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CHANAKYA NATIONAL LAW UNIVERSITY

PROJECT REPORT PROFESSIONAL ETHICS AND PROFESSIONAL


ACCOUNTING SYSTEM

ASSIGNED TOPIC: JUDGES AND JUDICIAL ACCOUNTABILITY

SUBMITTED BY

SONAKSHI

ROLL NUMBER: 1054

SUBMITTED TO

Dr. ANSHUMAN PANDEY

ASSISTANT PROFESSOR (LAW)

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RESEARCH METHODOLOGY

Method of Research

The researcher has adopted a purely doctrinal method of research. The researcher has made
extensive use of the available resources at library of the Chanakya National Law University
and also the internet sources.

Aims and Objectives

The aim of the project is to present an overview of various aspects relating to judges
accountability.

Scope and Limitations

Though the study of the this topic is an immense project and pages can be written over the
topic but due to certain restrictions and limitations the researcher has not been able to deal
with the topic in great detail.

Sources of Data:

The following secondary sources of data have been used in the project: Cases, Books,
Journals, Articles, etc.

Method of Writing:

The method of writing followed in the course of this research paper is primarily analytical.

Mode of Citation

The researcher has followed the bluebook method of citation throughout the course of this
research work.

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ACKNOWLEDGEMENT

I convey my deepest gratitude to my respected faculty of Professional Ethics, Dr. Anshuman


Pandey, who has been a constant source of inspiration and guided me throughout the interval
to complete this project on judges and judges accountability successfully.

I wish to record my gratitude to the librarian and other staffs of CNLU library as no academic
venture of mine can be complete without their assistance and co-operation. I owe sincere
regards to them for providing me valuable information through, journals, textbooks and other
necessary data.

Sonakshi

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TABLE OF CONTENTS
1. INTRODUCTION ..................................................................Error! Bookmark not defined.

2. JUDICIAL ACCOUNTABILITY ........................................................................................... 7

3. PROBLEMS IN REGARD TO MAKING JUDICIARY ACCOUNTABLE ......................... 9

4. JUDICIAL ACCOUNTABILITY BILL ............................................................................... 12

5. CONCLUSION ..................................................................................................................... 14

6. BIBLIOGRAPHY ................................................................Error! Bookmark not defined.6

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INTRODUCTION

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a
[SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC] and to secure to all
its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression,
belief, faith and worship; EQUALITY of status and of opportunity; and to promote among
them all FRATERNITY assuring the dignity of the individual and the [unity and integrity
of the Nation]; IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November,
1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS
CONSTITUTION.1

In a Democracy, the Judiciary, as a custodian of constitutional rights and obligations cannot


be above public accountability as it is vested with the highest power by the people and is
considered as strongest pillar of the democracy. Indian Judiciary system is the most powerful
judiciary in the world after USA.2 The Constitution of India is a very well-built document. It
assigns different roles to all the three wings of governance- the legislature, executive and the
judiciary. There is no ambiguity about each wings powers, privileges and duties. Parliament
has to enact law, Executive has to enforce them and the judiciary has to interpret them. There
is supposed to be no overlapping or overstepping.

The third branch of the government- the judiciary. The power that Judiciary enjoys, the role
that it plays in our lives and the onerous task that it performs is beyond comprehension. In
fact, it would be no exaggeration to say that of the three branches of the Government,
Judiciary is perhaps of the greatest significance to the people, it being closest to them in the
sense that anybody (even an ordinary citizen) can approach the Judiciary when he has any
grievance. The main principle behind such separation of powers is that each institutions in its
own domain works for the maximum welfare of the citizens of the democracy, and judiciary
is the watchdog which protects, preserves and enforces our fundamental and legal rights
against the arbitrary violations. And the legislature and executive are accountable to the
judiciary.

