Hanging in balance: No executive interference required


The judiciary has been praised by some for its role in exposing corruption in politics, while others point to the defective method of selection of judges through the collegium system to criticise it. To prevent further easy public slapping of the judiciary, we must now finalise the method of appointment.

The suggested pattern of a judicial appointments commission broadly fills the void. It is headed by the chief justice of India (CJI) and includes the next two senior judges, the Union law minister, two eminent persons (emphasis added) to be selected by the prime minister, the CJI and the leader of opposition in the Lok Sabha. Some rightly feel that “eminent persons” should be substituted with “eminent jurists”, because “eminence” by itself is too vague. Instead, “eminent jurist” would provide a larger field of academics, authors, outstanding lawyers (no longer practising, of course). The fear that the presence of a lay person would interfere with the independence of the judiciary is misplaced. As the Judicial Commission of New South Wales Annual Report said: “Judicial independence is not some kind of industrial benefit generously extended to judges and magistrates, it is [the] fundamental principle of our society’s constitutional arrangements.”

The provision with regard to the appointment of high court judges, however, states, unacceptably, that the JAC is only required to elicit (emphasis added) the views of the governor, chief minister and the chief justice of the high court. I can hardly see any relevance of eliciting the view of the chief minister separately from the governor. I, however, take strong objection to reducing the position of the chief justice of a high court to merely eliciting his view. The advice of the chief justice of a high court as to the suitability or otherwise of a person to be appointed a judge of a high court should normally be accepted.

Reportedly, though technically the collegium is being sought to be abolished, the CJI has asked chief justices of the high courts to consult their colleagues, even junior ones, as far as possible. But this suggestion may only be observed in the breach. I remember that in 1977, the Janata government’s informal suggestion that the chief justices of the high courts consult two senior colleagues was observed more in the breach. It was only when the collegium system was established that the chief justices of the high courts had no option but to consult their colleagues.

However, this did not mean that the government has accepted the collegium’s recommendation in all cases. In 1985, the chief justice of a high court and his two senior-most colleagues recommended four names, with the clarification that they must be appointed in the order in which the names were sent. This was done to prevent the government from picking and choosing on the specious argument that some names had not yet been cleared by the CBI and the appointments might be delayed, while those lower down the list could be appointed immediately. This was opposed by the chief justice, and the law ministry was so affronted that the government did not appoint any judge during his tenure. Afterwards, too, the law ministry first appointed new names and only later appointed those recommended by the earlier collegium. So the government’s intervention can only be checked by a strong judiciary. It is for this reason that I have reservations on doing away with collegiums entirely. The collegium system is welcome inasmuch as it constitutes a wider circle of three judges, rather than leaving it solely to the chief justice of the high court. The CJI’s advice to consult two more judges is welcome. I see no reason to abolish the collegium system at the high court level (which, after all, is only recommendatory). The appointments are now to be made under the provisions of the proposed JAC.

I am amazed that, so far, a serious self-inflected injury is being overlooked — that is, appointing the chief justices of high courts outside their parent court. I have never understood the logic of transferring the senior-most judge, whose turn to head the court in which he has worked for almost 10 to 15 years, and with the functioning and lower judiciary of which he is most familiar, has come. To transfer him to a new court for a period of one or two years or even less, to which he is a total stranger and most likely unaware of the names of his colleagues, is strange. At present, one has the embarrassing spectacle of a chief justice being transferred to a state where he cannot even understand the language. The chief justice of a high court should be the senior-most judge of the same court. This alone will lend strength and dignity to the high courts.

Section 8 of the new bill contemplates asking the state and Central governments to send recommendations for the selection of judges. I find this to be a frontal attack on the judiciary. After a JAC is constituted, the state or Central governments have no locus standi and should be outsiders in the process of selection. I agree though that the JAC should make public the names it is contemplating for appointments to high courts and the Supreme Court. This will make the process more open and participatory, and also negate the charge of secret manoeuvring in the appointment of judges.

The writer is a former chief justice of the Delhi High Court

Politically coloured, legally suspect


The clamour against the courts has been continuous. Initially, there was talk of a “committed” judiciary. Then, of judicial accountability and transparency. And so on. The latest is — why should judges choose judges? Hence, the effort to replace the collegium by a Judicial Appointments Commission (JAC). The bill has already been passed in both Houses of Parliament. Is it the right way to do so? I think, No.

Let us see what is happening in the country. Who selects ministers? The prime minister and chief ministers. Who selects the generals? The generals. Who selects army commanders? The army. Who selects government servants? The government.

Why then do we want a different method of selection for the judiciary? Why should the judiciary not be allowed to select judges? Is it an effort to destroy the one institution that has performed and exposed scams and scandals like Coalgate and 2G?

The founding fathers created a judicial pyramid. The subordinate courts were the base. Then came district courts. The high courts followed at the state level. The Supreme Court was placed at the apex. They also laid down the procedure for the selection and appointment of judges. The selection and appointments of the officers in the subordinate and district courts are made in accordance with the rules framed and promulgated by the government in accordance with the Constitution. The “control” vests in the high court. In so far as appointments to the higher judiciary are concerned,

the matter was considered by the Supreme Court in the second and third judges’ cases.

The court’s dictum has been followed. Judges to the high courts and Supreme Court have been selected by collegiums for some time now. The scope for interference by the political executive has been reduced to a minimum. Consequently, criticism from different quarters is understandable. But can the JAC improve the quality of judges?

No system of selection can be absolutely perfect. Institutions run by human beings will reflect human frailties. A fact that deserves mention is that the Constitution itself provides for Union and state public service commissions to make selections to the various services. The commissions have been in place for a long time. Has their performance been beyond reproach or even satisfactory? Have these commissions not been described as “personal” service commissions? The kind of eminent persons proposed to be included in the JAC are usually members of the state and Union public service commissions too. Yet, what do we have? Petitions in courts alleging all kinds of malpractices. Still more, states have moved petitions, prosecuted members or chairpersons of the commissions for different irregularities and even offences. Would a similar commission for judicial appointments change everything for the better? Looks unlikely.

Second, the state is the single-largest litigant in the country. Should a litigant have any say whatsoever in the choice of judges?

