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Report No. 230

Reforms at the village level

1.71 The Gram Nyayalayas Bill has been enacted to set up more trial courts at the intermediate Panchayat level. The welcome feature is that the procedures have been kept simple and flexible so that cases can be 30heard and disposed of within six months. It is also envisaged that these courts will be mobile, to achieve the goal of bringing justice to people's doorsteps. Training and orientation of the judiciary, especially in frontier areas of knowledge, like bio-genetics, IPR and cyber laws, need attention.

1.72 The Constitutional promise of securing to all its citizens, justice, social, economic and political, as promised in the Preamble of the Constitution, cannot be realized, unless the three organs of the State i.e. legislature, executive and judiciary, join together to find ways and means for providing the Indian poor, equal access to its justice system.

1.73 However, we are of the view that not an inch of change can be brought about if the advocates do not work in accordance with the responsibility that is cast upon them by the Constitution. Every lawyer is vested with the responsibility to foster the rule of law and dominance of the Constitution.

1.74 Thus, it cannot be gainsaid that economic development and law go hand in hand. We can't think of economic progress, unless changing needs of the society are supported by appropriate law.

1.75 We need:

  • Speedy justice
  • Reduction in costs of litigation
  • Systematic running of the courts
  • Faith in the judicial system

1.76 The Indian Constitution provides a beautiful system of checks and balances under articles 124(2) and 217(1) for appointment of Judges of the Supreme Court and High Courts where both the executive and the judiciary have been given a balanced role. This delicate balance has been upset by the 2nd Judges' case (Supreme Court Advocates-on-Record Association v. Union of India) 1993 (4) SCC 441, and the Opinion of the Supreme Court in the Presidential Reference (Special Reference No.1 of 1998)1. It is time the original balance of power is restored. The Law Commission has in its 214th Report (2008) recommended accordingly.

1. 1998 (7) SCC 739.

1.77 The above recommendation for the need for an urgent and immediate review of the present procedure for appointment of judges is further fortified by his forthright views expressed by Shri Justice J.S. Verma, a former Chief Justice of India, who had written the lead judgment in the 2nd Judges' case, expressed in an interview to the Frontline Magazine published in its issue of October 10, 2008. When asked: "You said in one of your speeches that judicial appointments have become judicial disappointments.

Do you now regret your 1993 judgment?" Justice Verma responded:

"My 1993 judgment, which holds the field, was very much misunderstood and misused. It was in that context I said the working of the judgment now for some time is raising serious questions, which cannot be called unreasonable. Therefore, some kind of rethink is required. My judgment says the appointment process of High Court and Supreme Court Judges is basically a joint or participatory exercise between the executive and the judiciary, both taking part in it. Broadly, there are two distinct areas.

One is the area of legal acumen of the candidates to adjudge their suitability and the other is their antecedents. It is the judiciary, that is, the Chief Justice of India and his colleagues or, in the case of the High Courts, the Chief Justice of the High Court and his colleagues (who) are the best persons to adjudge the legal acumen.

Their voice should be predominant. So far as the antecedents are concerned, the executive is better placed than the judiciary to know the antecedents of candidates. Therefore, my judgment said that in the area of legal acumen the judiciary's opinion should be dominant and in the area of antecedents the executive's opinion should be dominant. Together, the two should function to find out the most suitable (candidates) available for appointment."

1.78 The views of the Parliamentary Standing Committee on Law and Justice which has recommended scrapping of the present procedure for appointments and transfers of Supreme Court and High Court Judges are of great relevance in this context. The Hindustan Times of October 20, 2008 reported: 'The Law Ministry has agreed to review the 15-year-old system after the Parliamentary Standing Committee on Law and Justice recommended doing away with the committee of judges (collegium). Presently, the collegium decides the appointments and transfer of judges.

Interestingly, the recommendations come close on the heels of recent cases of corruption against judges of the top courts in the country. Law Minister H. R. Bhardwaj told Hindustan Times that the House Committee's recommendation had been accepted, and an action-taken report prepared by the Ministry would now be placed before Parliament. "Collegium system has failed. Its decisions on appointments and 33transfers lack transparency and we feel courts are not getting judges on merit. (......) The government cannot be a silent spectator on such a serious issue", Bhardwaj said. The House Committee had said:

"Through a Supreme Court judgment in 1993, the judiciary wrested the control of judges' appointments and transfers. The collegium system has been a disaster and needs to be done away with". H. R. Bhardwaj, Minister for Law and Justice, said "It is the right time to review this important matter". "There was no problem till 1993 when the judiciary tried to rewrite the Article of the Constitution dealing with appointments. They created a new law of collegium which was wrong. In a democracy, the primacy of Parliament cannot be challenged", he said.'

1.79 Dr. E. M. Sudarsana Natchiappan, Member of Parliament and the Chairman of the Department Related Parliament Standing Committee on Personnel, Public Grievances, Law and Justice, in its 28th Report presented to the Hon'ble Chairman of Rajya Sabha on 4th August, 2008, has stated thus:

"I would like to conclude by saying that the Government should expeditiously see to it that appointments of Judges in High Courts and Supreme Court are done in a transparent way. We have recommended in two ways: One is, we have to see to it that the collegium system has to be done away with. Instead we have suggested that an Empowered Committee, which comprises representatives of the Judiciary, the Executive and Parliament, should be set up. That was our recommendation in the Judges (Inquiry) Bill.

And, subsequently, since appointments will be delayed, we have said that from the very beginning of identifying the eligible persons, the various places of recommendations, be it at the level of the High Courts, or, at the Governor's level or at the level of the Departments, and finally be the Supreme Court, should be transparent, and this should be put up in the web site then and there so that the person, who is going to occupy the Constitutional 34place, is known to the public, and their background should be allowed to be discussed by the public and, finally, it has to go through the process of issuing warrant by the President of India.

But, what is happening presently is that from the day one of identifying the person till the issuance of the warrant, nothing is known to anybody except to the persons who are involved in it. Even the persons, who are identified and who are going to be made as judges of the High Court or of the Supreme Court, may not know about it. This type of secrecy is not good for democracy."

1.80 It may be noted in this context that in every High Court the Chief Justice is from outside the State as per the policy of the Government. The senior-most Judges who form the collegium are also from outside the State. The resultant position is that the judges constituting the collegium are not conversant with the names and antecedents of the candidates and more often than not, appointments suffer from lack of adequate information.

1.81 As recommended in the Law Commission's 214th Report, two alternatives are available to the Government of the day. One is to seek a reconsideration of the three Judges' cases by the Hon'ble Supreme Court. The other alternative is to enact a law restoring the primacy of the Chief Justice of India and the power of the Executive in making the appointments.



Reforms in the Judiciary - Some Suggestions Back




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