AUGUST 24, 2016

By Naresh Minocha, Our Consulting Editor

CHIEF Justice of India (CJI) T. S. Thakur's dig at Prime Minister Narendra Modi's Independence Day (ID) speech gives citizens an opportunity to turn mirror towards all the five hallowed pillars of democracy.

Each pillar - Legislature, Executive, Judiciary, Press and civil society/advocacy NGOs - are decaying from within. Instead of introspecting over the decay, each plays the blame game. Each organ resists meaty reforms from within and outside.

Their common bond is aversion to transparency, with the exception of Legislature, which does not mind being viewed live on TV as mother of all cacophony. Executive has also embraced transparency partially.

The country can become a credible democracy only when the symbiotic triumvirate of Judiciary, Civil Society and Media embrace transparency & accountability without any ifs and buts.

To begin with, we should debate the role of judiciary in weakening democracy and in slowing national development ostensibly to safeguard the basic structure of the Constitution and the fundamental rights.

Some of the issues that need to be probed are: 1) Supreme Court's (SC's) aversion to core reforms in particular and slow pace of judicial reforms in general, 2) SC's obsession to interpret the Constitution to further enhance its powers and domain under the garb of independence of Judiciary and 3) submissive Executive's inability to prevent unintended onslaught of judiciary on economic growth & employment generation.

Justice Thakur's dig, no doubt, also implies the urgent need for drawing up a time-bound roadmap for fulfilling citizens' basic needs that remain unresolved even after 70 years of Independence. This complex subject, however, needs to be discussed separately.

Of the numerous judicial challenges, filling up of vacant posts of judges in Supreme Court (SC) and High Courts (HCs) and appointing many new judges to reduce case arrears requires focus.

This is because CJI is so much obsessed with this issue that he broke convention to mock at PM, thereby turning sour ID celebrations. It was perhaps first time in the world that one constitutional head mocked at another on any country's most cherished day.

Shortly after PM delivered his traditional ID speech on 15th August, Justice Thakur ridiculed the former for not broaching the subject of delayed appointment of judges. CJI had raised this matter very forcefully in SC only two days earlier. He had also raised this issue before PM in April and at other platforms.

Justice Thakur reportedly stated: "You heard our very popular and nationalist (deshapriya) Prime Minister speak for one and-a-half hours today (15th August). You also heard (the) Union Law Minister speak. I was also hoping justice will find a mention (in the speech). They will talk about appointment of judges."

In his brief address at Supreme Court after unfurling national flag, Justice Thakur also batted for removal of poverty and unemployment.

What CJI perhaps did not realize is that citizens can also turn around and find fault with his public speeches. He speaks little or remains silent on issues such as court's archaic processes, judiciary's colossal transparency & accountability deficit, corruption in judiciary and competence level of judges.

Public expects CJI to justify SC's propensity to stonewall or delay well-meaning reforms that can help expedite delivery of justice and make it affordable. A case in point is the restructuring of SC thrice recommended by Law Commission (LC) over 3 decades. In its last report on this subject submitted in August 2009, LC recommended setting up a Constitution Bench at Delhi to deal with constitutional and allied matters and SC's four Cassation Benches in the North at Delhi, in the South at Chennai/Hyderabad, in the East at Kolkata and in the West at Mumbai to deal with all appellate work arising out of the orders/judgments of the HCs of the particular region.

Explaining the rationale for this restructuring of apex court, LC observed: "We are today also in dire search for solution for the unbearable load of arrears under which our Supreme Court is functioning as well as the unbearable cost of litigation for those living in far-flung areas of the country. The agonies of a litigant coming to New Delhi from distant places like Chennai, Thiruvananthapuram...to attend a case in the Supreme Court can be imagined; huge amount is spent on travel; bringing one's own lawyer who has handled the matter in the High Court adds to the cost; adjournment becomes prohibitive; costs get multiplied."

It added: "The indiscriminate acceptance of appeals on trivial issues of facts by the Supreme Court quite often overloads itself. In fact, only important issues need be litigated in the Supreme Court."

According to Government's reply to a question put in Rajya Sabha on 24th April 2015, "The matter of having Supreme Court Bench(es) in other parts of the country was taken up with the Supreme Court on various occasion in the past, the last being in 2010. However, the Supreme Court found no justification for setting up of Bench(es) of the Supreme Court outside Delhi."