Third, in a democracy, independence of the judiciary is of paramount importance. A fearless and independent judiciary is a basic feature of the Constitution of India. It is a part of the “basic structure” and should not be sacrificed at the altar of the executive’s anxiety or ego. Legally speaking, the validity of the proposed bill is extremely doubtful.

The members of the collegium also monitor the performance of judges and lawyers who have to be considered for appointment to the high courts or the Supreme Court. They examine judgments of the persons who are considered for elevation. So far as the JAC is concerned, the majority shall not have that opportunity. They will necessarily have to depend upon hearsay evidence. This will be totally improper.

It is alleged that the collegium does not have a mechanism to “verify the character and antecedents of judges.” I think, it is not so. The court and/ or the chief justice can always ask the concerned agencies to do the needful. In certain cases, it has been actually done. I think the fear is wholly unfounded.

It has been suggested that judges sometimes indulge in mutual give-and-take. As a result, some people who should not have become judges at all have been elevated to still higher positions and courts, it is argued. Assuming this to be correct, can anybody claim we are totally impervious to all kinds of political and social influences or pressures? Has it never happened that, at the highest level, files are held up till the name of a particular person is cleared by the collegium?

But is the JAC the solution? No!

A rare exception under the collegium system has the potential of becoming the rule when the final word is left to the executive. Are the series of scams and scandals that have taken place recently in India not enough to caution us about the state of political morality? The judiciary is one institution in India that has performed and delivered. We can tinker with it only at our own peril.

The writer is former chief justice,

Kerala High Court

A case for two commissions


There is now a consensus amongst judges, lawyers and legislators that the present system of appointment of judges to superior courts by a collegium of Supreme Court judges requires to be changed for a better one. There are sound reasons for this move.

First, the appointment of judges by the Supreme Court collegium has no foundation in our Constitution. Article 124 of the Constitution provides that every judge of the Supreme Court is to be appointed by the president after consultation with the chief justice of the Supreme Court and other judges of the Supreme Court and high courts. Similar power is given by Article 217 to the president in consultation with the chief justice of India (CJI), the governor of the state and chief justice of the high court for the appointment of judges to high courts.

In 1981, in what is known as the first judges’ case, the Supreme Court held that the power of appointment of judges of the superior courts resided solely and exclusively in the president, that is, the Central government, subject to full and effective consultation with the constitutional functionaries referred to in Articles 124 and 217. However, in 1992, the Supreme Court, in the second judges’ case, professing to safeguard the independence of the judiciary, reversed the first verdict and rewrote the constitutional provisions to hold that the primacy in the appointment of a judge of the Supreme Court was with the CJI, who would make his recommendation to the president after consultation with two of his senior judges. The president would only have the limited power of expressing his doubts on the recommendation of the CJI. The president’s doubts would not however prevail if the CJI reiterated his recommendation on the appointment of the judge. In a later judgment, known as the third judges’ case, the Supreme Court diluted the primacy of the CJI, and gave the power of appointment to a collegium of the CJI and four of his senior-most colleagues.

The judgments in the second and third judges’ cases are an extraordinary tour de force in the name of securing the independence of the judiciary. The court has rewritten the provisions of the Constitution for the appointment of judges. The executive’s function in the appointment process has for all practical purposes been eliminated and reduced to the formal approving of a recommendation made by the CJI and his collegium. “Consultation” with the CJI in the Constitution has been transmuted into an original power to appoint by the CJI and a collegium. The Constituent Assembly’s view at the time of enacting the constitutional provisions, that the CJI should not be the final appointing authority, was disregarded by the court. In no jurisdiction in the world do judges appoint judges.

Even if the collegium’s method for the appointment of judges has no foundation in the Constitution, it could have been excused had the system worked satisfactorily, but unfortunately, for over 20 years, it has not. In the first instance, the collegium system lacks transparency and is secretive. The public is not aware of the selection of a judge until his name is forwarded to the government by the collegium. Second, there have been instances of judges being selected or not selected due to favouritism or prejudice of members of the collegium. Third, selection on competitive merit of the appointees is discarded and judges are generally appointed to the Supreme Court on their seniority in ranking in the high courts. The late Justice J.S. Verma, principal author of the second judges’ judgment, later admitted that the collegium system had failed.

Should the earlier system of the exective appointing judges after proper consultation be restored? Paradoxically, from 1950 to 1973, some of the most outstanding judges of our Supreme Court were appointed through this system. Eminent judges like Michael Kirby of the Australian High Court are strongly in favour of restoring the old system, with control over it by Parliament. It was only during the period of the Emergency that this system was subverted, which led to the judiciary appropriating the power in the second judges’ case. Even today, in Australia and Canada, it is the executive that appoints judges after proper consultation.

To introduce a Judicial Appointments Commission (JAC) in India is a fundamental change in the Constitution. Such a change requires careful consideration and evaluation of the system. It is important to know that, except for the judicial appointment commission of the UK introduced by the Constitutional Reform Act, 2005, such commissions have not been successful elsewhere. The South African constitution provides for a judicial appointment commission, but its working is far from satisfactory and at times appointments have been influenced by the government. The same is true of judicial appointment commissions in other states in Africa.

If the JAC is to be introduced in India, its composition should be made part of the Constitution itself and not left to ordinary legislation by Parliament. There should be proper representation of members, including of the legal profession, in the JAC. The JAC will be over-stressed and overworked if it has to make appointments for 31 judges to the Supreme Court and over 800 judges to the 24 high courts. The CJI and two senior-most judges, who are to be part of the commission, would have to work in the commission to the neglect of their primary judicial duties of hearing and deciding cases. There ought to be two separate judicial commissions, therefore, one for the Supreme Court and the other for the high courts. The JAC for high courts ought to

be composed of retired judges of the Supreme Court or high courts, in addition to other members. In the UK, there are separate selecting bodies for high court and for supreme court. The overriding factor will be the merit of the candidate, but the commission, as in the UK, should consider diversity, namely, appointment of women judges and judges of various regions without of course sacrificing merit.

