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