Saturday, February 4, 2023

The Challenges for the New Designate

The CJI is now looked upon to make a difference by challenging the status quo and bringing in newer approaches, modern methods and fundamental changes to the judicial system.

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By Dr GV Rao

As the Supreme Court Bar prepares itself to welcome Justice NV Ramana as the 48th chief justice of India (CJI), we need to introspect and reaffirm the role and functions of the paterfamilias of the legal fraternity in India.

The CJI would be better known as the 5th Citizen of India, and the fountainhead of justice dispensation and administration for the country. An essential feature of democracy is the separation of powers between the three principal organs of the state the Legislature, Executive and the Judiciary as propounded by John Locke, the famous English, social contract theorist. Hence, the Judiciary is a separate and independent organ of the State. The CJI, as the head of the Indian Judiciary, gets his power from Article 124 of the Constitution, and as such, presides over the Supreme Court of India, which has a sanctioned strength of 34 judges. The role of the Judiciary, as supervised by the CJI, is to be a final arbiter of disputes among its citizenry, corporate, statutory and private bodies, and/or against the State and between states.

One of the most important functions of the CJI is that he presides over the Collegium comprising of four other senior-most judges of the Supreme Court who are vested with the power and duty to select judges for appointment to the higher judiciary. Therefore, every single judge who gets appointed during the tenure of the CJI would be credited as having been reviewed under the watch and selection process presided by him. As explained by well-known jurists, the CJI performs his duties within the framework of the Constitution and as such, acts under its provisions.

“In accordance with Article 145 of the Constitution of India and the Supreme Court Rules of Procedure of 1966, the chief justice allocates all work to the other judges who are bound to refer the matter back to him or her (for re-allocation) in any case where they require it to be looked into by a larger bench of more judges.

“On the administrative side, the chief justice carries out various other functions such as maintenance of the roster; appointment of court officials and general and miscellaneous matters relating to the supervision and functioning of the Supreme Court.”

The office of the CJI has evolved from being merely a primus inter pares as per the Latin maxim that denotes him to be a first among equals to being a dux fortis, a strong leader or a great leader princeps magnus or a combination of both to mean “the great leader” (Magna enim unquam ducem habebant). This is primarily because, although all major decisions are taken by a consensus of the collegium, the stamp and mark of the leadership of the CJI is seen, and as such, an impression is created. The role of CJI is not just a Master of the Roster and Chairman of the Collegium, making recommendations for the appointment of other judges, but he is a leader and a visionary who leaves his trail of accomplishments for the tasks undertaken, with his brand of philosophy. This gives direction and guidance for the entire judiciary in the country.

The leadership role of the CJI evolved through Three Judges cases heard by the Supreme Court while determining the position and status of the CJI as envisaged by the makers of the Constitution and the interpretation given to it by successive judgements and legislative enactments. Today, the criteria evolved for the appointment of a CJI is just the recommendation of the outgoing CJI, who will consider all the conventions and practices that have evolved over the years in making such a recommendation. It has been a debatable issue whether judgements in the Three Judges cases have resulted in the right outcome, namely S.P.Gupta Vs Union of India, Supreme Court Advocates on Record Association Vs Union of India, In Re Presidential Reference (1999), and lastly, National Judicial Appointments Commission (NJAC). Scholars and jurists have criticised the efficacy of the Collegium system and have supported the view that the appointments must be reviewed by a wider group of experts belonging to different organs of the State, with different backgrounds and having greater perspective in the matter.

The National Commission to Review the Working of the Constitution of India (NCRWC), 2002, and various Law Commission reports have made wide-ranging recommendations on the functioning of the Supreme Court with the CJI as its head.

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Whatever may be the view of jurists and academics, what has now come to stay is that the CJI is no longer primus inter pares, but someone who is looked upon to make a mark and a difference by challenging the status quo and bringing in newer approaches, modern methods and fundamental changes to the system. This is in order to bring in drastic changes for the removal of maladies in the system namely, archaic methods of proceedings and technical obstacles for implementation of justice, implementing speedier mechanisms for creating talent pools and above all, being seen as someone who has hastened and chastened the process of administration of justice.

As the head of one of the three pillars of the State, it becomes the responsibility of the CJI to ensure that reformation and transformation continue faster than ever. The disposal rate of cases across the country must move ahead at least twice the speed with which matters get filed. The functioning of all the tiers of the courts and the tribunals are matters of great concern and requires the attention of the CJI.

For a CJI to make a difference, it becomes important for him to establish a great rapport with the Bar. As the old idiom goes: “The Bar and the Bench are two wheels of the chariot of justice.” Issues relating to functioning of Bar Councils, Bar Associations and universities imparting legal education also assume great importance in the administration of justice. Any views expressed by the CJI at any forum assume importance for the direction in which the entire institution must proceed.

Numerous CJIs have attempted and succeeded in alternative dispute resolution mechanisms, which play a tremendous role in reducing the backlog of cases and improving the methods of administration of justice. The holding of Lok Adalats, the testing of the functioning of arbitration and other alternative dispute resolution mechanisms are all under the preview of the CJI, to which he must give due attention.

Needless to say, the functioning of higher judiciary in states and their supervision of the lower judiciary is also an important facet that cannot be overlooked. Adequate focus ought to be given to the Registry and its streamlining to meet the growing demands of processing of matters and procedural requirements.

Justice Ramana, during his eight-year tenure as a judge of the Supreme Court, has been party to numerous judgments. He carries with him tremendous experience and insight into matters. Notable judgments include: Central Public Information Officer Vs Subhash Chandra Agarwal(2019), dealing with the Right to Information Act, 2005, Foundations for Media Professionals Vs Union Territory of Jammu and Kashmir (2020) and Lata Wadhwa’s case which held that compensation for housewives must depend on the work being performed by them, therefore granting dignity to women who are homemakers. The judgments in Roger Mathew and Jindal Stainless Steel have paved the way for flexibility of appointments to tribunals and the autonomy and freedom of state governments to design their own fiscal legislation respectively.

Justice Ramana is known to the members of the Bar as a kind, considerate and soft-spoken judge, who is eager to do justice and give counsel appearing before him a patient hearing with an open mind. His vast experience of being a judge for some 20 years, eight of which have been acquired in the apex court, will come to his aid in a remarkable way.

Further, his understanding of the higher judiciary as the chief justice of the Delhi High Court and acting chief justice of the Andhra Pradesh High Court will give him great perspective while carrying out his duties as the fountainhead and paterfamilias of the Judiciary. His tenure as a government counsel for various departments and as an additional advocate general have given him a deep understanding of the functioning of government departments, bringing to fore his expertise in civil, criminal, constitutional, labour, service and election matters.

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His humble beginnings have given him an insight into the suffering of the common man, which has also made him a champion of civil liberties from the very beginning of his college days and later as a journalist. He has great empathy for those requiring protection of human rights. His tenure, no doubt, will be marked by compassion, expertise and wisdom.

-The writer is Senior Advocate, Supreme Court

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