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Report No. 121

Chapter VII

A New Model

7.1. Everyone is agreed that the present scheme or model or mechanism for recruitment to superior judiciary has failed to deliver the goods. Even the votaries of the effectiveness of the present model have conceded that 'defects and lacunae have come to surface in the actual working of the scheme and that they were of such character that they can be rectified without throwing overboard the whole scheme. Efforts should, therefore, be made to rectify the defects and plug the loopholes.1

Add to that the views already referred to of former Chief Justice, Mr. Y.V. Chandrachud and Mr. P.N. Bhagwati, all of whom were directly involved in the process of selection and appointment of Judges to the superior judiciary, who have bemoaned that the constitutional scheme is cumbersome and operates in such a manner as not to permit the filling in of vacancies within a reasonable time and to attract independent, honest and efficient Judges.

Primarily the way in which the scheme operates has an inbuilt potentiality for inordinate delay in making the appointments. It is compounded by various other factors noticed from 1958 till 1985 and the outcome is unedifying.

1. H.R. Khanna, quoted in LCI, 80th Report.

7.2. Is it possible to re-structure, reform or revitalise the present scheme? Looking to the serious attempts made in the past, one must answer the question with regret in the negative. Nor can one shut his eyes to the everyday deteriorating situation in this behalf. Therefore, a new model has to be devised taking care to see that in its organic structure, it does not suffer from the same infirmities as the present one so as to result in the same type of imbroglio after a few years.

7.3. There is an additional reason why a new model has to be devised. Apart from the utter failure of the present model or scheme which has been in operation for over four decades, there is a vociferous demand for a structural change from all segments of the society, namely, former Chief Justices, both of the Supreme Court and of High Courts, Chief Minister of a premier State, leaders of the organised legal profession, law academics and consumers of justice as well as the society at large.

The very fact that in our democracy the Government of the day responding to the public demand asked the Law Commission to give priority to recommending judicial reforms and drew up comprehensive terms of reference, furnishes cogent reasons for an over view of all aspects of justice delivery system, the most important amongst it being manpower inputs of judiciary. The Law Commission has already submitted reports recommending structural changes in the justice delivery system. Each such structural change will have to provide for its manpower.

Participatory model of justice in Gram Nayalayas sets out the mode of selection of the Panchayati Raj Judges as well as the mode and method of selection of lay Judges1. Numerous disputes arising out of the enforcement of direct and indirect tax laws and the law dealing with export and import have clogged the court dockets and held up tax recovery in huge amounts. With a view to diversify administration of justice and remove the bottlenecks, the Law Commission recommended setting up of Central Tax Court and made detailed recommendations about the manpower planning of such a Court2.

While recommending setting up of an all-India judicial service to be styled as Indian Judicial Service, it became necessary to recommend setting up of an apex body to be in overall charge of judicial service3. As a corollary, it became necessary to comprehensively work out re-structuring of subordinate judiciary which necessitated devising strategies for manpower planning and all ancillary aspects4. Keeping in view the modern trend that one must keep abreast with the developments in the society', a detailed training programme for judicial officers at all levels was devised and recommended5.

The existing institutions dealing with these aspects will not be able, to rise to the occasion. All these recommendations presage the setting up of a body for giving concrete shape and form to these recommendations and make them operational. Obviously, this body must ordinarily be composed of experts who have judicial background, judicial training, judicial bearing and judicial decorum.

1. LCI, 114th Report.

2. LCI, 115th Report.

3. LCI, 116th Report.

4. LCI, 118th Report.

5. LCI, 117th Report.

7.4. It thus appears that if the justice system in this country is pyramidic in structure, a centralised body to deal with it from the lowest to the highest has to be devised and set up. Under the present constitutional position, various power centres deal with judiciary and this sometimes introduces a dichotomy. Numerous judgments have been rendered by the Supreme Court of India demarcating the area of jurisdiction of power centres dealing with judiciary5.

Conflict amongst power centres dealing with judiciary gave rise to litigation. It would be difficult to say that all the grey areas have by now been covered. It is therefore, an urgent necessity that a body may be devised in which all power relating to affairs of judiciary can be centered. At present, the power is conferred on a single individual. Apart from being dangerous, its exercise has led to various situations which have rendered judiciary more and more ineffective.

And, apart from the Chief Justice of India or the Chief Justice of a High Court, the participation of the judiciary in resolving problems relating to judiciary is marginal. A participatory model has a greater chance of acceptability because deliberation among participants to some extent provides a shield against arbitrary action.

1. LCI, 116th Report.

7.5. The choice, broadly speaking, is between two models, the existing with its refinements or a new one which is being devised. The present model, which has been extensively discussed in this report, confers overriding powers on the executive in the matter of selection and appointment of Judges and in dealing with the judiciary. The constitutional mandate was to separate executive and judiciary in all its ramifications1. The Constitution aims at ensuring independence of judiciary, when translated in action, independence from executive.

