Big issues, GS-2, Uncategorized

Judiciary Vs Executive – Judicial Appointments

The justice system is caught in a tussle between the committee of Supreme Court justices and the government over who has the final say on appointing judges. India’s 24 high courts should have 1091 judges. However, as many as 470 positions are vacant. Many are not happy with the present collegium system. The two decade old system of a collegium is an Indian innovation created in the name of judicial independence. However, according to some critics, it has produced an opaque legal justice system.

Quick look at collegium system and its history:

The Constitution does not envisage a collegium of judges to select judges. It was virtually proposed by the lawyer community and the public who were distinctly uncomfortable with the intrusions into the independence of the judiciary in the 1970s and 1980s. When the Supreme Court devised collegium system, it was widely welcomed.

However, public and lawyer community were unhappy with this system too. It was proved, in some cases, that even judges also can be men of straw. The lawyers and the public realised that like any normal human being, several of the members of the collegium did not rise above their religion, caste, gender, language, family, friends and other affinities.

Arguments against the collegium system:

  • It is seen as a closed-door affair without a formal and transparent system. Judges, hopeful of going higher, have to please the members of the collegium.
  • This system overlooks several talented junior judges and advocates.
  • Sometimes, collegium gets stymied, when old rivalries between its members see each other’s favourites getting vetoed.
  • Sometimes collegium meetings become examples of bargaining within the collective, and consensus emerging from a division of the spoils.

What does the Constitution actually prescribe?

Article 124 deals with the appointment of Supreme Court judges. It says the appointment should be made by the President after consultation with such judges of the High Courts and the Supreme Court as the President may deem necessary. The CJI is to be consulted in all appointments, except his or her own.

Article 217 deals with the appointment of High Court judges. It says a judge should be appointed by the President after consultation with the CJI and the Governor of the state. The Chief Justice of the High Court concerned too should be consulted.

NJAC proposal:

In a bid to reform the judicial system, Parliament of India amended the Constitution and brought about the 99th Amendment to provide for the NJAC after the new government came to power. Subsequent ratification of 20 States was also obtained and it seemed that the collegium was history. However, soon petitions were filed challenging the constitutional amendment. The Supreme Court also struck down the 99th Amendment.

njac-1

Why was it struck down?

  • The composition of the NJAC, especially the inclusion in it of the Union Law Minister and two eminent persons was not widely appreciated. According to the court, the inclusion of the Law Minister in the body impinged on the doctrine of separation of powers.
  • The NJAC act gave any two members a veto over all decisions, raising the question whether the executive representatives could overrule the judicial members.
  • The court also felt that this new institutional mechanism to appoint judges impinged on the independence of the judiciary, a basic feature of the Constitution.
  • The clauses provided in the amendment were also inadequate to preserve the primacy of the judiciary.
  • And even the Attorney General, representing the government of India, could not convince the court that the amendment, along with the NJAC Act, was aimed at restoring the system of checks and balances which, according to the government, was lost after the Supreme Court created the collegium scheme of appointments.

Reforming collegium:

Following its judgment, the court, admitting that the existing collegium system had serious flaws, called for suggestions to improve it. Responses came in thick and fast. The court permitted the government to formulate MoP. While permitting the government to formulate a revised MoP, the court was careful to mention the points that needed to be addressed, namely eligibility criteria, measures for transparency, establishment of a Secretariat, and a complaints mechanism. It also specified that this MoP was for the faithful implementation of its decisions in the earlier cases. However, the Court raised concerns over some issues in the draft Memorandum of Procedure (MoP) submitted by the government. The Supreme Court had asked the government to re-consider these clauses.

Recent developments:

Recently, the Central government accepted some recommendations of the Supreme Court collegium on draft memorandum of procedures for appointment of judges.

njac11

Suggestions accepted:

  • Lifting the proposed cap on the number of jurists and lawyers for appointment as judges in the Supreme Court. The draft sent to the Chief Justice of India in March had recommended that up to three judges from among jurists and lawyers could be appointed.
  • Seniority is now being considered to be the main condition. The government had earlier proposed merit-cum-seniority as the criterion for elevation of judges.

What has not been accepted?

The government has not changed its stand on the proposed clause under which it will have powers to reject any candidate recommended by the collegium on grounds of public interest and national security. The collegium had earlier rejected the proposal. However, the revised draft proposes that the government will communicate to the collegium the reasons for rejecting any name recommended by it.

Which are the other areas that need immediate attention?

