Towards a new Judicial Commission to maintain independence, integrity and accountability in the judiciary

In the unique socio-economic, political and constitutional context of India, the National Judicial Appointments Commission (NJAC) could not have been effective, nor has the current Collegium-run in-house inquiry system demonstrated sufficient transparency in upholding judicial standards.

The lack of an effective and transparent mechanism to address judicial misconduct not only undermines the accountability of the judiciary as an institution in a constitutional democracy, making it vulnerable to criticism, but also erodes the perception of judicial integrity.

Judicial integrity, which encompasses independence, impartiality, accountability and ethical conduct, is the cornerstone of public trust in the justice system. The Indian Judiciary, widely regarded as a highly respected institution both nationally and internationally, has played a pivotal role in upholding constitutional values and safeguarding the rule of law. It continues to gain the trust of its people and various constitutional and institutional bodies involved in the nation's governance.

However, several concerns regarding judicial integrity have arisen in recent years. Instances of lack of discipline among judicial officers, allegations of general misconduct, misuse of free speech inside and outside the courtroom, unethical practices, disregard for judicial propriety, corruption, bribery, unaccounted money, bias and sexual harassment have been reported.

Yet, their investigation remains shrouded in secrecy, highlighting the need for the principles of transparency and accountability to be applied in each of these cases. While the Collegium has addressed these incidents, due to constitutional safeguards, the opacity of the Collegium itself, and the ad-hoc nature of in-house inquiries, the action taken is either the transfer or, in rare cases, the pressurised resignation of the judge in question - both of which are insufficient. Furthermore, the recent Supreme Court order preventing even the Lokpal from entertaining complaints against constitutional judges highlights a notable absence of comprehensive institutional remedies and corrective guidelines to address such incidents. These cases underscore the need to strengthen institutional mechanisms that ensure judicial accountability and formulate more explicit protocols regarding judicial conduct, both within and outside the courtroom.

However, when forming or recommending any reform framework to ensure judicial accountability, it is essential to remember the pivotal role of the judiciary in the Indian democratic system. Judicial independence is recognised as part of the basic structure of the Indian Constitution, and every effort must be made to preserve it. Nevertheless, it should not serve as a pretext for evading accountability. A robust system of checks and balances forms the foundation of constitutionalism and the rule of law and is the hallmark of a vibrant democratic setup.

Therefore, brainstorming alternatives that strike a delicate balance between judicial independence and institutional accountability is the urgent need of the hour. Against this backdrop, the authors of this article provide an alternative reform proposal for establishing a National Judicial Commission. Such a body will act not in a supervisory role, but rather in a supportive capacity as a formal institutional mechanism to assist the Chief Justice of India in maintaining judicial supremacy, strengthening integrity, and ensuring transparency and accountability

A critical gap in the current system is the absence of a formal independent institutional forum where concerns, grievances or complaints about judicial misconduct within and outside the judiciary can be adequately addressed in a transparent manner. The absence of such a forum not only harms judicial morale, but also threatens the quality of justice delivery, particularly in building public trust in the judiciary. Therefore, to strengthen judicial integrity, the urgent need of the hour is to establish structured channels for addressing concerns, which simultaneously protect judicial independence.

In light of the above, a National Judicial Commission (NJC) emerges as a viable solution to institutionalise accountability and transparency without compromising judicial independence. The idea is that the NJC envisioned as a formal institution would not replace judicial autonomy, but complement it by introducing a system that safeguards integrity while reinforcing public trust. It is proposed that the judiciary itself either establishes or recommends the establishment of the NJC.

The Commission can be headquartered at the Judicial Academy in Bhopal, where judges not only undergo regular training, but are also sensitised to corrective actions, enabling them to administer justice in a truly just manner. The Commission will neither serve as an oversight body nor supervise the judiciary. It will rather support the Office of the Chief Justice of India. It could be empowered to hear grievances from judicial officers and advocates and invite suggestions from the public, including the government, on means and mechanisms to strengthen judicial integrity in general and that of judicial officers in particular. Furthermore, the Commission should also be empowered with suo motu powers to initiate proceedings against potential judicial misconduct. A few proposed reforms follow.

