Transparency and Indian courts

CONTEXT:     

In a move towards transparency in the elevation, confirmation and transfer of judges, the Supreme Court has begun to upload the decisions of the collegium, and the reasoning behind them, at the time that its recommendations are forwarded to the government.

INTRODUCTION:

• The collegium, comprising the Chief Justice of India and four senior judges, has said it would indicate the reasons behind decisions on the initial appointment of candidates to High Court benches, their confirmation as permanent judges and elevation as High Court Chief Justices and to the Supreme Court, and transfer of judges and Chief Justices from one High Court to another.
• The Supreme Court collegium’s decision to disclose the reasons for its recommendations marks a historic and welcome departure from the entrenched culture of secrecy surrounding judicial appointments.
• The Supreme Court recently rejected the National Judicial Appointments Commission (NJAC) Act and the 99^th Constitutional Amendment which sought to give politicians and civil society a final say in the appointment of judges to the highest courts.

What was the rationale behind court’s decision?

• The move comes after the collegium faced scrutiny over the resignation of former judge of Karnataka high court, Jayant Patel, who was set to be transferred to the Allahabad high court by the collegium rather than being elevated as chief justice of the same court.
• There will now be some material available in the public domain to indicate why additional judges are confirmed and why judges are transferred or elevated.
• It is important to strike the right balance between full disclosure and opaqueness.
• It is to be hoped that this balancing of transparency and confidentiality will augur well for the judiciary.

What problems Indian judiciary is facing today?

• Huge pendency of cases
• Lack of judges and inefficient management is the reason behind delay in justice delivery.
• Inadequate data on pending cases and “lack of scientific maintenance” of data makes it difficult to analyse problems and propose sustainable solutions for the judiciary.
• There is “no unanimity on the number of judges in the country”.
• Proliferation through SLPs: A lot of cases are entertained under article 136, which would otherwise not fall in the criminal/appellate/advisory jurisdictions.
• Technical nature of cases: Often the judges have to hear cases related to technical matters such as taxation, environmental policy etc.
• Lack of infrastructure and manpower shortage.
• Expensive and delayed justice: Judicial proceedings are prohibitively expensive, confusing for commoners and delay in justice delivery has denied gainful opportunities for many.
• Lack of expertise: Judiciary lacks expertise in dealing with new age problems like Corp Tax, Cyber laws, International treaties, Climate change and its conservative attitude is exploited and corrupt go scot free.
• Corruption is also an major issue in judicial system as it is any other government department especially in lower courts increasing transparency and accountability corruption can be bought down.
• Absence of separate Commercial Courts to adjudicate on disputes of civil nature resulting in large number of pending civil suits related to various business and services related disputes in the high courts.

Following steps were taken by the government in to address the above mentioned problems are:

1. Tribunals: They have been set up to deal with technical matters and appeals against their orders are usually capped.
2. Special benches like the social justice bench have been set up.
3. Quasi judicial bodies like NHRC take some load off the judiciary
4. Recently we have seen efforts like separate benches for Trade disputes, Tribunals, Lok Adalats and Rural courts, NJAC, release of undertrials, PIL etc to unclog .

What is the NJAC?

• The National Judicial Appointments Commission (NJAC) is a constitutional body proposed to replace the present Collegium system of appointing judges.
• The 99^th Constitutional amendment was introduced to propose National Judicial Appointment Commission (NJAC) to replace the collegiums system for the appointment of judges as invoked by the Supreme Court.
• The Parliament also passed the National Judicial Appointments Commission Act, 2014, to regulate the NJAC’s functions.
• In 2015, the SC upheld the collegiums system and struck down the NJAC as unconstitutional.
• The NJAC will be responsible for making binding recommendations to the President for the appointment of judges as to the Supreme Court and High Courts.

Composition of NJAC:

• It shall comprise the chief justice of India as its ex-officio chairperson, two senior most judges of the SC following the Chief Justice, the law minister, and two eminent persons to be nominated jointly by the Prime Minister, chief justice of India and the leader of the opposition.
• These are not eligible re-nomination.

What is the Collegium System?