Getting back to the issue of vacant post of judges, creating new posts of judges, strength and case arrears, one should note that CJI's outbursts might create an impression that this problem is of Modi Government's making. The fact is that this problem has been discussed many times within and outside Parliament since the Independence.

Many committees have studied these issues starting with S.R Das Committee in 1949, when neither Mr. Modi nor Justice Thakur was born. The system of appointing judges has, however, not been simplified and streamlined to resolve problem of vacancies. Both the Executive and the Judiciary have had their own quota of blame for this problem.

And the States need to take lion's share of blame for vacancies in the subordinate courts as they come under their exclusive domain.

There can be no justification for creating situation were posts fall vacant and remain unfilled for several months. There can also be no justification for dragging feet over the issue of creating new posts of judges.

Appointing new judges will, however, not solve the problem of mounting case arrears as has been stated by various committees over the years. As put by National Commission to Review the Working of the Constitution (NCRWC) in its report submitted in March 2002, "According to an eminent member of the Bar, the best solution to tackle the arrears is 'to appoint less number of judges and more competent judges'. This was the view of the Report of the Arrears Committee (1989-1990) constituted by the Government of India on the recommendation of the Chief Justices' Conference."

Interestingly enough, the report of arrears committee is not available in public domain.

NCRWC quoted this Committee as stating "the failure on the part of the Executive to produce adequate number of competent judges from time to time has substantially contributed to the mounting arrears."

Way back in 1958, Law Commission (LC) observed: "We are conscious that a mere increase in the number of permanent judges and a temporary addition to the strength of the Bench will not be enough to eradicate the evil of accumulated and accumulating arrears."

The vacancies problem in HCs has accentuated under Modi regime due to reported intransigence by the Judiciary and the Executive over finalization of new Memorandum of Procedure (MOP) for judges appointments to replace the existing one that was introduced in 1999 after SC interpreted Constitution to claim judiciary's primacy in selection of judges. It did so through a verdict in 1998, which articulated the one delivered in 1993.

New MOP has been mooted by SC, which last year trashed the will of the public (expressed through MPs and MLAs) for credible and transparent platform for appointment of judges: In October 2015, a five-member bench declared Constitution (Ninety-ninth Amendment) Act, 2014 as unconstitutional and void. This amendment to the Constitution was unanimously passed by Parliament and ratified by 20 State assemblies.

It did ditto to the National Judicial Appointments Commission (NJAC) Act, 2014. The Verdict restored the system of appointments and transfers in the higher judiciary as it existed (collegiums system) prior to the Constitution (Ninety-ninth Amendment) Act, 2014.

In a related verdict delivered in December 2015, the Bench stated: "the Government of India may finalize the existing Memorandum of Procedure by supplementing it in consultation with the Chief Justice of India. The Chief Justice of India will take a decision based on the unanimous view of the collegium comprising the four senior most puisne Judges of the Supreme Court."

What is most disturbing element of the Oct 2015 verdict was the decision to reject plea to refer to a larger bench the reconsideration of the 1993 and 1998 judgements that conferred primacy to judiciary through interpretation of the word 'consultations' mentioned in the Constitution in the context of appointment of judges.

The point to note here is that SC is unwilling to entertain even a review petition on issue of national importance. It has no hesitation in hearing review petition and post-review petition called curative petition filed to save terrorists from gallows!

How can a handful of judges put their interpretation of the Constitution that furthers their interest as deemed basic structure of the Constitution beyond review and alteration? This makes a mockery of doctrine of Nemo judex in causa sua which means no one should be a judge in his own cause.

National Judicial Appointments Commission (NJAC) is not NDA Government's baby. The proposal in its different variants has been recommended by institutions/commissions headed by reputed jurists and supported by many legal luminaries over the last six decades.

The idea was sought to be conceived by LC way back in 1958 when it stated: "our further proposal, therefore, is for the creation of an ad hoc body presided over by Chief Justice of India to draw up a panel of names of suitable persons both from the Bar and the Services in each State."

In 1979, LC floated the idea of constituting "Judges Appointments Commission." In its 18th report on The Method of Appointment of Judges, LC incorporated this idea in the questionnaire. The five-member commission should comprise CJI, three ex-CJIs/supreme court judges and Law minister.

