Independence of Judiciary and Judicial Accountability

Independence is secured by the mode of appointment, security of tenure, protected salaries, the bar on legislative discussion (Arts.121, 211), contempt powers and control over subordinate courts. Accountability rests on the Art.124(4) removal procedure, the in-house procedure, and the Veeraswami and RTI decisions.

An independent judiciary is a basic feature of the Constitution. The Constitution secures it not by any single declaration but by a series of concrete structural devices, each of which removes a particular lever by which the executive or legislature might otherwise influence a judge. The counterpart problem is accountability: how a judiciary that cannot be controlled is nonetheless answerable for misconduct.

Safeguards of Independence

Safeguard	Provision	How it protects
Mode of appointment	Arts.124(2), 217(1) as interpreted in the Judges cases	Primacy of the judiciary through the collegium removes the executive's last word
Security of tenure	Arts.124(4), 217(1)(b), 218	A Judge may be removed only for proved misbehaviour or incapacity, by an elaborate parliamentary procedure
Fixed and charged salaries	Arts.125, 221	Charged on the Consolidated Fund, so not subject to the annual vote, and not variable to a Judge's disadvantage during his term
No legislative discussion of conduct	Arts.121, 211	The conduct of a Judge may not be discussed in Parliament or a State Legislature, except on a motion for an address for removal
Power to punish for contempt	Arts.129, 215	Enables the courts to protect their own authority
Bar on practice after retirement	Arts.124(7), 220	Removes the prospect of future professional gain as an inducement
Control over subordinate courts	Art.235	Removes the executive's control over the careers of district judiciary officers
Court's own staff and expenses	Arts.146, 229	Administrative autonomy, with expenses charged on the Consolidated Fund
Restriction on transfers	Art.222 as read in Sankalchand Sheth	A transfer must be in the public interest and never punitive
Unamendable judicial review	Arts.32, 226 as read in L Chandra Kumar	The reviewing jurisdiction itself cannot be taken away
Separation from the executive	Art.50	A Directive Principle given concrete effect by Arts.233 to 235
Oath	Third Schedule	To uphold the Constitution and the laws, and to perform duties without fear or favour, affection or ill will

Why the salary device matters more than it looks: If judicial salaries had to be voted annually like an ordinary demand for grant, the legislature would hold a recurring lever over the courts. Charging them on the Consolidated Fund under Arts.125 and 221 removes the item from the vote altogether, and the further guarantee that they may not be varied to a Judge's disadvantage during his term prevents indirect pressure through pay. The only exception is during a Financial Emergency under Art.360, when the President may direct the reduction of the salaries of Judges.

The limits of Arts.121 and 211: These articles prohibit discussion in the legislature of the conduct of a Judge in the discharge of his duties. The prohibition is not absolute: it yields where a motion for an address for removal is under consideration, which is the only forum the Constitution contemplates for examining a Judge's conduct.

Removal of a Judge

The ground is proved misbehaviour or incapacity, and nothing else. The procedure combines Art.124(4) with the Judges (Inquiry) Act, 1968:

Step	Requirement
1. Motion	Signed by not fewer than 100 members of the House of the People, or 50 members of the Council of States, and presented to the Speaker or Chairman
2. Admission	The Speaker or Chairman may admit or refuse to admit the motion; refusal ends the matter
3. Inquiry Committee	If admitted, a committee of three: a Judge of the Supreme Court, a Chief Justice of a High Court, and a distinguished jurist
4. Charges and hearing	The committee frames charges and gives the Judge an opportunity to be heard, and then reports
5. Vote	If the report finds misbehaviour or incapacity, the motion is taken up and must be passed in each House by a majority of the total membership of that House and by not less than two thirds of the members present and voting
6. Order	The President then makes the order of removal

No Judge has ever been removed under this procedure. In 1993 the inquiry committee found against Justice V Ramaswami, but the motion failed in the House of the People because a large body of members abstained. In 2011 the Council of States passed the motion against Justice Soumitra Sen, who resigned before the other House voted. The record illustrates the central criticism: the standard is high and the process is inherently political, so the mechanism is effective only as a deterrent.

Accountability Mechanisms Short of Removal

**K Veeraswami v Union of India (1991)** Supreme Court of India

Facts: A Chief Justice of a High Court was prosecuted under the Prevention of Corruption Act for possessing assets disproportionate to his known sources of income. He contended that a Judge of the higher judiciary is not a "public servant" within the Act, and that in any event he could be dealt with only by the removal procedure in Art.124(4).