Overall, the creation of a JAC requires careful consideration and extensive consultation with all sections of the public, including the CJI. The present law minister, Ravi Shankar Prasad, rightly convened a meeting on July 28 of judges and lawyers and jurists to discuss the changes to be made. It is to be hoped that such consultations will be continued before a legislation is introduced. The collegium system has not worked, but we should not have a situation where we jump from the frying pan of the collegium to the burning fire of a chaotic National Judicial Commission.

The writer is a senior advocate of the Supreme Court and former Solicitor General of India

First, insulate the judge from politics


The thesis of ‘committed’ judiciary has been abandoned, but its practice continues unabated. That is the real problem, writes RAM JETHMALANI.

A judge is the guardian of the small man and his bundle of rights, which enable him to realise his fullest material, moral and spiritual potential, and expand to the utmost frontiers of his body, mind and soul. No judge must aspire to harmony with the legislature and executive. Every judge must brace himself for a life of tension with both in the intelligent and stout defence of his ward, who needs constant protection against the insolence of unfeeling officials, the venality of politicians and the misdeeds of wicked neighbours and fellow citizens. Every court is essentially a court of wards; the Supreme Court has the entire citizenry as its ward. Our judges need not be sensitive to the oft-mounted attack that they are not elected and are, therefore, unaccountable and undemocratic.

This role of the judge makes one think about elected judges. But the system of elected judges has been tried elsewhere and I believe that it has produced jokes. The most instructive joke that you will find is that in a certain US state, the Democratic Party found a judge paralysed from the waist downwards and invariably, in elections, he won the sympathy vote. He triumphed in four successive elections but before the fifth, a Republican Party official said to his superior, “Sir, we have found a solution to our problem.” He asked, “What is it?” The answer: “Sir, this time we have found a judge who is paralysed from the waist upwards.” It will not work in India anyway.

Economics may have dominated the world most of the time and probably does dominate in some sense even now. But today, politics has overtaken economics in its influence. In the past few decades, all institutions, including the judiciary and of course the Bar, have struggled with the temptations of politics. Judges, like other mortals, are attracted to politics, particularly aspiring ones who consider favours from a ruling party to be stepping stones for upward mobility in the field. Usually, but not always, judges do often violate their oath of administering justice without fear or favour. Favours done have to be returned, feel some. We have therefore to evolve an effective mechanism of insulating judges against politics and involvement in political machinations of the kind that have disgraced some sections in the past not only in this country, but also elsewhere.
Politicians as a class and the executive in power must therefore have no voice in the appointment of judges. The executive is the biggest litigant in cases of citizen complaints of the oft-corrupt misuse of executive powers. Even a good judge appointed by a corrupt minister will not command public confidence. The second judges case, the origin of the present collegium system, was a correct decision, and the current system is vastly superior to the one it supplemented. It was the one that produced the tellingly sarcastic comment, “It has created two kinds of judges — those who know the law and those who know the law minister.”

South Africa, in its new constitution, adopted the model of a judicial commission as the method of selection, which has been operational since 1996. The law minister is formally consulted and he makes his comments upon the appointees or recommendees of the judiciary. The comments of the law minister are considered with respect and attention, but the final word lies with the commission. I am committed to this mechanism as our final solution. I must hasten to explain why.

I agree with the weighty opinion of my erudite friend, senior counsel Anil Divan, in his recent article in The Hindu: “The present secretive process followed by the collegium excludes public scrutiny, violates the citizen’s right to know and leads to diminishing respect for the judiciary.” Some bad appointments produced by this system are also notorious.
While corruption continues to grow like a galloping cancer in every branch of life, the judges seem to reciprocate by producing a strange jurisprudence that only protects the corrupt. The law of contempt and the difficulties of proving judicial corruption deter cautious lawyers. But the common man, not so inhibited, produces an impressive volume of popular corruption folklore.

The real decline of judicial character started in 1973. Mohan Kumaramangalam, a distinguished lawyer and politician, claimed that judicial appointments could not be made without reference to the social philosophy of the judges. The judge, being an important decision-maker, makes decisions that are bound to affect the lives of the people, and his decisions are influenced by his social philosophy. Therefore, independent India should have judges who are “committed” not only to the social philosophy of the Constitution, but also to that of the government. This was controversial. However, Indira Gandhi’s government implemented his views during the Emergency.

Though the Kumaramangalam thesis has now been abandoned, its practice continues unabated. While judges associated with the ruling establishment are invariably appointed, those having any form of association with opposition parties are scrupulously avoided. How successive chief justices, who are supposed to be totally judicial even in the discharge of their administrative function, habitually enter into convenient compromises escapes comprehension. The inevitable answer is the creation of a national judicial commission in which the judiciary, government, opposition, the Bar and academic community have an equal voice. Judges should hold office only during the pleasure of the commission. It should have the power to appoint, transfer and dismiss — of course, in accordance with procedure established by law, or what is also known as due process. The Lokpal may well be a useful addition to the list of participants.

The 79th report of the Law Commission suggested ways to plug loopholes in the existing system of appointment of Supreme Court judges. No one should be appointed a judge of the Supreme Court unless, for a period of not less than seven years, he has snapped all affiliations with political parties and unless, during the preceding seven years, he has distinguished himself for his independence, dispassionate approach and freedom from political prejudice.

The practising Bar is the constituency of a judge. If he cannot retain its confidence, he must gracefully quit office. It is just not true that only weak and obliging judges are popular with the Bar. Members of the Bar know the black sheep on the bench. No wonder, the American Bar Association can, by its adverse criticism, make the mighty president of the US withdraw his nominees for judicial office. A lord chancellor of England admitted that if he made an unworthy appointment, he could not possibly look into the eyes of the lawyers at Bar dinners.

The writer, a lawyer and Rajya Sabha MP from Rajasthan, is a former Union law minister (June 1999-July 2000)

Change must respect basic structure


The relationship between “democracy” and “secrecy” has always been debated, and it has been highlighted by the system of judicial appointments. The proposed judicial appointments commission (JAC) seeks to partly answer that question. Under review is the judicial collegium method of appointments, in use since the 1990s (which consists today in the supremacy of five senior-most justices of the Supreme Court, including the chief justice of India), as against the constitutional method in place between the 1950s and the 1990s (where the executive nominated candidates in consultation with the CJI and such other justices as it deemed fit).