  • Vacancies in the Supreme Court and in the High Courts need to be filled up. Most High Courts are functioning with half or one third the sanctioned strength.
  • Persons of doubtful integrity who might have been appointed by the mistake of the collegium have to be weeded out. A method has to be found without the process of impeachment, and voluntary retirement could be an option.
  • The infrastructure in the courts needs improvement — there will not be enough court halls, chambers, or staff, if all the vacancies are filled.
  • There needs to be appointment of ad hoc or additional judges to clear pending cases — the reluctance of the collegium to appoint retiring judges as ad hoc judges is baffling.

How the present collegium system can be improved?

  • Accepting applications for appointments as High Court judges should be followed. This is followed in the U.K. and can be adopted in India too.
  • There must be full and complete disclosure of relationships and affiliations of applicants to sitting and retired judges.
  • Minimum eligibility criteria for consideration need to be laid down, including appearances in important cases.
  • Parliament should also enact changes to provide a uniform retirement age for judges of the Supreme Court and the High Courts, so that the present practice of some of the judges seeking to be in the good books of the existing or prospective members of collegiums in the Supreme Court is avoided. This will also obviate the argument of expectation based on seniority for appointment as judges of the Supreme Court.
  • The retirement age may be raised uniformly to 70 with a condition that no judge retiring at 70 shall be appointed as a member of any Tribunal.
  • The continuation as a judge after the age of 65 should be subject to being found ‘not unfit’ by the Permanent Commissions.
  • A minimum tenure of two years should be provided to the Chief Justice of India and the Chief Justice of High Courts.
  • No judge who is more than 68 years should be made a Chief Justice.
  • Court management should not be vested with Judicial Officers but assigned to trained managers.
  • All the three organs of the state should also introspect as to why there has been no or inadequate representation in the higher judiciary from amongst women.

Conclusion:

The opacity in the appointment of judges has allowed for covert manipulation. It has also meant that often the best legal minds are left out of the judicial system. A transparent, fair, and open system of appointment is central to ensuring that people have faith in the legal system, which is essential for functional democracy, doing business, and ensuring development.

Uncategorized

Judicial Appointments and RTI: Should It Be Allowed?

One of the landmark legislations of the country which actually transformed the nature of governance in the country and brought in transparency and accountability is the Right to Information Act passed in 2005. This Act mandates timely response to the request of citizens for government information. However, there are still certain areas where RTI should be applicable or not is a matter of debate one of them being higher judiciary.

Background:

About 6 years back, there was an RTI request by petitioner Subhash Chandra Agarwal for the complete correspondence that was done between the Centre and the Supreme Court on the appointment of Justice H.L.Dattu, Justice A.K. Ganguly and Justice R.M. Lodha superseding the seniority of Justice A.P.Shah, Justice A.K. Patnaik and Justice V.K Gupta. There was an order of disclosure by Central Information Commission to the office of the Chief Justice of India to disclose the details. The order was challenged by the apex court and was referred to a three-judge Bench that time. Recently, the Supreme Court referred this issue to a five-judge Constitution Bench to decide whether the disclosure of information on appointments, transfers etc. would interfere in judicial independence or not

It needs to be noted here that judiciary is not an exception under RTI whose details like appointments, transfers or complaints against judges are not covered under any exemptions in RTI. Personal details though are exempted from RTI under Section 8 (1) (j). Certain institutions like RAW, CRPF, CISF etc. are exempted from RTI for obvious reasons but judiciary doesn’t find place there.

Judiciary’s Stand:

The judiciary’s primary concern here is that its independence might be at stake if the details are disclosed. Up to what extent information should be disclosed is also a matter of discussion as it might damage the reputation of a person. There is an issue of threat to national security as well. Sometimes, the details of appointments are also closely linked with personal details like medical conditions. Now, under these circumstances what should be disclosed and what not has to be decided.

Pros and Cons:

  1. As far as judiciary is concerned, it is awkwardly positioned in terms of defending its judges as compared to executive and legislature. It cannot defend itself unlike other institutions and therefore, there is a need to determine the scope of disclosure of information i.e. how much information should be disclosed, at what stage they should be disclosed etc.

 

  1. It is also being said that so far the conduct of judiciary is concerned; it is more of their mindset than independence or RTI provisions. Being the interpreters of Constitution, they have brought all other institutions under RTI but they are themselves away from it.