Issue: Whether a Judge of the higher judiciary is a public servant amenable to prosecution for corruption, and what protection attends such a prosecution.

Held: A Judge of the Supreme Court or a High Court is a public servant within the meaning of the Prevention of Corruption Act and may be prosecuted. Art.124(4) provides a mode of removal and does not confer immunity from the criminal law. To protect the judiciary from harassment, however, the Court laid down a safeguard: no criminal case shall be registered against a Judge of the higher judiciary without the prior consultation with, and sanction of, the Chief Justice of India, and if the Chief Justice himself is concerned, the President shall consult other Judges.

Relevance: The leading case on criminal accountability of Judges. State both halves: liability exists, but it is procedurally channelled through the Chief Justice of India.

**C Ravichandran Iyer v Justice A M Bhattacharjee (1995)** Supreme Court of India

Facts: A Bar Association passed resolutions calling upon a Chief Justice of a High Court to resign, on allegations concerning his conduct, and threatened to abstain from work. The propriety of such action, and the appropriate machinery for dealing with allegations falling short of removable misbehaviour, came before the Court.

Issue: Whether a Bar Association may agitate for a Judge's resignation, and what remedy exists for misconduct that does not amount to proved misbehaviour.

Held: Bar Associations have no authority to sit in judgment on a Judge or to demand his resignation by resolution or by abstention from work; such conduct itself undermines the institution. The Court recognised a "yawning gap" between conduct that constitutes proved misbehaviour warranting removal and conduct merely unbecoming of the high office. To fill that gap it approved an in-house procedure, with the Chief Justice of India as the paterfamilias of the judicial family, empowered to receive complaints, to have them examined, and in an appropriate case to advise the Judge to resign or to withdraw judicial work from him.

Relevance: The origin of the in-house procedure. Cite it for the proposition that accountability need not be confined to the all or nothing choice of removal.

**Central Public Information Officer, Supreme Court of India v Subhash Chandra Agarwal (2020)** Supreme Court of India

Facts: Applications under the Right to Information Act, 2005 sought disclosure of the declarations of assets made by Judges, correspondence relating to the appointment of certain Judges, and information concerning an attempt to influence a judicial decision. The Supreme Court's information officer resisted disclosure, contending that the office of the Chief Justice of India was not a public authority and that disclosure would impair judicial independence.

Issue: Whether the office of the Chief Justice of India is a public authority under the Right to Information Act, and how transparency is to be reconciled with judicial independence.

Held: The office of the Chief Justice of India is a public authority within the Act, and is not a separate authority from the Supreme Court. Judicial independence is not a shield against accountability and cannot be pleaded to defeat the statute. Disclosure is nevertheless not automatic: the information sought must be tested against the exemptions in the Act, in particular the personal information exemption, applying a public interest balancing test, and fiduciary and confidentiality considerations were relevant to the collegium's deliberations.

Relevance: The leading modern authority reconciling transparency with independence. Note the formula: independence exists to serve the public, so it cannot be invoked against the public's right to know, but the balance is struck exemption by exemption.

Other mechanisms. The Supreme Court adopted a Restatement of Values of Judicial Life in 1997, a voluntary code of judicial ethics, alongside a resolution requiring Judges to declare their assets to the Chief Justice. The in-house procedure, approved in Ravichandran Iyer and refined subsequently, provides for a preliminary examination by the Chief Justice and, if warranted, an inquiry by a committee of Judges. Legislative attempts to create a statutory framework, notably the Judicial Standards and Accountability Bill, 2010, have lapsed.

Illustrations

Salary reduced during tenure: Parliament reduces the salaries of sitting High Court Judges. This offends Art.221(2). The only exception is a direction under Art.360 during a Financial Emergency.
Legislative criticism: A member seeks to move a discussion in the Assembly criticising a High Court Judge's judgment. Art.211 bars it, unless a motion for an address for removal is under consideration.
Prosecution without sanction: A first information report is registered against a sitting High Court Judge for corruption without any reference to the Chief Justice of India. Applying K Veeraswami (1991), the registration is bad for want of the prescribed consultation, though the Judge enjoys no substantive immunity.
Bar Association resolution: A Bar Association resolves to boycott a Judge's court until he resigns. Applying C Ravichandran Iyer (1995), the resolution is impermissible and the complaint must be routed through the in-house procedure.
Conduct short of removable misbehaviour: A Judge behaves in a manner unbecoming of the office but not amounting to proved misbehaviour. Removal is inappropriate, and the matter falls within the in-house procedure and the "yawning gap" identified in Ravichandran Iyer.
Information sought under the RTI Act: An applicant seeks the correspondence of the collegium. Applying Subhash Chandra Agarwal (2020), the office is a public authority, so the application is competent, but disclosure is decided by applying the statutory exemptions and the public interest test.
Motion refused admission: A removal motion signed by 40 members of the Council of States is presented. It fails at the threshold, the Judges (Inquiry) Act requiring at least 50 in that House.
Committee finds guilt but the motion fails: An inquiry committee reports misbehaviour, but the motion does not obtain the required majorities. The Judge remains in office, as happened in the case of Justice V Ramaswami.