Neither method can be said to have failed or succeeded, because the citizen has no way of knowing who the candidates are, how they are selected and why. No empirical study of judicial appointments is possible because the records are not available, and like the electoral nomination of candidates, the right to information does not exist so far as judicial elevations or transfers of high court justices are concerned. Stories in which judges, lawyers, law ministers and journalists tell us about the “system” are abundant, but such anecdotal evidence is hearsay and not ordinarily admissible in a court of law.

In the three judges cases, including a reference for advisory opinion, the court arrogated the power to elevate (and transfer high court) justices through a tortured interpretation of Articles 124 and 217 of the Constitution, by saying that the word “consultation” shall mean the “consent” of the CJI. But a constitutional convention giving primacy to the CJI was already in place — according to the law secretary’s affidavit, only seven out of some 348 recommendations were negatived by the Central government. If the system of executive nomination has worked so well, why the change?

Are the CJIs, in some cases, constrained to approve executive-dominated elevations? Justice Markandey Katju’s recent expose suggests that the CJI is vulnerable to alleged manoeuvring by the prime minister’s office. The justices in the judges cases seemed to think so, given that they accorded primacy first to the CJI, then to two judges and the CJI, and finally to a collegium of five justices.

To its credit, the UPA government introduced nearly half a dozen bills for judicial appointments and transfers, and contemplated a slew of measures on judicial standards, accountability, non-impeachment offences and transparency of the judicial process. The new government is espousing the cause; it clearly disfavours the political bravado that inspired a Union law minister to say that he had justices in his pockets; this is no longer the signature tune of modern governance. Rather, the state now wants a JAC that would avoid the vices of politicians appointing judges, and of the justices appointing their own.

This is welcome, as is the agreement that the senior-most judge may only be the CJI (at least till 2021, when even reforms contemplating a minimum tenure for the CJI may occur). The many UPA bills made the CJI the chair of the JAC, converged in making two senior-most justices of the Supreme Court members, provided a

process to identify two eminent citizens, and finally culminated in the 120th constitutional amendment bill, which too lapsed in the Lok Sabha. The NDA is likely to revive the amendment and bill in the new Lok Sabha. The text of the bills, the debates in Parliament as they occurred, the Law Commission’s report and other reports make compulsory, if dull, reading on this vexed subject.

In a consultation with eminent jurists convened by the Union law minister on July 28, while most went to the extent of saying that the judicial collegium had failed and agreed that the system of appointments needed to be changed, all the “jurists” endorsed the “dominance” of the CJI and his senior companions. If the advice of the CJI and his companion justices is to have an “edge” or “dominance”, how is it to be achieved? Should the JAC then adopt a weighted voting procedure, not unlike the United Nations Security Council? If the JAC is to decide by consensus, what will happen if the justices do not yield? What if some other eminent members, including the Union law minister, remain recalcitrant? And how much weight, if any, should be given to the Intelligence Bureau reports on prospective candidates?

A greater fundamental difficulty is posed by the basic structure doctrine. I have previously argued in these pages (‘Just governance’, IE, June 10) and at a New Delhi consultation that the best course is to obtain an advisory opinion from the Supreme Court on a draft amendment bill, considering whether abolition of the judicial collegium offends the basic structure and if it does, how the alternate JAC could be made constitutionally compatible. Already, the CJI has made it clear that the matter can only be settled in a judicial opinion; since the judges cases were decided judicially, no question arises of a mere administrative order by the court.

The court may advise the president that the basic structure is not violated or that certain changes to the JAC could save it from the indictment of offending it. This will result in a healthy dialogue on system change and collaboration, rather than an avoidable conflict between Parliament and the Supreme Court.

The basic structure here is the independence of the judiciary and judicial review. It is this power that ultimately decides the essential features of the Constitution. Appointments and transfers of justices definitely affect the basic structure, and the court should have a say in it. The executive may present evidence before the justices on why the judicial architecture needs to be reformed, and how the judicial collegium has “failed” the nation. Since almost all the leaders of the Bar believe that the judicial collegium has “failed” in drawing the best and brightest to become justices, they should have little difficulty in persuading the court.

The argument against an advisory opinion is that it would take undue time. But the 2G reference was relatively expeditiously disposed; the non-collegium justices would be justified in accelerating the opinion. In any event, the time taken for the reference will be democratically well-invested. The alternative of an adversarial proceeding, where the court may continue via a stay order to make appointments and transfers, scarcely advances the cause. Even under Kesavananda Bharati vs State of Kerala (which enshrined the basic structure doctrine), Parliament has plenary powers to amend the Constitution. However, enacting the JAC without consulting the court may invite judicial wrath, and even lead to a constitutional crisis.

The writer is professor of law, University of Warwick, and former vice chancellor of the Universities of South Gujarat and Delhi

“Judgment review needed to change collegium method”


Chief Justice of India K.G. Balakrishnan says it will not be possible to change the collegium system of appointment of judges without reviewing two Supreme Court judgments. (The collegium method came into being as a result of the judgments, first in 1993 (The Supreme Court Advocate-on-Record Association case) and then in 1998 by a presidential reference).In a special interview to The Hindu, prior to laying down office on May 11, Justice Balakrishnan said on Saturday: “We only follow the procedure from these judgments. If the Centre wants to change the system, it must seek review of the judgments, whether on its own or through some other method.” Asked to comment on a proposal from the Centre suggesting changes in the Memorandum of Procedure of appointment of judges to give greater say to the executive in the appointments and to ensure more transparency, Justice Balakrishnan said: “I received this proposal. I am leaving it to my successor to deal with it.”

He, however, asserted that people who criticised the collegium method were not fully aware that it could not be changed without a review of the two judgments. Otherwise, it would be violative of the directions given in these judgments. Asked about the need for creating four Supreme Courts of Appeal in four regions and a constitutional court in the capital, Justice Balakrishnan said: “We have to look for some changes in the system, as judges are overburdened. This year, the number of cases filed in the Supreme Court is expected to touch 84,000. Though the disposal rate is correspondingly high, it cannot be continued for a long time. The present system could be continued for another 10 years, and thereafter we must look for some change in the system.” On the need for enacting a law to curb honour killings, the CJI said that the law alone could not change the situation. “We have got sufficient number of laws. Even if there is a law, if things are done clandestinely, what can be done? What will you do if persons concerned are ostracised by society. What is required is society must change. Anyway, it is for Parliament to decide [whether] to come out with legislation or not.”


