GS-2: Structure, Organization and Functioning of the Executive and the Judiciary

Key phrases: Collegium, ADM Jabalpur case

Why in news:

Parliament debated on High Court and Supreme Court Judges (Salaries and Conditions of Service) Amendment Bill.

Analysis:

Indian judicial system

• Judiciary is that branch of the government that interprets the law, settles disputes and administers justice to all citizens. The judiciary is considered the watchdog of democracy, and also the guardian of the Constitution.
• Independent Indian Judiciary It means that the other branches of the government, namely, the executive and the legislature, does not interfere with the judiciary’s functioning.
• India has a single integrated judicial system. The judiciary in India has a pyramidal structure with the Supreme Court (SC) at the top. High Courts are below the SC, and below them are the district and subordinate courts.

Issues with Indian Judicial System

• As per the Daksh report, there is pendency of more than 3.1 crore cases. Overburdened and understaffed judiciary.
• Idea of the CJI as the “master of the roster”. The previous CJI was criticized by many for the manner in which cases were allocated.
• Post-retirement appointments, it is clear that such appointments really compromise the independence of the judiciary.
• Poor coordination with government and judiciary-collegium recommendations are kept on hold for months.
• Currently, less than 1% of the budget is spent on judiciary. Funding needs to be directed towards digitisation of records, and giving an impetus to e-courts.
• Government is the biggest litigator. Thus, it needs to curb frivolous litigation in order to reduce the burden on judiciary. National Litigation Policy is being implemented to this effect.

What is Collegium System?

• It is the system of appointment and transfer of judges that has evolved through judgments of the SC, and not by an Act of Parliament or by a provision of the Constitution.
• Its evolution is through SC judges in First, Second And Third Judges Cases starting from 1981.
• The SC collegium is headed by the CJI and comprises four other senior most judges of the court.
• Judges of the higher judiciary are appointed only through the collegium system and the government has a role only after names have been decided by the collegium.
• Government’s role is limited to getting an inquiry conducted by the Intelligence Bureau (IB) if a lawyer is to be elevated as a judge in a High Court or the Supreme Court.

Issues of transparency and accountability with collegium

• Unconstitutional: ‘Collegium’ is nowhere mentioned in the Constitution and has been evolved by the judiciary itself for retaining the power to select judges by itself.
• Undemocratic: Selection of judges by collegium is undemocratic since judges are not elected by the people and are not accountable to the people or to anyone else.
• Non-transparency and opaque: (No official procedure for selection + lack of a written manual for functioning + selective publication of records of meetings+ no eligibility criteria of judges) = bring opacity in collegium’s functioning.
• Promotes nepotism: Sons and nephews of previous judges or senior lawyers tend to be popular choices for judicial roles. Thus it encourages mediocrity in the judiciary by excluding talented ones.
• Inefficient: Collegium has not been able to prevent the increasing cases of vacancies of judges and cases in courts.
• Against established conventions: The convention of ‘seniority’ has long been held as the procedure for appointments but ‘supersession’ ignores and abdicates this convention, creating space for subjectivity and individual bias in appointments.

Curse of pending cases and less responsive judiciary

• USA has 100 judges per million. Canada has 75 while India has only 19 and even there 25% are always vacant.
• Court in an order fixed time limit of 6 months to appoint as judge, at least those cleared by collegium. HC and government have agreed upon-welcome step.
• As per the Daksh report, there is pendency of more than 3.1 crore cases. Overburdened and understaffed judiciary.

Issue of contempt of court

• Article 129 of the Constitution conferred on the Supreme Court the power to punish contempt of itself. Article 215 conferred a corresponding power on the High Courts.
• Vague and wide jurisdiction: Definition of criminal contempt in India is extremely wide and can be easily invoked because of the Suo motu powers of the Court to initiate such proceedings.
• Against Natural Justice: A fundamental principle of natural justice, that no one may be the judge in his or her own case.
• International practice: The offence of “scandalizing the court” continues in India even though it was abolished as an offence in US, Canada and England.
• Pundit Thakur Das Bhargava in the Constituent Assembly said that power of contempt should only be restricted to disobedience of an order or direction of a court.
• There have been cases where judges have erred like ADM Jabalpur case and public should have right to scrutinize such incidents without facing action.
• Court is also under allegation of not acting on violation of human rights – Cases on article 370, electoral bonds, CAA are pending since years but routine bail cases being taken on priority-criticism on such issues cannot be shielded.
• Fact that judges are transferred without any seeming justification, and in some cases re-transferred, justifying neither their initial transfer nor the re-transfer?

Way ahead

• Filling up of vacancies is a continuous and collaborative process involving the executive and the judiciary, and there cannot be a time frame for it. However, it is time to think of a permanent, independent body to institutionalize the process.
• Instead of selecting the number of judges required against a certain number of vacancies, the collegium must provide a panel of possible names to the President to appoint in order of preference and other valid criteria.
• A written manual should be released by the Supreme Court which should be followed. during appointments and records of all meeting should be in the public domain in order to ensure transparency and rule-based process.
• India needs to restore the credibility of the higher judiciary by making the process of the appointing judges transparent and democratic. Apart from reforming the collegium system, the quality of judges can also be improved through the implementation of All India Judicial Services (AIJS).

Source: Indian Express

Mains question:

Q. Enumerate the measures taken for judicial reforms in India. Also, examine the importance of recently mooted proposal for National Judicial Infrastructure Authority. (15 Marks, 250 Words)