Recall Check

List six constitutional safeguards of judicial independence with their provisions.
State each of the six steps in the removal of a Judge, with the numbers involved.
What is the "yawning gap" identified in Ravichandran Iyer, and how is it filled?

Key Cases

K Veeraswami v Union of India (1991) K Veeraswami v Union of India 1991
Issue: Whether a Judge of the higher judiciary may be prosecuted for corruption.
Rule: A Judge is a public servant under the Prevention of Corruption Act, and Art.124(4) provides a mode of removal but no immunity from the criminal law.
Held: Prosecution is competent, but no case may be registered without prior consultation with and sanction of the Chief Justice of India.

C Ravichandran Iyer v Justice A M Bhattacharjee (1995) C Ravichandran Iyer v Justice AM Bhattacharjee 1995
Issue: Whether a Bar Association may demand a Judge's resignation, and what remedy exists short of removal.
Rule: Bar Associations have no such authority; a gap exists between removable misbehaviour and merely unbecoming conduct.
Held: The resolutions were disapproved and an in-house procedure headed by the Chief Justice of India was approved to fill the gap.

Central Public Information Officer, Supreme Court of India v Subhash Chandra Agarwal (2020) CPIO Supreme Court v Subhash Chandra Agarwal 2020
Issue: Whether the office of the Chief Justice of India is a public authority under the Right to Information Act.
Rule: It is, and judicial independence is not a shield against accountability, though disclosure is subject to the statutory exemptions and a public interest test.
Held: The applications were held competent, to be decided by applying the exemptions individually.

Supreme Court Advocates on Record Association v Union of India (2015) SC Advocates on Record Association v Union of India 2015
Issue: Whether the National Judicial Appointments Commission impaired judicial independence.
Rule: Primacy of the judiciary in appointments is part of the independence of the judiciary, itself a basic feature.
Held: The 99th Amendment and the accompanying Act were struck down, and the collegium revived.

Distinctions

Basis	Independence	Accountability
Object	To insulate the Judge from external pressure	To answer for misconduct and to maintain public confidence
Principal devices	Appointment, tenure, salary, contempt power, Arts.121 and 211	Removal under Art.124(4), the in-house procedure, criminal liability, the Right to Information Act
Risk if overdone	Unanswerable power	Erosion of the very independence that makes adjudication possible
Reconciliation	Independence is instrumental, existing for the litigant and not for the Judge, so it cannot be pleaded against transparency

Basis	Removal under Art.124(4)	In-house procedure
Source	The Constitution and the Judges (Inquiry) Act, 1968	Judicially evolved, approved in Ravichandran Iyer (1995)
Ground	Proved misbehaviour or incapacity	Conduct unbecoming of the office, falling short of that standard
Forum	Parliament, with a statutory inquiry committee	The Chief Justice of India and a committee of Judges
Outcome	Removal from office	Advice to resign, withdrawal of judicial work, or counselling
Frequency of use	Never successfully completed	Used, though its proceedings are not public

Flashcards

What is the sole ground for removing a Judge?

Proved misbehaviour or incapacity (Art.124(4)).

How many members must sign a removal motion?

Not fewer than 100 in the House of the People, or 50 in the Council of States.

Who composes the inquiry committee under the Judges (Inquiry) Act, 1968?

A Judge of the Supreme Court, a Chief Justice of a High Court, and a distinguished jurist.

What majority is required in each House?

A majority of the total membership of the House and not less than two thirds of the members present and voting.

Has any Judge been removed under this procedure?

No. The motion against Justice V Ramaswami failed in 1993, and Justice Soumitra Sen resigned in 2011 before the second House voted.

What do Arts.121 and 211 prohibit?

Discussion in Parliament or a State Legislature of the conduct of a Judge in the discharge of his duties, except on a motion for an address for removal.

How are judicial salaries protected?

They are charged on the Consolidated Fund and may not be varied to a Judge's disadvantage during his term (Arts.125, 221).