1. Institutional reforms – The establishment of an independent, credible and responsive complaint mechanism is considered one of the most effective ways to ensure judicial integrity. This responsible entity should be staffed with former judicial officers of high moral character and integrity. It is proposed that the Commission be headed by a retired Supreme Court judge and comprise four other members, including two retired High Court judges and two independent members. It should be bestowed with the mandate to receive, investigate and determine complaints (including suo motu) involving judicial officers and quasi-judicial officers as well. Procedures could be formulated to investigate allegations of judicial misconduct with due consultation with judicial officers, court staff, legal professionals, users of the legal system and the public at large.

2. Enforcing ethical standards, training and sensitisation – Workshops and seminars should be conducted for judicial officers on ethical issues to reinforce probity within the judicial ranks while also heightening the judiciary's vigilance against all forms of bias and abuse of discretion. Ethical standards, such as the “Restatement of the Values of Judicial Life”, should be made enforceable through statutory provisions. A robust mechanism to monitor adherence to these standards can discourage unethical behaviour. One such mechanism could involve interaction with civil society on the importance of the judiciary’s work and the crucial requirement of maintaining high standards of integrity in the discharge of judicial functions. Furthermore, designing and implementing regular training programs for judges should also emphasise the importance of integrity and accountability. Such programs can ultimately channel peer pressure to ensure high standards of probity within the judiciary. Such programs can also help sensitise judges to emerging issues, including gender sensitivity and the impact of technology on the delivery of justice.

3. Fast-tracking complaints – The huge pendency of cases and the delays associated with the judicial system create both opportunities for unethical practices and a perception of corruption. Intervention to remedy such problems is, therefore, paramount in maintaining judicial probity. Standards for the timely delivery of justice must be developed and made publicly known. Moreover, creating mechanisms for the prompt resolution of complaints against judges can restore public confidence.

4. Involvement of bar councils and litigants – Bar Councils and bar associations of High Courts should be actively involved in the appointment of judges, and they should be consulted when the transfer of judges with doubtful integrity is concerned. Furthermore, the bar associations can undertake the obligation to report instances of judicial misconduct to the appropriate authorities when reasonably suspected. Furthermore, they should also explain to litigants and civil society the principles and procedures for handling complaints against the judiciary. Since most members of the judiciary are from the ranks of legal professionals, instructions on ethical conduct and the functioning of the judiciary can be imparted at the initial stages of legal education.

Judicial appointments and the normal transfer of judges for judicial work must be urgently separated from the need to maintain judicial standards and integrity and strengthen accountability. The preservation of judicial integrity is not merely an institutional goal, but a constitutional prerogative that underpins India's democratic fabric. As India's democracy evolves, the judiciary's role as a guardian of justice will continue to evolve and will remain vital. Judicial integrity is a dynamic concept, and as time passes, the modes and mechanisms to ensure it must also evolve. A strong, independent, reliable, transparent and accountable judiciary is indispensable for democratic governance.

The effective administration of justice and strengthening will require a comprehensive reform strategy that addresses systemic weaknesses and emerging challenges in the digital age. The establishment of the NJC can help fill the accountability void that currently exists in the system. It can institutionalise grievance redressal in a formal manner, enforce ethical standards and bring about uniformity in disciplinary mechanisms.

It is imperative to note that the proposed Commission differs significantly from the earlier National Judicial Appointment Commission (NJAC), which the Supreme Court ruled unconstitutional, as it compromised judicial primacy and involved the executive in judicial appointments. However, the proposed NJC may be held valid as it respects the established constitutional conditions and conventions by upholding judicial independence.

In conclusion, a new wave of reforms is essential across all institutions, especially within the judiciary. As technology continues to transform governance and the judicial environment, any proposed reforms will depend on the judiciary's readiness to adopt innovation, transparency and accountability. By establishing the NJC, the judiciary can reaffirm its position as the guardian of the Constitution and champion the cause of democratic principles. Lastly, confronting challenges to judicial integrity directly and committing to substantial reforms will enable the Indian judiciary not only to uphold, but also to enhance its constitutional role as a vanguard of democratic governance and social justice.

Prof (Dr) Sairam Bhat is a Professor of Law, National Law School of India University.

Vikas Gahlot and Advocate Jaibatruka Mohanta are Research Associates, CEERA-NLSIU.