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Context

• Recently, a constitutional jurist and senior advocate to the Supreme Court, Fali S. Nariman, highlighted the need to finetune mechanisms of accountability within the judiciary, especially at the Supreme Court and High Court levels.
• In this context, this edition of the burning issue will deal with the issue of accountability and other issues which ails the Indian Judiciary and suggest reforms to tackle these issues.

Indian judiciary: Structure

• The Judiciary is one of the three organs of the Indian government, and it is responsible for interpreting and applying the law. The Indian judiciary is an independent body that ensures the fair and impartial administration of justice in the country.
• The judiciary has a hierarchical structure, with the Supreme Court at the top followed by the High Courts, and then the lower courts.
• The Supreme Court is the highest court of appeals in India. It comprises the Chief Justice and 33 other judges appointed by the President of India. The Supreme Court has original, appellate, and advisory jurisdiction.
• At the level below the Supreme Court, there are High Courts. They exercise control over a state or a union territory. Each High Court consists of a Chief Justice and such other number of judges as may be determined by Parliament.
• At the lowest level, Subordinate courts include District Courts, Taluka Courts, Munsifs Magistrates’ Courts, and Village Panchayat Courts etc.

Judicial Independence

• For the prosperity and stability of the country, the rule of law is very important. An independent and impartial judiciary can establish a stable rule of law.
• Independence of the judiciary means, the power of upholding the rule of law, without any fear or external influence, and maintaining effective control over the actions of the government.
• The independence of the judiciary is part of the basic structure of the Constitution. The legal system does not have any ideology and political interests and is often rendered neutral. 
• The independence of the judiciary starts with the appointment of judges in the courts. Article 124 to Article 147 deals with the appointment of the Supreme Court judges and, Article 214 to Article 231 deals with the appointment of judges in the High Courts.
• However, such a high level of independence does not mean non-accountability of the judiciary.

Judicial Accountability

• Accountability is the sine qua non of democracy. The judiciary, an essential wing of the State, is also accountable.
• The term judicial accountability means that the judges are responsible for the decisions they deliver all by themselves. It is the transparency in the decision-making process that helps in bringing accountability. 
• The judiciary must be accountable to the law, in the sense that the decisions made are in accordance with the law and are not arbitrary. Like other branches of government, it must also be accountable to the general public it serves.

Issue of Accountability and Transparency in the Indian Judiciary

The Indian judiciary faces the challenge of lack of accountability at 3 levels-

(A) Lack of accountability in Judicial appointments:

• At present, the judges of the Supreme Court and the High Courts are appointed by a collegium system which includes CJI and 4 senior judges of the Supreme Court.
• Although there have been many debates associated with this method of appointing judges, the collegium system is one where transparency is absent in totality.
• The minutes of the collegium meetings deciding appointments and transfers of judges are not made public. The office of CJI has only recently been declared a public office.
• There have been no appointments from the category of distinguished jurists as mentioned under Article 124 of the constitution.
• It’s a non-constitutional body with no seat in the collegium for any non-judge neither from the executive, the Bar etc. This violates the principle of checks and balances.

(B) Distribution of Cases- Master of the Roster mechanism:

• The singular power of the CJI as the Master of the Roster – i.e., the vests exclusive discretion in the Chief Justice to constitute benches and allocate cases.
• While the CJI’s other powers such as recommending appointments to constitutional courts are shared with other senior judges, the power of Master of the Roster is enjoyed without scrutiny.
• From the standpoint of judicial independence, the Master of the Roster power makes the CJI’s office a high-stakes one. It makes the CJI the sole point of defence of the Court against executive interference.
• With the CJI as the sole Master of the Roster, any executive seeking to influence the Supreme Court needs only a pliant CJI. Yet, the Supreme Court has been reluctant to dilute this power.
• In Asok Pande v. Supreme Court of India (2018), a three-judge bench of the Court held that the Master of the Roster is the CJI’s exclusive power.
• Thereafter, a two-judge bench in Shanti Bhushan v. Supreme Court of India (2018) rejected the plea that the Master of the Roster should be interpreted as the collegium.

(C) The In-house Inquiry System:

• The in-house procedure, crystallised in a 1995 Supreme Court judgment in the C. Ravichandran Iyer case, details the various stages of the investigation into complaints against sitting high court judges.
• It requires the Chief Justice of India to constitute a three-member panel of Supreme Court judges to enquire into a complaint of misconduct received by the CJI against a sitting judge.
• The procedure, however, does not expressly provide for a mechanism to constitute a committee when the complaint is against the CJI himself.
• Controversy erupted when CJI constituted the bench by himself to probe a complaint against himself. The bench consisted of senior most judges of SC who will be CJI in near future. Since the current CJI will recommend the name of the next CJI, this raises the question of conflict of interest.
• The committee lacked overall representation of all stakeholders of SC e.g bar council, employees etc. It also violates the principle of natural justice.

