It is time to end judicial feudalism in India

Relevance – To understand the working of Collegium

Synopsis: Recent breaking of deadlock between collegium and GoI is a welcome step. We should take it further to cut on judicial hierarchy.

Introduction:

Recently, the Supreme Court Collegium headed by Chief Justice of India recommended nine names for appointment as judges to the top court, with presidential approval.

They all will soon be appointed. This is the largest number of entries approved in one go.

Significance of the recent move:

• It is nearly two years since Supreme Court appointments were made.
• The strength of the Bench goes up to 33, in a court that has a sanctioned complement of 34 judges.
• Different High Courts from all over India are getting representation. This is good as it will give diversity in representation.
• Among 9 judges, three are women. This will increase the diversity of the bench. Further, India may get its 1^st women’s CJI (Chief Justice of India).

Task before collegium

• Given the expectation of the people to deliver complete justice (Article 142), judges have to be careful in their selection process.
• The selection is a difficult task as all judges are senior and meritorious, building consensus around any one of the judges is a difficult task.

Need for transparency

• Norms that are used for selecting judges are of vital public interest.
• There is a need to follow a judicious blend of merit, seniority and interests of the marginalized.
• India is the only country where Judges select judges in higher Judiciary, so the need for transparency is higher.

Issue of Judicial hierarchy

• While higher judiciary works through collegium, norms are different for the sub-ordinate judiciary.
• Article 235 speaks of “control over subordinate courts”, and this creates this notion of sub-feudalism.
• Though the constitution contemplates hierarchy, yet judges are supreme in their Jurisdiction. So one Judge cannot be considered as inferior to the other.
• Though the constitution allows supervision through Annual Confidential Report (ACR’s), it does not allow dominance.
• Such attempts at equality were made by courts also. Himachal Pradesh High Court ruled that all the courts in the state other than the high court shall be referred to as district judiciary.

What is needed

• A complete recasting of Article 235 which does away with an expression of “control” powers in the high courts.
• In fact, it is time for Parliament to remove the substantial nomenclature of “subordinate judiciary”.

Way forward

Thus, India needs to focus on transparency in the collegium system. At the same time, we should work to reduce the artificial feudalism that has been created by the judicial hierarchy.

Terms to know

• Article 142