[op-ed snap] All is still not well in court

Note4Students

Mains Paper 2: Constitution | Structure, organization and functioning of the Executive and the Judiciary Ministries and Departments of the Government; pressure groups and formal/informal associations and their role in the Polity.

From UPSC perspective, the following things are important:

Prelims level: Basic knowledge of the issues in Judiciary.

Mains level: The news-card analyses the issues relating to the independence of the judiciary, transparency and accountability in the institution, in a brief manner.


Context

  • A year ago, four judges of the Supreme Court of India called an unprecedented press conference and posed troubling questions relating to the independence of the judiciary, transparency and accountability in the institution and so on.

Recent issues in Judiciary

  1. The idea of the CJI as the “master of the roster”
  • The previous CJI was criticised by many for the manner in which cases were allocated to judges and for selectively choosing the benches that would hear cases of public importance.
  • In democratic countries around the world, notably in the UK, Canada and Australia, the allocation of work and the selection of benches is a consultative process, and necessarily involves a culture of trust.
  • Alternatively, there are clear and defined rules in this regard, as, for example, in the European Court of Human Rights and the European Court of Justice.
  • It is not acceptable for the chief justice to have unbridled power.
  • Even in high courts in India, where a chief justice may have official roles such as presiding over administrative meetings, at no point is the chief justice considered or made to believe that he/she is superior to other judges in the court.
  • Unfortunately, the trend of the CJI assuming the role of master of the roster, with unbridled and unrestricted power, continues even under the present CJI, which may have disturbing implications for the dispensation of justice in our country.
  • Urgent reforms in this regard are necessary.

2. How appointments to and transfers within the higher judiciary continue to be made

  • Every time a new cohort of judges is announced for selection, a new set of problems emerges.
  • Two incidents over the past month have been particularly distressing.
  • One relates to a recent proposal to transfer a sitting judge of the Delhi High Court, whose decisions have been attacked by those within or close to the present Union government.
  • Another case is the inexplicable reversal of a decision of the collegium to elevate two high court chief justices, both well-regarded as fine judges, to the Supreme Court.
  • Equally problematic is the overwhelming silence of the government.
  • On an earlier occasion, the same government had staunchly defended the seniority convention in judicial appointments.

Not enough attention is being paid to the judiciary as an institution

  • Ideally, in any democratic set-up, we need the best individuals running the judiciary.
  • One important criterion for selecting judges is merit.
  • But it has been seen, many brilliant judges are overlooked.
  • The appointments of judges on grounds other than merit can be self-perpetuating.
  • Many such appointees will become members of the the collegium and may make the same kinds of choices their seniors made.
  • Short-term decisions to appoint certain individuals affect the long-term condition of the judiciary.

3. Recent fascination of the Supreme Court for the “sealed cover”

  • The recent fascination of the Supreme Court for the “sealed cover” as a means of receiving information about cases, having used it in three highly-documented litigations in the past few months, is completely against the idea of open, transparent justice.
  • Unfortunately, our judiciary is not only opaque in its own workings but is also becoming partial to opacity in its public function, as an arbiter of public disputes.
  • Jurisprudence clearly shows that such secretive information should be resorted to only in exceptional cases.
  • But here, it is being asked for in an ad hoc manner without any clear or rational reason.

4. Post-retirement appointments.

  • Such appointments really compromise the independence of the judiciary.
  • They raise potential conflicts of interest, if not in reality, certainly in matters of perception.
  • Ideally, there should be a policy decision to introduce a cooling-off period after retirement before taking up new appointments.
  • Or such appointments should be made by a neutral body which is free from executive influence.
  • In any case, such offers of appointments should neither be made nor considered when a judge is still in office.

5. Appeal made to the Supreme Court by itself against the order of the Delhi High Court

  • The fifth issue is that of the appeal made to the Supreme Court by itself against the order of the Delhi High Court on the applicability of the Right to Information Act, 2005, to the judiciary.
  • The Delhi High Court judgment has been stayed, and the case has been languishing in the court for a decade now.
  • Closure on this account is more urgently needed than ever, especially in the context of issues of transparency in the judiciary.

Conclusion

  • The 2018 press conference gave a flicker of hope that maybe things will turn around soon.
  • However, the issues relating to the independence of the judiciary, transparency and lack of accountability in the institution still remain a pressing concern.
  • Urgent reforms are necessary in this regard.
Judiciary Institutional Issues
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