A PRESENTATION IN NATIONAL LAW UNIVERSITY DELHI

1. PRESENTED BYSWATI MOHAPATRA
SWATI UPADHYAY
(KIIT SCHOOL OF LAW)

2. Acc. To lord Denning,
“May not be the judges themselves abuse or misuse their
power? Is it their duty to administer and apply law of the
land? If they should divert or depart from it-and do so
knowingly they would themselves be guilty of the misuse of
power.
So we come against the juvenal question :“Sed quis custodiet ipsos custodies?”(but who is to guard
the guards themselves) was asked in the United States
during President Roosevelt’s New Deal in 1935.”

3. INTRODUCTION
INDEPENDENCE OF JUDICIARY AND ITS MISUSE
 The famous French philosopher Montesquie had first
of all given the idea of the independence of judiciary
 Separation of power
 Three characteristics of a independent judiciary

4. Relating, in the context of India, framers of the
constitution,uphold basic feature of judicial federalism
is its independence.
“There can be no difference of opinion in the House
that our judiciary must be both independent of the
executive and must also be competent in itself. And
the question is how these two objects can be
secured“. by Dr. B.R. Ambedkar
Thus,Judiciary in India enjoys a very significant position
since it has been made the guardian and custodian of
the Constitution.

5. EXAMPLES SHOWING FEARLESSNESS OF
JUDICIARY WHICH HELPED IN BRINGING
LANDMARK JUDGMENTS
The Naroda Patiya Case:"Communal riots are like cancer on Constitutional
secularism and the incident in Naroda Patiya was a black
chapter in the history of the Indian Constitution," the Judge
observed.
2G Scam Case:The Supreme Court has also been monitoring the 2G trial
to ensure that there is no political intervention while the
CBI conducts its investigation.

6. FEW INSTANCES OF TRANGRESSIONS
 Delay in judicial decisions.
 Cash-for-bail Scam
 Scrutiny for the wealth amassed by his close relatives
 Resigned ahead of the commencement of the removal
proceedings
 Charges against Justice Sen

7. Constitutional Provisions For Accountability
 Article 235
 Art. 124 (2) and (4) in respect of judges of the Supreme
Court and Art. 217, procedure is attracted to the
‘removal’ of judges of the High Court

8. The Judicial Standards and
Accountability Bill, 2010:Highlights of the Bill
 The Judicial Standards and Accountability Bill, 2010
requires judges to declare their assets, lays down
judicial standards, and establishes processes for
removal of judges of the Supreme Court and High
Courts.
 Also establishes the National Judicial Oversight
Committee, the Complaints Scrutiny Panel and an
investigation committee.

9. A Critique:IN FAVOUR OF “INDEPENDENCE
OF JUDICIARY”
Statutory laying down of judicial standards in clause-3
affects the potential for impartial and effective
adjudication, violates judicial independence.
How it affects the impartial adjudicationn?
A number of possible examples are foreseeable:
 A judge in favourable of the state in his decisionmaking.
 substantive decisions are given in govt’s favour
 threatening the judges

10. Clause 3(2)(b) prohibits judges from having “close
association with individual members of the Bar,
particularly with those who practice in the same court
in which he is a judge.”

Clause 3(2) (f) prohibits judges from expressing
views in public on political matters except in a
private/academic forum or relating to the
administration of a court or its efficient functioning

11.  IN FAVOR OF ACCOUNTABILLITY:Definition of Misbehaviour: Clause 2(j)
 Clause 33 provides that-“ During the pendency of the
inquiry by the investigation committee, the Oversight
Committee may recommend the stoppage of assigning
judicial work to the Judge concerned in the interest of
fair and impartial scrutiny of complaints or investigation
or inquiry.”
But along with it the elevation and
transfer of the judges should also be stopped.

12. RECOMMENDATIONS:
W.R.T TO THE BILL: The section-3 must be amended ->the strict standards should be loosened
 To make clause 2(j )the clause inclusive.
 The ‘misbehaviour’ term should not be defined statutorily but instead the
power to define it should be vested in the Oversight Committee.
 There should also be a stoppage of any promotion or elevation of the Judge
during the pendency of the complaint as well as a provision to direct the Judge
to proceed on leaves.
 Judgments must be clear and decisive and free from ambiguity, and should not
generate further litigation.

13. IN GENERAL
•
Judges must deliver judgments
within a reasonable time by
following the guidelines given by the
apex court.
•
Many cases are filed on similar
points and one judgment can decide
a large number of cases.
•
Judgments must be clear and
decisive and free from ambiguity.

14. 
Elimination of “Uncle Judges”

Raising judicial salaries can do much to reduce the incentives for
judicial corruption.

Improving internal reviews and internal ethics complaint
procedure.

Appointing highly qualified people to be judges- and continuing
to give them training about the judicial craft.

Strengthening the courts’ enforcement powers and techniques
of enforcing judgments

Strengthening the courts’ enforcement powers .

15. A graphical representation given by a legal scholar “Pimentel” to maintain
a balance between independence and accountability:-

16. CONCLUSION
Lord Denning says“Power tends to corrupt. This is why in civilised society there should be a system of checks
balances-to restrain the abuse of power. It is why in times past we stood firm against the
oppression of King John, and set store by our Magna Carta. It is why we rebelled against the
divine rights of the kings and enacted our bill of rights.......”
Where judges are independent – where they are able to decide cases in a
lawful and impartial manner, free from improper control and influence –
they can play a distinctive and important role in promoting economic
development, effective dispute resolution, rights protections, and other
societal goals. This is the path that can and should be followed.