• The Collegium system is one where the Chief Justice of India and a forum of four senior-most judges of the Supreme Court recommend appointment and transfers of judges.
• However, it has no place in the Indian Constitution.
• The Supreme Court collegium is headed by the Chief Justice of India and comprises four other seniormost judges of the court.
• A High Court collegium is led by its Chief Justice and four other seniormost judges of that court.
• The system was evolved through Supreme Court Judgment in the Three Judges Case.
• According to first judges case chief justice of India does not have primacy over executive in the matter of appointment of judges of Supreme Court and High Courts.
• Second judges case decision made the judiciary the ‘de facto’ appointing authority of themselves curtailing the power of council of ministers under Article 74(1).
• In third judges case, nine judge Bench again confirmed that the opinion of the collegiums of judges have primacy in appointing  and transfer of judges of higher judiciary. In light of this decision detailed Memorandum of Procedure was prepared, which took the form of present collegiums system.
• Memorandum of Procedure (MoP) : 2015 ruling of the Supreme Court had also paved the way for a new Memorandum of Procedure (MoP) to guide future appointments so that concerns regarding lack of eligibility criteria and transparency could be redressed.
• The Bench had asked the government to draft a new MoP after consultation with the CJI. But more than a year later, the MoP is still to be finalised owing to lack of consensus on several fronts between the judiciary and the government.

Cons of judicial appointment by Collegium System:

• It lacks transparency
• It is inherently secretive
• It prohibits oversight, due to which there are no checks and balances on the judiciary.
• Choosing the judges based on undisclosed, criteria has lead to increasing democratic deficit.
• The union government has critised it saying it has created an imperium in imperio(empire within an empire) within the Supreme Court.
• The Supreme Court Bar Association has blamed it for creating a “give-and take” culture, creating a rift between the haves and have- nots.
• It is seen as a closed-door affair with no prescribed norms regarding eligibility criteria or even the selection procedure.
• There is no public knowledge of how and when a collegium meets, and how it takes its decisions.

Pros of the Collegium system:

• It has solved the problem of excessive executive intervention.
• It also stops the systematic “ Court Packing” practiced by governments,
• Court Packing- An unsuccessful attempt by President Franklin D. Roosevelt in 1937 to appoint upto six additional justices to the SC.
• The collegiums system has provided separation of judiciary from executive.

What does the Constitution say regarding the appointments of judges?

• Judges of the Supreme Court and High Courts are appointed by the President under Articles 124(2) and 217 of the Constitution.
• The President is required to hold consultations with such of the judges of the Supreme Court and of the High Courts as he may deem necessary.
• Article 124(2) says: “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years. Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.”
• Article 217: “Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.”

What efforts have been made to address these concerns?

• The NDA government has tried twice, unsuccessfully both times, to replace the collegium system with a National Judicial Appointments Commission (NJAC).
• The BJP-led government of 1998-2003 had appointed the Justice M N Venkatachaliah Commission to opine whether there was need to change the collegium system. The Commission favoured change, and prescribed an NJAC consisting of the CJI and two seniormost judges, the Law Minister, and an eminent person from the public, to be chosen by the President in consultation with the CJI.

Way ahead:

• The mammoth task of filling these vacancies would be better served if a revised Memorandum of Procedure for appointments is agreed upon soon.
• A screening system, along with a permanent secretariat for the collegium, would be ideal for the task.
• The introduction of transparency should be backed by a continuous process of addressing perceived shortcomings. The present disclosure norm is a commendable beginning.
• Judges need to be conscientious of in their discharge of duties, punctuality, judicial retribute and effort to do the best is what is the need of the hour”.
• Courts but complete overhaul of the system is needed to ensure people continue lay their faith in our judicial system.
• Transparent appointment process, e-gov, Judicial accountability and All India Judicial Service can be starting points in the much needed reformation.

Conclusion:

In order to uphold constitutional values such as judicial independence, our judges were compelled to arrogate to themselves the power to pick their very own. At the very least, they must ensure that those that are picked are truly meritorious: and certainly above “average”.

The latest move by the collegium marks a monumental milestone in our judicial history. While it needs to be applauded with all the vigour we have, we also have to be mindful that this is only the beginning, and much more remains to be done. To begin with, the collegium needs to make public its methodology for measuring “merit”. Institutional alternatives to the collegium make no sense, unless one first works out an optimal metric for measuring merit.