Independence of Judiciary, Judicial Activism and Accountability: India, UK and USA

Judicial independence means that judges can decide cases impartially, free from pressure by the executive, legislature, litigants, media or their own colleagues. It has two dimensions:

• Institutional independence: the judiciary as a branch is protected from interference (control over budget, administration, appointments).

• Individual (decisional) independence: each judge is free to decide without fear of removal, reduction of salary or career penalty.

Conventional safeguards: mode of appointment, security of tenure, fixed and protected salary, removal only through a special procedure, prohibition on post-retirement practice or employment (in some systems), immunity for judicial acts, power to punish for contempt, and separation from the executive (Article 50 in India).

International standards: UN Basic Principles on the Independence of the Judiciary (1985); Bangalore Principles of Judicial Conduct (2002) (independence, impartiality, integrity, propriety, equality, competence and diligence); the Beijing Statement (1995) for the Asia-Pacific region; the Latimer House Principles (Commonwealth).

Independence is accompanied by accountability – in an open system, judges must be answerable through reasoned judgments, open courts, appeals, impeachment, codes of conduct, and public scrutiny. The tension between independence and accountability is the theme of this topic.

Constitutional Safeguards

• Appointment: Article 124(2) – Supreme Court judges are appointed by the President after consultation with such judges of the Supreme Court and High Courts as deemed necessary; the Chief Justice is always consulted (except for the Chief Justice himself). Article 217 for High Courts (consultation with the Chief Justice of India, the Governor and the Chief Justice of the High Court).

• Tenure: retirement at 65 (Supreme Court) and 62 (High Court). Article 124(4) and (5): removal only by an order of the President after an address by each House of Parliament supported by a majority of the total membership of that House and by at least two-thirds of the members present and voting, on the ground of proved misbehaviour or incapacity; procedure regulated by the Judges (Inquiry) Act, 1968.

• Salary: determined by Parliament (Article 125); allowances, pension and rights cannot be varied to the disadvantage of a judge after appointment (financial emergency exception). Salaries are charged on the Consolidated Fund of India (non-votable).

• Conduct of judges cannot be discussed in Parliament except on a motion for removal (Article 121); the Supreme Court has the power to punish for its contempt (Article 129); the Court controls its own staff and procedure (Articles 145 and 146).

• Post-retirement bar: a retired Supreme Court judge cannot plead or act before any court or authority in India (Article 124(7)); retired High Court judges cannot practise in the court where they held office (Article 220).

• Article 50 (DPSP): separation of the judiciary from the executive in the public services.

• Articles 32, 226, 227, 136, 142, 143: wide powers, including the power to do complete justice (Article 142).

• Judicial review and independence of the judiciary are part of the basic structure (Kesavananda; Minerva Mills; L. Chandra Kumar).

Appointments: The Judges Cases (Very High Yield)

Other related cases: Union of India v Sankalchand Himatlal Sheth (1977) (transfer of a High Court judge without consent was held to be punitive and unconstitutional – transfer must be in public interest, after consultation with the CJI).

Criticism of the collegium: opaque, lacking formal criteria, nepotism ("judges appointing judges"), no secretariat. Defence of the collegium: protects judicial independence from executive influence. The Memorandum of Procedure (MoP) governs the process.

Judicial Accountability in India

• Removal by impeachment: the procedure under the Judges (Inquiry) Act, 1968: a motion signed by 100 Lok Sabha members or 50 Rajya Sabha members; the presiding officer constitutes a three-member committee (a Supreme Court judge, a High Court Chief Justice, and a distinguished jurist). No judge has been successfully removed so far.

  • Justice V. Ramaswami (1991–93): first judge subjected to impeachment proceedings; the motion failed in the Lok Sabha as Congress members abstained.

  • Justice Soumitra Sen (2011): the Rajya Sabha passed the motion; he resigned before the Lok Sabha could vote.

  • Justice P.D. Dinakaran (2011): resigned before the inquiry concluded.

  • In 2018, notice of a motion for removal of CJI Dipak Misra was rejected by the Chairman of the Rajya Sabha.

• K. Veeraswami v Union of India (1991): judges of the higher judiciary are "public servants" under the Prevention of Corruption Act, but no criminal case can be registered against a High Court or Supreme Court judge without prior consultation with the Chief Justice of India.

• C. Ravichandran Iyer v Justice A.M. Bhattacharjee (1995): the Court emphasised that judicial dignity must be maintained and recognised the need for an in-house procedure.

