SC to hear plea on govt delays over appointment of judges in higher judiciary after 8 weeks - Pragnya IAS Academy - News Analysis.

SC to hear plea on govt delays over appointment of judges in higher judiciary after 8 weeks.

The Supreme Court on Friday said it would hear after eight weeks a plea which has alleged that the Centre has been “indefinitely sitting” on the names recommended by the apex court collegium for appointment of judges in the higher judiciary.

The plea, stating that the government cannot “frustrate” the process of appointment of judges in the apex court and high courts in “an oblique way” by sitting on collegium’s recommendations and not responding to names reiterated by it, came up for hearing before a bench headed by Chief Justice Ranjan Gogoi.
Senior lawyer Dushyant Dave and advocate Prashant Bhushan, appearing for petitioner NGO Centre for Public Interest Litigation (CPIL), told the bench that the Centre has been sitting on several names for appointment as judges in the higher judiciary.
The bench, also comprising Justices K.M. Joseph and Hemant Gupta, asked Mr. Dave whether he knew the number of names which the collegium has reiterated to the Centre.
Mr. Dave said, “As far as I know, there are 13 names”.
To this, the CJI told Mr. Dave, “It is three times more. Papers are lying on my table.”
Mr. Dave requested the court to issue notice to the Centre on the plea but the bench said it would hear the matter after eight weeks.
During the hearing, the CJI told Mr. Dave that the apex court collegium has sent names to the government for appointment of judges in the Karnataka High Court.
The petitioner has claimed that “stone-walling” of judicial appointments by the executive for “oblique and vested interests” amounts to interference in the due process of law and the independence and integrity of the judiciary.
The plea has sought a direction to the Centre to notify the appointment of judges for the apex court and different high courts whose names have already been unanimously reiterated by the collegium and are pending with the government.
It has also sought a direction to the government to notify the recommendations for appointments of judges to various high court that have been sent by the collegium and the Centre has not responded even though six weeks have passed since the recommendations were received.
“An independent and transparent system of judicial appointments that is free from political and partisan considerations has an important bearing on the independence and impartiality of the judges,” the plea has said.
The petitioner has also alleged that important constitutional positions cannot be left vacant merely because of “inaction” of the government and its “politically motivated interference in the judicial appointment process”.
It has claimed that such an act not only show “complete disregard” of the law declared by the top court but “also a virtual breakdown of the consultative process thereby diminishing if not destroying the primacy of the Chief Justice of India with regard to appointment in the manner laid down in the judgement”.
Referring to the July 1 this year official figure available on the website of the Ministry of Law and Justice, the plea has said that strength of judges across high courts is 668 against the sanctioned strength of 1,079 judges. (Source: The Hindu)


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SC to hear plea on govt delays over appointment of judges in higher judiciary after 8 weeks.

Diffusing the judicial burden

The Supreme Court’s request to the Central government to consider the possibility of establishing a National Court of Appeal has elicited mixed reactions from the legal community. Bodies such as the Law Commission of India have given their considered opinion, and from these a solution must emerge.

The issue relates to access to justice, that is at the core of our constitutional values, and thus problems related to the issue have to be understood in their entirety and possible solutions must be deliberated upon and discussed by all stakeholders. The problem is essentially threefold.

The Supreme Court was meant to be a Constitutional Court. However, the sheer weight of its case backlog leaves the court with little time for its primal functions. In spite of recently accelerated rates of case disposal in the Supreme Court (in 2015 it disposed of 47,424 cases compared to 45,042 in 2014 and 40,189 in 2013), the backlog was still a staggering 59,468 cases as of February 2016.

A ”substantial question” of constitutional law has to be heard by five or more judges. According to a study by Nick Robinson titled ”A Quantitative Analysis of the Indian Supreme Court’s workload”, in the 1960s it was common for the court to decide over 100 such cases a year. He points out that in the past decade, because of the unreasonable workload borne by the court, the average is now fewer than eight constitution benches a year. In effect, therefore, the functions of the Supreme Court as a Constitutional Court have been seriously impaired.

