Table Of ContentIndependence and Accountability of the Indian
Higher Judiciary
This book analyses the functioning of the Supreme Court of India and High
Courts using the lens of judicial independence and accountability. Through
extensive conceptual analysis, it posits that both concepts—independence and
accountability—irrespective of jurisdiction, are not in conflict as is commonly
assumed. Instead, both lead to ‘an effective judiciary’.
It uses this doctrinal understanding of ‘an effective judiciary’ to assess four
key, yet academically overlooked, facets of judicial functioning in India where
judicial independence and judicial accountability have critical significance—
appointment, transfer, impeachment and post-retirement employment of
judges. It provides a detailed narrative of each of these facets traversing the
early years of independence, the Emergency and the present era of appointment
of judges by a judicial collegium. It specifically discusses the National Judicial
Appointments Commission case (NJAC), where the Supreme Court struck
down the constitutional amendment establishing the NJAC, a new method
for appointment of judges, and argues why the judgment does not lead to ‘an
effective judiciary’. This narrative explains how the dominant understanding
of judicial independence as insulation of the judiciary from government, and
accountability as its antithesis, took hold.
Taking into account recent events—controversial collegium decisions,
government–judiciary disagreements over appointments and the landmark
press conference by senior justices of the Supreme Court—the book ends by
suggesting certain reforms. These reforms strike an appropriate balance between
judicial independence and accountability and truly promote ‘an effective
judiciary’. They have the potential to take India closer to the higher judiciary
its Constitution envisages and its citizens deserve. Its lessons are relevant not
just for India but also for judiciaries elsewhere confronting their own struggles
with independence and accountability.
Arghya Sengupta is Research Director at Vidhi Centre for Legal Policy, a
think-tank based in New Delhi. His research focuses on constitutional law,
administrative law and the intersection of law and technology.
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Independence and Accountability of the
Indian Higher Judiciary
ARGHYA SENGUPTA
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© Arghya Sengupta 2019
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To my father,
who would have been quietly proud.
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Contents
Acknowledgements ix
List of Abbreviations xi
List of Cases xiii
List of Statutes xvii
1 Introduction 1
PART I THE INDIAN EXPERIENCE 11
2 Pre-Tenure Questions: Appointments to the Higher Judiciary 13
3 In-Tenure Questions: Mechanisms for Judicial Discipline 63
4 Post-Tenure Questions: Post-Retirement Appointments of
Judges by Government 100
PART II A CONCEPTUAL ANALYSIS 117
5 Judicial Accountability 119
6 Judicial Independence 140
7 In Search of an Effective Judiciary: A Doctrinal
Reconciliation of Judicial Independence and Accountability 168
PART III TYING THE STRANDS 205
8 Harmonising Judicial Independence and Judicial
Accountability in India 207
9 Conclusion: A Reform Proposal for the Indian Higher Judiciary 235
Epilogue: The Moment the Judiciary Came Out 264
Appendix: Post-Retirement Employment of Judges in
Government-Appointed Positions 271
Bibliography 285
Index 311
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Acknowledgements
This book may have been written by me but credit for its inspiration,
conceptualisation and completion lies elsewhere. Above all else, my deepest
debt of gratitude is to my parents. Had it not been for their unquestioned support,
constant encouragement and quiet faith in my ability, this book would have
remained unwritten. Going back a bit in time, had it not been for my mother’s
gut instinct, I might never have ended up as a law student in the first place!
Happily, having taken up the law, this book is the product of my doctoral
work at Oxford. Anyone who has done doctoral work, particularly in law, will
know how lonely and depressing such research can often be. Much credit for
constantly showing me the light at the end of long, dark tunnels and guiding
me ever-so-gently goes to Professor Paul Craig, my thesis supervisor.
The book benefited greatly from many conversations and feedback received
over the last decade. In no particular order, heartfelt thanks to Jeff King, Bibek
Debroy, Shruti Kapila, Jonathan Morgan, Faisal Devji, Fali Nariman, Abhinav
Chandrachud, Anil Divan, Tehmtan Andhyarujina, Arvind Datar, Justice (Retd.)
B. N. Srikrishna, Justice (Retd.) S. B. Sinha, Justice (Retd.) Ruma Pal, Justice
(Retd.) Jasti Chelameswar, Justice (Retd.) J. S. Verma, Salman Khurshid, Ashok
Sekhar Ganguly, Soli Sorabjee, Prashant Bhushan, Gopal Subramanium, Alok
Prasanna Kumar, Maidul Islam, Debanshu Mukherjee, Ciara Kennefick, Shiv
Swaminathan, Ritin Rai and Lavanya Rajamani. Special thanks particularly
to Arun Jaitley, Justice (Retd.) A. P. Shah and A. K. Ganguli for their personal
insights and experiences, many of which motivated me to write this book in
the first place.
My gratitude to St. Catherine’s College and the Rhodes Trust for their financial
support; to all the staff at the Bodleian Law Library, the Indian Institute Library,
Oxford, the Supreme Court Judges’ Library, New Delhi, and the library of
the National Law School of India, Bangalore, for help with locating research;
to the editors of Public Law, Law Quarterly Review and Indian Journal of
Constitutional Law, where earlier versions of sections of Chapters 2 and 5 have
been published; and to all my colleagues at the Vidhi Centre for Legal Policy,
returning to whom everyday is a source of much joy in my life. Particularly at
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x Acknowledgements
Vidhi, this book would not be complete were it not for the painstaking research
assistance of Rukmini Das, Akshat Agarwal, Gargi Rohi and Pranay Modi, to
whom I shall remain indebted.
Finally, it was Chhotomashi, whose strident opinions, passionate
argumentation and courage of conviction made me want to do something as
a young academic to build a better judiciary that can be the foundation for a
better India. The reason why I wrote this book as an analytical account of judicial
independence and accountability in India and not a tirade of grievances against
the ills of the system, is solely a reflection of the influence of Dhvani, my wife.
She keeps me real and teaches me to be a calmer, fairer and better version of
myself everyday. I hope I have been able to reflect some of that in this book.
Arghya Sengupta
January 2019
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