ROLE OF JUDICIARY IN INDIA
Among the foundational objectives of our polity the founding fathers accorded the highest place to Justice. The Preamble to the Constitution spoke of the resolve to secure Justice - social, economic and political to all its citizens. It was natural that the people turned to Judiciary as the bastion of hope for protection against injustice. Even though India has adopted federal system, the Constitution of India has not provided for a double system of Courts as in the United States. Indian Constitution provides a single integrated system of courts for the Union as well as the States which administer both Union and State laws, and at the head of the entire system stands the Supreme Court of India. Below the Supreme Court, there are High Courts of the different States and under each High Court there is a hierarchy of other courts which are referred to in the Constitution as subordinate courts.
An independent and impartial judiciary is an essential requirement for ensuring human rights and protecting democracy and minority rights. The independence of Judiciary in India is ensured through many devices viz.
- Separation between Executive and Judiciary
- Constitutional provisions for appointment
Parliament has the power to make laws regulating the constitution, organisation, jurisdiction and powers of the Supreme Court. Subject to such legislation, the Supreme Court consists of the Chief Justice of India and not more than thirty other Judges (Article 124). Besides, the Chief Justice of India has the power, with the previous consent of the President, to request a retired Supreme Court Judge to act as a Judge of the Supreme Court for a temporary period (Article 128). Similarly, a High Court Judge may be appointed ad hoc judge of the Supreme Court for a temporary period if there is a lack of quorum of the permanent Judges (Articles 127).
APPOINTMENT OF JUDGES (ARTICLE 124)
Every Judge of the Supreme Court shall be appointed by the President. The President shall in this matter, consult other persons besides taking the advice of his Ministers. In the matter of appointment of the Chief Justice of India he shall consult such Judges of the Supreme Court and of the High Courts.
QUALIFICATION FOR APPOINTMENT AS JUDGE [ARTICLE 124(3)]
A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is:
(a) a citizen of India
(b) either - (i) a distinguished jurist (ii) has been a High Court Judge for at least 5 years (iii) has been an Advocate of a High Court for at least 10 years.
NATURE OF CONSULTATION BETWEEN PRESIDENT AND CHIEF JUSTICE
Since 1950, judges have been appointed by the government in “consultation” with the Chief Justice of India (CJI). For the first two decades, there was a near consensus between the government of the day and the CJI. In 1981 the question arose whether “Consultation” referred to in Articles 124(2) and 217(1) with the CJI meant “concurrence” in which case the recommendations of the judiciary would be binding on the government. In the S P Gupta case decided in 1981, the Court held by a majority that the recommendations of the CJI were not binding on the Government. Once this decision was rendered the Government obtained a licence to disregard the recommendations of the judiciary.
In Supreme Court Advocates-on-Record Association v. Union of India (1993) (Second Judges case), once again, the issue was taken to the Supreme Court and the judgment in the S P Gupta case was overruled. This time a bench of nine judges held that a collegiate opinion of a collective of judges is binding on the government. The majority gave the following conclusions regarding appointments:
- All the constitutional functionaries must perform this duty collectively with a view to reach an agreed decision so that the occasion of primacy does not arise.
- In case of Supreme Court the proposal is to be initiated by the CJI and in the case of a High Court by the Chief Justice of that High Court.
- In the event of conflict of opinion the view of the CJI has primacy.
- No appointment
- In exceptional cases, for stated strong and cogent reasons, disclosed to the CJI, indicating that the recommendation is not suitable for appointment, the appointment recommended by the CJI may not be made. But in case the CJI reiterates his recommendation then the appointment should be made in accordance with his recommendation.
- The senior-most judge of the Supreme Court should be appointed as CJI, if considered fit to hold the office.
The judgment established the primacy of the judiciary in the matter of making appointments. Later it appeared that the collective will of judges was not able to take decisions in the spirit of a collegium and this led to a Presidential reference under Article 143 to the Supreme Court for an advisory opinion on the appointment of judges, the method relating to the consultation between the CJI and his brother judges in the matter of appointment of judges, and the relevance of seniority in appointing the Chief Justice and the other judges. In Re Appointment of Judges (1998), the Supreme Court rendered an opinion reiterating that the CJI has plenary powers in the consultative process. The nine judge bench opined:
- The opinion of the CJI, having primacy in the consultative process and reflecting the opinion of judiciary, has to be formed on the basis of consultation with the collegium, comprising of the CJI and the four seniormost Supreme Court judges. The judge, who is to succeed the CJI should also be included, if he is not one of the four seniormost judges. Their views should be in writing.
