Journal of Business, Law & Society Paper

Judicial Ethics and Accountability under the Constitution

Mohit Garg1

Abstract

This paper discussed the judicial ethics and accountability that are there under our constitution to
show how the independence of the judiciary is maintained in our country and how accountable
the judiciary is. It discusses the procedure of the appointment of Judges and how it has changed
over the period of time in order to ensure better transparency. It further discusses the procedure
of removal of Judges, the restrictions over discussion in Parliament or State Legislature provided
under article 121 and 211 and the 16 point code of conduct of Judges described as “The
Restatement of Values of Judicial Life”. An accountable and independent judiciary is necessary
for a democratic country.

Introduction

The constitution of India came into force almost 70 years ago. It is the supreme law of the land
as every other law derive its authority from it. It is one of the lengthiest and detailed one. It deals
with almost every aspect whether it be powers of government, the establishment of the courts,
powers of courts etc. The courts in India plays a very important part whether it being solving
disputes between the parties or the interpretation of the constitution and different laws/statutes.
One of the key element of a court is the Judge who disposes of cases and is entrusted with the
power to function the court and interpret different rules and laws. In order to function properly
and in its full efficiency, it is very important for a Judge to do his job diligently and follow some
rules or ethics in order to ensure the rule of law. Ethics and accountability are one of the most
important concepts, which is needed to be there in the judiciary in order to function properly.

Hypothesis

Independence of Judiciary is one of the pillars of democracy. In order to conform to the

democratic principle, it is important that accountability and ethics should be given due regard by

1
Student, Ideal Institute of Management and Technology
Journal of Business, Law & Society Paper

the Judicial Officers. The constitution has tried to maintain the independence of Judiciary but it
has not been achieved in its full sense.

Research Methodology

The research methodology that will be used in this study is doctrinal. A number of books and
literature will be referred to. To be able to gather the latest development and more details into the
topic different websites and article will be referred to. Cases of the Supreme Court and High
Courts will also be studied in order to get a better understanding.

Appointment of Judges

In a democracy, judiciary as the custodian of the rights of people and the constitutional rights
cannot be above the law and the public accountability. To maintain transparency, the spirit of
democracy and the trust of the public in the judiciary, accountability, and ethics are necessary.
Accountability and independence related to each other. In order to have an accountable judiciary,
it is important that it remains independent so that it cannot be influenced by anyone.

In order to ensure the independence of the Judiciary, the appointment of the Judges is the
foremost procedure which needs to be fair and without any governmental influence. As we all
know that currently there is a collegium system under which the names for the appointment are
recommended by a collegium which includes the chief justice of India and four seniormost
puisne Judges of the Supreme Court to the government. But this system was not there right from
the starting. It has developed over a period of time. In order to better understand the reasons
behind this system, it is important to look back at history to understand as to how the system
came into being.

Before the 99th Amendment Act of Constitution

The Provisions for the appointment of Judges of the Supreme Court before the 99th
Amendment of the Constitution were as follows:

The President will appoint the Judges of the Supreme Court. The Chief Justice of
Supreme Court was also appointed by the President with the consultation of the Judges of
the Supreme Court and High Court as he deemed necessary for the purpose. But in
appointing the other Judges he was required to consult the Chief Justice of India. He was
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free to consult such other Judges of the Supreme Court and High Court as he deems
necessary [Article 124(2)]. Under Article 124(2), the president was bound to consult the
Chief Justice of India while appointed the other Judges of the Supreme Court. But he was
not bound to consult anyone while appointing the Chief Justice of India.

The meaning of the term ‘consultation’ in Article 124(2) was decided in S.P. Gupta v.
Union of India2also known as Judges Transfer case. The court held that the ultimate
power to appoint Judges was vested in the Executive and Constitution functionaries had
merely a consultative role and that power of appointment of Judges was “solely and
exclusively” vested in the Central Government.

The judgment had an adverse effect on the independence and impartiality of Judiciary.
Hence it was subsequently challenged in the Supreme Court.

In Supreme Court Advocates on Record Association v. Union of India3, by a 7:2 majority

overruled its earlier judgment and held that in the matter of appointment of Judges of
Supreme Court and High Court, the Chief Justice of India should have primacy. The
court further said that the appointment of Chief Justice of India shall be on the basis of
seniority. It further said that the greatest significance should be given to the opinion of
the Chief Justice of India formed after taking into account the views of two senior-most
Judges of the Supreme Court. It, thus, reduced the individual discretion to the minimum
to ensure that neither political bias nor personal favoritism plays any part in the
appointment.