Other Issues with the Indian judiciary

• Large vacancies: When it comes to vacancies, the Supreme Court has three seats vacant (out of 34), High Courts have 380 seats vacant (out of 1,108) and district and subordinate courts have 5,342 vacant seats (out of 24,631). This causes delays in cases solving and denial of justice to citizens.
• Large pendency of cases: According to an answer in the Rajya Sabha on August 4, the lower courts have around 4.1 crore pending cases while the High Courts have around 60 lakh pending cases. Further, the Supreme Court pendency is around 71,000 cases.
• Uncle judge syndrome: The Law Commission of India in their 230th Report has mentioned the matter of appointment of ‘Uncle Judges’ in the High Courts, wherein it is said that the Judges, whose kith and kin are practicing in a High Court, should not be appointed in the same High Court. Chief Justice can recommend judges from the Bar to be appointed as the judge of the High Court. In this situation, kith and kin of those appointed as judges and practicing in the High Court are likely. To correct the situation, judicial standards are being prescribed for the judges in the Judicial Standards and Accountability Bill, 2012 which has been passed by Lok Sabha already.
• Conflict with the executive: there have been rising conflicts between the executive and the judiciary wings over multiple matters such as delays in judicial appointment by the center, Tribunalisation of justice, open criticism of the executive during COVID times etc. this leads to the creation of tensions and mistrust between the two branches.
• Judicial activism and overreach: “Judicial Activism” refers to the process in which the judiciary steps into the shoes of the legislature and comes up with new rules and regulations, which the legislature ought to have done earlier. Judicial Overreach refers to an extreme form of judicial activism where arbitrary, unreasonable and frequent interventions are made by the judiciary into the legislature’s domain, often to disrupt the balance of powers between the executive, legislature and judiciary. Both issues have led to the creation of friction between the two branches.
• Post-retirement benefits: there have been several instances where several judges have been appointed to political and executive offices after their retirement. For example, former CJI Ranjan Gogoi was made a Rajya sabha member even before the end of his cooling-off period after retirement. This erodes the trust of people in the judiciary and affects judges neutrality.
• Corruption in lower courts: Judicial corruption takes two forms: political interference in the judicial process by the legislative or executive branch, and bribery. In 2013, 36% of citizens reported paying a bribe to the judiciary, a sad reality validated by many senior judges themselves. A 2007 survey that disaggregated bribe recipients showed that 59% of respondents paid bribes to lawyers, 5% to judges, and 30% to court officials for speedy and favorable judgments.
• Increasing Recusal of judges:  Recusal is the “removal of oneself as a judge or policymaker in a particular matter, especially because of a conflict of interest.In the Central Bureau of Investigation case, 3 Judges recused themselves from hearing the case challenging the appointment of M. Nageswara Rao as interim director of the Central Bureau of Investigation. Moreover, In the Ayodhya- Ramjanmabhoomi case, Justice U.U. Lalit recused him from hearing the dispute over land in Ayodhya after being pointed out that the judge had appeared for former Uttar Pradesh Chief Minister Kalyan Singh in a related contest.

