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Charting a New Course

At a meet on Constitution Day, key stakeholders enunciated their vision of a new judiciary. Despite divergent views, what emerged was the desire to change the status quo for the better.

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By Sanjay Raman Sinha

The framers of the Constitution made accountability an integral element with respect to the legislature and executive. However, they consciously decided to keep the judiciary on a different pedestal. They trusted the competence of the men and women who would adorn the Bench, in upholding the Constitution.” These words of Chief Justice of India (CJI) NV Ramana were delivered at the 71st Constitution Day meet at Vigyan Bhawan recently.

Other issues discussed were separation of powers, judicial reforms, judicial activism and pendency. There were common grounds of thought as well as divergent views.

The Constitution Day deliberations brought various stakeholders of the judiciary on a common platform and they all gave their version of the judicial worldview and proposed changes in the existing set up. The fervent pleas of Attorney General KK Venugopal and Supreme Court Bar Association (SCBA) president Vikas Singh for change found resonance in the restrained but forceful comments of the CJI.

Two functions were held on Constitution Day. The first was under the aegis of the SCBA at the Supreme Court. Here the CJI, Solicitor General Tushar Mehta, SCBA president Vikas Singh and vice-president Pradeep Rai shared the dais. The second meet was at Vigyan Bhawan and was attended by Prime Minister Narendra Modi, Law Minister Kiren Rijiju, KK Venugopal, Vikas Singh, CJI Ramana and Justices UU Lalit and DY Chandrachud.

At one level, the views shared were a critique of the current judicial set up. However, it was also an attempt to re-animate the subject of judicial accountability and transparency.

The pro-activeness of the apex court in handling matters of serious and immediate concern has often been termed as judicial overreach or judicial activism and has often pushed governments to shrug off lethargy and strive for the common good.

In the framework of the Constitution, only the judiciary has been conferred the power to judge the constitutional validity of legislative provisions and administrative acts. The higher courts are empowered to declare a law ultra vires and also to spell an executive action as unconstitutional.

In recent times also, courts have often reprimanded, cajoled, instructed and mandated actions for governments to follow. This has been seen by the governments as stepping into their territory. The CJI sought to correct this notion. He said: “The Laxman Rekha drawn by the Constitution is sacrosanct. But, there are times when Courts are compelled to pay attention to unresolved grievances, in the interest of justice. The intention behind such limited judicial interventions is to nudge the executive, and not to usurp its role.’’

It’s interesting to note that courts are no more content to stay passive. They are taking affirmative steps and giving remedies. This has set many legislative fiats on the right course and prodded recalcitrant governments towards a responsible response. However, a word of caution has also been enunciated by the apex court.

In State of Kerala vs A Lakshmi Kutty, the Supreme Court stated: “Special responsibility devolves upon the judges to avoid an over activist approach and to ensure that they do not trespass within the spheres earmarked for the other two branches of the State.”

The fact of the matter is that the Constitution doesn’t subscribe to a water tight separation of powers between the three wings of the State. It visualises an organic whole where they all work in tandem, with due respect for the territorial space of each.

CJI Ramana endorsed this. He said: “All the three organs are repositories of Constitutional trust. While the judiciary is the guardian of the Constitution, its role and scope of action is ultimately limited by the very nature of the judicial process. The executive and the legislature must work in conjunction with the judiciary to ensure complete justice as envisaged under the Constitution.’’

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Speaking at Vigyan Bhawan, Prime Minister Modi seconded this thought. He said: “The government and the judiciary were born from the womb of the Constitution. They are twins. It is because of the Constitution that both came into existence. So if you look closely, despite being separate, they complement each other.”

A spin-off of judicial activism has been public interest litigation. Herein the concept of locus standi or right of the aggrieved to approach court, has been relaxed and remedial move to court has been substituted by action on the behalf of the aggrieved. However, the “PIL business’’ has in many instances become dysfunctional. The CJI pointed this out: “There has been an abuse of the power of the PIL. PIL has become a tool for some to harass others and violate their rights.’’

Vikas Singh, however, presented a counter-note as he batted for an intra court appeal. He said: “Public Interest Litigations are being entertained under Article 32 and many times, some PILs cover issues which have far-reaching consequences and the decisions of the Supreme Court are taken without any adequate consultation with all the stakeholders. Many a time, judgments under Article 32 transgress into the domain of the executive. Providing for an intra court appeal will ensure the constitutional guarantee of proper justice and will also help in maintaining the discipline of separation of powers.’’