For proximate and speedy justice


K.K. Venugopal Senior Advocate IN THE HINDU May 1, 2010

While the Supreme Court should become a Constitutional Court, the setting up of Courts of Appeal, each comprising 15 judges divided into five benches, for the four regions of the country will prove to be a real boon to litigants.

Things had come to a pass in the Supreme Court of India, when Justice E.S. Venkataramiah in P.N. Kumar v. Municipal Corporation of Delhi, (1987) 4 SCC 609 relegated the writ petitioner under Article 32 to the High Court, without deciding whether any fundamental rights were violated or not, giving, among others, the following reason: “This Court has no time today even to dispose of cases which have to be decided by it alone and by no other authority. A large number of cases are pending from 10 to 15 years. Even if no new case is filed in this Court hereafter, with the present strength of Judges it may take more than 15 years to dispose of all the pending cases.”

There was a huge hue and cry at the Bar, which alleged that the Judge was violating his oath of office in refusing to entertain petitions under Article 32, which itself was a sacrosanct fundamental right.

I should point out that the idea of having Courts of Appeal in India for relieving the Supreme Court of its huge burden is not new. Justice K.K. Mathew, whom I have cited earlier, had, in an article published in 1982 contemplated Courts of Appeal to relieve the huge backlog of cases in the Supreme Court.

Later, Justice P.N. Bhagwati, in Bihar Legal Support Authority v. Chief Justice of India and Anr., (1986) 4 SCC 767 had this to say: “The Supreme Court of India was never intended to be a regular court of appeal against orders made by the High Court or the sessions court of the magistrates. It was created for the purpose of laying down the law for the entire country and the extraordinary jurisdiction of granting special leave was conferred upon it under Article 136 of the Constitution so that it could interfere whenever it found that the law was not correctly enunciated by the lower courts or tribunals and it was necessary to pronounce the correct law on the subject.”

The Constitution Bench had itself felt the need to set up a National Court of Appeal and observed in the very same judgment thus: “We think that it would be desirable to set up a National Court of Appeal which should be in a position to entertain appeals by special leave from the decisions of the high courts and tribunals in the country in civil, criminal, revenue and labour cases and so far as the present apex court is concerned, it should concern itself only with entertaining cases involving questions of constitutional law and public law.”

It would therefore be seen that the idea of establishing Courts of Appeal to relieve the Supreme Court of its tremendous burden has been propounded quite some time back. As a matter of fact, the Law Commission of India in its 229th Report (2009) recommended the setting up of a Cour de Cassation in each of the four regions to act as a final court with regard to the matters entrusted to it. Recently, the Chief Justice of India, Justice K.G. Balakrishnan, expressed a similar view by suggesting that there could be Courts of Appeal in the different regions.

Statistically, it appears from a paper published by Nick Robinson, a Yale Law School Research Fellow, that 10 per cent of the cases filed in the Supreme Court emanate from Delhi, 6.2 per cent from Punjab and Haryana, and 6.2 per cent from Uttarakhand, with only 1.1 per cent and 2.4 per cent coming from large States like Tamil Nadu and Karnataka. This would imply that the distance of the Supreme Court from the southern States would, in fact, be an impediment to access to the Supreme Court in Delhi.

If Courts of Appeal were to be established in each region in the precincts or the vicinity of the High Courts of Bombay, Calcutta, Delhi and Madras, litigants in these and neighbouring States would be able to access these Courts of Appeal at far less expense than if they were to travel all the way to the Supreme Court. The proximity of the Courts of Appeal would be a real boon to the common man.

I would contemplate the Courts of Appeal as having 15 judges each. Judges would sit in divisions of three. This would mean that five benches would function at all times, with the total number of judges in all four courts together being 60. Therefore, instead of increasing the strength of the Supreme Court, one would, on the other hand, have established convenient and accessible courts in each region.

Were the proposal for four regional Courts of Appeal to be accepted, I would anticipate that the Supreme Court would be left with only 1,000 to 2,000 cases involving core constitutional and other issues of national importance. In such circumstances, I do not think the court would need more than 20 judges sitting in Benches of five dealing with both admissions and the final hearing of cases. Judges would then have the leisure to study briefs long before coming to court. The practice of the United States Supreme Court to obtain written briefs in advance from counsel would result in judges, who are thorough with the briefs, restricting counsel to the main issues in the case. Cases would be disposed of far more expeditiously than they are today. I have no doubt that a newly transformed Supreme Court dealing only with constitutional cases and cases of far-reaching national importance would thereafter be able to dispose of the cases filed during a year, in the year of filing itself.

Today the Supreme Court disposes of about 50,000 cases a year but falls short of the filings that year by about 3,000 to 4,000 cases. The U.S. Supreme Court with nine judges sitting en banc is able to dispose of only 80 to 100 cases a year. The erstwhile Judicial Committee of the House of Lords was able to dispose of only about 180 cases a year. In the case of the Supreme Court of India, I am certain that it will easily be able to deal with 1,000 to 2,000 cases a year without lawyers or clients feeling that they have not been given a full and complete hearing.

I believe that the time for complacency is long past. If one has to beg for a hearing date even after three or four years have elapsed after the filing of a case, and still cannot get a date within a month or two, it means the system has failed. No other viable solution has been found so far and it does not appear that expanding the Bench by five judges to 31 would miraculously make the arrears of 50,000 cases disappear. It is time to take bold decisions, and if we hesitate any more without finding a solution, we would have failed the nation and the litigant public.

I am encouraged by the fact that a significant change may soon be in the offing. Quoting extensively from the recent R.K. Jain Memorial Lecture delivered by me, in which I proposed the creation of regional Courts of Appeal, a Bench of the Supreme Court of India (comprising Justice Markandey Katju and Justice R.M. Lodha) has referred to a five-judge Constitution Bench the question whether guidelines should be issued for exercise by the Supreme Court of its appellate jurisdiction under Article 136 of the Constitution. Although the setting up of regional Courts of Appeal along the lines I have suggested will require a constitutional amendment, the Constitution Bench reference possibly marks a first, important step in transforming one of the most pivotal institutions in our polity today.