1
Preamble, The Constitution of India, 1949, available at http://indiacode.nic.in/coiweb/coifiles/preamble.htm,
last accessed on November 2, 2017 at 03:20 AM
2
Suman Meena, Judicial Accountability, published on 20/11/2011, available at
https://www.legalindia.com/%E2%80%9Cjudicial-accountability%E2%80%9D/, last accessed on November 2,
2017 at 03:20 AM

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But the question is to whom the judiciary is accountable. Are the powers of judiciary
unlimited? And if these powers are unlimited and absolute, they would likely corrupt the
institution, in short absolute power without accountability leads to corruption. Recently there
were corruption charges against Calcutta high court judge Soumitra Sen who was found
guilty of misappropriating large sums of money and Chief Justice of Karnataka High Court, P
D Dinakaran, alleged for land grabbing and corruption but corruption in judiciary is not a
new thing, it has always been there, only less talked and reported about in the mainstream
media3. But due to drastic increase in the case of corruption against the judiciary one needs to
ask who is judging the judges?

It is perhaps pertinent to remember that every advanced democratic country has evolved its
own procedure of judicial accountability. In India, time has now come to ensure judicial
accountability, perhaps through the constitution of a National Judicial Commission and
formation for forum of redressal of grievances of common man. Judicial independence and
judicial accountability are neither incompatible nor mutually exclusive concepts. Rather
judicial accountability concept increases the legitimacy of the judiciary amongst the people
and vis--vis it discharges its duties more effectively and efficiently.

The main argument which set out the current judicial system against the question of
accountability is of the independence of judiciary. The independence of judiciary is another
important concept which should be studied together with the concept of accountability. And
since the judiciary is the public institutions, which is for the people, it should be accountable
to the people. And work according to the provisions of the constitution, keeping an eye on the
preamble which is the soul of the constitution.

The author, in this research paper, would justify the topic in the light of the above arguments
and would primarily deal with the concept of judicial accountability, the need for judicial
accountability in India. The author would also throw some light on the issue of independence
of judiciary in the light of judicial accountability. The author would also try to bring in and
address other relevant issues with respect to the topic and above mentioned arguments and
would justify the same.

3
Maushumi Bhattacharjee, THE DEBATE BETWEEN JUDICIAL INDEPENDENCE AND JUDICIAL
ACCOUNTABILITY: WHO IS JUDGING THE JUDGES?, published on 21/04/2017, available at
http://jlsr.thelawbrigade.com/index.php/2017/04/21/the-debate-between-judicial-independence-and-judicial-
accountability/, last accessed on November 2, 2017 at 03:20 AM

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JUDICIAL ACCOUNTABILITY

The concept of judicial accountability is as old as the independence of judiciary. Since the
independence of India, independence and impartiality have always been considered to be the
essential qualities of a Judge.4 Judicial accountability is in fact a corollary of the
independence of the judiciary. Simply put, accountability refers to taking responsibilities for
your actions and decisions. It generally means being responsible to any external body; some
may insist accountability to principles or to oneself rather than to any authority with the
power of punishment or correction.5 Since accountability is a facet of independence the
Constitution has provided in Article 235, for the control of the High Court over the
Subordinate Judiciary clearly indicating the provision of an effective mechanism to enforce
accountability. Thus entrustment of power over subordinate judiciary to the High Court
preserves independence as it is neither accountable to the executive or the legislature.6

The concept of judicial accountability in India is considered into two ways7:

i. Accountability of the higher judiciary in India for their judgements. Have the
judges in India been responsible and felt necessities of time in the past and at
present to the constitutional goal?
ii. The institutional methods of appointing the Judges, removal and the inhibitions to
criticism of their work by the law of contempt.

Mona Shukla in one of her article has listed down three promotions done by Judicial
Accountability:

1. It promotes the rule of law by deterring conduct that might compromise judicial
independence, integrity and impartiality.
2. It promotes public confidence in judges and judiciary.
3. It promotes institutional responsibility by rendering the judiciary responsive to the
needs of the public it serves as a separate branch of the government.8

4
Sunil Deshta and Kamal Jee t Kaur Sooch, Philosophy of Judicial Accountability: An Introspection, Civil and
Military Law Journal, April-June, 2009, Pg. 54
5
David Pimentel, Reframing the Independence Vs. Accountability Debate, p.15, available at
http://www.clevelandstatelawreview.org/57/issue1/Pimentel.pdf, last accessed on November 2, 2017 at 03:20
AM
6
J.S. Verma , Mechanism for judicial accountability, available at
http://www.judicialreforms.org/files/mechanism_jud_acc_verma.pdf, last accessed on November 2, 2017 at
03:20 AM
7
Cyrus Das and K. Chandra, Judges and Judicial Accountability, 101 (2004)

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Transparency is facilitated through the process of accountability. It is best achieved when one
is accountable to law. The existing systems of accountability have failed, and the growing
corruption is eating away the vitals of this branch of democracy. This lack of accountability
has been best put forward by Pt. Nehru in a diatribe, judges of the Supreme Court sit on
ivory towers far removed from ordinary men and know nothing about them.9

Need for judicial accountability?

