Institutional Reform at the Supreme Court

Lord Macaulay’s words can be re-phrased and dinned into the ears: "Reform, lordships that you may preserve”. In the same manner, there are several recent calls to reform the Court’s structure and functioning.

• The present system of Judiciary has come under criticism from inside as well as outside.
• Till today multiple changes have been infused through parliament or the initiatives of the Supreme Court on its own.
• Several committees were formed to conceptualize the needed reforms and gave recommendations to streamline the projected reforms.

What are the Issues pertaining to Supreme Court?

Still, the judicial system at the Supreme Court is plagued with multiple issues. Some of them could be studied as follows

1. Opaqueness of the Collegium System- The collegium system is one where a group of judges selects judges for high courts and the Supreme Court. This system had come into force after two Supreme Court judgments in the 1990s. Under this system, a body of senior apex court judges, headed by the Chief Justice of India (CJI), select persons and recommended their names for appointment as judges. In 2014, the government enacted constitutional amendment that created a National Judicial Appointments Commission (NJAC) that would govern the promotion and transfer of judges in the higher judiciary. In 2015, the Supreme Court struck down this amendment, finding that the NJAC violated the basic structure of the Constitution, amidst concerns about too much non-judicial representation on the Commission, and restored the old collegium system.

The main Concern- It showed how difficult it is for Parliament to reform the Court as an institution, as well as how dangerous such reform could potentially be to judicial independence.

2. Delays in judicial appointments- The government can delay the appointments of the recommended names by exercise a pocket veto, or at least a delay, on judges recommended by the collegium. For example in the case of GopalSubramanium to the Supreme Court.

The main Concern- How the government can still play a role without directly intervening in the matter.

3. Judicial Independence and Accountability- There has always been concern about the disproportionate dominance of the Chief Justice in the Indian Supreme Court, given their ability to assign cases and set benches. 2018 brought this issue to the public’s attention in a new way with four sitting judges taking the unprecedented step of hosting a press conference raising concerns about the “allocation of cases” by the Chief Justice.

The main Concern-Since then there has been continued concern about how this power can be used to send cases to certain benches that might be more inclined towards the government.

4. Increased Concern over the Chief Justice- The vesting of both “master of the roster” and disciplinary powers in the Chief Justice has helped fuel a legitimacy crisis for the Court that undermines its mission. There have also been questions raised about the role of the Chief Justice in responding to accusations of corruption or sexual harassment against the Chief Justice in ways that would seem to create a conflict of interest.

The main Concern-One might imagine a system that empowers a strong Chief Justice would be more likely to act as a significant check on the Executive, but, at least recently, it has arguably weakened the Court’s ability to check the Executive.

5. Questions over Bench selection-For example, Justice Dipak Misra passing, in a case involving allegations against himself, an order on the administrative side overruled a judicial order of another Bench, constituting a five-judge Bench led by himself to affirm the administrative order, and then assigning the case to a three-judge Bench. Similarly, Justice Ranjan Gogoi assigned to his bench a case involving allegations against himself.

The main Concern- This raises the question of the criteria of bench selection for the cases concerned.

6. Criticism of the larger bench- The consequences of this drift towards an ever-larger Court are substantial. The system also seems like it is becoming even more difficult to govern. There were already longstanding concerns that benches disagreed with each other creating confusion in precedent.

The main Concern- More judges and benches, only add to the Court’s polyvocality. Further, with more judges, it is difficult for Supreme Court judges themselves to reach agreements.

7. Post-retirement political appointments- The nomination of Justice Ranjan Gogoi to the RajyaSabha and the appointment of Justice P. Sathasivam as the Governor of Kerala shortly after his retirement as the Chief Justice of India must be seen in this light. These appointments led many to revisit their judgments to find out whether they were rewarded for some of the pre-retirement judgments.

The main Concern- It has raised serious questions about the independence of the judiciary and constitutional propriety.

8. The Political Nexus-The famous instances of Justice Islam, Justice SayedFazal Ali, Justice Bhagawati’s letter to the then PM Indira Gandhi, and public adulation of the prime minister by some judges have not gone down well with the supports of independence of the judiciary.

The main Concern-This can create a political tilt in the judgments and raise a question over the credibility of this Supreme institution.

9. High number of cases- “Justice delayed is justice denied”- The number of pending cases across Indian Courts has been increasing. Between Feb. 1 and Aug. 31, 2020, the Supreme Court has seen a 3.6% rise in pending cases to 62,054.

The main Concern-There is a shortfall in the delivery of justice. There is also the weight of the backlog of older cases dragging down efficiency and creeping upward every year.

10. Higher number of PILs- while PIL has undoubtedly promoted important social changes, raised public awareness on many issues, energized citizen action, increased government accountability, and enhanced the legitimacy of the judiciary, it has been criticized for taking up too much of the Supreme Court’s limited time.

The main Concern- It is compounding the problem of delays. However, PIL is accepted less frequently for regular hearing than most other types of litigation, and only represents about 1% of the Court’s regular hearing decisions. These cases might take longer than others for the Court to hear, administer, and decide.

11. Judicial activism- It is a matter of concern that over the years this original, beneficial and unexceptionable character of the Court’s activism in PIL has been largely converted into a general supervisory jurisdiction to correct actions and policies of the government, public bodies, and authorities.