Thus, Reforms are needed

• Balancing independence and accountability: One of the reasons for having stronger judicial accountability is to strike a balance between judicial accountability and judicial independence. They can be considered to be complementary to each other. Both these concepts aim to bring about judicial courage and judicial integrity is to be enforced together to increase the efficiency of the working of the judicial system.
• Reform on case management: to reduce the frequency of adjournments and better case listing: A bench of three justices of the Supreme Court, in a judgment delivered in August 2005, had drawn up a fine blueprint on case management, on how to make recent amendments in our procedural laws work on the ground, and how to get more cases moving along: For instance, on three different tracks, fast track, normal track and slow track.
• Supreme court should directly administer High courts: It is time that the Supreme Court be entrusted with direct responsibility for the functioning of the high courts: Only then can the highest court be an effective apex court, and only then can the Supreme Court be made answerable, as it should be, for judicial governance for the entire country.
• Public disclosure of income by judges: Judges must make annual financial disclosure statements, not privately to their respective chief justices, but publicly. It is done by justices of the Supreme Court.
• Removing the disparity between retirement ages of HC and SC judges: High Court judges now retire at 62 and Supreme Court judges at 65.  It is high time that we did away with the disparity between the retirement ages of the High Court and Supreme Court judges.
• Create a cadre of public service for retired judges: It would be worthwhile reform to create a cadre of public service for retired judges and from this pool make appointments to the constitutional and statutory posts and special assignments. We should have a culture of public service for senior judges, and those who do not fit in such a culture should not be a part of senior ranks.
• Reform in the process of appointment of Chief Justice of India: It is generally assumed that the senior judge of the Supreme Court should be the Chief Justice of India. The Constitution mandates no such thing. Article 124 merely states that the President will appoint every judge of the Supreme Court, and this includes the Chief Justice, and each of these judges shall hold office until they attain the age of 65 years. There is no good reason why any one particular person should have a vested interest in the top job, and we are better served by eliminating such expectations.
• Creation of National Judicial Infrastructure Corporation (NJIC): The CJI has pitched to set up a National Judicial Infrastructure Corporation (NJIC) to develop judicial infrastructure in trial courts. Experience shows that budgetary allocation for state judiciary often lapses since there is no independent body to supervise and execute such works. NJIC is expected to fill this vacuum and overcome problems related to infrastructure.
• Creation of a National Court of Appeal: The National Court Appeal with regional benches in Chennai, Mumbai and Kolkata is meant to act as the final court of justice in dealing with appeals from the decisions of the High Courts and tribunals within their region in civil, criminal, labor and revenue matters. In such a scenario, a much-relieved Supreme Court of India situated in Delhi would only hear matters of constitutional law and public law.
• Creating All Indian Judiciary Services: It would be a landmark move to create a pan-India Service that would result in a wide pool of qualified and committed judges entering the system.
• Technology infusion: The ethical and responsible use of AI and ML for the advancement of efficiency-enhancing can be increasingly embedded in legal and judicial processes.
• Improving Legal education: This should be in alignment with the evolving dynamics of the law and must be propagated in trial and constitutional courts. This will improve the competence of the judicial system.
• Promote Alternate Dispute Resolution (ADR): ADR mechanisms should be promoted for out-of-court settlements. Primary courts of appeal should be set up.
• Dispensation in local languages: For making the entire judicial system more understandable to the common man, one way is the use of the local languages in courts.

International Model: How judiciary in the USA maintain its credibility and accountability?

• Judicial council act: In the United States, under the Judicial Councils Act, 1980, task of judicial independence has been gladly undertaken by the judges. But regrettably, so far, there is no law in India to guide our judges only “guidelines”. There is a felt need for a law.
• Judges investigate the judges: The 1980 US Act confers powers on bodies comprised of judges to take such action against a federal judge “as is appropriate, short of removal.”
• A case study of America: Under this law, some time ago, a committee of fellow judges had investigated complaints against a federal district judge, John McBryde; the Judicial Council reprimanded him and suspended him from hearing new cases for a year.
• Corruption Investigation Not violating the judicial independence: McBryde challenged the decision. He argued that the 1980 law violated the judicial independence that the US Constitution had guaranteed to life-tenured federal judges, But a US Court of Appeals rejected all these pleas.
• Oversight of judges is not interference: It accepted the argument of the US Solicitor-General that judicial independence, protected by Article III of the US Constitution, was meant to insulate judges from interference from other branches of government and not from oversight by other judges.

Steps taken to Improve Judicial functioning

• Legal: Enactment of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act 2015 To ensure speedy and fair disposal of ‘commercial disputes, especially those of high value.Also, Draft National Litigation Policy under formulation to make Government a responsible and efficient litigant.
• Technological: A web portal Legal Information and Management Based System (LIMBS) set up for monitoring of Court Cases of the entire GOI.Also, theeCourts Mission Mode Project has been taken up for universal computerization of district and subordinate courts with an objective of providing designated services to litigants, lawyers and the judiciary. AI-powered SUPACE portal has also been launched.
• Increased strength and appointments: Appointment of Judges in higher judiciary undertaken. 86 additional Judges made permanent, 51 newly appointed and the appointment of another 170 is being processed. Judges’ sanctioned strength of the High Courts increased from 906 on 01.06.2014 to 1065 as on 27.4.2016.
• Development of Infrastructure facilities: Department of Justice has been implementing a Centrally Sponsored Scheme for the Development of Infrastructure Facilities for the Judiciary.
• Promotion of alternate Dispute Resolution Mechanism: through the National Legal Services Authority (NALSA) at the national level and State Legal Services Authorities at the State level.

Conclusion

• Judicial challenges need to be tackled at multiple levels, instead of a single-pronged approach of merely looking at appointments or more courts. Judicial independence and Judicial accountability need to be balanced well.
• It requires coordination and cooperation between the government, the Judiciary, the Bar, and the general public. Each is a stakeholder and is also responsible for ensuring that the system works. 

“Like old clocks, our judicial institutions need to be oiled, wound up and set to true time”