• In-house procedure (1999): adopted by the Supreme Court for dealing with complaints against judges. Restatement of Values of Judicial Life (1997) – a code of conduct adopted by the Full Court. A 1997 resolution requires judges to declare their assets.

• Contempt of Courts Act, 1971: protects the administration of justice; criticised as contrary to freedom of expression (cf. In Re Prashant Bhushan (2020)); Articles 129 and 215 give constitutional status to contempt jurisdiction.

• Right to Information: Central Public Information Officer, Supreme Court of India v Subhash Chandra Agarwal (2019) – the office of the Chief Justice of India is a "public authority" under the RTI Act, though information about collegium deliberations may be withheld under exemptions subject to a public-interest test.

• Judicial Standards and Accountability Bill, 2010 (lapsed) proposed binding standards and a complaints mechanism.

• Other accountability tools: reasoned judgments, appeals, review and curative petitions (Rupa Ashok Hurra v Ashok Hurra, 2002), and public scrutiny.

Meaning: A judicial philosophy in which judges go beyond the traditional role of interpreting law, take an active role in promoting social justice and rights, correct failures of other branches, and sometimes create new law or policy. The term was coined by Arthur Schlesinger Jr. in a 1947 Fortune magazine article on the US Supreme Court. Opposite concept: judicial restraint (deference to the political branches). Related concept: judicial overreach, where the court is accused of violating separation of powers.

Indian Judicial Activism: Phases and Tools

• Early period (1950–70s): a restrictive and positivist approach (A.K. Gopalan v State of Madras, 1950; ADM Jabalpur, 1976).

• Expansion after 1978 (post-Emergency): Maneka Gandhi v Union of India (1978) (Articles 14, 19 and 21 are interrelated; procedure must be just, fair and reasonable). Justices V.R. Krishna Iyer, P.N. Bhagwati, O. Chinnappa Reddy and D.A. Desai led this approach.

• Public Interest Litigation (PIL)/Social Action Litigation: relaxed locus standi; epistolary jurisdiction (treating letters as petitions); S.P. Gupta (1981) recognised standing for public-spirited persons; Hussainara Khatoon v State of Bihar (1979) – speedy trial and legal aid for undertrials; Bandhua Mukti Morcha v Union of India (1984) – bonded labour; M.C. Mehta v Union of India (environment; absolute liability in the Oleum Gas leak case, 1986); Olga Tellis v Bombay Municipal Corporation (1985) – right to livelihood; Sunil Batra v Delhi Administration (1978) – prisoners' rights; Vishaka v State of Rajasthan (1997) – guidelines against sexual harassment at work (leading to the 2013 Act); D.K. Basu v State of West Bengal (1997) – guidelines on arrest and custody; Lalita Kumari v Government of Uttar Pradesh (2013) – mandatory registration of FIR for cognisable offences; Common Cause v Union of India (2018) – passive euthanasia and living wills; Navtej Singh Johar (2018) – decriminalising consensual same-sex acts.

• Expansion of Article 21: right to life includes dignity, livelihood, health, education (Unni Krishnan, 1993), clean environment, privacy (Puttaswamy, 2017), speedy trial, free legal aid, and many others.

• Tools: the doctrine of the basic structure; continuing mandamus; appointment of commissions; use of Article 142 to do "complete justice"; judicial legislation through guidelines.

• Criticisms: judicial overreach (policy-making without expertise or accountability), "judicial populism", encroachment on legislative and executive domain, and inconsistent standards. Supporters argue that activism filled a vacuum left by a weak executive and legislature.

• Judicial restraint: the Court has also recognised limits – e.g., Divisional Manager, Aravali Golf Club v Chander Hass (2008) (judges must show restraint and not usurp power).

Independence

• Act of Settlement, 1701: judges hold office during good behaviour (quamdiu se bene gesserint) and can be removed only by an address of both Houses of Parliament. This is the historical foundation of security of tenure.

• Constitutional Reform Act 2005 (CRA): section 3 imposes a statutory duty on the Lord Chancellor, ministers and others to uphold continued judicial independence, and bars ministers from seeking to influence judicial decisions through special access; section 1 affirms the rule of law; created the UK Supreme Court (functioning October 2009); the Lord Chief Justice became head of the judiciary in England and Wales; the Judicial Appointments Commission (2006) recommends candidates on merit; the Lord Chancellor's role is limited; the Judicial Appointments and Conduct Ombudsman handles complaints.

• Retirement: the mandatory retirement age for judges has been 70, raised to 75 for most judicial offices by recent legislation (the Public Service Pensions and Judicial Offices Act, 2022).