 

  1. On the whole the disclosure of information would strengthen judiciary in the eyes of people. It will increase its credibility and public trust. It would help to prevent any kind of political or other interference and make the process of appointment fairer. RTI Act has a provision under Section 10 for severability where a request for access to information is rejected on the ground that it is in relation to information which is exempted from disclosure. So, there are enough safeguards for judiciary under RTI.

 

  1. There is no scope of RTI being misused as it is only for seeking information that already exists. It does not create new information. The facts are recorded and available in the public domain to see and increase awareness.

 

  1. In the name of independence of judiciary, there is no information about who applies for position of judges, eligibility criteria, procedure for appointment or transfer of judges. Secrecy in appointments will be exposed if judiciary comes under RTI.

 

Whether the judiciary opens its “Pandora Box” or not is something that is still uncertain. But if it does, it would only make it more accountable and transparent to the citizens of the country.

GS-2, Uncategorized

Judicial Appointments: Why Is It Still Eluding Solutions?

In a recent confrontation between the Centre and the judiciary, the Chief Justice of India T.S. Thakur criticized the actions of the Centre over the matter of appointments of judges in the higher judiciary and for trying to bring the entire judiciary to a grinding halt. After the NJAC law was struck down by the Supreme Court, it again asked the Government to come up with a Memorandum of Procedure in consultation with the Chief Justice of India for selection of judges. It has also been said that the government wants to achieve through the Memorandum of Procedure what it could not with NJAC.

However, several issues have erupted since then between the both the parties due to which no consensus has been reached so far. Some of the reasons are illustrated as follows:

  1. According to the Supreme Court, delays on the part of the government in clearing appointments to the higher judiciary are not being given enough attention.
  2. Poor litigants and under trial prisoners suffer the most because of judicial delay. There has to be a significant initiative to increase the strength of the subordinate judiciary.
  3. There are approximately 478 out of 1079 vacancies which are yet to be filled for High Court judges. This constitutes about 44.3% of the total sanctioned strength of the High Courts. Even after almost two years, judicial appointments have yet been in a gridlock.
  4. One of the biggest problems is the issue of “judicial dynasties” or collegium which prefers to appoint relatives, friends, former colleagues and juniors. There is a deep concern over this issue because it strikes at the very essence of merit and transparency in judicial appointments.
  5. In order to ensure national interest, Government wants to have the power to reject recommendations from collegium, whereas the judiciary opposes such a veto clause. This clause on right to reject a recommendation is opposite to the current practice where the Government is bound to accept a recommendation by the collegium comprising four senior most judges of the Supreme Court and the Chief Justice of India if it reiterates the same. Therefore, the Supreme Court collegium returned the draft of the revised Memorandum of Procedure to the Government.

The Centre and the judiciary need to collaborate on finding practical solutions like:

  1. Appointing more judges on vacant seats.
  2. Including retired judges as ad hoc judicial officers based on periodic need assessment and deploying judicial resources efficiently.
  3. In order to ensure transparency, fairness and accountability, the need is to adopt a system of evaluation to screen all candidates whose names are proposed for selection.
  4. The criteria for selection should be more detailed and it should not only rest on seniority of the judges. The appointments are still out of the purview of RTI Act.

The proceedings so far till now only show that there is no sincerity of purpose from either side i.e. executive or judiciary. Both need to iron out their differences in order to ensure smooth running of the system.

Editorials, GS-2, Indian Polity, Uncategorized

The judiciary is shifting the balance of power

Summary:

Judiciary, in recent years, is increasingly being criticized for actively encroaching on the powers of legislative and executive authorities. “The judiciary has appropriated for itself a role far beyond its primary duties of dispensing justice and interpreting laws”, claim few parliamentarians. Few experts also claim, “step by step, brick by brick, the edifice of India’s legislature is being destroyed” by the judiciary. With the court recently ordering the creation of a National Disaster Mitigation Fund while national and state disaster response funds already exist, the issue has come to the fore once again.

What is Judicial Activism?

Judicial activism is an approach to the exercise of judicial review, or a description of a particular judicial decision, in which a judge is generally considered more willing to decide constitutional issues and to invalidate legislative or executive actions.

Causes of Judicial Activism:

The following trends were the cause for the emergence of judicial activism — expansion of rights of hearing in the administrative process, excessive delegation without limitation, expansion of judicial review over administration, promotion of open government, indiscriminate exercise of contempt power, exercise of jurisdiction when non-exist; over extending the standard rules of interpretation in its search to achieve economic, social and educational objectives; and passing of orders which are unworkable.