The Judicial System of the country, far from being an instrument for protecting the rights of
the weak and oppressed has become an instrument of harassment of the common people of
the country. In fact it has become the leading edge on the ruling establishment for pushing
through near liberal policies by which the resource such as land, water and public spaces left
with the poor and being increasingly appropriated by the rich and the powerful. While the
system remains dysfunctional for the weak and the poor when it comes to protect their rights,
it functions with great speed and alacrity when involved by the rich and powerful, especially
when it is appropriating the land and public spaces from the poor. The courts are increasingly
displaying their elitist bias and it appears that they have seeded from the principles of the
Constitution which set up a republic of the people who were guaranteed "Justice -social,
economic and political".

"All power is a trust that we are accountable for its exercise that from the people and for the
people, all springs and all must exist".10 In a democratic republic power with accountability
of the individual enjoying it, is essential to avert disaster for any democratic system. The
accountability must be comprehensive to include not only the politicians, but also the
bureaucrats, judges and everyone invested with power. Power and position in a democracy is
depicted as attendant with responsibility, and every incumbent of a public office must remain
constantly accountable to the people, who are the repository of political sovereignty. 11

8
Mona Shukla, Judicial Accountability: an aspect of Judicial Independence in Judicial Accountability, Regal
Publications, New Delhi, 2010
9
ibid
10
K.C.Jena, Judicial Independence and Accountability, Indian Bar Review, (4) 2012, Vol. XXXIX
11
See Judicial Accountability in India, available at http://www.legalservicesindia.com/article/article/judicial-
accountability-in-india-538-1.html, last accessed on November 2, 2017 at 03:20 AM

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PROBLEMS IN REGARD TO MAKING JUDICIARY ACCOUNTABLE

Transparency is facilitated through the process of accountability. It is best achieved when one
is accountable to law. The existing systems of accountability have failed, and the growing
corruption is eating away the vitals of this branch of democracy. 12 There are quite a lot of
reasons that have been identified for the failure of accountability in India; few of them are
discussed below:

1. Impeachment

According to the Indian Constitution, the only way through which the members of the higher
judiciary that is the Chief Justices and Judges of Supreme Court and High Courts are
accountable or can be removed is through impeachment. Many regard impeachment as a
failure, but before moving into that it is important to see the constitutional provisions. Under
Article 124(4)13, the process of impeachment is carried out only on the grounds of proven
misbehaviour or incapacity. The Judges Inquiry Act, 1968 states that a complaint against a
judge is to be made through a resolution signed either by 100 members of the Lok Sabha or
50 members of the Rajya Sabha to their respective presiding officers 14. There is a three
member committee comprising two judges one from SC and the other Chief Justice of India
if it is against a HC judge; and two SC judges if it is against a sitting judge at the apex court.
Investigations are carried out before making a recommendation to the house. If the committee
has concluded for the impeachment process to take place, the matter is discussed in both
houses.15 The alleged judge is also given opportunity to rebut the charges. After the debate is
done and the judge is heard, the house decides to put the motion to vote, a resolution passed
by 2/3rds majority in both houses. This whole process has to be completed in a single session.
After the resolution is passed, it is sent to the president who then orders for removal. Given
this provision, the story ends with no one being judge has been impeached till date.

However it will be a misjudgement if one thinks that the judiciary is free from corruption.
The loophole is the entire process of impeachment itself. It is undoubtedly lengthy and
cumbersome. Many have even regarded this as a complete failure.

