Judicial Accountability in India: Balancing Independence with  Transparency 

Abstract 

The independence of the judiciary is a constitutional imperative in India; yet absolute insulation without mechanisms for  accountability corrodes public trust. This article examines the evolution of judicial appointment and accountability doctrines in India,  evaluates the structural and procedural safeguards (and lacunae) that govern judicial conduct and removal, and proposes reforms  that preserve judicial independence while introducing meaningful transparency and accountability. The analysis foregrounds  landmark decisions — S.P. Gupta, the Second and Third Judges’ Cases, and the NJAC litigation — the statutory framework for  removal (the Judges (Inquiry) Act, 1968), and historical impeachment efforts to explain why the present balance is fragile and how it  can be strengthened. 

Introduction 

An independent judiciary is indispensable to the rule of law. The Constitution of India shields judges from executive caprice through  tenure protections and a rigorous removal procedure. However, independence does not imply unaccountability. In a democracy,  mechanisms that make judicial functioning open to scrutiny — without allowing partisan pressures to dictate judicial composition or  decisions — are necessary to preserve legitimacy. This article traces the jurisprudential development of judicial selection and  accountability in India, critiques the current collegiate system for its opacity, and suggests reforms that reconcile independence with  transparency. 

A short constitutional and jurisprudential history 

From executive primacy to the collegium 

The constitutional text (Articles 124 and 217) framed appointments as Presidential acts made after “consultation” with the Chief  Justice of India (CJI) and other judges. In S.P. Gupta v. Union of India (the “First Judges’ Case”), the Court interpreted  “consultation” to permit substantial executive discretion, emphasising democratic accountability via elected branches.  

That approach changed dramatically with Supreme Court Advocates-on-Record Association v. Union of India (the “Second Judges’  Case” — 1993), where a nine-judge Bench held that the “consultation” requirement must be read so as to secure judicial primacy.  The collegium — initially the CJI plus two senior-most Supreme Court judges (later extended) — emerged from this judicial re reading as the mechanism for recommending appointments. 

In In re Special Reference No. 1 of 1998 (the “Third Judges’ Case”), the Court refined the system, expanding the collegium and  elaborating procedures, consolidating the judiciary’s decisive role in appointments.

These three decisions together reshaped the landscape: functionally, the judiciary acquired primacy in selecting its members to  shield judicial composition from political capture — a major advance for independence, but one that raised concerns about  transparency and accountability. 

The NJAC episode: a flashpoint 

Parliamential attempts to redesign appointments culminated in the Constitution (Ninety-Ninth Amendment) Act, 2014 and the  National Judicial Appointments Commission Act, 2014 (NJAC), which proposed a five-member commission including the Law  Minister and two eminent persons. The Supreme Court (by majority) struck down the constitutional amendment and NJAC as  violative of the basic structure doctrine — holding that judicial primacy in appointments and the independence of the judiciary were  non-derogable features of the Constitution. manupatracademy.comGlobal Freedom of Expression 

Significantly, the Court did not repudiate the deficiencies in the collegium; instead it invited reforms and framed four areas for  improvement: (i) transparency of collegium functioning, (ii) objective eligibility criteria, (iii) a complaints/objections mechanism, and  (iv) consideration of a collegium secretariat. The post-NJAC hearings and supplementary directions sought to make the collegium  less opaque while preserving judicial primacy.  

Mechanisms of accountability: the removal process and its limits Constitutional removal and the Judges (Inquiry) Act, 1968

The Constitution prescribes removal of a superior court judge by an address of both Houses of Parliament on the ground of “proved  misbehaviour or incapacity.” Parliament’s power to regulate procedure led to the Judges (Inquiry) Act, 1968, which sets out the  inquiry committee process and parliamentary procedure for presenting an address for removal. The purpose is clear: to protect  judges from whimsical dismissal while permitting removal in grave cases.  

