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Recently
respected CJI Gogoi expressed concern on the higher judiciary losing its aura
and majesty. This article, humbly presents ten ideas by which SC can restore
its glory.
The Motto of the Supreme Court of India is:
यतो धर्मस्ततो जयः
Yato Dharmah Tato Jayah
Where there is Righteousness (Dharma), there is Victory
(Jaya)
Chief Justice
of India (CJI) Ranjan Gogoi recently expressed
concern over young lawyers' unwillingness to become judges, saying one reason was that the higher judiciary was "losing its aura and majesty".
The CJI said
that it was the aura and majesty of the higher judiciary that attracted the
talent of the Bar as lawyers were willing to work hard and make sacrifices in
terms of money.”
It requires great
courage to make an honest confession.
Rather than
speak about why things have come to such a pass this article has suggestions on
how higher judiciary can regain its aura.
In all humility
and without prejudice are some ideas for consideration by the Collegium.
The first realization for the executive, judiciary and
legislature is that their performance is constantly watched by people and their
views openly expressed on social media.
Respect for any
constitutional arm has to be earned through performance otherwise criticism is
unsparing. The days of blind respect are over.
As on November 1
2018 number of pending matters in the Supreme Court are
56,320. The ordinary citizen wants quick disposal and resolution of cases. Also
note that "delays in courts make it difficult to enforce contracts – and this is a factor in the World Bank's rankings on ease of doing business".
Two, can the CJI hold a press conference and upload on SC
website, a time bound action plan to clear backlog.
Importantly CJI
must outline steps to prevent accumulation of cases. If this means effective
legislative change, CJI team must work with the government to make it happen.
Next is a review
of the SC holiday calendar.
In 2018 SC was
closed for 5 working days each during Holi, Dussehra and Diwali and 11 working
days during Christmas & New Year? Summer break was from May 20 to July 1.
Government
servants have only gazetted holidays and are entitled to say 30 days annual
leave.
Suggestion has
two parts.
Can SC be open throughout the year with judges taking
annual leave just like it happens in the government and corporate worlds?
In view of the
huge backlog of pending matters can the number of festival holidays be temporarily
reduced to at best two days?
The SC also needs greater gender balance.
Out of 27 SC
judges (as on 5.12.2018) only
three are women.
From "1950 to November 2015 only six women became Supreme Court judges out of a total 229 judges appointed?"
SC Judge Indu Malhotra
recently said,
“There Is a Gender Bias in Legal
Profession and Judiciary. People think women judges are not good enough to grapple
with complicate commercial matters.”
When SC speaks of gender equality one
might ask why there are such few women judges.
Four, with an
increasing number of judges accepting appointments on government panels, their
credibility is being compromised.
According to this Indian
Express report of July 2012, 'Of the 21 judges to have retired from the Supreme Court since January 2008, 18 got jobs in different government commissions and tribunals.'
Probably there should be a
cooling off-period for retired judges say two years.
This is not to imply that
retiring judges, a storehouse of knowledge, should not be gainfully employed by
the government. So also retiring judges should be refrained from speaking to
the media, on issues pertaining to their tenure, for a pre-determined duration.
One of the reasons why the
higher judiciary was held in awe because it interpreted law and administered
justice.
However, in the
last few years SC has devoted
time to ban liquor on highways, pollution control, dance bars, disclosure of
names of big loan defaulters, use of pellet guns in Jammu and Kashmir, Rohingyas,
explosion of non-governmental organisations (NGOs), dahi handi,
running Board of Control for Cricket in India (BCCI), etc.
Many
SC orders, though well-intentioned, earned the ire of the common man. The
general feeling among the public was that the SC did not weigh all arguments
heavily in pronouncing judgments on issues such as ban on liquor vends along
highways and the partial ban on bursting firecrackers around Diwali.
The firecrackers norms set by
the court were clearly violated. This is not to imply that the good intention,
sincerity or integrity of the court is being questioned.
Six, the SC must be careful whilst
entertaining PIL’s on social and governance issues.
The elected
government is in the best position to study the matter and take a call. SC can nudge the executive from time to time. SC
should stick to deciding matters based on interpretation of law and not
humanitarian grounds.
Often the
government refers matters to the SC because it is apprehensive of losing votes.
Cases like the validity of Triple Talaq or decriminalisation of homosexuality
are prime examples.
In such cases the SC must ask the Executive to take responsibility and pass appropriate legislation.
It is the
responsibility of the legislature, not SC, to make laws. Former judge Justice
Katju recently wrote SC judges making
laws of their own will lead to chaos.
In November 2018, a law student filed a PIL seeking a direction to the
government to provide monthly reports on the performance of the Prime Minister
and his cabinet ministers. “Is this the job of the Supreme Court, the bench
asked.”
The fact
such a PIL was placed before the CJI tells you what is wrong with the current system.
The SC needs to spell
out guidelines regarding who can file a PIL and under what circumstances.
Nine, the judiciary was at the forefront in India's battle against corruption. Its orders on 2G and coal scam are worthy of praise. Having said that, can the
judiciary sit in judgement on a case when it is not mandatory for its judges to
make a public declaration of assets.
In order to make the system more transparent, judges at all levels must make a 'declaration' of their assets and liabilities.
These
should be dated, signed and periodically updated at a pre-defined frequency.
Ten, in light
of strong and sustained protests against its Sabarimala order SC must realize
that social structures play a big role in the development and evolution of
society.
It would be worth reflecting on what former President Pranab
Mukherjee told
the fourth retreat of Supreme Court judges in April 2016.
“Each organ of
our democracy must function within its own sphere and must not take over what
is assigned to others. The balance of power between the three organs of the
state is enshrined in our Constitution. The Constitution is supreme. The
exercise of powers by the executive and legislature is subject to judicial review.
However, the only check possible in the exercise of powers by the judiciary is
self-imposed discipline and self-restraint by the judiciary.”
It
is when judiciary recognises its own sphere can there be dharma – “as is
inscribed in the
logo
of the Supreme Court, ‘yato dharma tato jaya’; where there is dharma, there is victory.”
First published here
Also read
1 What is Dharma
2 What is Dharma in Hindi
3 Where are the Women Judges in India's courtrooms