12
Isha Tirkey, Judicial Accountability in India: understanding and exploring the failure and solutions to
accountability, CCS Working Paper No. 247, available at http://ccs.in/internship_papers/2011/247_judicial-
accountablity-in-india_isha-tirkey.pdf, last accessed on November 2, 2017 at 03:20 AM
13
The Constitution of India, 1950
14
See Section 3 of the Judges Inquiry Act, 1968
15
Supra note 8

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2. Contempt of court

The contempt of court can be seen as a means to protect the independence of the court,
however it is mostly seen that the court has used this as a means of shielding themselves from
any criticism. Contempt is defined as any act that is offensive and critical to the dignity and
the authority of courts. According to Oswald, contempt of court is so manifold in its aspect
that it is difficult to lay down the exact definition of the offence.16 Contempt can be
classified into two groups:

i. Civil, which means wilful disobedience of any, judgment, decree, direction, order or any
other processes of court.;
ii. Criminal, which means publication of any matter or the doing of any other act
whatsoever which scandalizes or tends to lower the authority of any court.

It has often been referred that contempt of court for much part is a hangover from the British
rule. During the British rule, India was not free and democratic, but today the situation has
changed. Questions therefore arise as to how can laws of those days be applicable today. 17 In
this regard, the Supreme Court in the case of In Re Arundhati Roy18 held Arundhati Roy
guilty and sentenced her to one day imprisonment and a fine of Rs. 2000, stating that, She
wanted to become a champion to the cause of the writers by asserting that persons like her
can allege anything they desire and accuse any person or institution without any
circumspection, limitation or restraint. Such an attitude shows her persistent and consistent
attempt to malign the institution of the judiciary found to be most important pillar in the
Indian democratic set up...

3. Exemption from the Right To Information

One of the ways the Judiciary can be held accountable is when the people have the right to
know what exactly they are doing. This comes naturally in a democratic form of government.
In the famous Raj Narain Vs Indira Gandhi19 case, the foundation for the RTI was laid by the
Supreme Court of India, it stated that, the people of the country have the right to know about
every public act this is derived from the concept of freedom of speech To cover it with

16
Supra note 8
17
Markandey Katju, Contempt of Court, available at
http://www.judicialreforms.org/files/1%20Contempt%20of%20Court%20-%20Markandey%20Katju%20-
%20The%20Hindu.pd, last accessed on November 2, 2017 at 03:20 AM
18
Contempt Petition (Criminal) No. 10 of 2001
19
AIR 1977 SC 69

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the veil of secrecy the common routine business is not in the interest of the public.20 This is
chief safeguard against corruption. There are in fact, in many countries where public
disclosure of asset is required as a measure for good government. In the US, the Ethics in
Government Act 1976 requires the annual disclosure of financial information by all related to
policy making responsibility. This issue of asset declaration arose when Subhash Agarwal,
inquired about the information whether the judges were complying with the 1997 Code of
Conduct. The Central Information Commission had directed the information officer of the
court to obtain the information from the CJIs office and provide it to the applicant. This
prompted the SC to file a writ petition in the Delhi HC, claiming that asset disclosure was
exempted under RTI act on the basis that this information was disclosed by the judges to the
Chief Justice under fiduciary relationship.21

4. Judges Inquiry Act, 1968

The judiciary claims that any outside body having disciplinary powers over them who compromise
their independence so they have set up an in-house mechanism investigating corruption. This was
proposed by the Judges Inquiry Act Amendment Bill 2006 which provided for a National Judicial
Council consisting of the CJI, two senior-most judges of the SC and two CJs of HCs as members to
enquire allegations.34 The problem which arises is that in this in-house procedure the judges regard
themselves as a close brotherhood35 and therefore are unwilling to take any step against them. What
is objectionable is Section 33, which says not to disclose any information relating to the complaint to
any person in any proceeding except when directed by the Council. This will make it impossible to
publicise the charges.36 Moreover, even if it finds a judge guilty of serious misconduct, it can only
recommend impeachment which again goes for voting in the parliament, ultimately failing as we saw
in the Ramaswamy case. The only positive feature of the bill is that it initiates an enquiry into the
allegations of misconduct of a judge.