Practical difficulties: politics, evidentiary thresholds, and precedent 

In practice, the impeachment route has proved unwieldy and rare. The motion against Justice V. Ramaswami (early 1990s) failed in  Parliament despite adverse findings by an inquiry committee, illustrating political constraints and the difficulty of mustering the  required special majority. Subsequent episodes (e.g., the Rajya Sabha vote in the Justice Soumitra Sen matter, and resignations or  withdrawals in other cases) underscore that purely parliamentary remedies are politically fraught and thus rarely produce final  removal. 

Internal mechanisms and the “in-house” procedure 

Over time, the judiciary adopted internal, informal procedures to handle allegations of misconduct: in-house complaints, internal  committees, or consensual arrangements that result in quietly negotiated resignations. While these avoid public spectacle and  protect institutional dignity, they suffer from opacity, lack of standardized procedure, and potential for inconsistent outcomes. The  absence of a robust, transparent disciplinary mechanism short of impeachment creates a governance vacuum: misconduct may go  unpunished, or be resolved in ad hoc ways that undermine public confidence. 

Why the balance has strained: risks of opacity and weak accountability

1. Insularity and perception of favouritism. Closed collegium deliberations and internal selection norms create a  perception (and sometimes allegations) of nepotism, parochialism, and lack of diversity among appointees. Even  perception risks legitimacy.  
2. No proportional disciplinary ladder. The only formal removal mechanism is impeachment; there is little authoritative,  transparent framework for censure, suspension, or other corrective measures short of removal. This binary (in-office vs.  removal) is disproportionate and impractical.  
3. Politicisation of accountability. Because parliamentary removal is a political process, genuine accountability can be  thwarted or hijacked by partisan considerations, as the Ramaswami episode demonstrated. This risk cuts both ways: it  argues for judicial insulation, yet it also shows that absent channels, misconduct can persist. 
4. Lack of standardised, publicizable criteria. The collegium’s subjective assessments lack published eligibility criteria or  reasoned explanations in many cases, making it difficult to evaluate choices and undermining predictability. The Supreme  Court has invited objective eligibility standards but sustained collegial primacy. 

Comparative and doctrinal considerations 

Two principles must be harmonised: 

• Independence — shield the judiciary from executive/legislative capture to ensure impartial adjudication; and
• Accountability — ensure judges are subject to standards and remedy when they stray. 

Many constitutional democracies solve this by (a) clear statutory disciplinary frameworks administered by an independent body, (b)  transparent selection criteria and reasoned disclosures about appointments, and (c) graduated sanctions short of removal  (reprimand, temporary suspension, compulsory retirement in some contexts). India’s unique constitutional history and the basic structure jurisprudence constrain experiments that would dilute judicial primacy; nonetheless, reforms can be carefully designed to  respect the doctrine while improving transparency and discipline. (The Supreme Court itself suggested several such routes in the  NJAC proceedings.)  

Proposals for redesign: preserving independence, strengthening accountability 

The goal of reform should be to institutionalise procedural transparency and proportionate disciplinary mechanismswithout  yielding judicial independence. The following measures, individually and together, strike that balance: 

