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Insights into Editorial: Court’s drift and chinks in the judiciary’s armour

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Context:

Recent past fortnight has seen two significant developments in connection with the Indian judiciary: the first was the decision of the Supreme Court of India in the matter of Prashant Bhushan’s contempt case, and the second was the retirement of Justice Arun Mishra.

These events, in their own way, magnify the chinks in the armour of the Supreme Court.

Meaning of an Executive court:

An Executive court is a court that fails to keep a check on the executive powers. It means that a court instead of being neutral and impartial in its judgements delivers verdicts in the favour of the Government.

This in turn leads to political interference in the functioning of Judiciary, shatters the image of the judiciary in the eyes of people and leads to loss of trust and confidence of people in Judiciary.

  1. Acceptance of Post-retirement Jobs by the Judges
  2. Pro-Government CJI
  3. Master of Roster

Master of Roster system:

  1. Master of Roster which refers to the privilege of the Chief Justice of India (CJI) to constitute benches to hear cases. Roster is prepared by the Registrar of Supreme Court under the orders of CJI.
  2. The issue of Master of Roster is quite important since in the year 2018, 4 SC Judges held a press conference to register their differences with the then CJI.
  3. It was considered to be unprecedented since normally internal conflicts within Judiciary do not come out openly.
  4. In the press conference, the 4 SC Judges had highlighted that the CJI was misusing his powers as “master of roster” by selectively allocating politically sensitive cases to certain selected benches in order to get a favourable verdict.
  5. Article 145: Supreme Court with the approval of the President may make rules regulating the practice and procedure of the Court.

Issue to be resolved: The European example: the “master of the roster” system:

There is enough evidence that the “master of the roster” system does not work any more.

  1. What we need today is legal certainty, and a rules-based mechanism for allocation of cases (e.g., as followed by the European Court of Justice and the European Court of Human Rights, among many other jurisdictions where cases are decided not by full courts but by benches).
  2. This rule can be that cases are allocated randomly. But any kind of rule can be implemented only if judges themselves take a stand and decide.
  3. There should be agreement that no discretion can be allowed, for that is the root cause of so many of our troubles.
  4. A case allocation system that is neutral and rules-based will prevent bench packing, and demonstrate neutrality, impartiality, and transparency.
  5. All this, in turn, ensures that courts are protected from outside interference; improves public confidence in the impartiality and independence of the judiciary; assures litigants of equality and fairness; and protects basic rights and freedoms by not compromising on them.

Procedure to allocate cases:

  1. There is no written procedure in the top court that is followed to allocate cases.
  2. When a case is filed, its details and subject matter are scrutinized by the SC registry, which receives and processes all documents.
  3. The cases are then categorised on the basis of subject matter. There are 47 broad categories such as letter petitions, public interest matters, taxation, service matters and criminal appeals. Each category has multiple sub-categories.
  4. The registry notifies the roster for the benches, which is done on the basis of the subjects (or categories), and the CJI approves it. More than one bench is allocated the same subject matter.
  5. The CJI can issue a specific instruction to list a case before a particular bench. The CJI, as the master of roster, has the right to mark the sensitive cases to specific benches. As the institution’s head, the CJI also has the discretion to set-up larger benches.
  6. The CJI is informed by registry officials that a case is sensitive. It is then left to the CJI to decide if he wants to mark it as per the roster, retain it with himself or let another bench hear it.
  7. As per convention, the CJI, on being informed in advance, either hears the matter or refers it to the top four judges in seniority after him.

If malaise within the Judiciary:

  1. There is a tendency to view the threat to judicial independence in India as emerging from the executive branch, and occasionally the legislature.
  2. But when persons within the judiciary become pliable to the other branches, it is a different story altogether.
  3. The lack of information in the transfer resolution has led to a barrage of criticism against the collegium and its opaque process of appointments and transfers.
  4. While this is true given that all high courts have similar powers under the Constitution, a transfer without delineating proper reasons has an inherent danger to be seen as a punishment.
  5. Surely, this is as good a time as any for the judges of the Supreme Court to unite and seriously consider whether self-preservation trumps institutional independence, or whether they truly want to protect the judiciary from outside influence, and hold their own against an overbearing executive.
  6. Recall that the National Judicial Appointments Commission (NJAC) Act was struck down by the Court on grounds of excessive executive interference in the selection of judges.
  7. But surely, this judgment is of no use if executive interference is anyway possible in more subtle ways.

Way Forward:

To make the system more transparent and declare the reasons for transfer of the judges. Merit and seniority should be given an upper hand while making transfers rather than personal interests.

Allocation of cases to benches should be free from bias- random computer allocation. Allocation based on subject expertise of the Judges. Recuse themselves from hearing of cases on account of perceived conflict of Interest.

Politically sensitive cases should be handled by larger bench. Cooling-off period for the Judges.