Supreme Court of India. Credit: Reuters/Anindito Mukherjee
The recent pronouncement of the Supreme Court has brought the wheel of judicial reforms, which was set in motion by the government, to a grinding halt, at least for the time being. With this, we are back to square one.
The observation that although the collegium system for recruitment of judges to the higher judiciary needs to be reviewed, it is still the best choice, which leaves ample room for further discussion on the viability of the collegium system and thus the debate must go on.
The observation of various sitting and retired judges that they were unable to attract the best in the field to the bench further complicates the matter and raises questions on why the judiciary is facing this problem when civil servants – who are way below in the ladder of protocol – are able to attract the best talent in the nation.
One answer that comes to mind is that while the civil services invite young talent, the judiciary waits until they are fully entrenched in their profession. Would inviting young people to serve on the bench bring in the best in the field? The answer to this question is definitely yes.
In order to attract the best in the field at a young age, an assurance of good career progression is a must. For that to happen, the present system of direct recruitment of judges to the high court, that is at the centre of the controversy, needs to be scrapped.
There is a joke doing the rounds, that to become a peon one has to face an interview, but not for becoming a high court judge. Instead, a new two-tier recruitment plan should be introduced. One at the magistrate level and the other at the district judge cadre level and then allowing one to make it to the top on the basis of their merit and ability. The magistrate level recruitment process under the supervision of the various high courts has been working flawlessly for several years and has seldom led to eyebrows being raised, hence that process can be left as it is.
For the district judge cadre (DJC) recruitment, a Union Judicial Service Commission (UJSC) – one like the UPSC – should be constituted in consultation with the Supreme Court and should function under its supervision.
The UJSC, as per the vacancies sent to it by the various high courts, would conduct the recruitment and allot the selected DJCs to the various high courts according to the vacancies sent by them, just as the UPSC is presently doing in the case of IAS and IPS.
The state judicial officers would, like the present state service officers, be at liberty to enter the DJC through this recruitment process. On being appointed the DJC would become a part of the state judiciary and would be subordinate to the state high court for all administrative purposes. The UJSC would maintain a single seniority list of all the DJC at the national level along with their service records.
As soon as a state level judicial service officer is promoted to the DJC through a normal process, his name, along with his service record, would be sent to the UJSC, which would then enter his name at the appropriate place in the national DJC seniority list. From there on it would maintain his service record.
Whenever a vacancy arises in any of the high courts, it would be notified to the UJSC. The body would, in turn forward a panel of three names of the senior most judges from the DJC national seniority list along with their service record to the high court.
The collegium would interview the DJCs whose names would have been sent to it by the UJSC. The high court would then recommend to the Supreme Court the most suitable of the three candidates for being elevated to the high court. From there on the set procedure that is being followed now would be followed. The two DJCs who could not make it would be considered twice more for the elevation whenever a vacancy arises in any of the high courts. If they still fail to make it, they would then retire as a district judge in due course. As in the case of DJC, the UJSC would maintain a national seniority list of all the high court judges.
Similarly, whenever a vacancy arises in the Supreme Court, the apex court would ask the UJSC to send to it a panel of three senior most judges from the national seniority list of high court judges. The collegium would then interview the high court judges whose names had been sent it by the UJSC and recommend the most suitable one for the elevation to the Supreme Court. From there on the set normal procedure could be followed. The judges who fail to make it would be then be considered two more times for elevation whenever a vacancy would arise in the Supreme Court. If they still failed to make it, they would then retire as a high court judge in due course.
None of the retiring judges of the high court or the Supreme Court would accept any office of profit offered to them directly by the government.
If the government requires the services of a retired judge, it would inform the Supreme Court. The apex court, in turn, would send a panel of five retired judges and the government would be at liberty to select the most suitable candidate.
The proponents of the direct recruitment can argue that the jurisdiction of the high courts is very wide, which it is not the same in the case of district judges. Hence, in order to dispense justice at that level, lawyers who have the experience of working at the high court would be best suited for the bench.
The argument at the outset appears to be a very attractive one. At present, nearly 30% of all high court judges are elevated from the post of a DJC. They are all doing their job well and none of them have been elevated to the Supreme Court, which exposes the hollowness of this argument.
Lately, a perception has crept into the minds of the general public that the malice of corruption is finding its way through to the judiciary. This is a dangerous development. The judiciary should be above suspicion, otherwise even if justice is done it may not appear to have been done.
For the lower judiciary, all the high courts have a vigilance cell working under their supervision to adequately address the complaints against the state judicial officers. On top of this, every year the district judge sends a report on the integrity perception of the officers that are posted in his judgeship. An adverse comment is taken very seriously by the high court. The high courts have adopted a zero tolerance policy for corruption complaints and it has had its effect.
The sad part, however, is that there is no redressal system for complaints at the higher judiciary level. This needs to be remedied and that too quickly so that the image of the judiciary is not tarnished.
For that, a Union Judicial Vigilance Cell (UJVC) should be constituted with the consultation of the Supreme Court to be part of the UJSC and to work with it and not under it. The UJVC would work under the direct supervision and guidance of the Supreme Court. All complaints against the higher judiciary would be addressed to the UJVC, which would then investigate and submit its report to the Supreme Court.
The Supreme Court, after holding a formal inquiry, would be entitled to reprimand or punish the concerned judge in the manner it thinks fit. If the misconduct calls for the removal of the judge, it would recommend doing so to the government, which would then convey the recommendation to the president.
Who would have the authority to remove a judge? The process of impeachment of judges should be done away with. The Supreme Court would also direct the chief justice of the high court to send a yearly integrity report of the judges on the bench of the high court. An adverse report should then be adequately dealt with.
To implement these reforms, the constitution would have to be amended accordingly. If a general consensus is reached between the legislature and the judiciary, then that should not be a problem.
These reforms would result in a number of far-reaching benefits. First and foremost, it would introduce transparency in the recruitment, which coupled with barring judges from taking an office of profit right after their retirement, would lead to minimal outside influence, resulting in the total independence of the judiciary.
This system would ensure the early filling up of vacancies and quick disposal of cases, which would go a long way in clearing the backlog. A major complaint about the kith and kin practicing in the same court would also be addressed. There is a perception that as judges have been members of the same bar for a long time, the lawyers would use this affinity with the judges to adjust their cases according to a favourable bench. The new system would minimise, if not altogether remove this possibility.
As stated above, this system would bring in the best talent in the field resulting in the improvement in the quality of the judgements. Appraisal at every stage of progression would keep the judges on their toes and result in them giving their best. The creation of UJVC would not let the perception of the judges of the higher judiciary not being answerable take root.
Ranjeet Singh Kang is a retired district judge and has served on the Rajasthan Higher Judicial Service.