The main Concern- Under this type of activism, the judiciary sometimes is criticized to intervene in matters of government.

12. Method of proceedings and higher fees- The language is spoken in the higher judiciary. It is often incomprehensible to people and the fees charged by lawyers is so exorbitant that an ex-IAS officer Harish Chandra Gupta, known for his impeccable integrity but implicated in the coal scam, recently pleaded with the court to put him in jail instead of putting him through the charade of trials which he could not afford.

The main Concern- The court which is the final resort of justice for the common become out of reach of the people.

13. Denial from disclosing the assets- The judiciary has kept itself away from the Right To Information Act and judges are not bound to declare their assets like other public servants. With Supreme Court moving an appeal in the Delhi High Court against the CIC order on making assets of its judges public, the Chief Justice of India K G Balakrishnan has made it clear that the judges "are not bound to disclose" their wealth.

The main Concern- This raises concerns over the question of corruption practice.

14. Uncertainty of laws- Because Benches hear cases, the law declared by the Supreme Court is uncertain. Every highest court has reversed its earlier rulings.

The main Concern- There is also uncertainty in the minds of citizens in arranging their personal and business affairs while the law is being interpreted and re-interpreted differently.

15. Corruption among the judges- Several allegations had been raised against the judges to abuse their judicial authority to favor some lobbies.

Institutional reforms: Measures to protect Judiciary

1. Increasing the number of judges-To accommodate its ever-expanding caseload, Parliament continues to expand the size of the Court. When the blog began there were 26 judges, including the Chief Justice. In 2009, the Court expanded to 31 judges and, in 2019, to 34.
2. Right to Speedy Trial: The right to a speedy trial (and timely justice) has been enshrined in several international charters and conventions relevant to India, most notably the International Convention on Civil and Political Rights (ICCPR), which India ratified on 10 April 1979.
   • The Supreme Court of India made it clear more than three decades ago that “speedy trial is of the essence to criminal justice and there can be no doubt that the delay in a trial by itself constitutes a denial of justice” (Hussainara Khatoon v. State of Bihar 1979).
3. E-Courts project: The e-Courts project was conceptualized with a vision to transform the Indian Judiciary by ICT enablement of Courts.
   • The Law Commission has addressed this issue in several reports since 1955: the 14th, 79th, 80th, 120th, 121st, and 124th reports. More recently, other reports on this issue such as 221st, 222nd, and especially the 229th, touched dealt with issues of delay, pendency, and arrears.
   • The second Malimath Committee also submitted recommendations in 2003 regarding reforms.
   • Efforts have been made to computerize Indian Courts and increased the use of IT Computerization of Case Law and Files.
4. Setting up of Specialized Tribunals- The Forty Second Amendment to the Constitution of India was passed in 1976 to allow the creation of tribunals to try several different types of cases in India and to ensure speedy disposal of cases.

What are the Suggestions?

A number of suggestions have been given to protect the autonomy and independence of the judiciary along with the institutional reforms it could adopt. Some of them can be studied as:

• To transform the present Supreme Court into five courts of appeal and a seven-judge constitutional court, assigning cases to benches randomly.
• Guaranteeing the salaries of judges post-retirement to limit the potential influence of post-retirement government appointments.
• To increase the retirement age of judges or guaranteeing them lifetime salaries would be a clear improvement.
• The Court could create new guidelines for the types of SLPs it will admit.
• The Court might dispose of oral hearing for some matters. Some have suggested that if the profession switched to hourly billing, instead of by appearance, this would reduce the resistance of the bar to changes that reduce the number of hearings.
• Arbitration, Mediation, and Conciliation Encouraging ADR measures and pre-trial counseling/ dispute resolution measures can ease the pressures on the court system.
• Appointment of Critical Mass of Ad Hoc Judges to Dispose of Arrears.
• Providing Modern Case Management Techniques.
• Penalties for Filing of “Frivolous Cases”.
• Plea bargaining has long been hypothesized that it helps the court to manage its load of work and hence it would result in a reduction of the backlog of cases.
• The United Nations Convention against Corruption contains various provisions highlighting the importance of measures and systems requiring public officials to make declarations of their outside activities, employment, investments, assets, and substantial gifts and benefits.
• The Implementation Guide and Evaluation Framework for Art 11 published by UNODC in 2015 provides further guidance on how best to put such financial disclosure systems into practice.
• Computerization of the Registry of the Supreme Court has had its beneficial effects in slashing down arrears and facilitated scientific docket management.
• E-filing and video-conferencing by dispensing with physical appearance saves precious time and resources and makes justice more easily accessible and a less expensive option.
• The Supreme Court must be elevated to a Constitutional Court. It must hear and decide only cases involving questions regarding the interpretation of the Constitution of India and, on rare occasions, cases that involve legal issues of great public importance and consequences.

Conclusion

An independent and strong judiciary is the basic feature of the Constitution. We are faced with an extraordinary situation where the judiciary is being marginalized from within, not from outside. This institution needs to ensure that an impression is not given to the public that the constitution of benches and allocation of matters is being done in a manner more palatable to the executive. Citizens are entitled to expect the free and fair administration of justice.