- Views of the seniormost judges of the Supreme Court, who hail from the High Courts where the person to be recommended are functioning as judges, if not part of the collegium, must be obtained in writing.
- The recommendation of the collegium along with the views of its members and that of the seniormost judges of the Supreme Court who hail from the High Court where the persons to be recommended are functioning as judges should be conveyed by the CJI to the Government of India.
- The substance of the views of the others consulted by the Chief Justice of India or on his behalf, particularly those of non-judges (members of the Bar) should be stated in the memorandum and be conveyed to the Government of India.
- Normally, the collegium should make its recommendation on the basis of consensus but in case of difference of opinion no one should be appointed, if the CJI dissents.
- If two or more members of the collegium dissent, the CJI should not persist with the recommendation.
- In case of a non-appointment of the person recommended, the materials and information conveyed by the Government of India, must be placed before the original collegium or the reconstituted one, if so, to consider whether the recommendation should be withdrawn or reiterated. It is only if it is unanimously reiterated that the appointment must be made.
- The CJI may, in his discretion, bring to the knowledge of the person recommended the reasons disclosed by the Government of India for his non-appointment and ask for his response thereto, which, if made, be considered by the collegium before withdrawing or reiterating the recommendation.
TENURE OF JUDGES
No minimum age is prescribed for appointment as a Judge of the Supreme Court, nor any fixed period of office. Once appointed, a Judge of the Supreme Court may cease to be so, on the happening of any one of the following contingencies (other than death):
(a) On attaining the age of 65 years
(b) On resigning his office by writing addressed to the President
(c) On being removed by the President upon an address to that effect being passed by a special majority of each House of Parliament.
REMOVAL OF A JUDGE OF THE SUPREME COURT
Article 124(4) states that a judge of a Supreme Court is removed by the President upon an address by both Houses of Parliament supported by a majority of not less than 2/3rd members present and voting and a majority of the total strength of House on ground of proved misbehaviour or incapacity.
Article 124(5) authorizes the Parliament to provide by law for the manner of introduction of resolution and the establishment of proof of misbehaviour or incapacity of the judge. Accordingly, the Parliament passed Judges Inquiry Act 1968, which states that a resolution seeking the removal of a judge of Supreme Court can be introduced in either House of the Parliament. If it is to be introduced in Lok Sabha, it should be supported by not less than 100 members and in Rajya Sabha by not less than 50 members. If it is properly introduced, the presiding officer of that House shall constitute a judicial committee to investigate against the charges of judge. The Chairperson of committee shall be a sitting judge of Supreme Court, the 2nd member may be a sitting judge of Supreme Court or a High Court and the 3rd member may be an eminent jurist. The resolution shall be moved only after the expiry of 14 days’ notice issued on the judge.
The procedure for removal is the same for Judges of the Supreme Court and the High Courts. The Supreme Court in Subcommittee on Judicial Accountability v. Union of India (1992) clarified the law relating to a judge of a Supreme Court. It held that the whole act of the removal of a judge of the Supreme Court can be divided it into 2 acts i.e. political act and judicial act. While the introduction of the resolution and the passage of resolution by the Houses of Parliament constitute the political act, the appointment of judicial committee, the investigation of charges by judicial committee and the President passing the order for removal of judge in the same session in which the Parliament passes the resolution constitutes the judicial act. Under the political act, the authority concerned enjoys discretionary power and under the judicial act the authority does not enjoy discretionary power.
OFFICERS AND SERVANTS AND THE EXPENSES OF SUPREME COURT
Article 146 provides that appointment of officers and servants of the Supreme Court is made by the Chief Justice of India or other Judge or officer of the Court as directed by the Chief Justice of India. The conditions of service of officers and servants of the Supreme Court shall be prescribed by rules made by the Chief Justice of India or by some other Judge or officer of the Court authorised by the Chief Justice of India to make rules for the purpose. The rules made relate to salaries, allowances, leave or pensions and require the approval of the President. The administrative expenses of the Supreme Court, including all salaries, allowances and pensions of the offices and servants of the Court is charged upon the Consolidated Fund of India, and any fees or other moneys taken by the court shall form part of that Fund.