Evolution:

The judiciary in India is often called the most powerful among its tribe globally. While the creative interpretations of the text of law had started earlier, the post-Emergency phase marked a distinct turnaround in the Indian judiciary’s activism.

  • After the ignominious failure to protect the fundamental rights of the citizens in ADM Jabalpur vs Shivakant Shukla (1976), the court believed a constitutional correction would be insufficient. So, the pursuance of constitutional legitimacy was replaced—in the words of Lavanya Rajamani and Arghya Sengupta—“by a quest for popular legitimacy”.
  • A series of judgements, most notably S.P. Gupta vs President of India and others (1981), gave rise to a new legal instrument called public interest litigation. This instrument allowed “public-spirited individuals seeking judicial redress” on a variety of matters beyond what would be permitted by the traditional rule of locus standi, which specifically addressed the concerns of aggrieved citizens.
  • Through several judgements thereafter, the judiciary has unhesitatingly shuffled into the roles of both the legislature and the executive. It assumed wide powers in matters of protection of the environment.

Why Judicial Activism is good?

  • There are many issues that are sensitive, which need to be handled with a certain amount of care that many laws don’t allow. Judicial activism allows a judge to use his personal judgement in situations where the law fails.
  • Judges have sworn to bring justice to the country. This does not change with judicial activism. It allows them to do what they see fit, within reasonable limits of course. It gives judges a personal voice to fight unjust issues.
  • It also provides a system of checks and balances to the other government branches.
  • It has its own system of checks and balances too. Even if a judge decided and ruled that certain law is unjust, it can still be actually overruled with an appeal to another court, even to the Supreme Court.

Why Judicial Activism is not so good?

  • While delivering any judgement in this regard, courts are often ill-equipped to weigh the economic, environmental and political costs involved.
  • When judicial activism is used, it is like the laws do not apply. The judges can override any law that there is, which technically means there are no laws in the judges’ eyes.
  • Sometimes when judicial activism is exercised it is done for solely selfish or personal reasons. They may be political, or the judge may have received compensation for his decision.
  • Judicial activism becomes a more profound subject for those who serve on the Supreme Court, as their rulings generally stand. With the power to have the final say on matters, their judicial opinions would also become standards for ruling on other cases.
  • It sees the letter of the law and politics as separate issues.

Conclusion:

In an ideal world, the judiciary would stick to interpreting the law and refrain from treading on the domain of the legislature or the executive. But in an environment where justice is constantly being subverted, it is arguable that the courts are left with no choice but to step beyond their traditional domain and prod the executive into discharging its constitutional responsibilities. However, this encroachment is clearly a matter of huge concern. Also, camouflaged phrases like “judicial overreach”, used often, have been incapable of instigating any self-correction by the honourable judges. Hence, it’s time for the courts to proceed ahead cautiously in this regard.

 

GS-2, Indian Polity, Uncategorized

SC sends back draft on judges’ appointment

The Supreme Court has raised concerns over two issues in the draft Memorandum of Procedure (MoP) for appointment of judges including the one relating to government’s right to reject a recommendation on concerns of national interest. Other clauses include clauses on the role of the Attorney-General of India in the appointment of Supreme Court judges and Advocates-General in the appointment process of High Court judges. The Supreme Court has asked the government to re-consider these clauses.

Present scenario:

Presently, the government is bound to comply if the Supreme Court collegium chooses to override its disapproval of a person recommended for judicial appointment. If the government returns the candidate’s file to the collegium, and the latter reiterates its recommendation, the government has no choice but to comply.

Background:

In December 2015, the supreme court, after restoring the collegium system, had directed the Centre to frame a new MoP. The court had directed the government to do this in consultation with the Chief Justice of India, who would in turn take into confidence his four seniormost puisne judges of the Supreme Court and who are part of the collegium.

The MoP for appointment of judges to the Supreme Court and the High Courts have “always been prepared” by the executive in consultation with the President and the CJI in consonance with the judgments of the Second Judges and Third Judges cases which ushered in and fine-tuned the collegium system.