1. Statutory collegium secretariat with limited, controlled role. A professional, non-partisan secretariat (as the Court  contemplated after NJAC) can manage records, maintain standardized dossiers on candidates, and log reasons for  recommendations. The secretariat must not exercise decision-making power but should ensure procedural consistency  and archival transparency.  
2. Publishable, objective eligibility and diversity criteria. The collegium should adopt and publish minimal, objective  eligibility metrics (seniority bands, integrity checks, diversity aspirations, and anonymized performance indicators such as  judicial output or administrative competence). Publishing generalized criteria increases predictability while protecting  sensitive deliberative content.
3. Reasoned recommendations (redacted public summaries). For each appointment, the collegium could publish a  concise, redacted note of reasons addressing suitability and any concerns — balancing the public’s right to information  with confidentiality for sources and sensitive inputs. 
4. A formal, independent disciplinary mechanism for non-criminal misconduct. Create, by statute, an independent  disciplinary council (comprising senior judges, eminent jurists, and a lay member) empowered to inquire into complaints of  professional misconduct and to recommend proportionate sanctions (private warning, public censure, temporary  suspension, or compulsory retirement). The impeachment mechanism would remain for the gravest offences. This mimics  international best practice and avoids the all-or-nothing problem of impeachment. (Any such body must have safeguards  — transparent procedures, rights to be heard, appellate review — to protect judges’ due process.)  
5. Public complaint intake and preliminary screening. An independent intake mechanism (housed outside the court but  reporting to it) that screens frivolous or mala fide complaints, while triaging credible ones to the disciplinary body, will  prevent harassment yet enable redress. 
6. Time-bounded inquiries and publication of non-confidential findings. Inquiries should be time-limited, with procedural  timelines codified; non-confidential findings (with redaction for privacy where necessary) should be published to foster  accountability. 
7. Whistleblower protections and confidentiality rules. Provide protections for those who bring forward genuine  allegations and mechanisms to discourage politically motivated complaints. 

These reforms are consonant with the Supreme Court’s post-NJAC directions and can be framed to respect the judiciary’s primacy  in appointments while injecting disciplined transparency into both appointment and accountability processes. 

Anticipated objections and responses

Objection: Any statutory disciplinary body risks executive/legislative intrusion. 

Response: Design can insulate the body — judicial majorities on panels, supermajority appointment rules for non-judicial  members, transparent appointment processes for council members, and judicial review safeguards. The objective is procedural accountability, not control. 

Objection: Publishing reasons could chill candid collegial discussion. 

Response: Redacted summaries (focusing on objective grounds) and limited confidentiality carve-outs for sensitive material can  preserve candour while giving the public reasonable explanations for appointments. 

Objection: Parliament must remain the ultimate arbiter via impeachment. 

Response: Impeachment retains primacy for grievous misconduct; complementary disciplinary avenues will relieve Parliament of  being the default tribunal for all complaints and reduce politicisation. PRS Legislative Research 

Conclusion 

India’s jurisprudence has rightly protected judicial independence from executive encroachment. Yet that protection cannot be an  excuse for opacity or for failing to address misconduct effectively. The NJAC controversy clarified judicial primacy but also  prompted the Court to invite concrete reforms to the collegium. A calibrated package — statutory procedural safeguards for transparency, a professional secretariat, published eligibility criteria, an independent disciplinary mechanism for non-criminal  misconduct and a robust but protected complaints intake — will preserve the judiciary’s essential independence while restoring  public confidence through accountability. For a democracy, neither independence nor accountability can be optional; they are  complementary pillars of constitutional legitimacy. 

References  

1. S. P. Gupta v. Union of India, AIR 1982 SC 149 (India). B&B Associates LLP 
2. Supreme Court Advocates-on-Record Ass’n v. Union of India (Second Judges’ Case), (1993) 4 S.C.C. 441 (India). Indian  Kanoon 
3. In re Special Reference No. 1 of 1998 (Third Judges’ Case), (1998) 7 S.C.C. 739 (India). Supreme Court Observer 4. Supreme Court Advocates-on-Record Ass’n & Anr. v. Union of India & Ors. (NJAC litigation), (2016) 5 S.C.C. 1 (India)  (decided Oct. 16, 2015). Global Freedom of ExpressionDelhi Law Academy 
4. The Judges (Inquiry) Act, No. 51 of 1968 (India), available at The Gazette of India / IndiaCode. India Code+1 6. See, e.g., discussion of transparency reforms urged by the Supreme Court following the NJAC judgment, Nov. 3–16, 2015  (directions on transparency, eligibility, complaints, secretariat). Sci APIThe Times of India 
5. On impeachment precedents and practical difficulties, see the V. Ramaswami proceedings and the Soumitra Sen episode.  See, e.g., coverage on Ramaswami and Soumitra Sen impeachment attempts. Wikipediawww.ndtv.com