PUBLIC INTEREST LITIGATION
Public Interest Litigation (PIL) can be defined as litigation that seeks to protect and promote the interests of public at large. It is based on the maxim pro bono publico which means “for the public good”. It is a judicial instrument the basic purpose of which is to achieve public good. As a concept it originated in U.S.A where it is known as Social Action Litigation. It has been successfully incorporated by the Supreme Court into the jurisprudence in order to enforce the legal obligation of legislature and executive and to maintain rule of law. Its objective is to ensure speedy and inexpensive justice and help in the promotion of wellbeing of the people. It is generally issued to protect the group interest of the people and not individual interest for which Fundamental Rights has been provided. It is a power enjoyed by the Supreme Court and the High Court under the power of Judicial Review.
The Supreme Court has evolved rules relating to PIL. Any person or organization that is publicly spirited can approach the court by filing PIL. Therefore, the principle of locus standi does not apply. Even a postcard addressed to the court can be regarded as a writ petition and PIL can be instituted in the court. Further, it can be filed against the State and the individuals. The relief is normally provided in the form of directions and orders to the parties including the right to order for the payment of compensation to the affected parties. The court may also waive the normal court procedure and the court fee in order to provide speedy and inexpensive justice. PIL has certain purposes which include:
- It has helped in increasing the level of awareness in the public about their rights and the role of judiciary in implementing these rights.
- It has forced the executive and the legislature to perform the constitutionally assigned functions to the people and also to maintain the rule of law.
- It has helped in expanding the scope of Fundamental Rights by interpreting them liberally.
- It has helped the court to make an attempt to provide a corruption free administration and liveable environment to the people.
However, PIL has come under criticism where it has been alleged that it has interfered with the normal judicial function of the court and contributed to the accumulating number of cases in the court. It has also been misused for seeking publicity and filing frivolous and vexatious petition before the court. The Supreme Court in response has formulated new rules under which it has asserted that the courts enjoy the power to order for payment of exemplary compensation in case of petition being frivolous and vexatious to the affected parties. It also started appointing screening committees consisting of public spirited individuals and eminent citizens to scrutinize the petition filed before the courts and submit a report so that the precious time of the court can be saved. The court has also started taking the help of amicus curiae to investigate into the charges alleged in PIL. Further the court held the party that approaches the court by filing a PIL shall have to prima facie establish a case before the court shifts the burden of proof on the other party. Though the PIL mechanism evolved by the Supreme Court has cured many a social evils, the same should not be used by the apex court judges to dilute the separation of powers and authority of the Government and the Parliament.
Judicial activism connotes the assertive role played by the judiciary and forcing the executive and the legislature in discharging constitutionally assigned functions towards the people in order to ensure that the rule of law is upheld in the process. Judicial Activism is practiced by the Supreme Court and the High Court under the power of Judicial Review. It is primarily through Public Interest Litigation that judicial activism is practiced and PIL is regarded as the facilitator of Judicial Activism. Public Interest Litigation is called the backbone of Judicial Activism.
Judicial Activism is a welcome measure only in the short run, where it ensures that “rule of law” is maintained. However in the long run, it may dilute the concept of separation of powers and doctrine of checks and balances where one organ of the government may gain more powers at the expense of the other organs of the government. Further, it may assume excess power without adequate responsibilities. It should be used only as a last resort after all other methods have failed to force the executive and the legislature in discharging the functions towards the people. The Judiciary must employ restraint and should be conscious of the fact that Judicial Activism and judicial restraint are two sides of the same coin. The Judiciary must formulate a “code of ethics” to follow while indulging in Judicial Activism. It is the responsibility of the Judiciary to ensure that Judicial Activism does not degenerate in to Judicial Adventures.
RESTATEMENT OF VALUES IN JUDICIAL LIFE
The Second Administrative Reforms Commission (SARC), in its report on Ethics in Governance (2007) has remarked: “Independence of the judiciary is inextricably linked with judicial ethics. An independent judiciary enjoying public confidence is a basic necessity of rule of law”. The Commission in this context refers to the Supreme Court’s charter on the restatement of values.