Five factors were held by Supreme Court’s own consequential judgment to be very important:

  • First, the MoP may indicate the eligibility criteria, such as minimum age, for the guidance of the collegium (both at the level of the high court and the Supreme Court) for appointment of judges, after inviting and taking into consideration the views of state governments and the Government of India (as the case may be) from time to time.
  • Second, the eligibility criteria and the procedure as detailed in the MoP for the appointment of judges ought to be made available on the website of the court concerned and on the website of the Department of Justice of the Government of India. The MoP may provide for an appropriate procedure for minuting the discussions including recording the dissenting opinion of the judges in the collegium while making provision for the confidentiality of the minutes consistent with the requirement of transparency in the system of appointment of judges.
  • Third, in the interest of better management of the system of appointment of judges, the MoP may provide for the establishment of a secretariat for each high court and the Supreme Court and prescribe its functions, duties and responsibilities.
  • Fourth, the MoP may provide for an appropriate mechanism and procedure for dealing with complaints against anyone who is being considered for appointment as a judge.
  • Fifth, the MoP may provide for any other matter considered appropriate for ensuring transparency and accountability including interaction with the recommended persons by the collegium of the Supreme Court, without sacrificing the confidentiality of the appointment process.
Editorials, GS-2, Indian Polity, Uncategorized

Diffusing the judicial burden

Article Link

Summary:

The Supreme Court of India, as the highest court of the land, has a sacrosanct function to ensure that the country is governed adhering to the principles of the rule of law. It has evolved remarkably well, steering the country through thick and thin. It also has had a tremendous contribution to the jurisprudential landscape, not just in the country but also internationally. The time has come, however, to revisit the court’s function and align it with the needs of today.

  • In this regard, the Supreme Court had requested the Central government to consider the possibility of establishing a National Court of Appeal which has elicited mixed reactions from the legal community.

What is a National Court of Appeal?

The National Court Appeal with regional benches in Chennai, Mumbai and Kolkata is meant to act as final court of justice in dealing with appeals from the decisions of the High Courts and tribunals within their region in civil, criminal, labour and revenue matters. In such a scenario, a much-relieved Supreme Court of India situated in Delhi would only hear matters of constitutional law and public law.

However, the Centre has rejected this idea. It cites three grounds for rejecting the idea —

  1. The Supreme Court always sits in Delhi as per the Constitution.
  2. The Chief Justices of India in the past have “consistently opposed” the idea of an NCA or regional benches to the Supreme Court.
  3. An NCA would “completely change the constitution of the Supreme Court”.

Why this is a good idea?

  • A National Court of Appeals makes sense, with the Supreme Court being burdened with cases of all kinds. The Supreme Court was meant to be a Constitutional Court. However, the sheer weight of its case backlog leaves the court with little time for its primal functions.
  • Geographical proximity to the court is definitely an aspect of access to justice. The fact that the Supreme Court sits only in New Delhi limits accessibility to litigants from south India. High Courts meant for facilitating easy access to justice are losing their sheen in many ways.
  • If a court of appeal is established, the majority of appeals from high courts can be addressed in these courts.
  • A court of appeal can work as an excellent mechanism to sieve cases. If there are areas of law that are particularly unsettled and need clarification, the court of appeal can club them together and send these forward to the Supreme Court. Not only can a number of individual cases be disposed of but areas of law can also be settled and a clear precedent set.
  • If the Supreme Court only deals with crucial cases, the process will become streamlined and will save a lot of time and expense, for both litigants and the courts.
  • It would relieve the Supreme Court of the weight of hearing regular civil and criminal appeals, allowing the court to concentrate on determining only fundamental questions of constitutional importance.

Why this is not a good idea?

  • Splitting the Supreme Court will be a very regrettable step. The Supreme Court has to be at one place and there can’t be circuit benches like high courts.
  • Dilution of the Supreme Court and its aura as an apex court may not be in line with the concept of the Supreme Court envisioned by the architects of the Constitution.
  • The issue of proximity is relevant only up to high courts and can’t be extended to the Supreme Court. There are enough high court benches to address that issue.
  • This suggestion would require an amendment in Article 130 of the Constitution which is impermissible as this would change the constitution of the Supreme Court completely.
  • Also, NCA will mean more expense and hardship to litigant.

What else can be done?

Efforts should be to strengthen subordinate judiciary (high courts) so that proper justice can be dispensed with.

  • The Supreme Court should discourage the usage of the High Court as a mere stepping-stone towards the end of judicial hierarchy. The glory and resplendence of High Courts should be reclaimed.
  • All High Courts must entertain writs, including in the burgeoning service matters, only before Single Benches in the first instance and then to a Division Bench in the form of a Letter Patents Appeal so as to provide at least a two-tier accessible hierarchy of approach.
  • The challenges to orders of tribunals, irrespective of the former status of their adjudicating Members or Chairpersons, must only be allowed to be entertained by Division Benches of High Courts and not directly to the Supreme Court since the highest Court cannot be rendered the first appellate Court from statutory tribunals and neither can justice be made unaffordable for our citizens.

