54. Judicial Accountability II : Independence of the Judiciary

We shall continue a study of how far the Judiciar is accountable in India and we shall also study
A. how the judges are appointed
B. their qualifications
C. their tenure
D. how they can be removed

38 thoughts on “54. Judicial Accountability II : Independence of the Judiciary

  1. 1,It is suggested that to make the Judges honest and efficient, they should be elected and that people should have the right to recall them. Don’t you think that entrusting the man in the street with the right to elect judges and recall them is to expect too much in a country like India where people are led by caste , religion and region? Do you think that it will work?

    1. A system like this will not be good for India. Our judges would then not be able to discharge their constitutional duty without fear or favour. This will lead to communalisation, politicisation of the judiciary.

      But, a judicial commission free from executive interference with a transparent procedure for appointment of judges is very much needed.

    2. If the judges were to be elected by the common man, how different would the judges be from the MPs and MLAs? It would be like asking the Chief Minister to decide the right and wrong. There would be no reason for it not to be caste, region or religion driven. Such a method would never see our dream of ‘honest and efficient judiciary’ come true.

    1. Judges at present are appointed by the President, after consultations with CJI and other judges of the SC as he deems necessary.

      But the meaning of the term “consultation” is controversial due to First, Second and Third Judges case.

      Also, there is no proper convention of seniority being followed in the process of elevation of judges to SC/ or SC judge to the post of CJI.

  2. 3. The Supreme Court decision in the S.P.Gupta (1981 SC 149) case agreed that deviations and the distortions had crept into the system – or had been deliberately injected into it. Yet, they preferred to stand by and affirm the existing method of appointment. The executive took advantage of this. Then came the decision in the Advocates-on-Record Association case in 1993. The majority of the judges in this case now swung to the other extreme. The power of appointment was practically concentrated in the judiciary itself i.e. in the Chief Justice of India and the two senior most judges. The executive was almost entirely deprived of any say in the matter, except where the recommending judges differed among themselves. Has not this made the Judiciary too powerful?

    1. Yes, indeed! This has mdae the judiciary very powerful, without transparency. And corrupt judges protect corrupt-brother-judges.

    1. RTI Act was introduced in order to allow transparency in the system and its efficiency has been evident in various cases. There is no doubt that Citizens Charter also enforces accountability of the officials and improves their effectiveness. Both are measures which enforce transparency in the system, and the results have been fruitful. Why can there not be transparency in appointment or transfer of the judges? Who could misuse such an information? An information is misused when hidden.

  3. 10.One serious problem is the mounting arrears. Cases drag on and on and the parties may die by the time judgment is delivered. Courts have become rat traps. Easy to get in but difficult to get out. Some people may raise the issue of arrears which is undeniably an appalling problem. It is one of the reasons why many people shun the courts while many others exploit it to their advantage – both are negative features. Have you anything to add?

    1. 1. Fill in vacant posts of judicial officers in district courts.
      2. Put an end to arbitrary adjournments.
      3. Encourage mobile courts, alternate dispute redressal mechanisms.
      4. The union and state governments are major litigants in a large number of cases. Improve governance, transparency, the govt must refrain from going to courts every now and then.
      5. Higher courts must not interfere with lower courts for political reasons in high profile cases (stay, bail–>delay etc).

  4. 12.Apart from the fact that only citizens of India can be appointed as Judges, is there any possibility for promotion of HC judges as Judges of the SC?

    1. A notice of a motion for presenting such an address may be given by 100 members of the Lok sabha or 50 members of the Rajya Sabha, the speaker/ Chairman is to constitue a committee consisting of a Supreme court Judge, a Chief justice of a High court and a distinguished jurist.
      The committee can conduct the sufficient enquiry, investiagtion. The report of the committee is laid down before the concerned Houses. If the application made is false then no further action is take place. If the report have postive on the complaint then the report should be passed in the both houses with the two-third majority of total membership of that house and by a majority of not less than two-third majority of total members of Houses present and voting rights has been presented to the President.
      The relevant provision under the Indian constitution is Article 124(4) and 124(5).

    1. 1. Almost no executive interference in appointment of judges.
      2. Salary etc charged on the Consolidated Fund of India.
      3. Security of tenure.
      4. Concept of basic structure.

      1. 5. Conduct of Judges cannot be discussed
        6. Ban on practice of Judges after retirement
        7. No curtail on SC’s jurisdiction
        8. Power to punish in the case of contempt

    1. No. The constitution prohibits any discussion in Parliament w.r.t. the conduct of Judges of the SC, except when an impeachment motion is under consideration of the Parliament

    1. A person who held office as a supreme court judge cannot plead or act in any court or before any authority of India[124(7)].

    1. The Indian SC possesses larger powers than its American counterpart.
      1. The Indian SC is not only a federal court and guardian of the Constitution, but also the highest court of appeal. The American SC’s appellate jurisdiction is confined only to cases pertaining to federal relationship or those relating to constitutional validity of laws and treaties
      2. The American SC unlike the Indian SC has no power to entertain appeal pertaining to a decision made by any court.
      3.The Indian SC is vested with the power to deliver advisory opinion on any question of fact or law referred to it by the President. American SC confines itself only to controversies between parties.

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