The Supreme Court of India in its field meeting held on 7 may 1997 had unanimously adopted a charter called the “Restatement of Values in Judicial Life.” Generally known as the code of conduct for judges, the “Restatement” maintains that “Justice must not merely be done but it must also be seen to be done.” A judge of the Supreme Court or a High Court, whether in official or personal capacity, should demonstrate impartiality, political neutrality, objectivity, judiciousness and high standards of integrity and should refrain from any act that can cast doubts on his honesty. The Supreme Court has also resolved that every judge should make a declaration of all his/her assets and of his dependents and any addition to such assets from time to time.
In this context SARC observed that the Restatement of Values in Judicial Life is comprehensive but not an exhaustive code of ethics. Therefore, in order to enforce this code, a senior judge of the Supreme Court should be designated as Judicial Values Commissioner who should be empowered to enquire into cases of violation of code of conduct and report the matter to the Chief Justice of India for taking action. A similar institution should be constituted at the State level.
NATIONAL JUDICIAL APPOINTMENTS COMMISSION (NJAC)
Even if freedom of information and good governance became the major demands of the 21st century, the functioning of the judiciary continued to be shrouded in mystery and secrecy as judiciary does not come within the purview of the Right to Information Act. The rule of seniority ensured that judges could rise up the ladder with no special attention being paid to merit. Moreover, the appointment of a judge could be manipulated to ensure that a particular person becomes CJI.
There was a growing popular demand for a change in the manner and method of the appointment of judges; and this demand could not any longer be ignored. The demand for the NJAC began with the observation that the standing of the judiciary has been reduced in the eyes of the public by pervasive inefficiency and embarrassing instances of corruption. A bill was introduced in 2013 for the appointment of a judicial commission. However, there was no provision for transparency in that bill, nor any provision for public participation being able to give inputs on who could be fit for appointment. The bill lapsed with the dissolution of the 15th Lok Sabha.
In 2014, the Parliament passed the National Judicial Appointments Commission Act and the 99th Constitution Amendment Act. The Commission is composed of the CJI, two senior-most judges of the Supreme Court, the Law Minister and two eminent persons, to be selected by a selection committee consisting of the Prime Minister, the CJI, Leader of the Opposition in the Lok Sabha or where no leader of Opposition, the leader of the largest single opposition party.
There is no definition of who is an eminent person. If past experience is anything to go by, these could be lawyers or former judges. It is the function of this Commission to recommend judges for appointment to the Supreme Court and the High Courts. The Act states, among other things, that one of the criteria for being recommended as a judge is that a person must be of “ability and integrity”. There is no system in place for judging ability and the bill does not define it either.
Most importantly, if any two members of the Commission do not agree with a particular recommendation, the person cannot be appointed. This effectively gives to the executive a veto over the nomination made by the judiciary, as the law minister and one of the eminent persons can stop the appointment of a judge.
The Act gives the Commission the power to supersede the senior-most judge for appointment as the Chief Justice on grounds of lack of merit or ability. In the absence of any methodology for judging ability and merit, this provision could end up packing the judiciary with “friendly” judges. Integrity is a necessary requirement for a judge, yet there in no binding code of conduct for a judge, or a complaints procedure in place.
Even the judges writing the decision opined that the collegium is far from perfect. In rendering the decision, the court invited the government and others to make recommendations about how to improve the system. Writing for the majority, Justice J.S. Khehar suggests “one or more ‘eminent persons’ (perhaps even a committee of ‘eminent persons’) can be assigned an advisory/consultative role, by allowing them to express their opinion about the nominees under consideration.”
The collegium would not be required to follow these eminent persons’ advice, but “be obliged to keep the opinion tendered in mind.” Having a consultative body of eminent persons does seem like an improvement, but more is needed - including specifics. For instance, who are these “eminent” persons? One potential avenue is to have them selected by the Prime Minister, the Leader of the Opposition and the CJI, as the NJAC had proposed. This committee could also benefit from having a representative from the government to ensure that the government’s view is present from an early stage. At least one non-lawyer perspective could also be useful - even if only to help guarantee that the bench and bar don’t become too comfortable in a narrow view of what makes a good judge. Such an advisory committee would need independent staff. After all, even an “eminent person” is in no position to sort through the details of dozens of potential candidates on their own.
