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News: A Supreme court bench has sent proposal for the establishment of a National Judicial Infrastructure Corporation (NJIC) to the law ministry.
There are serious issues of constitutional propriety (correctness) with how the apex court is gradually taking over the administration of the district judiciary
More about NJIC , here.
What are the issues with the Supreme Court’s approach?
Supreme court entering into states and high court’s domain: While the Supreme Court is the apex judicial institution, the Constitution clearly vests the administration of district judiciary (appointments, budgeting, daily running) with the High Courts and state governments.
– In the past also, the SC in various cases, has entered into domain of state government and high courts. For instance: Various SC judgements involving All India Judges Association (AIJA) where Supreme Court has been in a tussle with the government.
– In another case, Malik Mazhar Sultan v. UP Public Service Commission, the supreme court expanded the initial litigation question regarding UP Judicial Service Rules, 2001 to include the status of judicial infrastructure in the state.
SC in various cases has appointed an amicus curiae to advise it on the nature of judicial reforms to be implemented. They are generally selected from amongst the senior lawyers of the Supreme Court only. The problem is that neither they have any experience of practising before the district judiciary nor the skill and time required for policy research.
Also, as they are appointed by court they are highly unlikely to point fingers at the judiciary.
| Note – An amicus curiae often referred to as amicus brief is defined as the legal brief where someone who is not a party to a case assists a court by offering information, expertise, or insight that has a bearing on the issues in the case. |
Courtroom policymaking by the Supreme Court lacks public participation. Policymaking in a democratic polity should be done by political representative elected by the citizens.
It compromises principle of federalism (which the court has held to be part of the “basic structure”)
This “one size fits all” solutions does not accommodate the differences between states.
Source: This post is based on the article “The troubling courtroom policymaking by the supreme court” published in The Indian express on 23rd Dec 2021.