When may judicial salaries be reduced?

During a Financial Emergency, under Art.360.

Is a Judge of the higher judiciary a public servant under the Prevention of Corruption Act?

Yes. K Veeraswami v Union of India (1991) so held.

What safeguard attends such a prosecution?

No case may be registered without prior consultation with and sanction of the Chief Justice of India.

May a Bar Association demand a Judge's resignation?

No. C Ravichandran Iyer (1995) held it has no such authority.

What is the in-house procedure for?

Conduct unbecoming of judicial office which falls short of proved misbehaviour, the "yawning gap" identified in Ravichandran Iyer.

Is the office of the Chief Justice of India a public authority under the Right to Information Act?

Yes. Subhash Chandra Agarwal (2020) so held, subject to the statutory exemptions and a public interest test.

Exam Scenario

Problem: A sitting High Court Judge is alleged to have accepted money to decide a case. A first information report is registered against him by the State police without any reference to the Chief Justice of India. The Bar Association of the High Court resolves to boycott his court until he resigns. A member of the State Legislative Assembly moves a discussion criticising the Judge's judgments. Parliament, in the same session, reduces the salaries of all High Court Judges by ten per cent as an economy measure. A journalist applies under the Right to Information Act for the Judge's asset declaration and for the collegium's file relating to his appointment. Advise on each.

Step 1: Separate immunity from procedure on the first information report

Apply K Veeraswami v Union of India (1991), in this order:

No substantive immunity. The Judge is a public servant under the Prevention of Corruption Act, and Art.217 read with Art.124(4) provides a mode of removal, not a bar to prosecution.
But a mandatory procedural safeguard. Registration of a case without prior consultation with and sanction of the Chief Justice of India is bad.
So the defect is curable. The first information report is liable to be quashed, and the State should route the matter through the Chief Justice, after which prosecution may proceed.

Step 2: Send the Bar Association to the in-house procedure

Apply C Ravichandran Iyer v Justice A M Bhattacharjee (1995). A Bar Association has no authority to sit in judgment on a Judge, and a boycott of his court damages the institution rather than vindicating it.

The proper course is a complaint to the Chief Justice of India under the in-house procedure, which exists precisely to deal with allegations of this kind, and which can result in withdrawal of judicial work pending inquiry.

Step 3: Apply Art.211 to the Assembly discussion

The conduct of a Judge in the discharge of his duties may not be discussed in a State Legislature at all. Art.211 admits of no exception at the State level comparable to a removal motion, since removal is a matter for Parliament, not the State Legislature.

The motion is therefore inadmissible.

Step 4: Apply Art.221(2) to the salary reduction

Salaries may not be varied to a Judge's disadvantage during his term, so a general economy measure cannot reach sitting Judges.

The single exception is a direction of the President during a Financial Emergency under Art.360, which is not in operation here. The measure is unconstitutional as applied to serving Judges.

Step 5: Decide the two information requests item by item

Apply Central Public Information Officer, Supreme Court of India v Subhash Chandra Agarwal (2020). The application is competent, since the office is a public authority and independence is not a shield against accountability. But competence is not entitlement.

Item requested	Exemption engaged	Likely outcome
The Judge's asset declaration	Personal information, to be tested against that exemption with a public interest balance	Given the allegation of corruption, the public interest in disclosure is strong
The collegium file on his appointment	Fiduciary and confidentiality considerations	More likely to be withheld in part

Each item must be decided separately rather than by a blanket answer.

Traps in this problem

No immunity does not mean no protection. Veeraswami denies substantive immunity but imposes a mandatory safeguard, so the answer is the missing sanction of the Chief Justice of India, not a claim that the Judge cannot be prosecuted at all.

A boycott is not accountability. The Bar's remedy is the in-house procedure, which can withdraw judicial work pending inquiry, and a resolution demanding resignation has no legal basis.

Art.211 has no State level removal exception. Removal belongs to Parliament, so a State Assembly cannot discuss the Judge's judgments even by way of a motion.

Only a Financial Emergency reaches judicial salaries. Art.221(2) protects salaries during the term, and Art.360 is the single route to a reduction.

Competence under the Right to Information Act is not entitlement. Each item goes through its own exemption and public interest balance, so a blanket answer on both requests is wrong.

Conclusion. The first information report must be quashed for want of sanction but may be reinstituted properly, the Bar's boycott is impermissible and must be replaced by a complaint under the in-house procedure, the Assembly discussion is barred, the salary cut is void as to sitting Judges, and the information requests must be decided exemption by exemption.