JUDICIAL REFORMS

JUDICIAL REFORMS 

Introduction

1. Lord Brice: there is no better test of the excellence of the government than the functioning of judicial system
2. if lamp of justice goes, it  will be difficult to imagine the amount of darkness
3. Bible: you are the salt of the Earth. if salt loses its flavor from where the Earth will be salted
4. if not judicial system, only option is of revolution

Reforms needed

1. speedy delivery of justice
1. justice delayed is justice denied
2. Indian system is notorious for excessive and unnecessary delays
3. eg- Arya Samaj Case
2. tackling corruption
1. of any branch is unacceptable, of judiciary is unthinkable
2. now reaching to higher judiciary. eg- Gaziabad provident Fund case
3. institutional reforms
1. need to reform the system of appointment and removal of judges
2. need to increase no. of courts
3. need to strengthen the capacity building programme of judges

Stakeholders

1. union govt
1. provide infrastructure, provision for capacity building of judges
2. review outdated laws
3. reform criminal justice system
4. police reforms
5. reform code of civil procedure and criminal procedure
6. judicial impact assessment
7. recruitment of judges
1. judge to population ratio is lowest
2. many post empty due to non-consensus between judiciary and executive
8. Govt brought new litigation policy to reduce no. of cases
9. create gram nyayalays
1. although legislation exist, very few gram nyayalaya created
10. promote alternative dispute settlement mechanism
11. promote legal literacy and strengthen legal aid
12. introduce plea bargaining as suggested by Malimath Committee
2. judiciary
1. many areas where need to work together with govt
2. eg- reducing no. of vacancies
3. reduce no. of cases which are pending
4. restrict itself from accepting large no. of appeals specially under SLP
5. higher judiciary should check corruption
6. instead of activism, focus on basic functions
7. reluctant with its own accountability
1. not bringing office of CJI under RTI
2. not supportive of Judicial Standards and Accountability Bill
3. bar associations
1. reason for excessive delay is malpractice by lawyers
2. formation of model code of conduct for lawyers together with Bar association
4. civil society
1. provide legal literacy
2. provide legal aid
5. more no. of fast track courts, e-governance, capacity building of judge

Reform of system of Appointment of judges in higher judiciary

1. constituent Assembly Debate
1. 3 options
1. appointment by executives: most common practice
2. appointment by executive, ratification by legislature as in USA: rejected due to politicisation of judiciary
3. judges appointing judges for independence
1. Ambedkar rejected since there can't be imperium within Imperium
2. final arrangement
1. appointment by executive but after consultation with higher judiciary
2. fragile balance tilted towards judiciary
2. system in practice
1. judges appointing judges
3. evolution of collegium system
1. after Keshwanand Bharti, justice AN Ray was elevated as CJI superseeding 3 senior judges
2. 1977; justice Beg superseded Justice khanna
3. these two cases were of executive overreach, though supported legally
4. cases related to appointment of judges
1. Sankalchand case 1977
1. SC was to interpret the meaning of term consultation in Art 217 dealing with transfer of HC judges
2. SC held that consultation doesn't means convergence
2. SP Gupta case 1981
1. 'first judges case'
2. consultation is not convergence
3. SC advocate on record vs UoI
1. 2nd judges case
2. consultation means concurrence
3. primacy to opinion of CJI who would give after consultation with 2 senior most judge
4. 3rd judges case
1. presidential reference 1998
2. art 143: neither SC is bound to give, neither centre bound to take
3. opinion of CJI will be binding
4. features of judgement
1. consultation means convergence
2. CJI would consult 4 senior most judges
3. for appointment, concurrence of 3 judge should be there which must include CJI
4. in case executive returns, it will give reasons, collegium will consider  and if sends again, it is binding
5. problem in collegium system
1. inefficiency: SC is already overburdened, so vacancy remained unfulfilled
2. lack of transparency: merit has not been criterion, rather caste, religion, family connections
3. Uncle judge syndrome
4. many times bar association objected against appointment
5. 'Ceasar's wife should be above suspicions'
6. NCRWC (National Commission for Working of Constitution)
1. recommended creation of NJAC
2. issues guidelines that it should not be done in a manner to compromise basic structure
7. most countries have independent appointment commission. eg- Australia, UK, Canada

 

99th Amendment Act

1. purpose of NJAC
1. appointment of CJI
2. appointment of other judges of SC, HC
3. transfer of judges of HC
2. function of NJAC
1. prepare MoProcedure to decide parameters for appointment wrt merit and sovereignty
3. composition
1. CJI as chairperson
2. two senior most judges of SC
3. law minister
4. two eminent person
1. 3-member commission including PM, LoP, CJI
4. voting procedure
1. if any two members object, name shall not be recommended
5. Analysis
1. no member of executive present in Britain
1. there it is by public notification so that people can apply
2. old system to continue
3. NJAC to consider name proposed by CJI of HC
1. earlier, CJI considered governor, now CM also
4. SC declared Act null and void
1. directed govt to prepare MoP
2. directed to make secretariat
3. create a system of grievance redressal
4. all details regarding appointment procedure.