This article is written by Palak Jagetia, a B.A. LL.B. (Hons.), Dr. Ram Manohar Lohiya National Law University, Lucknow. In this article, the author explains how judiciary, an important pillar which was considered as a Watchdog has now failed in its duties.

Introduction

Judiciary in India acts as a watchdog of the constitutional order and keeps a check on the functioning of the legislature and the executive. It has the power to review and correct the wrong or abusive interpretations of law. It will enjoy this credibility as a watchdog till people feel it to be independent from any external influence. But right from the appointment and transfers to the allocation of cases and constitution of the bench in any court to post-retirement status of judges, everything appears to be under some or the other influence.

Procedures that impact the independence of the judiciary erodes the credibility it holds and the amount of trust the country have in it. However qualified the judge is, and / or however justified and perfect the judgement is, there always exist an eye of suspicion in the minds of people of this country that the decision is to please the government in anticipation of a perfect post-retirement plan, or this may help the judge to be in good books of the chief justice with aim of seeking allotment of important cases by master of the roaster. The suspicion can be justified by the fact that over time judiciary itself created its image from “the law is blind” to “the law can be bought and influenced”. And considering all these in addition to how the real justice is denied in this country due to extreme delays in judgements, the entire justice system appears to be a blur. 

In light of the above, this article broadly discusses the issues along with suggestions pertaining to procedure of appointment and transfer in judiciary, allocation of cases while in the judiciary and benefits after the retirement from judiciary, because all these three spheres are the major stakeholders to preserve the independence of the judiciary and one can’t harp onto this point more than how important is the independence of the judiciary to preserve the rule of law in this country.

Appointment and Transfer of Judges

This, being the entry point to the judiciary, should be completely free from any bias and influence. India presently follows the Collegium system empowering Chief Justice of India (CJI) and 4 senior-most judges of Supreme Court to appoint and look after transfers in the judiciary. The system was initially introduced to free itself from vested interest of the legislature. What it has achieved is nothing but Nepotism, instead of merit. Central Government recently submitted a report to Supreme Court on blooming nepotism in the judiciary with evidence of appointment recommendation of 11 close relatives of Judges out of total 33. Similar views were echoed by an Ex CJI, TS Thakur, when he rejected 11 out of the 30 recommended persons for the position of judges who were relative of sitting judges.

Landmark Cases

1st judges case: SP Gupta v. UOI, in this case, it was held that appointment made by CJI is not pre-eminent and government can disregard it, by providing a reason. 

2nd judges case: Advocates on Record Association v UOI, the ruling in the first judges case was rescinded and collegium system was adopted for appointment of judges, which comprised of the CJI and 2 senior-most judges of the supreme court. This decision snatched the power of appointment from legislature and handed it over to Judiciary without putting any checks and balances paving way for easy entrance of Nepotism into the system. 

3rd  judges case: In Re, the meaning of the term “consultation” as under articles 124, 217 and 222, was under contention, the court here established the supremacy of higher judiciary over the executive, and various other guidelines regarding the appointment of Judges.

4th judges case: The court struck down the 99th constitutional amendment, that led to the formation of National Judicial Appointment Committee (NJAC), in Supreme court v UOI case.

As consequence of above judgement, NJAC was struck down and Collegium system was re-adopted. NJAC was an independent committee comprising of 6 members – CJI, next 2 senior-most judges of the SC, Union Law minister as ex officio member and 2 eminent members selected by a committee comprising of PM, Leader of Opposition and CJI. Involvement of Legislature in the system was considered as hurdle in independence and hence the decision to nullify the amendment. 

There are various alternative ways to introduce reforms in Judiciary. Before discussing the alternative in detail, let’s have a look at how different countries hold appointments to the judiciary:

1. UK: In UK, the Judicial Appointments Commission (JAC), independent in its functioning, takes care of the appointment and selection to judiciary and other Tribunals. It consists of 15 members (3 members from the Judges community, and other 12 are appointed through a competition). Going further, “Judicial Appointments Conduct and Ombudsman” has been entrusted with duty to keep a check on the JAC’s conduct.
2. Japan: Assistant judges are selected through competitive examination and are appointed after the completion of their training at the institute set up in the country for this purpose.
3. South Africa: President nominates the judges in consultation with “Judicial Services Commission” comprising of 23 members. The JSC consists of Advocates, Judges, Legal Professors, Members of Parliament and eminent persons nominated by the president as its members. 
4. USA: Judges are appointed by the President with approval by the Senate
5. Italy: Highest Court comprises of 15 judges, out of which 1/3rd are appointed by the President of the country, 1/3rd by the parliament in joint session and 1/3rd by highest instance ordinary and administrative courts. 