Conclusion:

A National Court of Appeal is being advocated as an intermediate forum between the Supreme Court and the various high courts of India. But a better solution to ease the higher judiciary’s burden may lie in strengthening that of the lower. Before adverting to a new layer, the conception of which may be difficult to achieve, we need to strategise and reconfigure our existing judicial hierarchy to the rising challenges before us. The only way to do it is to revitalise our High Courts and restore them to their pinnacle

Editorials, GS-2, Indian Polity, Uncategorized

Govt. cautions judiciary on NCA

  • National Court of Appeal (NCA)

Already discussed, refer the following articles in the same sequence:-

  1. Constitution Bench to decide on National Court of Appeal
  2. Not a court of everyday appeal

Additional Points

Why NCA is a good idea:

1. The Supreme Court will maintain its place as the apex court of land and – like England, Wales and the US – only rule on matters that are of constitutional importance or set new legal precedent. This will allow the Court to dedicate more time to develop the law.

2. It will make geographical sense to have different benches to hear appeals. As of now, all appeals have to be heard in New Delhi, inconvenient for cases originating in other parts of the country.

3. A court of appeal can work as an excellent mechanism to sieve cases. If there are areas of law that are particularly unsettled and need clarification, the court of appeal can club them together and send these forward to the Supreme Court. Not only can a number of individual cases be disposed of but areas of law can also be settled and a clear precedent set.

4. If the Supreme Court only deals with crucial cases, the process will become streamlined and will save a lot of time and expense, for both litigants and the courts.

Why is it a bad idea:

  1. It will not reduce the litigation.Apex courts are not clogged but subordinate courts are.
  2. It will merely add another layer of adjudication.
  3. It is constitutionally impossible because hearing of appeals is a basic structure (which will be affected)
  4. It would be a boon only for advocates.

Stand of the Government

  • NCA will add one more level of adjudication and will not help decrease litigation. It will only end up being a boon to advocates. It will mean more hardship to the litigant.

Stand of the Supreme Court

  • It has sent a clear signal to the government that it intended to push hard and pronounce a judgment on the constitutional viability of having an NCA.

 Conclusion:

Establishing  the NCA is a policy decision.The court cannot give direction to the central government from the top court to establish NCA as it would “tantamount to direction from (the top) court to the government to enact a law”.

Editorials, GS-2, Indian Polity, Public Admin 2, Uncategorized

Not a court of everyday appeal

Article Link

How?

  • National Court of Appeal (NCA)
  • By establishing a more robust judiciary

National Court of Appeal (NCA)

  • Establishment of a National Court of Appeal (NCA)  would act as an intermediate forum between the Supreme Court and the various high courts of India.
  • It  would relieve the Supreme Court of the weight of hearing regular civil and criminal appeals
  • It will allow the court to concentrate on determining only fundamental questions of constitutional importance.
  • NCA’s regional benches would allow greater access to litigants from remote parts of the country, for whom the distance to New Delhi acts as a grave barrier to justice.

Problem with NCA

  • Supreme Court has today used the pliability of its power to grant special leave to often interfere in mundane disputes is therefore not a product of any structural problem, but rather of a deliberate decision by the court’s judges.
  • Viewed thus, it is difficult to understand how the creation of an NCA would somehow ease the burden on the Supreme Court, allowing it to eschew its authority to grant special leave; this power was, after all, always meant to be used only in exceptional cases, where a particular interpretation of a law required definite resolution.
  • The focus ought to be not on altering the core structure of the judiciary, but in aiming to make changes that are more pragmatic, that place an emphasis on the strengthening of the base of India’s judicial edifice.

 

A bottom-up approach needed

 

  • If socially conscious and meritorious women and men, who subscribe to the best constitutional values, are elevated as judges to our subordinate judiciary and the high courts, the idea of viewing the Supreme Court as a routine court of appeal can be renounced altogether.
  • This would allow the Supreme Court to be more discerning in its use of discretion, thus substantially reducing its burden of acting as a corrector of simple errors.

Road ahead

  • Our judiciary isn’t broken because of any deficiencies in structure, but rather because of the feeble infrastructure that we have installed to support our justice delivery system.
  • If we work towards establishing a more robust subordinate judiciary, it would not only negate any requirement on the part of most litigants to approach the Supreme Court, but it would also free the court of its shackles, allowing it to possibly regain its constitutionally ordained sense of majesty.