Pendency of cases is also a millstone around the neck of the judiciary. Around 4.5 crore cases are pending in courts at various levels. The logjam is making justice inaccessible. The attorney general pointed out that it takes an average of 30 years for a case from the trial court to be resolved at the Supreme Court level. So it is time to rethink strategies.

The CJI said: “As far as pendency in the Supreme Court is concerned, we have initiated steps to reduce it by harnessing technology. Pendency in the lower judiciary is particularly alarming. It calls for a multi-pronged approach involving all the stakeholders.’’

He then outlined an action plan:

“The solutions that we could think of are: Filling up existing vacancies of judicial officers, creation of more and more posts, filling up vacancies of public prosecutors, government pleaders and standing counsel, creation of necessary infrastructure, sensitising the police and the executive about the need to cooperate in court proceedings and deployment of modern technological tools.’’

He also stressed the need for technological upgradation of courts at all levels. The CJI mooted: “Indianisation of the judiciary” which would encompass adoption of Indian languages and simplification of procedures. This would make the courts less daunting for the populace, he maintained.

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The topic of National Judicial Appointments Commission, or NJAC, was broached by Vikas Singh. He proposed a law to regulate the collegium system to bring about more transparency and accountability. “I am of the opinion that a suitable legislation in the form of a Bill to regulate the collegium system can be brought within the said limitation which will facilitate the appointment of judges to High Courts as well as to the Supreme Court.” 

Singh proposed a Bill to provide a Permanent Secretariat both at the High Court and the Supreme Court level to assist them in the appointment of judges as members of collegiums both at the Supreme Court and High Courts’ level.

However, on the issue of judges’ appointment, CJI Ramana said:

“It is very heartening to note that the number of vacancies in the apex court is reduced to just one. Now, there are four women judges in the Supreme Court for the first time. I hope to see this number grow further. My brothers in the collegium worked overtime to facilitate filling up of vacancies across the High Courts as well. This is an ongoing exercise, and I am sure vacancies will be reduced to the bare minimum soon.’’

As more and more litigations are ending up in the Supreme Court, the basic function of interpretation of the Constitution and judicial review of the apex court are getting impacted. Venugopal said that while assessing judicial activities of over 75 years, one big question that surfaced was whether the Supreme Court is a constitutional court. He said that the time had come when there was a need to rethink the entire structure of the Supreme Court as it exists today.

The attorney general then proposed an alternate model of judicial functioning. He proposed an intermediate court of appeal between the High Courts and the apex court which would handle non-constitutional cases which are landing up at the latter. The judgments of the Courts of Appeal would be final.

He said: “I would envisage at least four regions—North, South, West and East—each having a Court of Appeal with 15 judges consisting of three benches of three judges each. We’re adding 60 judges who would be taking over the cases so that the pendency would be cut down to a very great extent. It would be reduced so that you’ll be able to get the cases disposed of within a period of three or four years. This would mean that the Supreme Court would not require 34 judges which it has now. Once it is relieved of all this burden of rent control, matrimonial and so on, 15 judges sitting in three constitution benches of five each would be sufficient to dispose of cases of a constitutional nature. This could be where a death sentence is involved or a constitutional requirement of references is needed.”

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The new camaraderie between the CJI and the law minister has underlined the cooperative attitude and approach. On the issue of judges’ appointment, inter alia, the Supreme Court and the centre have witnessed a stormy relationship. As the attorney general proposed a model which would reduce the number of judges in the Supreme Court to 15 judges sitting in three constitution benches of five each, the CJI warmly said: “We have witnessed many appointments in the higher judiciary being cleared by the government. I am sure vacancies will be reduced to the bare minimum soon. I look forward to the continued cooperation of the government.” 

CJI Ramana raised the vital point of judges’ security as increasingly, they are being targeted both physically and on social media. “An area of grave concern for the judiciary is the increasing attacks on judges. Physical attacks on judicial officers are on the rise. Then there are attacks on the judiciary in the media, particularly social media. These attacks appear to be sponsored and synchronised. The law enforcing agencies, particularly the central agencies, need to deal with such malicious attacks effectively. The governments are expected to create a secure environment so that the judges and judicial officers can function fearlessly,” he stressed.

This was not the first time that the CJI has taken a strong stand on judges’ attack. Earlier in the year, a bench led by him regretted that judges are not a priority for the investigative authorities and that their complaints are ignored despite the fact that specialised agencies such as the CBI are involved.

Overall, the Constitution Day deliberations were a stage where the views for a new judiciary were exchanged and the ground for a future course of action was laid down.

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