The Committee should be allowed to propose names for consideration as well as scrutinise those put forward by the collegium. When a candidate is finally nominated, the public should be allowed to comment on the candidate to help weed out persons who may have previously unknown failings. There is no perfect system for choosing judges and no magic criteria to make the selection process scientifically precise. Reasonable people can disagree about which candidate might make the best judge. That said, those nominating judges should be able to defend their choices and those who are nominated should be able to withstand public examination. This is not a high bar for a selection process. Such reforms will not fundamentally transform how appointments are done. For better or worse, judges will still be in control. However, these reforms could improve the process.
However, in 2015, the Supreme Court held that the Constitution (99th Amendment) Act, 2014, which authorised the National Judicial Appointments Commission Act, as unconstitutional. The Court held that the NJAC Act was consequently ultra vires. Four Supreme Court judges - with Justice J. Chelameswar dissenting - held that the 99th Amendment Act took away the primacy of judges to appoint judges of the Supreme Court and High Courts, and this destroyed the basic structure of the Constitution. The majority of the Court held that, by giving such power of appointment to the NJAC, the basic feature of the independence of the judiciary was being destroyed. The proposed commission also violates the separation of powers between the judiciary and the executive, which, the apex court rightly holds, is fundamental to the basic structure of the Constitution.
The Supreme Court has evolved the collegium system. The collegium system has ensured the independence of the judiciary by establishing an extensive system of consultation with the Government but keeping the final power of appointment in the hands of the CJI and a collegium consisting of senior judges. It is this primacy of the judiciary that the NJAC Act would have destroyed in not one but three ways: First, by bringing the law minister, that is, the executive, directly into the selection process; second, by giving him the power to veto any judge selected by the CJI and his colleagues with the help of only one of the two eminent lay members of the NJAC; and third, by asking the seniormost judge after the Chief Justice, who would normally succeed him, to recuse himself from the selection panel, so that in this most critical appointment, the judiciary would be reduced to a minority.
Given that in our system, laws made by the executive can be challenged in front of the judiciary, it is imperative that judges are not dependent on the executive for their appointment. It is now asserted that better functioning of the judiciary must not be secured at the expense of its independence. No system is perfect, and as a system of choosing judges, the collegium system is no exception. But it needs to be judged not against yardsticks we may like it to meet but its success in maintaining the independence of the judiciary. By this yardstick, the collegium system has been an unqualified success.
The Supreme Court directed the Executive to draft a Memorandum of Procedure (MoP) on appointment of judges to the High Courts and the Supreme Court, in consultation with the President and the CJI. The four issues highlighted by the draft MoP are transparency in the appointment process, eligibility criteria, a permanent secretariat for the collegium and a process to evaluate and deal with complaints against candidates. It should take into consideration four seniormost puisne judges of the Supreme Court, who are part of the collegium. Even though Executive drafts MoP, it must be ensured that the CJI plays a final role in the finalisation of the procedure of judicial appointments. The Attorney General was also included to suggest candidates who may be considered for appointment as judges of High Courts and Supreme Court. The MoP suggests that the collegium may invite a list of candidates from eminent senior advocates from the Bar and from all brother judges of the High Court and Supreme Court as the case may apply while shortlisting candidates. In another key recommendation, the draft MoP says the Supreme Court collegium must send dissent note if any member of the panel objects to a selection. The detailed dissent note must be sent to the government along with the recommendation.
According to the MoP, evaluation of judgments delivered by a High Court judge during the last five years and initiatives undertaken for improvement of judicial administration should be a yardstick of merit for promotion as Chief Justice of a High Court. The new MoP proposes that for appointment of judges in the Supreme Court, the prime criteria should be seniority as Chief Justice/Judge of the High Court as well as merit and integrity. The MoP states that up to three judges in the Supreme Court need to be appointed from among the eminent members of the Bar and distinguished jurists with proven track record in their respective fields.
NEED FOR AN ALL-INDIA JUDICIAL SERVICE (AIJS)
Nowhere in the world does the judiciary appoint its own, except in India. Save for the higher judiciary, every public officer in India undergoes a screening test. The collegium system has come in for a lot of criticism on the grounds that it lacks objectivity and impartiality.
