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Insights into Editorial: Measures for Judicial Reform

Insights into Editorial: Measures for Judicial Reform

22 October 2015

Striking down the NJAC bill, the supreme court has clearly expressed its lack of confidence and faith in the political class to preserve and protect the independence of the judiciary. However, the court has also acknowledged the deficiencies of the collegium system and is looking forward for some reforms.

Quick look at collegium system and its history:

The Constitution does not envisage a collegium of judges to select judges. It was virtually proposed by the lawyer community and the public who were distinctly uncomfortable with the intrusions into the independence of the judiciary in the 1970s and 1980s. When the Supreme Court devised collegium system, it was widely welcomed.

However, public and lawyer community were unhappy with this system too. It was proved, in some cases, that even judges also can be men of straw. The lawyers and the public realised that like any normal human being, several of the members of the collegium did not rise above their religion, caste, gender, language, family, friends and other affinities.

Is difference of opinion between various organs unhealthy?

By rejecting NJAC, the SC has expressed its lack of faith in the political class. There could be different perceptions on whether such lack of faith between the major organs of the state is warranted or is healthy in a vibrant democracy. Honest differences do exist. But such differences should not lead to recrimination or name-calling. The common man, the consumer of justice, is more interested in efficacious resolution of disputes expeditiously. The three organs of the government – judiciary, legislature and the executive – should take swift and decisive action in this regard in discharge of their constitutional obligations.

Which are the other areas that need immediate attention?

  • Vacancies in the Supreme Court and in the High Courts need to be filled up. Most High Courts are functioning with half or one third the sanctioned strength.
  • Persons of doubtful integrity who might have been appointed by the mistake of the collegium have to be weeded out. A method has to be found without the process of impeachment, and voluntary retirement could be an option.
  • The infrastructure in the courts needs improvement — there will not be enough court halls, chambers, or staff, if all the vacancies are filled.
  • There needs to be appointment of ad hoc or additional judges to clear pending cases — the reluctance of the collegium to appoint retiring judges as ad hoc judges is baffling.

How the present collegium system can be improved?

  • Accepting applications for appointments as High Court judges should be followed. This is followed in the U.K. and can be adopted in India too.
  • There must be full and complete disclosure of relationships and affiliations of applicants to sitting and retired judges.
  • Minimum eligibility criteria for consideration need to be laid down, including appearances in important cases.
  • Parliament should also enact changes to provide a uniform retirement age for judges of the Supreme Court and the High Courts, so that the present practice of some of the judges seeking to be in the good books of the existing or prospective members of collegiums in the Supreme Court is avoided. This will also obviate the argument of expectation based on seniority for appointment as judges of the Supreme Court.
  • The retirement age may be raised uniformly to 70 with a condition that no judge retiring at 70 shall be appointed as a member of any Tribunal.
  • The continuation as a judge after the age of 65 should be subject to being found ‘not unfit’ by the Permanent Commissions.
  • A minimum tenure of two years should be provided to the Chief Justice of India and the Chief Justice of High Courts.
  • No judge who is more than 68 years should be made a Chief Justice.
  • Court management should not be vested with Judicial Officers but assigned to trained managers.
  • All the three organs of the state should also introspect as to why there has been no or inadequate representation in the higher judiciary from amongst women.

Proposal for a Permanent commission:

  • There is also a proposal to create a permanent commission to allay the fears of intrusion into the independence of judiciary. It should be a three member Permanent Commission which will scrutinise the credentials of candidates and recommend names.
  • The Commission may consist of three retired Chief Justices of India for appointment of judges to the Supreme Court.
  • Four such similar Commissions may be constituted for the four regions of India with a retired judge of the Supreme Court as a Chair Person and two retired Chief Justices of the High Courts as members.
  • The tenure of the Chair person and members of the Commission should be three years.
  • The recommendations of the collegiums in the High Court may be forwarded to the Regional Permanent Commission which shall then send its recommendations to the collegium in the Supreme Court.
  • The selection of these permanent commissions should be made by a committee consisting of the Chief Justice of India, two senior most judges of the Supreme Court, the Prime Minister and the Leader of the Opposition in the Lok Sabha.
  • The collegium in the High Court may recommend a panel which is twice or thrice the number of existing and expected vacancies and, on scrutiny, the Commissions can recommend a pruned list of names to the Supreme Court Collegium.
  • These Permanent Commissions should also be vested with the power to scrutinise complaints of dishonesty and lack of integrity of judges, to make recommendations to the collegiums to withdraw work from those judges pending impeachment.