the chal­lenge of ju­di­cial re­forms

The ju­di­ciary needs to im­prove its per­for­mance in terms of the way judges are se­lected and trained

Governance Now - - CONTENTS - Sar­war La­teef

As ar­gued in the previous ar­ti­cle, it is patently clear why In­dia should not post­pone ef­forts to re­form the ju­di­ciary. The prob­lems fac­ing the ju­di­ciary are well un­der­stood. Much of what needs to be done has been an­a­lysed to death in the me­dia, learned jour­nals and books, and is re­flected in gov­ern­ment pol­icy ini­tia­tives. The UPA gov­ern­ment is­sued a vi­sion state­ment and ac­tion plan in 2009 and launched a Na­tional Mis­sion for Jus­tice De­liv­ery and Le­gal Re­forms which is still on- go­ing. Both the UPA and NDA gov­ern­ments at­tempted, un­suc­cess­fully, to re­form the way judges are se­lected in the higher courts and to reg­u­late ju­di­cial stan­dards and ac­count­abil­ity. The BJP’S 2014 man­i­festo out­lines sev­eral le­gal re­forms that ad­dress the key is­sues fac­ing the ju­di­ciary. Some re­forms have been ini­ti­ated and oth­ers are promised.

The ju­di­ciary needs to greatly im­prove its per­for­mance in terms of the way judges are se­lected and trained, and the way courts and lit­i­ga­tion are man­aged. Cen­tral and state gov­ern­ments also need to ad­dress fac­tors that are in their con­trol which con­trib­ute to high pen­dency lev­els and the in­ef­fi­ciency of the courts. Equally im­por­tant is the will­ing­ness of key stake­hold­ers such as the le­gal pro­fes­sion and bar as­so­ci­a­tions to be will­ing part­ners in a re­form process.

None of this is go­ing to be easy. The ju­di­ciary is over­worked and re­port­edly set in its ways. The po­lit­i­cal class is am­biva­lent at best about a strong and ef­fec­tive ju­di­ciary as it greatly cramps its style. And the le­gal pro­fes­sion has much to lose from re­forms that change the way it cur­rently does its busi­ness. Yet, ju­di­cial re­forms are es­sen­tial to the coun­try’s sus­tained growth and bal­anced de­vel­op­ment.

Man­ag­ing the ju­di­ciary

Un­der the In­dian con­sti­tu­tion, the ju­di­ciary is largely in­de­pen­dent of the other branches of gov­ern­ment.1 Its pay and pen­sion are charged to the Con­sol­i­dated Fund. Salaries of judges can­not be var­ied with­out a con­sti­tu­tional amend­ment. The ju­di­ciary also “wrested con­trol” of the ap­point­ment process from the gov­ern­ment fol­low­ing the Three Judges Cases in the 1990s, although the fi­nal say still rests with the pres­i­dent. It is there­fore solely re­spon­si­ble for man­ag­ing the court sys­tem, and for the qual­ity and ef­fec­tive­ness of the

ju­di­cial process. Yet, this in­de­pen­dence has been ac­com­pa­nied by a lack of ac­count­abil­ity and trans­parency and the fail­ure to mod­ernise the man­age­ment of the court sys­tem.

The prob­lems start with the way judges are ap­pointed. At the supreme court, the col­legium that se­lects judges com­prises the chief jus­tice and four se­nior most judges. At the high courts, sim­i­lar col­legiums iden­tify judges pre­dom­i­nantly from the lo­cal bar, but also from the sub­or­di­nate court ju­di­ciary, and send their rec­om­men­da­tions to a col­legium com­pris­ing the chief jus­tice of In­dia, two se­nior most judges of the supreme court, and the chief jus­tice of the con­cerned high court. Judg­ing by the large num­ber of va­can­cies, par­tic­u­larly in the high courts, the col­legium process is clearly not very ef­fec­tive in man­ag­ing the turnover of judges and fill­ing va­can­cies promptly as they arise. While part of the rea­son may be the in­abil­ity to at­tract high qual­ity lawyers who earn in a day what judges are paid for a month, it also re­flects the lack of a proper man­power plan­ning process that should un­der­pin such an ex­er­cise.

The process by which de­ci­sions are taken in the supreme court col­legium was de­scribed by jus­tice Ruma Pal, a re­tired supreme court judge, as one of the “best kept se­crets in this coun­try”2. This as­sess­ment was later con­firmed by a mem­ber of the cur­rent col­legium, jus­tice Jasti Che­lameswar, who pro­vided the sole dis­sent­ing opin­ion from the supreme court’s judg­ment strik­ing down the Na­tional Ju­di­cial Ap­point­ments Com­mis­sion Act, and who sub­se­quently ceased to at­tend meet­ings of the col­legium. Ar­gu­ing that trans­parency was vi­tal to con­sti­tu­tional gov­er­nance, jus­tice Che­lameswar said that “pro­ceed­ings of the col­legium were ab­so­lutely opaque and in­ac­ces­si­ble both to pub­lic and his­tory, bar­ring oc­ca­sional leaks… There is no ac­count­abil­ity in this re­gard. The records are ab­so­lutely be­yond the reach of any per­son, in­clud­ing the judges of this court who are not lucky enough to be­come the chief jus­tice of In­dia.”3 Be­ing “lucky enough” refers to the fact that the younger you are when you are ap­pointed, the more likely you will be­come chief jus­tice since un­der the cur­rent con­ven­tion only the se­nior most judge of the supreme or high court is ap­pointed as chief jus­tice. This typ­i­cally re­sults in a very short term for each chief jus­tice, about one year or so, and of­ten less. This is cer­tainly not enough time to re­form a sys­tem or to pro­vide the kind of lead­er­ship needed to bring about change.

Jus­tice Che­lameswar, in his dis­sent­ing judg­ment, was rightly con­cerned that the supreme court had gone too far in to­tally ex­clud­ing the ex­ec­u­tive branch from the process of ap­point­ing judges. The court did ask the gov­ern­ment to come up with a mem­o­ran­dum of pro­ce­dure for ap­point­ment of judges, but while drafts ex­ist of such a mem­o­ran­dum, the process re­mains frozen. Many in the le­gal fra­ter­nity, both judges and lawyers, are un­der­stand­ably not yet pre­pared to trust the po­lit­i­cal class to not abuse the process of ap­point­ing judges and are there­fore rec­on­ciled to the col­legium sys­tem. But they also want to see it be­com­ing more trans­par­ent and pro­fes­sional.

One re­sult of a flawed se­lec­tion process is in­creas­ing ev­i­dence of ap­point­ments that should never have been made in the first place (See Part I of this ar­ti­cle4 ). Ju­di­cial cor­rup­tion has be­come a ma­jor is­sue, as also er­ratic and undig­ni­fied be­hav­iour. The supreme court found it­self ear­lier this year hav­ing to is­sue for the first time in its his­tory an ar­rest war­rant against a sit­ting judge of the Cal­cutta high court.

Far more im­por­tant though is that a rig­or­ous, trans­par­ent, and com­pet­i­tive process for ap­point­ment of judges would re­sult in a much more ef­fec­tive and ef­fi­cient ju­di­ciary. Over a decade ago, the UK ended the ex­ec­u­tive’s con­trol over ju­di­cial ap­point­ments by es­tab­lish­ing a Ju­di­cial Ap­point­ments Com­mis­sion, which over­sees a highly com­pet­i­tive re­cruit­ment process for judges (See Box A). Jo­hanna Har­ring­ton, a pro­fes­sor of Law at the Univer­sity of Al­berta, ar­gues, that “in coun­tries of the West­min­ster tra­di­tion, judges do not rely on any

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