20
Prashant Bhushan, Judicial Accountability, Economic and Political Weekly, Vol. XLIV , available at
http://www.judicialreforms.org/files/EPW%20judicial%20accountability%20asset%20disclousure%20and%20b
eyond.pdf, last accessed on November 2, 2017 at 03:20 AM
21
ibid

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JUDICIAL ACCOUNTABILITY BILL

The Judicial Standards and Accountability Bill will set judicial standards and make judges
accountable for their lapses. It will also mandate that judges of the high courts and the
Supreme Court declare their assets and liabilities, including those of their spouses and
dependants. The Union Cabinet has approved the draft Judicial Standards and Accountability
Bill, 2010 that provides for setting up a five-member oversight committee to deal with
complaints against members of the higher judiciary. Official sources said judges would also
be required to declare their assets and file an annual return of assets and liabilities. All these
details will be put up on the websites of the Supreme Court and high courts. It will further
require judges not to have close ties with any member of the Bar, especially those who
practise in the same court. The enactment of the Bill will address the growing concerns
regarding the need to ensure greater accountability of the higher judiciary by bringing in
more transparency, and will further strengthen the credibility and independence of the
judiciary,22 Information and Broadcasting Minister Ambika Soni told reporters after a
meeting of the Union Cabinet. The proposed oversight committee will be headed by a former
chief justice of India and include the attorney general, a Supreme Court judge, a chief justice
of a high court and an eminent person nominated by the President.

The Bill to replace the Judges Inquiry Act retains its basic features, contemplates setting up
of a national oversight committee, to be headed by a former Chief Justice of India, with
which the public can lodge complaints against erring judges, including the Chief Justice of
India and the Chief Justices of the High Courts. At present, there is no legal mechanism for
dealing with complaints against judges, who are governed by Restatement of Values of
Judicial Life,' adopted by the judiciary as a code of conduct without any statutory sanction.

The five-member committee to be appointed by the President will have a serving judge of the
Supreme Court and a serving High Court judge, both nominated by the Chief Justice of India;
the Attorney-General; and an eminent person nominated by the President.23

22
Heenavrm, Judicial Accountability in India available at
http://www.legalservicesindia.com/article/article/judicial-accountability-in-india-538-1.html , last accessed on
November 2, 2017 at 03:20 AM
23
Apurva Mishra,Judicial accountability: Who will judge the Judges in India, available at
http://www.firstpost.com/india/judicial-accountability-who-will-judge-the-judges-in-india-1405511.html , last
accessed on November 2, 2017 at 03:20 AM

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On receiving a complaint, the committee will forward it to a system of scrutiny panels. In the
case of a complaint against a Supreme Court judge, the scrutiny panel will consist of a former
Chief Justice of India and two sitting Supreme Court judges, and in the case of a complaint
against a High Court judge, the panel will have a former Chief Justice of the High Court and
two of its sitting judges. The members of the Supreme Court panel will be nominated by the
Chief Justice of India, and that of the High Court panels by the Chief Justice of the High
Court concerned. The scrutiny panels will have the powers of a civil court. For instance, they
can call for witnesses and evidence. They will be required to give their report within three
months to the oversight committee. In the case of a complaint against a Chief Justice, the
oversight committee itself will conduct the scrutiny. On receiving the report from the scrutiny
panels, the oversight committee will set up a committee to further investigate the case. Like
the scrutiny panels, the investigation committee will have the powers of a civil court; it will
have the power to frame definite charges.24 If the charges are not proved, the investigation
committee can dismiss the case. Otherwise, it will give a report to the oversight committee,
which can issue an advisory or warning or recommend minor punishment if the charges are
not too serious. If the charges are serious, the committee can request the judge concerned to
resign. If the judge does not do so, the oversight committee will forward the case to the
President with an advisory for his removal. The Bill mandates that judges should not have
close association with individual members of the Bar and not allow any member of their
immediate family to appear before them in courts. Judges should not contest any election to
any office of club, society or other association, except those associated with the law or any
court. Further, they should not have any bias in judicial work or judgments on the basis of
religion, race, caste, sex or place of birth.