As a solution, the executive sought to bring in the National Judicial Appointments Commission (NJAC), which the Supreme Court has struck down. However, the cure doesn’t lie in restoring the balance in favour of the executive, but in putting in place a system that is objective and transparent. Thus, the argument for an All-India Judicial Service (AIJS) assumes significance. This old demand has always been shelved on account of vested interests masquerading as judicial independence.
The French model where the judiciary is manned by a career judicial service can be adopted. France’s experience is quite satisfactory compared to the U.K., where judges are chosen from the legal profession, or the U.S., where judges need not necessarily come from a legal background. The process of selecting a good judge can’t be left to the wisdom of a few, however sagacious - be it a collegium or an NJAC.
A body like the Union Public Service Commission needs to be established to conduct an examination for the recruitment of members to the AIJS. AIJS officers could start their careers as additional district judges and eventually rise up to become High Court and Supreme Court judges. The AIJS would be able to attract the best talent. As against nebulous accountability and lack of transparency in the functioning of the judiciary, the AIJS can be governed by a well-laid system of discipline and service accountability like the existing all-India services. While the political executive and bureaucracy are subjected to various checks, the higher judiciary seems free from it. Theoretically, the judiciary’s acts can also be investigated, but it rarely happens. Disciplinary and service matters of the AIJS could be managed by a separate body. The executive should have no control over such matters.
Most High Courts and State Governments have raised objections to an AIJS. Prior to the collegium, politicians could quietly sneak in their candidates. After the collegium system was introduced, the higher judiciary became party to that. An important objection to the AIJS by the States and the judiciary is local language requirements. This is a feeble argument.
For the ostensible reason of independence, the judiciary has justified the collegium system of appointments, while in reality, it was perhaps the desire to not let go of privilege and discretion. Time has changed and people demand more transparency. All organs of State, except the judiciary, have responded to that demand. Only an AIJS will make the judiciary more accountable and professional.
The judiciary has always closed its doors to public scrutiny. It has created a veil of secrecy. Every organ of State in a democracy needs to be accountable to the public. People need to know how judges are appointed, what criteria they have been evaluated on. Many judges appointed by the collegium or by political intervention may have been brilliant, yet their recruitment process is questionable. Such judges would have no moral right to question the transparency and integrity of the executive or even the private sector.
The higher judiciary should reflect social reality and the country’s diversity. It can only happen if a fair and impartial system of recruitment is put in place. Neither the judiciary nor the executive needs to have a say. An AIJS is not only a sine qua non for good governance in the judiciary but also an essential prerequisite for India to become a mature democracy.
The Constitution protects judges against the will of the masses, the will of Parliament, and the will of the Central Government. But it does not provide for the accountability of judges. It merely says that a judge can be impeached by Parliament on the grounds of ‘proved misbehaviour or incapacity’. No judge has so far been impeached, in spite of serious charges of misconduct or corruption has been raised against some judges. The lengthy and cumbersome impeachment provision is, thus, not an effective tool to ensure judicial accountability.
In fact, judges hold office during what may be termed ‘good behaviour’ not only in India but also in the U.K. and the U.S. The Supreme Court in India has held that the word ‘misconduct’ is a relative term and would connote “wrong conduct or improper conduct”. The Judges Inquiry Bill included wilful and persistent failure to perform duties within the definition of ‘misconduct’. Though the writing of judgments is one of the core duties of judges, it is difficult to argue that writing fewer judgments must be construed as misconduct or incapacity.
Apart from impeachment, there is no mechanism to make judges accountable or evaluate their performance. In the name of judicial independence, the Constitution thought it fit not to devise any scheme of scrutiny for judicial performance.
Judicial accountability is as important as accountability of the executive or legislature. Judicial accountability promotes at least three discrete values: the rule of law, public confidence in the judiciary, and institutional responsibility. In fact, neither judicial independence nor judicial accountability is an absolute ideal. Both are purposive devices designed to serve greater constitutional objectives. The apex court should concede that while judicial independence is the basic structure of the Constitution, it is not an end in itself.
With regard to performance, the number of decisions given by a judge is immaterial. The question assessing the quality of judgments, on the other hand, has not received much juristic attention in India. Many states in the U.S. have a ‘merit plan’ under which not only are judges appointed on merit but their continuance in office is decided on the basis of non-partisan elections. Some states such as Arizona, California and Utah have Judicial Performance Review Commissions or Councils, which consist of not only judges and lawyers but also lay persons. New York and Alaska have a system of evaluation by trained court observers who make unscheduled court visits. Judges are evaluated on their knowledge of law, integrity, communication skills, sentencing, impartiality and so on.