But, after the 99th Amendment of Constitution, the whole process went under a change. The Act
amended Article 124(2), 127 and 128, and inserted Articles 124A, 124B, and 124C. According
to the amended Article 124(2), every Judge of the Supreme Court shall be appointed by the
President by warrant under his hand and seal on the recommendation of NJAC (National Judicial
Appointment Commission). The proviso of consultation with the Chief Justice of India in case of
appointment of other Judges of the Supreme Court and High Court by the President was omitted.

2
AIR 1982 SC 149.
3
(1993) 4 SCC 441.
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No consultation was required by the President with the Judges of the Supreme Court and High
Court.

Soon, the amendment was challenged in the Supreme Court in the case of Supreme Court
Advocates-on-Record Association v. Union of India4. The Supreme Court declared the
Constitution (Ninety-ninth) Amendment Act, 2014 and National Judicial Appointments
Commission Act, 2014 unconstitutional and void. The system of appointment of Judges of
Supreme Court, Chief Justices and Judges to the High Courts and transfer of Chief Justices and
Judges of the High Courts from one High Court to another as existing prior to the Ninety-ninth
Amendment Act, 2014 to be operative. The court ordered the case to be listed to consider the
introduction of appropriate measures, if any and for an improved working of the “collegium
system”. The case also laid down the guidelines for the improvement of the collegium system
and make it more transparent.

The current collegium system consists of Chief Justice of India and four senior-most Judges of
the Supreme Court. The collegium sends the recommendations of the names to the Government
for the appointment. In the same way, the Government also sends some of the proposed names to
the collegium. The Government on receiving the recommendations from the collegium, do the
facts checking and investigate the names, and resends the file to the collegium. After the
consideration of the name and suggestions made by the Government, the collegium sends back
the file to the Government for its final approval. If in case, the collegium sends back the same
name then Government is bound and is required to give the assent to the same. But there is no
time limit fixed under which such assent is required to be given by the Government. Due to the
same, the files with the recommended names just keep lying on the tables gathering dust. This is
why the appointment of Judges takes such a long time.

On October 3, 2017, the collegium published a resolution to make public all its decisions related
to the appointment and transfer of judges on the court’s website in order to bring more
transparency into the system.

Though the new system on a glossary glance looks to be transparent and free from any political
bias and personal favoritism it is not so transparent. In one of the case, the candidate’s

4
(2015) AIR SCW 5457
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nomination was rejected and statement of rejection was “keeping in view the material on record,
including the report of Intelligence Bureau [IB] he is not found suitable for elevation to the High
Court Bench.” The material, based on which the candidate was rejected, was not made public. In
another case, two of the consultee judges objected the name of the candidate for the elevation to
the High Court even though, his name was recommended earlier as well by Chief Justices of
different High Courts. It was not revealed why the objection was made.5

There is still the need for more transparency and accountability in the system. There is still a big
void between appointment and, accountability and transparency which is needed to be filled in
order to ensure ethics and accountability on part of the Judiciary.

Removal of Judges

The removal of Judges should be not on an arbitrary basis a transparent procedure, free from any
influence is required to be maintained in order to ensure the independence of the judiciary.

Judges (Inquiry) Act, 1968

In 1968, the Parliament passed Judges Inquiry Act under which the investigation intro
misbehavior or incapacity of judge shall be done by a Committee constitutes by the
Speaker of the Lok Sabha or the Chairman of the Rajya Sabha, as the case may be, if the
Speaker or Chairman admits the motion after consulting such persons as he thinks fit and
after considering such materials, if any, as are available to him. The Act makes provision
for a Committee consisting of three members. One member shall be among from the
Chief Justice and other Judges of the Supreme Court. One member shall be chosen from
among the Chief Justices of High Court. One member shall be a person who is in the
opinion of the speaker or Chairman, as the case may be, a distinguished jurist. If the
motion before the both the Houses is laid on the same day, a joint committee of Speaker
and Chairman shall be constituted once the motion has been admitted in both the houses
and shall cause the report to be laid before both the Houses. The committee is required to
frame definite charges against the Judge on the basis of which investigation is to proceed.
The Judge shall be given the opportunity of presenting his written statement, hearing and

5
Suhrith Parthasarathy, Collegium and transparency The Hindu (2017),
https://www.thehindu.com/opinion/lead/collegium-and-transparency/article19956961.ece (last visited Feb 10, 2019).
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cross-examination of witnesses. If the report by the committee finds the Judge guilty,
further proceedings shall be taken in accordance with the provisions of clause (4) of
Article 124 or in accordance with that clause read with Article 218. The misbehavior or
incapacity shall be deemed to have been proved and an address for the removal of the
Judge shall be presented to the President by each House of Parliament in the same session
in which the motion has been adopted. The power of the Civil Court has been given to the
committee for certain purposes.6

Article 124 states that a Judge may be removed from his office by an order of the President on
the grounds of proved misbehavior or incapacity. The order can only be passed after it has been
addressed in the same session to both Houses of Parliament. The order must be supported by a
majority of total membership of that Houses and also by a majority of not less than two-third
members of that House present and voting.