Suggestions

1. NJAC could be brought under the surveillance of an ombudsmen committee so as to ensure democratic & transparent way of appointment while discarding nepotism & unwanted interference from other pillars of democracy. 
2. Effective Judicial Performance Evaluation (JPE) mechanism should be established to substantiate NJAC. Vidhi Centre for Legal Policy could be roped in and 2 prolonged approaches should be introduced in the system which includes evaluation of individual judges and evaluation of court functioning. Parameters should include delays and backlogs in the system apart from quality of judgement. All the other parameters are broadly discussed in the 2016 report of Vidhi Centre. 

Allocation of Cases and Formation of Benches

Position of CJI as Master of Roaster makes it vulnerable to personal prejudice with no remedial measures. There have been instances in the past depicting influence of CJI on other equal judges. This has been criticized and challenged quite a few times now, but the answer remains same with hollow reasoning of avoiding chaos and delays in the process which they say may lead to anarchy and arguments saying that how the CJI has the appropriate skills, balance, fortitude, moral courage and independence of mind required to deal with the position as master of the roaster.

Incidences that were in Limelight

• 9 Nov, 2017: On the aforementioned date Mrs Kamini Jaiswal filed a petition, seeking exclusion of CJI from any proceedings from the medical college corruption case that has a contention of bribery on certain SC judges and the CJI, being under the contention in the case was sought to not be part of the bench hearing the case. The case was heard by Justice Chelmeswar and Justice Abdul Nazeer. They by themselves directed the case to be heard by 5 senior-most judges of the supreme court on 13th of November.
• 10 Nov, 2017: On this date, a case named Campaign for judicial accountability and reforms v UOI was filed and Mr Prashant Bhushan bought the order passed on 9th November that directly referred a case to constitution bench was bought to light. This was Heard by Justice AK Sikri and Justice Ashok Bhushan. They in turn referred the petition to CJI, seeking for appropriate directions in the case.

The petitioner argued that the CJI is only first among equals and should not be granted with absolute powers as master of the roaster. 

• 10 Nov 2017: On the same day, the CJI constituted Constitutional bench(Comprising of Deepak Mishra, RK Agarwal, Arun Mishra, Amitava Roy, Khanwilkar) formed to decide on the matter of the Master of the roster in the petition filed by Kamini Jaiswal, Prashant Bhushan and Dushyant Dave, constituted and headed by CJI Deepak Mishra. The bench held that CJI is indeed the first among the equals on the judicial side but Master of the Roaster on administrative side. The bench relied on the decision of 3 judge bench as in the case of State of RJ v Prakash Chand, which upheld the principle and powers as master of roster.

The bench also explicitly stated that “the Chief Justice is the master of the roster and he alone has the prerogative to constitute the Benches of the Court and allocate cases to the Benches so constituted.” It further said that “no Judge can take up the matter on his own, unless allocated by the Chief Justice of India, as he is the master of the roster.

The CJI also annulled the order passed by Justice Nazeer and Justice Chelmeswar in Kamini Jaiswal’s case and allotted the petition filed by Kamini Jaiswal to a 3 Judge bench which was further dismissed by them. 

This case also witnessed a spat between the CJI and petitioner Prashant Bhushan, who felt that he was not heard and instead was charged with the contempt of court as he directly alleged the CJI. 

Ironically, the judges who mentioned that “how erosion of credibility” would impact badly the judiciary, themselves passed a judgement that contributed the most in affecting credibility of SC negatively.

• 12 Jan, 2018: Justice J. Chelmeswar, Justice Ranjan Gogoi, Justice Kurian Joseph, Justice Madan B Lokur conducted a press conference and wrote a letter to the then CJI Deepak Mishra regarding the problems with the concentration of power in the hands of the Master of the Roaster. This incident also explains the dire need for a committee or system where problems like this can be redressed effectively and lawfully.
• April, 2018: Mediators (comprising of Justice SA Bobde, Justice Ramana, Justice Lalit, Justice Chadrachud, Justice AK Sikri) entered between the spat over the master of the roster and tried to codify the broad duties of CJI. They even agreed that the practices of preferring some judges have been increasingly done by CJI’s in the recent times and Justice Deepak Mishra did allocate important issues to preferable judges and even after repeated complaints, did not correct his behaviour. But, the codification stopped, after suggestions for a formation of a panel of to be formed for institutionalising the conventions like CJI to hear major cases and if not possible for him then to pass that to next court, the constitution of the bench as per seniority and practices like duties and functions of master of the roster of SC, instead, CJI published a subject-wise roster all the other things took a backseat.  
• 6 July 2018:  In the case Shanti Bhushan v SC filed by former Union Law minister Mr Shanti Bhushan, he asked that the CJI shall be interpreted as a collegium of 5 senior-most judges of the SC, taking the precedence of the first judges’ case, where the SC itself has held so.

