Arun Jaitley
In the past the world has witnessed a large number of countries where democracies have collapsed. In recent years there have been positive movements for restoration of democracy in several nations. India presents to the world an example where despite cynicism, poverty and being a developing economy, we have continued to strengthen each of our democratic institution. We have an independent Election Commission, an independent and strong judiciary, a professional military and a strong and vibrant media, a powerful civil society and vibrant multi-party democracy with a strong parliamentary institution.
When I analyse the history of India’s Judicial institutions, I find satisfaction in the fact that it has immense credibility and has stood the test of times. It has upheld the constitutional values, strengthened the fundamental rights and acted as an adjudicator in disputes between citizen and citizen on one hand and the citizen and the State on the other. Its’ decisions are widely respected. Historically, individuals who man this institution have been men of credibility whose decisions are well regarded by the society. As someone who is committed to judicial independence and with my experience at the Bar, in the government and in Parliament, I set upon the task of introspecting where the institution stands today. I flag the following subjects with the intention of strengthening the judicial institution.
The Judiciary
The judiciary is failing to attract the best available talent. In the post liberalization scenario, when commercial litigation has increased manifold, the incomes of lawyers have increased substantially, the best at the Bar are reluctant to take up career as judges. They find the service conditions relatively modest and are not willing to regard assignment as judges as a part of national duty. I do believe that there is a need to substantially improve the service conditions of the judicial officers and judges at all levels. The service conditions should be able to attract the best talent. Awareness needs to be created amongst the members of the Bar that the system needs the best to be elevated as judges.
Appointments
We have gone through an evolution in the appointment process of judges. We started off with a statutory process where the Chief Justice of India recommended the names to the Government for elevation in the High Courts and the Supreme Court and the Government ordinarily accepted the recommendation. The 1982 Judgement of the Supreme Court categorically gave primacy to the word of the Executive and their view started prevailing. With the backdrop of the 1973 supersesions and the 1975 transfers of inconvenient judges during Emergency, the government began to assert itself in the 1980s. This decade witnessed politicization in the matter of appointment of judges. The 1993 judgement of the Supreme Court was a reaction against this politicization . The consultation with the Chief Justice of India soon became a binding advice of the Chief Justice. The Chief Justice became the key individual in the matter of appointment of judges. What if the CJI did not exercise the power judiciously? The 1998 reference shifted the eventual authority to collegiums created in the High Courts and the Supreme Court. That is the system under which we function.
The collegium system is certainly superior to the system where the Executive had the last word. We should never consider going back to the age of Executive primacy but I do believe that the collegium system has failed to select the very best and select them expeditiously. At any given point of time a very large number of vacancies in the High Courts remain unfilled. This is contributing to the pendency of arrears in the High Courts. The collegium system both at the level of High Courts and Supreme Court has several shortcomings. Firstly, there has been a tendency of members of the collegium to promote those who have been close to them. In the High Courts members of the collegium have nudged the cases of their favourites; at times even at the cost of ignoring merits. Secondly, the collegium system is resulting in the art of the possible – by accommodating various members of the collegium, a balancing act is arrived at and a panel of names prepared. Thirdly, in the Supreme Court it has been observed that there is the creation of an unstated institution known as ‘The Constituency Judge’ Naturally, judges of the Supreme Court who would be more concerned about the parent High Court to which they belong. Their ability to influence appointments in that High Court is unprecedented. This has resulted in both quicker elevation of some people as also denial of appointments to many of the deserving persons. The denial of elevation or a delay in elevation of those whom the constituency judges did not favour is a reality. This veto has not always been exercised for reasons connected with merit.
I do believe that time has come to review the system of collegium as it functions today. I would support the constitution of a National Judicial Commission which should be empowered to deal with appointments and also such disciplinary matters which fell short of the requirements for an impeachment. The National Judicial Commission should comprise of senior judges of the Supreme Court, the Law Minister as a representative of the Executive and some eminent public persons (people with legal background or otherwise) who could be appointed by a collegium comprising the Prime Minister, the Leader of Opposition in the Lok Sabha and the Chief Justice of India. For appointments in the High Court the Chief Minister and the Chief Justice of the High Court could be added.