Restriction on discussion in the Parliament and the Legislature.

Article 121 of the Constitution of India states that:-

“No discussions shall take place in Parliament with respect to the conduct of any Judge of
the Supreme Court or of a High Court in the discharge of his duties except upon a motion
for presenting an address to the President praying for the removal of the Judge as
hereinafter provided”7

Article 211 of the Constitution of India states that:-

“No discussion shall take place in the Legislature of a State with respect to the conduct of
any Judge of the Supreme Court or of a High Court in the discharge of his duties.”8

The Articles restricts the Parliament and the Legislature from having any discussion with respect
to the conduct of any Judge of the Supreme Court and High Court in the discharge of his duties.

Article 211 is absolute in nature and does not have any exception to it whilst Article 121 is not
absolute as it has an exception. Article 121 allows for the discussion in the case when a motion

6
Judges (Inquiry) Act, 1968, Sections 3, 4, 5, 6, 7, 8, 9, 10, 11.
7
Article 121, The Constitution of India
8
Article 211, The Constitution of India
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for presenting an address to the President praying for the removal of the Judge has been
introduced.

The object and the intent behind these Articles are to ensure the independence of the judiciary
and keep it separate and away from any political influence.

Judicial Ethics

For ensuring the proper conduct of the higher judiciary, on 7th May 1997, a 16 point code of
conduct described as “The Restatement of Values of Judicial Life” came into force.

The 16 points of the code of conduct are as follows:-

1. Justice must not merely be done but it must also be seen as done. The behavior and
conduct of members of the higher judiciary must reaffirm the people’s faith in the
impartiality of the judiciary. Accordingly, any act of a Judge of the Supreme Court or a
High Court, whether in an official or personal capacity, which erodes the credibility of
the perception has to be avoided.
2. A Judge should not contest the election of any office of a Club, society or other
association; further, he shall not hold such elective office except in a society or
association connected with the law.
3. Close association with individual members of the Bar, particularly those who practice in
the same court shall be eschewed.
4. A Judge shall not permit any member of his immediate family to, such as spouse, son, or
daughter, son-in-law, or daughter-in-law, or any other close relative, if as member of the
Bar, to appear before him or even be associated in any manner with a case to be dealt
with by him.
5. No member of his family, who is a member of the Bar, shall be permitted to use the
residence in which the judge actually resides or other facilities for professional work.
6. A Judge should practice a degree of aloofness consistent with the dignity of his office.
7. A Judge shall not hear and decide a matter in which a member of his family, a close
relation or a friend is concerned.
8. A Judge shall not enter into a public debate or express his views in public on political
matters or on matters that are pending or are likely to arise for judicial determination.
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9. A Judge is expected to let his judgment speak for themselves. He shall not give an
interview to the media.
10. A Judge shall not accept gifts or hospitality except from his family, close relations and
friends.
11. A Judge shall not hear and decide a matter in which a company in which he holds shares
is concerned unless he has disclosed his interest and no objection to his hearing and
deciding the matter is raised.
12. A Judge shall not speculate in shares, stocks or the like.
13. A Judge should not engage directly or indirectly in trade or business, either by himself or
in association with any other person. (Publication of legal treaties or any activity in the
nature of a hobby shall not be constructed as trade business).
14. A Judge should not ask for or accept contributions or otherwise actively associate himself
with the raising of any fund for any purpose.
15. A Judge should not seek any financial benefit in the form of a perquisite or privilege
attached to his office unless it is clearly available. Any doubt in this behalf must be got
resolved and clarified through the Chief Justice.
16. Every Judge must at all times be conscious that he is under the public gaze and there
should be no act or omission by him which is unbecoming of the high office he occupies
and the public esteem in which the office is held.

It is just an illustrative code of what is expected from a judge and not an exhaustive one.

Conclusion

Though there is a number of provisions for the accountability and independence of Judiciary in
the Indian Constitution and a model code of conduct still the objective of independence of the
judiciary has not been achieved in its full sense.