Now let us look at the procedure of how are benches constituted and how are the cases allocated in the Supreme Court:

Though there are no straitjacketed formulae for allocation of cases in the SC, but in general practice, as told by a some Ex CJI’s of the top court in an interview is:

1. When a case is filed, its subject matter and details are deeply studied by the SC registry, which processes all the documents and cases. 
2. Cases are then classified based on the subject matter, and are further categorised into 47 broad categories identified like criminal appeals, tax, etc; and each category is further sub-categorised.
3. Registry then notifies the roaster for the benches made after considering the subject and categories, and a subject matter may be having more than one allocated bench. 
4. When more than one bench is dealing in a particular category, then all new cases of that category are automatically allocated to the benches in a sequential order. 
5. But, the CJI may issue a specific instruction to allot a particular case to a particular bench. This generally happens when CJI feels that some sensitive cases are to be dealt with, but this process cannot be arbitrary.
6. As far as the strength of bench is considered in the SC, usually a bench in the SC comprises of 2 Judges, but larger benches can be formed, only if the CJI feels he need. As under Order VI of Rule 2 of the supreme court rules, 2013 which says:

“Where in the course of the hearing of any cause, appeal or other proceeding, the bench considers that the matter should be dealt with by a larger bench, it shall refer the matter to the CJI, who shall thereupon constitute such a bench for hearing it.

Suggestions

1. To deal with this concentration of power in the hands of one, a collegium should sit to allocate the case.
2. If that is not feasible owing to the problems of delay and chaos, then, at least an ombudsman committee should be formed (in the most unbiased way) within the court, to review and solve the disputes which may arise, by making the CJI accountable for providing appropriate reasoning for his allocation of a specific case and thus removing the arbitrariness and protecting the administrative supremacy of the CJI at the same time. This would further prevent the occasions, in which judges have to seek to media for redressing their problems with the allocation of cases, as now there would be an internal committee looking into such matters. 

Post-retirement

Bait of post-retirement jobs or postings to head tribunals, or any other legislative positions like that of MP in the country has deeply impacted credibility and faith of judiciary in the country. The judges who are under the impact of the bait of potential future employment prospects could not be perceived as fair by the citizens.

There have been many instances of the retired judges, taking over as heads of tribunals and not to mention the recent acceptance of Hon’ble Ranjan Gogoi as a member of Rajya Sabha. Before elaborating on the incidences in question, let us first consider the debate behind it. The talk over the issue has increased in the recent years but the debate started long back in the Constituent Assembly itself, where, Professor KT Shah (also the candidate for the presidential position) asked for amendment for introducing an article in constitution calling for an absolute bar on the retired judges from accepting government jobs, to avoid any possibility of influence and true maintenance of separation of powers. But was opposed by Dr BR Ambedkar, as he then felt that judges deal with the issues of people and government would not have any interest in it. Only, now one knows, how extremely inappropriate the assumption was. But the amendment was not passed then, and unlike the restrictions on CAG under article 148 and UPSC Chairman under article 319 barring them completely from post-retirement jobs, judges are only barred from pleading before any court. Also, arguments like utilization of knowledge and judicial experience of these retired judges cannot be put to waste and so appointments to tribunal are a good way to utilize it, however, everyone knows now, that judicial independence is such an important thing that it cannot be weighed less against anything else.   

Concerns regarding this, were also raised by the first law commission in its fourteenth report in 1958 asking for barring any future employment except as ad hoc Judges of the SC.

Incidences that received Limelight

• Justice Baharul Islam resigned as a Supreme Court Judge to contest 1983 Rajya Sabha elections from congress.
• Ex CJI Justice Ranganath Mishra was elected to Rajya Sabha as a congress member in 1998.
• Ex CJI justice P Sathasivam, appointed as the Governor of Kerala in 2014, right after his retirement.
• Former CJI Justice Ranjan Gogoi succumbed to the offer of Rajya Sabha Member. Irony lies in the fact that he himself commented in the case of Roger Matthew (March, 2019) that there is a valid and strong viewpoint that appointment of judges to tribunals post-retirement is a scar on independence of the judiciary. 

And today, when questions are raised by people against such practices, responses like why only we are questioned and not those who take up commercial arbitration or activism asked anything. To put this, it simply means that I may be wrong but cannot be questioned just because others are not questioned. Simply, answering a question by a cross-question. As was done by Hon’ble Justice Rajan Gogoi in his recent address in a webinar. 

Suggestions

1. Increasing the retirement age for the judges, would decrease the importance of post-retirement jobs (Bills regarding this have been tabled quite a few times in the parliament)
2. Putting a restriction in terms of cooling period before which retired judges can take up any government job will further discourage these judges from getting influenced by the lure.
3. Utilizing the knowledge and experience of these judges by encouraging them to teach in law universities or contribute to other pro bono work which would further add to the enhancement of the legal system of the country. 

Conclusion

To retain the faith of the people of this country in the credibility of the judiciary we need overhauling reforms in the judiciary. We also need to put in place checks and balances by introducing ombudsmen and vigilance system in every sphere to prevent the absolute misuse of power. 

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