Judicial reforms are need of the hour. What should be done.
1. Retirement Age of Judges - Same
The retirement age for the Supreme Court judges is 65 years; whereas, initially, for the High Court judges, it was 60 years. It was increased to 62 years, by the Constitution (Fifteenth Amendment) Act 1963.
The first Law commission submitted many reports. Its 14th report is about ‘Reforms of the Judicial Administration’. It is in two volumes. Chapters 5 & 6 of volume-I deal with the Supreme Court and High Court respectively. They also consider their retirement age. The Law Commission does not recommend (chapter 5 paragraphs 15 & 16) increase in the retirement age of the Supreme Court judges but does it for the High Court judges.
In chapter 6 paragraphs 42 to 44, the report mentions the reason for difference of retirement age between the High Court and Supreme Court judge (so that they may not refuse judgeship of the Supreme Court); considers the bad practices that have crept in, because of different retirement age; and recommends that the retirement age of the High Court judges should be increased to 65 years i.e. equal to retirement age of Supreme Court judges.
The age difference acts as a carrot and is exploited by the executive as well as some judges of the Supreme Court. They get wrong/ sub-standard advocates recommended for the High Court judgeship, or get favours done, or get favourable orders. Those, who don’t succumb, are left to suffer; to retire earlier as a High Court judge.
There are many instances of brilliant judges being ignored and not so worthy elevated. Some have recorded injustice and the others have ignored and gone ahead with their lives. But judiciary was a loser. The sooner, this difference is abolished—better will it be for the judiciary.
2. No Assignment After Retirement
The first Law commission also recommends (14th report volume-I chapter 5 paragraph 29) that after retirement, there should not be any employment under the government—except, as the ad-hoc judges, so provided in the Constitution. Despite this, appointments galore in tribunals and over other administrative posts.
If due to age, a person is not suitable to continue as a judge, then it is not understandable, how is he suitable for another post. In case, due to longer life expectancy, a judge can remain mentally active for longer period then the retirement age should be increased; rather than making post retirement appointments that is nothing but a quid pro quo or reciprocal exchange of favours.
In his Book 'A Grammar of Politics' Chapter Ten 'The Judicial Process' at page 550, Harlod Laski says,
"There should, further, be retiring age which might reasonably be fixed at seventy years. There are judges who are, of course, judges who even at eighty. are capable of of doing magnificent work. But, in general, after seventy, the average judge is less and able to meet to demands particularly those of new eramade upon him. Justice Holmes has written (Collected Papers page 230)
'Judges commonly are elderly men, and are more likely to hate at sight any analysis to which they are not accustomed, and which disturbs repose of mind, than to fall in love with novelties'
The retirement age may be uniformly increased to 70 or some other reasonable limit years and post retirement appointments may be banned. They are deterrent to the independent judiciary. We have sufficient legal brains to fill up the posts by fresh appointments. There is no justification to leave the judges to compete for post retirement assignments.
Banning post retirement appointments will require amendments in some enactments but this can not be an excuse: firstly, such a law ought not to have been enacted; secondly, they can, and should be amended.
3. Establish Indian Judicial Service
The Supreme Court and High Court judges are appointed by the President. District Judge level judges {Higher Judicial Service (HJS)} are appointed by the Governor in consultation with the High Court (Article 233 of the Constitution). The remaining, namely State Judicial Service (SJS) judges, are appointed by the Governor in accordance to the rules framed in consultation with the High Court and the State Public Service Commission (SPSC) (Article 234 of the Constitution).
The first Law Commission recommended (14th report volume-I chapter-9 paragraphs 10,12,15, and 59) for establishing of an All India service to be know as Indian Judicial Service (IJS) for HJS. In pursuance of this recommendation, articles 312 and schedule-VII of the Constitution were amended by the Constitution (Forty-second Amendment) Act 1976. The Supreme Court also issued a direction to establish IJS in All India Judges’ Association Vs Union of India 1992 (1) SCC 119 = AIR 1992 SC 165. Conferences of the Chief Justices have repeatedly passed resolutions for establishing IJS. However, except for dilly-dallying, nothing has been done.
Under the amended provision (Article 312 of the Constitution), only requirement is that Rajya Sabha should pass a resolution by two-third members present and voting. This empowers the Parliament to enact a law to establish IJS. Under the Constitution, there is no necessity of obtaining consent or the views of the Judiciary. Yet, on the pretext of obtaining views/ consent of the Judiciary, IJS is being unnecessary postponed.
At present, broadly, the SPSCs along with the High Courts are selecting judges for SJS; whereas, High Courts are exclusively selecting for the HJS. Most of the High Courts are refusing to concede power to make appointments in the HJS. To best of my information, only Chhattisgarh High Court had passed a resolution for creating IJS, when I was the chief there. In Allahabad, it failed.
The resolution to establish IJS in the High Courts is bound to fail, unless, the Chief Justice pushes it and he seldom does: he does not want to antagonise brother judges. The High Courts are not realising the harm that they are causing: IJS will not only attract better talent but is a must.
I had occasion to be part of one SJS selection; three HJS selection; and was a member of the bench that decided a WP, where selection of SJS was challenged. The selection challenged, was exclusively done by the Chattisggarh High Court (Centre for Public Interest Litigation Vs High Court of Chhattisgarh 2013 SCC OnLine Chh 125). My experience is that the judges are expert in deciding cases and resolving disputes. They may act as an expert of law in a selection committee but are not expert in conducting examination or making selections. Judiciary should stick to its expertise and leave selection to the expert body like Public Service Commission.
