: Civil society and legal experts have suggested creating an independent body to oversee judicial accountability while balancing judicial independence.

• Transparency and Reporting: Suggestions include mandating annual reports by the judiciary, clarifying the applicability of the Right to Information (RTI) Act to the judiciary, and bringing the judiciary under the scope of anti-corruption bodies like Lokpal.

Summary

The problem of judicial accountability in India is rooted in the difficulty of balancing the judiciary's independence with the need for transparency and responsibility. The existing constitutional and procedural framework provides limited and ineffective mechanisms for holding judges accountable, especially in higher judiciary. Judicial law-making, while necessary, lacks external checks, raising concerns about unchecked power. Reforms such as judicial standards legislation, transparent appointments, performance evaluations, and independent oversight bodies are advocated to address these challenges without undermining judicial independence.

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