( K.K. Venugopal is a distinguished Senior Advocate, Supreme Court of India. This is the second and concluding part of his article.)


The costs of justice


Paragraph 111 of this year’s Budget speech, which talked about the National Mission for Delivery of Justice and Legal Reforms, was overshadowed by other elements. Actually, there wasn’t much on this important component in the speech, beyond the statement that the government had approved the setting up of such a mission and that it would reduce court backlogs from an average of 15 years today to three years by 2012.

We were also told the 13th Finance Commission had approved Rs 5,000 crore for states to improve justice delivery. Let’s take the finance commission (grants in aid) first, noting that though the 11th Finance Commission did fund fast track courts, it is the Planning Commission’s responsibility to ensure fund flows for legal reforms. The timeframe for the 13th Finance Commission’s recommendations is 2010-2015 and we have an immediate disconnect between 2015 and 2012 mentioned in the Budget speech. How is this Rs 5,000 crore broken up?

First, Rs 2,500 crore will be provided to 14,825 morning/evening/special courts and shift systems and they will dispose of 112.5 million cases over a five-year period. That’s impressive and yes, there are successful experiments. The 13th Finance Commision notes morning courts in Andhra Pradesh and evening courts in Gujarat.

But will there be a general success template? Will we get special judicial or metropolitan magistrates for these courts? The finance commision suggests staffing by regular judiciary on payment of additional compensation. That’s unlikely to work. So, we effectively bank on retired judicial officers. More importantly, there is no guarantee those outcome targets will be met. The only check that exists is utilisation certificates and statements of expenditure under general financial rules.

Let us take 1,734 fast track courts funded by the11th Finance Commission. Not all money allotted was released. Not all money released was utilised. Why? Because state governments were lackadaisical about utilisation certificates. The prime minister told us this in April 2007 in a speech to the chief ministers and chief justices of high courts. Between 2000 and 2005, fast track courts disposed off 8,00,000 cases. When the 11th Finance Commission gave the money, they were expected to dispose off 5,00,000 cases every year. Second, 13th Finance Commission has given Rs 600 crore for alternative dispute resolution (ADR) centres (one in each district) and Rs 150 crore for training on ADR to judicial officers and advocates. Third, there are Rs 100 crore for the Lok Adalat scheme. That’s not a great deal of money. But we should note that the success of lok adalats hasn’t been phenomenal. The 13th Finance Commission expects 0.75 million cases to be disposed of between 2010 and 2015 because of this incremental initiative. Existing lok adalats dispose of roughly a million cases per year. Fourth, Rs 200 crore have been provided for legal aid. Fifth, there are Rs 250 crore for training of judicial officers. Sixth, there are Rs 300 crore for State Judicial Academies. Seventh, there are Rs 150 crore for training public prosecutors. Eighth, there are Rs 300 crore for court managers, feeding into the proposed National Arrears Grid. Ninth, there are Rs 450 crore for heritage court buildings. Finally, there is a little bit more, conditional on states formulating litigation policies.

A finance commission isn’t the primary channel for addressing justice delivery issues. But, as the above listing indicates, on this, the 13th Finance Commission has used a shotgun, in the hope something somewhere sticks. The implicit suggestion in the Budget speech that the 13th Finance Commission will help reduce average duration of cases to three years by 2012 is unwarranted.

Perhaps the other element in the speech, the national mission, will ensure this. It is laudable that under the present law minister, “timely justice for all” is now on the reform agenda and this mission is described as a blueprint for judicial reforms. In specific terms, elements in this blueprint are the following:

(1) Set up a special purpose vehicle (SPV) under Societies Registration Act to implement the action plan;

(2) Create a national arrears grid;

3)Formulate a national litigation policy at the Centre and in the states, to curb government litigation;

(4)Establish an all-India judicial service;

(5) Increase sanctioned strength of judges by 25 per cent;

(6) Appoint ad hoc judges on contractual basis;

(7) Create a national pool of judicial officers from retired judges;

(8) Speed up appointments of judges;

(9)Raise the retirement age of high court judges;

(10) Fast track specific cases;

(11)Get the Law Commission to examine changes required in statutory law, especially criminal law ;

(12) Improve case management;

(13) Use ADR for civil cases and plea bargaining for criminal cases;

(14) Use ICT, video conferencing and e-courts;

(15) Implement national minimum court performance standards; disposal should increase from 60 per cent of case load to 95-100 per cent in three years, not more than 5 per cent cases should be more than five years old.

Beyond the SPV, national arrears grid, national litigation policy and the idea of periodic reports to the PM (and public), none of these ideas are new. Nor can they be objected to. Within court structure proper (ignoring quasi-judicial forums), we now have a pendency of 29.1 million — 47,000 in the Supreme Court, 3.7 million in the high courts and 25.4 million in the lower courts. An appalling 5,30,000 cases in our high courts are more than 10 years old and we no longer seem to have age-specific data for the lower courts. Two-thirds of this pendency are criminal cases (concentrated in the lower courts.) It goes without saying that this isn’t tenable. Since criminal law falls under the home ministry and reforms in criminal justice are also contingent on police reforms, is the system likely to become credible by 2012?

Consider also the costs of improving legal infrastructure. There are different ways of working out the required number of courts/judges, judge-case ratio and judge-population ratio. Whichever way this is worked out, we are talking about 20,000 more courts and 40,000-60,000 more judges. This requires fixed costs of at least Rs 80,000 crore and annual running costs of at least Rs 1,60,000 crore. Finance commissions don’t dish out that kind of money. The Planning Commission does, but that is (since 1993) through a centrally-sponsored scheme, where 50 per cent of matching grant is provided by the states. While increasing courts/judges is not the only solution, it is an integral component.

Indeed, if the legal system becomes more credible, more people may resort to courts. The simple point is: reducing pendency has large costs and because of fiscal constraints, both the Centre and the states are unwilling. Therefore, we are tinkering with what seem to be low-cost solutions (lok adalats, people’s courts, women’s courts, family courts, ADR, mobile courts, shift systems, fast track courts, panchayats, gram nyalayas, ICT). This makes the 2012 target even less credible.