24
Anushtha Saxena, Judicial Accountability bill- Need and Consequences, available at
http://www.lawyersclubindia.com/articles/Judicial-Accountability-Bill-Need-and-Consequences-5276.asp , last
accessed on November 2, 2017 at 03:20 AM

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CONCLUSION

Corruption in the judiciary is hardly a new phenomenon, though it has certainly increased
over the years. It is worthwhile however to examine the reasons for the sudden spate of
exposures of judicial corruption. Having enjoyed enormous powers, including the power of
contempt, without any accountability, the higher judiciary has over the years, tread on the
toes of many persons and institutions, particularly the media. Not wanting to suffer criticism,
the judiciary has used its power of contempt to stifle criticism. More than 50 editors,
publishers and journalists have been issued contempt notices by the Karnataka High Court for
having written stories about a judicial sex scandal, reportedly involving three judges of the
High Court. Small wonder then, that the media is enjoying every bit of the juicy judicial
scandals that have exploded. That there has been corruption in the judiciary for many years
One reason why judges have been treated as demigods in this country is because of the power
of contempt wielded by them. This is a jurisdiction in which a judge against whom an
allegation has been made can himself act as the complainant, prosecutor and judge. The judge
can even refuse to allow the maker of the allegation to prove its truth. The very existence of
this power has been enough to silence the media and inhibit them from exposing judicial
misbehavior or corruption. The amendment recently moved in Parliament to make truth a
defense in a contempt action is not an adequate safeguard for the citizens and the press. As
the case involving the journalists who wrote about the Karnataka sex scandal shows, though
the allegation may be made bona fide and on a reasonable basis, it may not always be
possible to prove its truth. This could be because the witnesses are won over or the evidence
disappears for some other reason.

In mater of appointment, a lot has been said about the dangers of substituting absolute
Executive authority with absolute Chief Justice Authority. It is important to have a more
important broad based appointing body in the legal system, incorporating undoubtedly the
higher judicial functionaries but also giving representation to some outside elements form the
categories of eminent jurists, academics and both the ruling executive and the opposition.
Moreover this process would certainly be more transparent and open. In such broad based
appointing body at least two leading members of the bar must find representation. The
manner of selection/ nomination of those persons should be carefully thought out to ensure
objectivity and absence of conflict of interest.

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The second crucial aspect which cannot be separated from the first is the vital necessity of a
workable mechanism for regulating judicial conduct, taking corrective action and if necessary
disciplining the errant judges shot of and up to removal.

Unless one puts in place a reasonable, internal, fair, expeditious and effective in house
regulatory regime short of impeachment, allegations against judges will always be on the rise.

The general dissatisfaction with the Courts self appointed role in appointment and transfer of
Judges has led to suggestions that it is high time that a National Judicial Commission should
be appointed which would not only consist of high judicial members but also other non-
judicial members and which would make recommendations for such appointments. The
suggestion for a National Judicial Commission has been made by the 80th and 121st reports
of the law commission of India. A constitutional amendment (67th Amendment) bill 1990
was formulated by the ministry of Justice in 1990 for setting up such a body but the bill
lapsed on the dissolution of the parliament.

The independence of judiciary is an important concept being the basic principle of the
constitution but what has to be realized is that it is not an end in itself but only a means to
achieve an end. The end is to secure efficient, expeditious and impartial delivery of justice.
The main intention behind this principle is that the people should get justice, irrespective of
their status. This principle is required to instill confidence of the people in its Justice Delivery
System. Confidence is very important. Our society is usually peaceful, not because there is a
police force and lawyers to take you to the court. It is because people respect the courts and
the laws they apply. If, however, people loose confidence in the courts and think that they
would not receive a fair hearing, they might disrespect the law generally.

So any new step towards revamping the Judicial System should aim at balancing in the best
possible manner judicial independence and judicial accountability.

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BIBLIOGRAPHY

BOOKS

1. Gary Bellow & Bea Moultan, The Lawyering Process: Ethics and Professional
Responsibility, The Foundation Press, Inc.
2. V. R. Krishna Iyer, Law, Lawyers and Justice, B. R. Publishing Corpn, Delhi.
3. K.L. Sharma, Sociology of Law and Legal Profession- A Study of Relation Between
Layers and Their Clients, Rawat Publications, Jaipur.
4. K.V. Krishnaswami Aiyer, Professional Conduct and Advocacy, Oxford University.

WEBSITES:

1. www.allindiabar.org
2. www.barcouncilofindia.org
3. www.indiaedunews.net
4. www.studentsguide.in

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