The government will be well advised to establish IJS after getting necessary resolution passed from Rajya Sabha. It should not wait for the views/ consent of the judiciary: because it is not likely to materialise.
4. Chief Justice on Merit - Not On Seniority
Apart from other qualities, a judge should be judicially competent. And a Chief Justice, apart from being a competent judge, should have administrative qualities: he should be a person, who can lead the court. Unfortunately, all judges (although competent) may not have administrative ability or may not be leaders. In appointing a Chief Justice merit, rather than seniority, should be the criteria. He should have administrative and leadership qualities. This is also recommended by the Law Commission (14th report, volume-1, chapter-5 paragraph 18 and chapter-6 paragraphs 24-25).
Among the all Law Commissions, the first one was most eminent. It made profound recommendations. Yet, without any justifiable reasons, its recommendations for the first four points are ignored.
5. Abolish collegium system
Collegium system has no constitutional basis. It was created in Supreme Court Advocate Association-On-Record Association Vs Union of India {AIR 1994 SC 268 = 1993 (4) SCC 441}, in guise of interpretation. It was further explained in 'In Re: Presidential Reference {AIR 1999 SC 1 = 1998 (7) SCC 739}. It appears that the court usurped the powers of the Parliament, to overcome the problems prevailing at that time. But, in the process, the judiciary ended up creating bigger problem.
Collegium system has failed. It has turned out to be—more of networking, promoting each other candidates, personal likes and dislikes—rather than selection on merit. Many eminent thinkers and judges have pointed this out; prominent, among them are:
- Fali S Nariman (page 399 – 405 'Before Memory Fades');
- Ruma Pal J. (page 8-12, Fifth VM Tarkunde Memorial Lecture 'An Independent Judiciary');
- VR Krishna Iyer J. (foreword to the book 'Story of a Chief Justice’ by Justice UL Bhat);
- UL Bhat J. (pages 334 to 335 of the same book);
- SS Sodhi J. (page 294, 297-298 ‘The Other side of Justice');
The Parliament tried to remedy it by the Constitution (Ninety-ninth Amendment) Act 2014. The amending Act replaced the Collegium system by National Judicial Appointments Commission (NJAC). However, a constitution bench proved Gödel right (see End Note-2).
The constitutional bench {Supreme Court Advocate on Record Association Vs Union of India 2016 (5) SCC 1 (the NJAC case)}—without any logic or legal basis—held it falling foul of the basic structure doctrine.
In England, judges (other than of the Supreme Court judges) are appointed on recommendation of Judicial appointments Commission (JAC). It recommends names on merit by open competition and also has a specific statutory duty to ‘encourage diversity in the range of persons available for selection for appointments’.
The JAC has a Chairman and 14 other members. A lay member is defined as a person resident in England or Wales, who has never held a listed judicial office or been a practising lawyer. Out of fourteen members:
- Five must be judicial members,
- Two must be professional members (one Barrister and one Solicitor)
- Five must be lay members
- One must be a Tribunal Judge, and
- One must be a lay justice member (non-legally qualified judicial member)
Chairman is a lay member and the majority of members are non-judicial.
Nowhere in the world—judges select and appoint judges—as they do in India. It leads to inbreeding that promotes one of its own—ignoring those, who should be appointed.
Since inception of collegium system, Indian judiciary has not done well . It is in the lower rung of ladder, among the judiciaries of other democracies. We should do away with the collegium system and follow British example. Hopefully, a larger bench will see the injustice, the problem created, and overrule the NJAC case.
Conclusions
My suggestion are as follows:
- Retirement age of the judges should be the same;
- Post retirement assignments should be stopped and enactments mandating such appointments should amended;
- Indian judicial service should be established without awaiting response from the judiciary, which is never likely to be positive;
- Chief Justices of the State as well as of India should be appointed on merit, rather than on seniority;
- Collegium system should be abolished.
Some of these suggestions require introspection by the judiciary; some do not. The nation as well as judiciary should take immediate action; lest, it will be too late.
End Note-1: Ptolemy 1st Soter, was the first king of Egypt after the death of Alexander the Great. He had sponsored Euclid to learn his seminal work, ‘The Elements’. But found it too difficult. He asked Euclid to show him an easier way to master it. Euclid answered, "Sir, there is no royal road to geometry."
End Note-2: Kurt Gödel is reputed to be greatest logician of all time. Time magazine (29th March 1999 issue) rated him to among one hundred greatest mind of the twentieth century.
In 1931, he wrote a paper 'On formally Undecidable Proposition of Principia Mathematica and Related Systems'. It established that 'Proof of arithmetic consistency is not possible and every system is incomplete'. It is also known as ‘Theory of Incompleteness’.
His paper has wide implications. One of them is that: every system is incomplete; and one can not understand a system from inside; one has to be outside to understand it. Judges, being part of the system, are often neither able to understand nor fathom it.
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Though retirement may mean that the person is unfit to hold that office, the fact is that he is quite capable but has nothing to do. The equivalent path is ADR but it has also become a racket. I was hoping that with your experience you will suggest some way retired judges can be useful to the society and also keep themselves engaged as otherwise they are bound to decay and die.
ReplyDeleteThis article was written with the purpose of rejuvenating judiciary and may be seen in that light only.
ReplyDeleteWith better health, life expectancy has improved. Uniformly increasing retirement age at all level may be one answer. But increasing retirement age has other problems that may have to be countered. The judges themselves should also think of other means.
I don't do arbitration and have not accepted any post retirement job. I normally spend time reading and writing about my experiences; sometimes teach in college; sometimes go to the Supreme Court for a case; more often than not students and young lawyers drop in for a chat and in remaining time do gardening.
Life has never been better.