The writer is a Delhi-based economist

Some tasks before the Indian nation

V.R. Krishna Iyer  IN THE HINDU

A universally accessible democratic system that can deliver justice in an inexpensive manner and can ensure early finality is one of the essential prerequisites today for India.

The progress or otherwise of a people will depend on their level of respect for human rights, and the willingness to share and care for the weaker sections of society that each member of the community has, be he high or humble. Today, the Indian government is democratic: it is without doubt a government by the people, of the people, for the people. But, is it really a government for the people?

The framers of the Indian Constitution thought that socialism is the only system that can guarantee equality among the people. But when there is a plurality of religions in rivalry, each god competes with the other and a certain divine conflict ensues. This divisive tendency is unhealthy, because according to human understanding there is only one god and one humanity. And everyone’s well-being has to be ensured without some being high and some being low, some being in luxury and others in lowly circumstances.

In this spirit the Constitution has made the Republic a socialist and secular one. Every member of humanity is equal and god is one and above all creations. This is the quintessence of Sanatana Dharma — the perennial dharma of a civilised society. Judged by this standard, there is inequality writ large in India between region and region, man and man, man and woman, the wealthy and the poor. This syndrome has to change if moral majesty, and equal divinity and compassion for all living creatures, are to be realised.

Fortunately this is the Indian tradition and the culture of the Constitution to which Mahatma Gandhi was committed. Economic equality is social justice, if political power is not discriminatingly cornered by some and denied to some others. When India won its freedom and made its tryst with destiny, the responsibility devolved on the nation to ensure that every tear shall be wiped out, and that all suffering will be eliminated to the extent the human pharmacopoeia can. This was laid down in the Preamble as everyone’s set of rights, critically as the right to justice, social, economic and political.

As a practical aspect of this materialistic principle, every person was given an equal right to vote through periodic elections. India has had elections at regular intervals. The little man or woman with a little seal making a little mark, or pressing a small button on a compact machine in a tiny enclosure in private — no amount of criticism or rhetoric can diminish the importance of this great democratic operation. The Father of the Nation, and the values of the Constitution, stand by this principle.

But what is the reality today? The Constitution is nearly dead. Its egalitarian values have been all but violated. The rich are rising to richer heights while the poor are going downhill to even more desperate depths. State power is in the hands of multinational corporations and there is much distortion of distributive wealth. The rich are very often able to control the electorate by bribery communalism and abuse of power by an executive that is apathetic to the tears of the many but is willing to purchase their ballots by means of money and extravagant publicity.

Even the courts of law where justice is dispensed are more amenable to the richer classes than to others. Being poor and under-privileged, the masses often give away their votes for cash. They have no hope in the system and can only either surrender to it or overthrow it by means of violence or extremism.

It would sometimes appear that there is no hope in the future save terrorism, and turning democracy into a travesty. One might wonder why god is so unequal. Poor god has indeed become a commodity to be purchased by the rich. The bishop may live the high life while the parishioner begs before the church. This was the fate of even Jesus who pleaded for change like a revolutionary.

In Hinduism and Islam there is the same sort of division of the haves and the have-nots. Indeed, piety and devotion make people succumb to the existing unjust order and accept the ruling system. Exploitation is concealed and becomes virtually the rule of law, since the law itself is formulated by the creamy layer of humanity. As for justice between the wealthy and “illthy,” it is a right too costly for the poor: the bureaucracy is often beyond the reach for them.

Aiding this sinister system we have mosques and churches and temples that are effectively instruments to silence the defenders. There is a certain hallowed reverence for judges, who like priests wear robes and costumes. Persons who are able to see through this mystic methodology of the Bench and the Bar have an authority exercised in mystic diction, going to the root of unhappiness among humanity. We have to change the system of the courts, and the superstition that their verdicts are final and infallible. In reality they are as much like ordinary mortals with their own flaws, prejudices, biases, self-interest and influences. They are not superhuman. But a cult of divinity, and the commanding dress and address, make them appear as mini-divinities. This goes with their social philosophy that is pachydermic to the poor.

The judiciary is regulated by a complicated system which only the Bar and the Bench can decipher. They are governed by Victorian values and jurisprudence, of which the spokesmen are Denning and Macaulay through the great codes of civil and criminal procedure, prison law and the system of the police force borrowed from Britain.

If you want to change the system in favour of the majority which is below the lachrymal line, we have to have a few things as a priority from Macaulay to Mahatma. The Code of Civil Procedure and the Criminal Procedure Code must be repealed without any mercy or tears. Fresh codes that are dialectic and dynamic, accountable and accessible to the people must be enacted. This cannot be done by legislators who are amenable to the power of wealth but radicals who are eligible to vote in a new equalitarian methodology.

India needs a National Commission with its dominant element composed of the Scheduled Castes and the Scheduled Tribes and the weaker sections, versus the rich and the mighty. Will this ever happen? Even V.I. Lenin’s Soviet Union has undergone mighty change. The new world order is the despair of the masses. The challenge before India is how non-violently the transformation that is contemplated in the Preamble to the Constitution can be worked out.

Today the robed brethren of the judiciary or the religions are untouchable and unapproachable. Justice, justices and justicing need to be radicalised. The justice system should be such that the common man, the worker, the peasants and the social activist will be able to argue before them. Justices should uphold a socialist secular democratic order and strike down every law that strikes a different note. The language of the law should be made simple, lucid and understandable enough for the common man.

A universally accessible democratic system that can deliver justice in an inexpensive manner and can ensure early finality is the desideratum. The Bench and the Bar shall be the representatives of the Indian people. The Scheduled Castes and the Scheduled Tribes, the have-nots and the humble, belong to humanity too. The principle of injustice crucified an innocent Christ and shot the Mahatma whose principle was truth, non-violence and settlement of disputes on fair terms. That half-naked fakir representing half-starved Indian humans gave us golden principles of jurisprudence that demand a re-orientation and transformation of the foundations of the social philosophy of every human sector and every mercenary profession which today thrive on money-making and jettison morals and humanism.