The regular evaluation of judicial performance is a springboard for ensuring greater judicial accountability, but unfortunately India do not have any institutional mechanism yet to do this. Neither the executive nor the earlier collegium system has attached much significance to judicial performance when considering judges’ elevation to the apex court. Similarly, no performance evaluation is done for Supreme Court judges.
Ideally, leading national law universities in India should take up this job by at least publishing in their journals a critical evaluation of judgments. Lord Denning of England used to say ‘there is court superior to the House of Lords called the 'Law Quarterly Review’. American judges too eagerly wait for the Harvard Law Review to see juristic response to their decisions. Our law schools could undertake this task, but these schools are headed by the Chief Justice of India and the Chief Justices of the concerned High Courts.
It is common knowledge that our Supreme Court had some highly active and efficient judges who have written a record number of decisions. Similarly, there are judges who have written relatively fewer decisions. There have been other judges who have opted to merely concur rather than write their own opinions. In any case, an opinion written by a judge is shared with other judges on the bench and the inputs of concurring judges are not made public. In fact, most judges have written judgments in less than 50 per cent of the cases they have heard. Many have written opinions in less than 30 per cent of cases. Nobody has ever called them inefficient. While judgment writing is an important yardstick to look at the efficiency of a judge, it cannot be the sole yardstick to measure performance. Quality and not numbers should matter in judgment writing. And for this, it is important to first put in place some mechanism of judicial performance evaluation.
The present government proposes to bring a new legislation to constitute a National Judicial Oversight Committee for judicial accountability where the Law Minister will be one of the three members of the panel. The other members of the proposed commission, which will deal with complaints against the higher judiciary, will be the Chief Justice of India and an eminent person. Presently, all complaints against judges are referred to the CJI and he along with other judges decides the course of action. The three-member oversight committee will be empowered to develop its own procedures and make rules for creation of similar structures at the State level.
The present Chief Justice of India disbanded the social justice bench of the Supreme Court. The bench was created in the last year with the aim to play a proactive role in expeditious resolution of social issues affecting the weaker sections. Pending PILs dealing with issues like human trafficking, tracing missing children, providing hygienic mid-day meals, welfare of construction workers, rehabilitation of acid attack victim, protecting women’s dignity etc. were heard by the bench The achievement of the bench is that it has helped to provide an institutionalised mechanism for rehabilitation of acid attack victims and forcing the Centre and States to make a strict regime over the counter sale of the corrosive substance.
India’s judiciary must overcome several key challenges. First, India still has only 18,000 judges, almost three decades after the Law Commission recommended a total number of 40,000 judges. The judge-population ratio has remained 13 for every one million as against 35 to 40 in other developing countries. Another big problem is the inability of our judiciary to benchmark limits for disposing of cases as in the U.S., where the benchmark is three years. Third, the judiciary must introspect about continuing with the colonial practice of long court vacations despite all-round criticism. Judges must also refrain from accepting frivolous Public Interest Litigations (PILs). Fourth, the government remains the biggest litigant in courts. The Centre and States accounted for nearly 70% of cases in courts. A policy to demarcate minor cases from the serious ones is essential. The list of High Court and Supreme Court judges of the last couple of decades indicates that a minuscule number of women, minorities and the downtrodden have been appointed to the higher judiciary.
In order to reduce the pendency of cases, the Government is in the process of drafting National Litigation Policy. The Government has also suggested audio-video recording of court proceedings which is meant to bring transparency in the justice delivery system and accountability in conduct of judges who allow too many adjournments.
Some of the major problems can be sorted out within the system itself. The Centre and the judiciary should collaborate on finding practical solutions: appointing more judges, including retired judges as ad hoc judicial officers, based on periodic needs assessments, increasing retirement age of judges, and deploying judicial resources efficiently. The judges can deny adjournments except for adequate reasons, limit time for arguments by drawing up a schedule, regulate reading of case law for hours and deliver judgements soon after closing of arguments. The court could invite an agency to study the case flow and pathology that might suggest solutions. The judiciary's structural gaps need urgent fixing so that it may be able to deliver speedy and affordable justice.