The power to appoint and the power to transfer Judges of the Superior judiciary vests in the executive and the only limitation on the power is consultation with various functionaries. While consultation can be meaningful and substantial, cases are not unknown where it is said that the duty to consult is fully discharged if the person to be consulted is informed of the problem and his reply is awaited for a reasonable time and then ignored because it is rightly said that consultation is not concurrence.

The working of the Constitution has revealed that the Chief Justices have not been able to hold on against the determined executive action and even where the Chief Justice is in a position to assert his point of view, he can be wholly subjective in his approach. All these aspects are not conducive to the healthy growth of the institution of judiciary.

1. Article 50, The Constitution of India.

7.6. Therefore, a new model has to be devised. Trends all over the world indicate that even where the power to appoint Judges of the superior judiciary vests in the highest executive, the movement is towards dilution of power by associating more and more people with the decision making process.

The Judiciary Sub-Committee in England, Circuit Judges Nominating Commission and a Commission dealing with appointment of Federal Judicial Officers in America, the movement in Australia towards decentralising the power as also the experiment in New Zealand, all indicate that the trend is towards setting up a body in which the judiciary will have a pre-eminent position. Such a model one can think of devising, keeping in view the Indian conditions.

7.7. It is not for a moment suggested that the executive should be excluded from such a body. It must have a voice in its deliberations and decision making process. It is not intended that while dealing with the problems of judiciary, the executive is to be shunned. It must join in the participatory model and make its own contribution, more so because it has extensive resources at its command to investigate and find cut all the relevant details concerning any individual or a situation but a time has come where its veto requires to be considerably diluted, if not wholly removed. Such a body can be appropriately styled as National Judicial Service Commission.

7.8. The broad based National Judicial Service Commission representing various interests with pre-eminent position in favour of the judiciary is the demand of the time. Composition and functions of such a National Judicial Service Commission will have to be worked out in meticulous details. The Commission must also be of such a nature as to provide an answer to the criticism that the constitutional scheme as interpreted by the courts heavily tilts in favour of the. Executive in the matter of recruitment to superior judiciary and the transfer of Judges of the High Courts.

All over the English speaking democracies the executive enjoys the power to make appointments to superior judiciary. In all these countries a new trend towards diluting the position of executive in this field is clearly visible. Decentralisation of power by providing a body representing various interested groups is suggested as a substitute. The suggestion is that the power to make appointments must be a shared polder i.e., from individual subjective opinion to an opinion of a body arrived at after internal discussion and deliberation by people who are supposed to be in the know of things.

Such an approach will marginalise the preponderant role of the executive. The thinking of the Law Commission is considerably influenced by this trend. The present thinking is not a reaction by way of a tilt against the executive. The approach is to devise a body where power is shared so that the objects underlying the conferment of power can be effectively achieved.

It cannot be disputed that a deliberated decision amongst knowledgeable persons has a greater chance of acceptability than the decision of an individual unsupported by any tangible reasons arrived at though it may not be the outcome of a prejudicial mind. Viewed from this angle, the composition of a National Judicial Service Commission dictates itself.

7.9. While examining the question of composition of the Commission what is uppermost in the mind of the Law Commission is that its functions are going to be extensive and all pervading. This has to some extent shaped the thinking of the Law Commission about the composition of the Commission. The views expressed in this behalf and referred to earlier have also contributed colour and content to this thinking. Briefly it must be a body of experts drawn from various interest groups in close touch with administration of justice such as Judges, Lawyers, law academics and litigants.

7.10. Unquestionably, the Chief Justice of India must be at the head of this body and must be designated as Chairman. His pre-eminent position should not be diluted at all. Three seniormost Judges of the Supreme Court next in rank to the Chief Justice of India, because of their long judicial experience in close proximity of the Bar, should be members of the Commission. The predecessor in office of the Chairman, i.e., the person who has retired as Chief Justice of India to whom the Chairman has succeeded will also be a member.

He would bean asset to the Chief Justice of India. Three Chief Justices of the High Courts, according to their seniority as Chief Justices would be members. Minister of Law and Justice, Government of India would by virtue of his office would be a member. He represents at the highest level, in the executive. Attorney-General of India would be a member by virtue of his office. As the leader of the Bar and not owing his position to any questionable electoral process he can adequately represent the interests of the Bar. An outstanding law academic would also be a member of the Commission.

Thus the body will consist of eleven persons which cannot be said to be unwieldy looking to the wide ranging functions that it will have to discharge. The composition of the Commission, as recommended herein, gives adequate representation to the Judiciary the Executive the Bar and the Legal Academics, which are the interests vitally affected by the functions of the judiciary. The last unrepresented interest is the consumer of justice- litigants. It would not be advisable in the present state of affairs to provide any representation to it on the Commission.

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