In its report, LC stated this proposal "has not been favoured by most of the high courts in their replies to the questionnaire issued by the Commission and is accordingly dropped."

In July 1987, LC pitched for this idea in its report on 'A New Forum for Judicial Appointments'. It categorically recommended setting up of National Judicial Service Commission (NJSC).

The report proposed that NJSC should be an 11-member judiciary-dominated Commission that would be chaired by CJI .The executive would have only two representatives - Law Minister and Attorney General. It would also have one member from Bar and from legal academics.

The Chief Justices Conference (CJC), held during October 1988, unanimously opposed the idea of setting of NJSC. This annual conference resolved NJSC was "neither necessary nor expedient."

Notwithstanding CJC's opposition, NJSC idea was promptly lapped up by National Front Government in late eighties.

As put by Prime Minister V.P. Singh, in a letter dated 30th May 1990 to all MPs,

"A judiciary that is not only independent but also perceived to be independent is necessary to the sound and healthy functioning of our body politic. This is proposed to be ensured by setting up a high level judicial commission under the constitution, for the appointment of judges in the high courts and the Supreme Court. Cabinet has approved necessary bill for amending the constitution and it is being introduced in Parliament."

The Constitution (Sixty-seventh Amendment) Bill, 1990 envisaging setting up National Judicial Commission (NJC) lapsed with dissolution of Lok Sabha in 1991. Another bill introduced in 1993 also lapsed due to the same reason.

NJC idea was revived by National Commission to Review the Working of the Constitution (NCRWC). In its report submitted in March 2002, it proposed formation of 5-member NJC comprising CJI (chairman), two senior-most SC judges, Law Minister and an eminent person to be appointed by President in consultation with CJI.

Administrative Reforms Commission (ARC) gave a spin to NJC idea by calling for setting up of a National Judicial Council. ARC suggested the proposed Council should comprise the Vice-President as Chairperson, Prime Minister, Speaker of the Lok Sabha, CJI, Law Minister, Leader of the Opposition in Lok Sabha & Leader of the Opposition in the Rajya Sabha.

UPA Government did not accept ARC's appointments approach. In its action taken report on ARC recommendations, UPA Cabinet decided: "Recommendation regarding entrusting the task of recommending appointments of Supreme Court and High Court judges to the National Judicial Council is not acceptable. However, the suggestion regarding entrusting the task of oversight of the judges to National Judicial Council is agreed to."

In August 2011, Parliamentary Standing Committee (PSC) made a strong case for an alternative to collegiums system of appointments. In its report on The Judicial Standards and Accountability Bill, 2010 (now lapsed), PSC observed: "The most significant lacuna relates to the present method of appointment of judges in the higher judiciary."

It continued: "The Committee is of the considered opinion that the present Bill is bound to end up with limited success because of the piecemeal nature of the proposed legislation, despite the genuineness of its objectives. The issue of judges' appointment, therefore, needs to be addressed comprehensively, though separately, at the earliest because without it the efficacy of this Bill is seriously impaired."

It was thus left to Modi Government to revive the NJC/ NJAC idea for appointment of judges. This middle path is ideal as it gets rid of flaws and the dangers inherent in exercise of the primacy by either the Executive or the Judiciary in making appointments.

A lot has been stated about dubious appointments made during the pre-collegium (prior to 1993) and the collegium period. The primacy in selection of judges either with the Executive or with the Judiciary is dangerous. When the Executive (read politicians) had the upper hand in making selections prior to 1993, it converted appointments into a system of patronage and favours.

And under the collegium system, the Judiciary has also transformed selections into a system of accommodation of interests/preferences of members of collegiums. It has been transformed into a closed system with hardly any induction of talent from the bar, civil services, academics and other professions.

It is here apt to quote Law Commission report on 'Reform of Judicial Administration' submitted in 1958 to drive home the impact of the Executive's dominant say in selections.

It noted: "The atmosphere of communalism, regionalism and political patronage have, in considerable measure, influenced appointments to the High Court judiciary,"

In August 2009, LC pitched for ending the primary of Judiciary in making selections for judges. The higher judiciary arrogated this power to itself through 1993 and 1998 verdicts delivered by the apex court.