I am deeply concerned with the fact that in several High Courts appointments have been made where the best had been ignored and undeserving have been elevated. The National Judicial Commission will have to follow an objective criteria which is statutorily defined. Judicial officers who are elevated to the High Courts have service records which represents their potential. It is important that such an exercise should be undertaken with regard to Members of the Bar also. The world has been made easier with the advent of the information technology. How many cases a lawyer has argued? How many publications does he have to his credit? What were his academic credentials? How many judgements, in cases that he argued, have been reported? How many juniors has he trained? What is his declared income? After he crosses the threshold on basis of an objective criteria which is in-built in the above mentioned and several other questions it is then for the Commission to judge his temperament, his integrity, his aptitude as a judge. The element of subjectivity needs to be reduced.
Accountability
We are currently following the process of in-house accountability of judges . Judges appoint judges, judges judge judges. The jurisdiction of accountability needs to be shifted to the National Judicial Commission. It is only extreme cases which involve impeachment of an errant Judge the said proceedings will be required to go before the Legislature.
Retirement of judges and Post retirement assignment
I am in favour of increasing the retirement age of judges at the level of the Supreme Court and the High Courts. I am, however opposed to the present institution of post retirement jobs to the judges except in very rare cases. The tendency to man all tribunals and vest certain executive functions to retired judges has created an impression that a large number of judges expect a post retirement assignment almost as a matter of entitlement . Post retirement jobs impinge on the judicial independence. The desire of a post retirement job can influence the pre-retirement judgements. I will refrain from giving examples but at any stage I can assure you that I am aware of many such illustrations. I would recommend that the pension of a retired judge should be equal to his last drawn pay. Once the age of retirement is increased it will be a good case for subsumig the work done by tribunals within the structure of the normal judiciary. Sitting judges are accountable. They have an interest in further enhancement of career. They are accountable to their own institution and even to the Legislature in the event of an impeachment. Retiring judges have no such avenue of accountability.
Separation of Powers
Separation of powers is an important pillar of the Indian Constitutional order. The job of the judicial institutions is to adjudicate issues which arise before it. Law making is a parliamentary function. Governance is an Executive function. Of late, we have witnessed the encroachment on the principle of separation of powers. There are hardly any illustrations where the Executive or the Legislature has encroached on judicial powers. The regrettable truth is otherwise. There has been judicial interference in a case as to how a terrorist hold out should be tackled and how many calories should be fed to the terrorist who attack India’s sovereignty. There have been recent adverse comments on economic policy which is a subject purely in Parliamentary or Governmental domain. There has been an adverse judgement on whether citizens can be involved in the battle against Maoism or not. The list of judicial guidelines which substitute the Executive or Legislative powers is increasing.
I am flagging this issue since I do believe that maintaining the balance is in consonance with the constitutional values enshrined by our founding fathers. We cannot afford to tinker with them. Judicial statesmanship and Legislative vision are inherently required for preservation of this balance.
Court monitored investigations
There have been cases of corruption and crime which have shaken the conscience of the Indian society. In some matters the investigative agencies have been reluctant to undertake an honest and independent investigation. The Supreme Court therefore devised a judicial instrument popularly known as “Continuing Mandamus” or a ‘court monitored investigation’ which ensures that investigations are undertaken in accordance with law.
Do I support the idea of court monitored investigations? Yes, indeed I do. Investigative agencies have often displayed lack of independence. They are under the control of the governments, be it the Central government or the State governments. Under normal circumstances it is the duty of the investigating agency to undertake investigations. Aggrieved persons, be it the accused or the complainant, can approach the trial court for redressal of the grievances. But there are some cases where absence of fairness is writ large. The nature of the offence is such that it shakes the conscience of the society. It is in such cases that courts direct the investigative agency to act in accordance with law. The courts used their authority under a “continuing Mandamus” to supervise the investigations. This indeed is a welcome step.
However, I need to put a note of caution. Judicial activism and restraint are two sides of the same coin. While putting the process of law into motion the courts must always be cautious as to when and where stop. Investigation is a police function. Trial and appellate jurisdictions belong to the courts. If courts overstep the jurisdiction of supervision even during trials there can be a danger of either the courts doning the hat of supervising and nudging the investigation in a particular direction or alternatively prejudicing a free and fair trial. It is therefore necessary that while courts retain the power of monitoring investigation at the initial stages, the monitoring must stop with the filing of a charge sheet. The judges hearing the appeals or matters arising out of trials could be different from those who have monitored the investigation. It is necessary to ensure that cases are investigated in accordance with law and at the same time the right to a free and fair trial is not prejudiced.
I have made the above suggestions really as ‘stray thoughts’ on issues pending before the legal fraternity and society in relation to the judicial institution. My intention is that aberrations if any need to be corrected and that we must debate the above suggestions along with several others with the intention of ensuring a free, fair and fearless judiciary in this country.
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