So, even our religions must be subject to a revolutionary change in faith and radical fraternity and comradeship. This combination of materialism and spirituality must be the new message and Preamble of 21st century India. The task of the new statesman emerging from the new generation must be to implement peace and friendship among all nations, making Article 51 of the Constitution a national essential of international relationship.

This was indeed the first principle and the last plea of the Mahatma, who spoke with burning faith that god is truth, nay more. Truths that are scientifically established and spiritually realised constitute god. We must have the courage to write the obituary of Victorian-vintage jurisprudence and recreate and catalyse a new dynamic jurisprudence which will reverse the present law of India.



My last communication to you was on the eve of 61st Republic Day of our country and though I put up a brave front in claiming that I am an optimist, hoping to see changes for the better in the near future, I must confess that I have not been able to see any change for the better, but on the other hand, things have gone from bad to worse.  The manner of functioning of the collegium of the Supreme Court of India has drawn flak from all sections of society and it is a matter of utmost concern and even a matter of shame for the members of the judiciary that the collegium of the Supreme Court is blissfully remaining insensitive to public opinion/reaction, but, is only playing GOD by not responding.

Well, in a democracy and that too in a democratic republic, that cannot be.   People and citizens of this country are the ultimate masters and the governance, is always accountable to the people of this country.   There cannot be any insensitivity or evasion from accountability on the part of the persons in authority and control, who govern our society under the scheme of the Constitution.   State should always not only be responsible for and accountable to the citizens of this country, but also show awareness and response to their views, aspirations, woes and travails.   If not, it is nothing but a failure on the part of the governance.

Judiciary being one organ of the State and as perceived during the present times, a pivotal organ amongst the three organs of the state and looked upon by the common people of the country as their saviour, as saviour of their hopes and aspirations and as the only organ in this country which cannot and should not fail, and such being the expectations and aspirations of the people of this country, it is very essential and also the constitutional duty for the Judiciary to fulfil this expectations of the people and perform in a proper manner.

Judiciary, being one organ of the state is as much accountable to the people of this country and courts being the institutions through which the judiciary is enabled to respond and redress the grievances of the citizens and the people, and judges being persons through whom courts function, courts and judges cannot remain insulated from public opinion nor can discard public needs and demands.

About fulfilling this expectations of the people, by playing its role correctly, there cannot be an exception in the case of the highest court of the country viz., the Supreme Court of India, and even the collegium of the Supreme Court, which is an administrative sub-committee of the judges of the Supreme Court, entrusted with the task of overseeing the selection and appointment of judges in the High Courts and the Supreme Court, and having been bestowed with a virtual veto power in the wake of self serving judgments of the Supreme Court rendered in the case of SUPREME COURT ADVOCATES ON RECORD  ASSOCIATION  vs  UNION OF INDIA (AIR 1994 SC 268) [known as Second Judges case while S P GUPTA vs. UNION OF INDIA (AIR 1982 SC 149) is known as the first Judges case] and in the case of Special Reference No.1 of 1998 [(1998) 7 SCC 739] is no exception to this requirement.

The collegium of the Supreme Court being very secretive in its conduct and functioning in the matter of selection of judges of the High Court and the Supreme Court, such manner of functioning has also drawn flak and has invited very adverse criticism from all sections of society.   More so from the legal community itself.  Laymen on the street, or elite and enlightened in their palaces, have all been critical of the manner of functioning of the collegiums in general and the collegium of the Supreme Court in particular!

The collegium of the Supreme Court refusing to divulge information has not been taken kindly by the members of the public and this conduct and attitude is looked down with suspicion and as a possible cover up resorted to on the part of the members of the collegiums. The defence of collegiums, through the slender arguments of the matter being confidential and may not be conducive for the proper functioning and efficacy of the judicial system in the country, is not taken accepted/respected by the members of the public and is discarded.

The legal/technical defences called in aid by the collegiums to refuse to divulge information about the manner of appointment of judges, particularly in the case of recommendation that had been made by the collegium of the Supreme Court to appoint Justice P D Dinakaran, Chief Justice of High Court of Karnataka, as judge of the Supreme Court, has come in for very grave criticism and perhaps rightly so. It is claimed that to maintain a good image and the reputation of the institution, it is necessary not to divulge information leading to the recommendation and appointment of judges in the superior courts.

While it may be true that to protect the image and the reputation of the institution, the cause of a few judges can be sacrificed, it is the other way now as practised by the collegium of the Supreme Court, particularly the collegium doggedly refusing to divulge information about the conduct of judges and their performance as perceived in the opinion of the collegium, which if revealed or divulged would damage the reputation of the institution and in fact while it is not so, on the other hand, it appears that the information is not being divulged or revealed, only to protect the concerned judges and even possibly to protect themselves, but at the cost of the image and reputation of the institution, as in the eyes of the public by not revealing the information, it is the image and reputation of the institution that is suffering and definitely not the image and reputation of the concerned judges.

It must be remembered that the image and reputation of a person is a reflection of the person’s conduct and behaviour as perceived by the members of public, whereas the image and reputation of an institution is entirely dependent on the making of persons who man and are part of the institution.

While the institution itself is nothing but a neutral mute spectator, which is neither good nor bad, and is a creature of the Constitution and the laws, what reputation the institution acquires over a period of time definitely depends on the manner of performance and the conduct of the members in the institution.

It is high time that the collegium of the Supreme Court realizes this harsh reality and starts acting in the interest of the institution and not in the interest of individual judges nor to protect their image and reputation and try to hide or cover up the bad image or the bad reputation of errant judges! In this regard, I have taken a few steps, which, from the perception of the members of the public and even amongst a few of my colleagues on the Bench and a few judges of other high courts, is considered to be an unusual bold step, it has only drawn flak from the members/judges of the Supreme Court.   While such may be the reactions and responses and varied at that, I earnestly believe I am only doing this as part of my duty and not beyond.

I am sharing with the people of this country my views and as is sought to be translated into action through the letter that I have addressed to the Chief Justice of the High Court of Karnataka and my colleagues in the High Court of Karnataka.   With regards and my good wishes to you all.

By Justice D V Shylendra Kumar , Judge, High Court of Karnataka