LC observed: "The Indian Constitution provides a beautiful system of checks and balances under articles 124(2) and 217(1) for appointment of Judges of the Supreme Court and High Courts where both the executive and the judiciary have been given a balanced role. This delicate balance has been upset by the 2nd Judges' case (Supreme Court Advocates-on-Record Association v. Union of India) and the Opinion of the Supreme Court in the Presidential Reference (Special Reference No.1 of 1998)3. It is time the original balance of power is restored."

In its report 'Reforms in the Judiciary - Some Suggestions', LC made this recommendation by citing the adverse impact of collegiums system on delivery of justice.

One such adverse impact is nepotism shown by judges in delivery of justice.

LC observed: "Often we hear complaints about 'Uncle Judges'. If a person has practised in a High Court, say, for 20-25 years and is appointed a Judge in the same High Court, overnight change is not possible. He has his colleague advocates - both senior and junior - as well as his kith and kin, who had been practising with him. Even wards of some District Judges, elevated to a High Court, are in practice in the same High Court. There are occasions, when advocate judges either settle their scores with the advocates, who have practised with them, or have soft corner for the for them. In any case, this affects their impartiality and justice is the loser."

It therefore suggested: "In any case, the judges, whose kith and kin are practising in a High Court, should not be posted in the same High Court. This will eliminate 'Uncle Judges'."

This flaw in the system was earlier driven home well by former cabinet minister and legal luminary, Kapil Sibal while participating in discussion on judicial reforms in Rajya Sabha on 2nd May 2003.

Mr. Sibal stated: "When somebody is elevated to the Supreme Court, we find that his son's practice or his brother's practice or his daughter's practice -- I don't want to take any names -- in the High Court, in which he or she is practising, suddenly shoots up; suddenly everybody approaches him or her. And, suddenly, he is appearing in every court and he, overnight, becomes an extraordinary lawyer by the kind of orders that he/she gets in various courts. Are we to believe, Sir, that this is just because of sheer merit that this is happening? Should the public not know, and let alone the public, should not the judiciary tackle this situation?"

Senior Supreme Court Advocate, R.K. Anand, who was then a MP, pithily commented on the Uncle Judge phenomenon.

Mr. Anand stated: "Son of a judge, appearing before a judge and getting the orders. Stay is not granted by one particular court but the case is transferred from that court. Another lawyer appears and the stay is granted by the other court. Other lawyer is engaged. What are we doing for this? This is nothing but corruption."

He continued: "Judges and judges' sons are living in the same house. They regularly meet in the parties. They meet other judges, their sons and then get relief in the morning. I recall a number of lawyers engaging son of a former Chief Justice of India who is a very junior lawyer in the court to get the relief. We know that a particular former Chief Justice of India, his son being engaged by top lawyers. Seniors are sitting at the background, juniors appearing before the court and getting relief from the court and we are keeping quiet. We have allowed the institution to go down, go down the drain."

The then Law Minister, Arun Jaitley, replying to the discussion observed: "As far as the issue of accountability is concerned, there are several aspects. Mr. R.K. Anand dealt with at length on the problem of relatives. It is indeed a serious problem. In fact, I privately to myself call it the problem of 'Sons-stroke' as far judicial institution is concerned. It is prevalent in various High Courts."

Parliamentary Standing Committee (PSC) on Personnel, Public Grievances, Law and Justice also called for scrapping collegium system in its two separate reports released during August 2007 and October 2008. PSC made its recommendations after getting feedback from several stakeholders including eminent retired judges.

One can show several other official reports, Parliament debates, articles and interviews by retired CJIs and other legal luminaries, founding fault with the collegium system and voicing concern over decline in judicial standards.

It is here pertinent to quote LC's 230th report which recollected what former CJI, late Justice J. S. Verma, (who wrote the lead judgment in the 2nd Judges' case) stated in an interview to the Frontline Magazine published in its issue of October 10, 2008.

When asked: "You said in one of your speeches that judicial appointments have become judicial disappointments. Do you now regret your 1993 judgment?" Justice Verma responded: "My 1993 judgment, which holds the field, was very much misunderstood and misused."

SC should thus introspect over groundswell of discontent and disapproval against its style of activism. It should revisit its verdicts on appointments and accept NJAC as the only cure against declining judicial standards. And it can, of course, make a case for broad-basing the composition of NJAC to ensure that the balance of power as envisaged in the Constitution is restored. This would help the country gets judges who can deliver shorter, crisper, holistic and faster verdicts.