• Sub judice convention: matters before courts are not discussed in Parliament; judges are not criticised except on a substantive motion.

Accountability

• Removal: a superior court judge can be removed only by the Crown on an address by both Houses (Senior Courts Act, 1981, s 11(3); CRA 2005 for Supreme Court justices). It is virtually never used.

• Judicial Conduct Investigations Office (JCIO) (since 2013) investigates complaints about personal conduct (not judicial decisions); disciplinary sanctions are imposed by the Lord Chancellor with the Lord Chief Justice.

• Appeals and reasoned public judgments are the main routes for correcting decisions; open justice and media reporting.

Judicial Activism in the UK

The UK's tradition of parliamentary sovereignty makes overt activism rare, but the following are considered activist trends:

• Lord Denning (Master of the Rolls, 1962–82): a creative, justice-oriented judge (promissory estoppel in Central London Property Trust v High Trees, 1947; the Mareva injunction).

• Lord Reid, "The Judge as Law Maker" (1972): rejected the "fairy tale" that judges merely find, not make, law.

• Growth of judicial review: Ridge v Baldwin (1964); Anisminic v Foreign Compensation Commission (1969); GCHQ (Council of Civil Service Unions v Minister for the Civil Service, 1985) where Lord Diplock classified grounds as illegality, irrationality and procedural impropriety.

• Human Rights Act, 1998: courts interpret legislation compatibly (section 3) and issue declarations of incompatibility (section 4) without invalidating laws.

• Constitutional principle cases: Factortame (1990) (disapplied an Act of Parliament in conflict with EU law); R (Jackson) v AG (2005); R (Miller) 2017 and 2019; R (UNISON) v Lord Chancellor (2017) (access to justice as a constitutional right).

• Criticism: concerns of judicial overreach (e.g., Miller) fed the Judicial Review and Courts Act 2022 (limiting some remedies). The 2016 "Enemies of the People" headline about judges after the first Miller decision illustrated political pressure.

Independence

• Article III: judges of the Supreme Court and inferior courts hold office during good behaviour and receive compensation that cannot be diminished during their continuance in office.

• Appointment: nominated by the President with the advice and consent of the Senate (Article II, Section 2) – highly political.

• Removal: only by impeachment (House) and conviction (Senate by two-thirds) for "treason, bribery, or other high crimes and misdemeanors" (Article II, Section 4). Justice Samuel Chase was impeached in 1804 and acquitted in 1805 – a key precedent for judicial independence. No Supreme Court justice has been removed.

• Size of the Court: fixed by Congress (nine since 1869). Franklin D. Roosevelt's Court-packing plan (1937) failed but is remembered as "the switch in time that saved nine".

• State judges: in many States, judges are elected or face retention elections (more accountable but potentially less independent).

• Ethics: the federal judiciary follows the Code of Conduct for United States Judges; the Supreme Court adopted its first Code of Conduct in November 2023 (with no formal enforcement mechanism).

Judicial Review and Judicial Activism

• Marbury v Madison (1803) established judicial review; Martin v Hunter's Lessee (1816) and Cooper v Aaron (1958) support the Supreme Court's role as the final interpreter of the Constitution.

• Schlesinger (1947) identified judicial "activists" and "champions of self-restraint" on the Court.

• Lochner era (1905–1937): Lochner v New York – the Court struck down social and economic legislation using substantive due process (conservative activism); ended with West Coast Hotel v Parrish (1937).

• Warren Court (1953–69), Chief Justice Earl Warren (liberal activism): Brown v Board of Education (1954); Mapp v Ohio (1961) (exclusionary rule applied to States); Baker v Carr (1962) (reapportionment is justiciable – "one person, one vote"); Gideon v Wainwright (1963) (right to counsel); Griswold v Connecticut (1965) (privacy); Miranda v Arizona (1966) (warnings).

• Later developments: Roe v Wade (1973) recognised abortion rights; it was overruled in Dobbs v Jackson Women's Health Organization (2022). Bush v Gore (2000) and Citizens United v FEC (2010) are also controversial.

• Judicial restraint: associated with Justices Holmes, Frankfurter and Learned Hand; originalism/textualism (Antonin Scalia) is presented as restraint though critics see selective activism. Alexander Bickel, The Least Dangerous Branch (1962), articulated the counter-majoritarian difficulty.

• Self-limiting doctrines: standing, ripeness, mootness, political question doctrine (Baker v Carr; Nixon v United States, 1993), and the Ashwander rules of constitutional avoidance (Justice Brandeis).