Ease of access

Geographical proximity to the court is definitely an aspect of access to justice. The fact that the Supreme Court sits only in New Delhi limits accessibility to litigants from south India. Mr. Robinson’s study reveals ‘that of all the cases filed in the Supreme Court, the highest numbers are from high courts in the northern States: 12 per cent from Delhi, 8.9 per cent from Punjab and Haryana, 7 per cent from Uttarakhand, 4.3 per cent from Himachal Pradesh, etc. The lowest figures are from the southern high courts: Kerala 2.5 per cent, Andhra Pradesh 2.8 per cent, Karnataka 2.2 per cent and a mere 1.1 per cent from Madras High Court. There is therefore an urgent need to find a solution to such an inequitable state of affairs.

The Supreme Court, it must be acknowledged, has played its role as sentinelqui viveof the Constitution with aplomb. This does not, naturally, go down well with the other organs of the state and while their present proclivity to abide by the orders of the Supreme Court is creditable, it is but natural that attempts may be made to curtail the constitutional powers of the court. The problem of backlog may be a convenient handle for the other organs of the state to seek drastic curtailment of the court’s powers. Well-regarded leaders in stable democracies have attempted this in the past.

Franklin D. Roosevelt saw nothing amiss in using his presidential powers to attempt to ‘reorganise’ the American Supreme Court when it consistently dealt death blows to many of the legislations brought in under the rubric of the New Deal. The pendency of cases before the Supreme Court was at that time cited as the ostensible reason for the ‘reorganisation’ plans. In pursuance of the same, Senators William H. King and Warren Austin called upon Chief Justice Charles Evans Hughes to appear as a witness in the Senate hearing and to outline the court’s ability to deal with its docket. Chief Justice Hughes refused, and instead sent a note which ultimately played an important role in thwarting the President’s plan to reorganise the court.

An institution which on a daily basis hauls up several other bodies for defects and deficiencies must place itself well above criticism of any nature. It is only such an unassailable stature that can add to its effective functioning.

A reasoned solution

In considering the issues posed by the Supreme Court to it, the Central government has a rich repository of information which it must refer to in order to reach a well-reasoned decision. The 229th report of the Law Commission of India delved into this problem in depth and came up with the suggestion of retaining the New Delhi bench of the Supreme Court as a Constitutional Court and the establishment of Cassation Benches of the Supreme Court in the four regions at New Delhi, Chennai/Hyderabad, Kolkata and Mumbai. The 2009 report pointed out that since Article 130 of the Constitution provides that ”the Supreme Court shall sit in Delhi or such other place or places as the Chief Justice of India may with the approval of the President, from time to time, appoint”, the creation of Cassation Benches of the Supreme Court would require no constitutional amendment. It also pointed out how this basic model with appropriate variations has worked very successfully in countries such as Italy, Egypt, Ireland, the U.S. and Denmark.

In coming to its conclusions and recommendations the report had also made extensive reference to the 95th report of the Law Commission titled ‘Constitutional Division within the Supreme Court — A proposal for’; the 125th Law Commission report titled ‘The Supreme Court — A Fresh Look’; reports of the parliamentary standing committee on personnel, public grievances, law and justice as also the 120th report of the Law Commission on ‘Manpower planning in judiciary’.

In addition to the above, Mr. Robinson’s report referred to earlier is also available to guide the deliberations of the government.

The Supreme Court has earlier rejected suggestions to have benches of the Supreme Court in other parts of the country. Given this fact, it is imperative we look at other options to the problem and seriously debate the possibilities. The solution may not even be the National Court of Appeal but a completely different idea which emerges during the course of deliberations and is found acceptable to the government, the Supreme Court and the stakeholders. It is, however, important that whatever may be the consensus, it must find a solution to the problems mentioned earlier.

As the saying goes, if we do not do something because it has never been done before, we will go nowhere. The law will stagnate while society advances, which is not good for both.

Legal system too expensive for most: Study

According to the nationwide ''Access to Justice'' survey, legal system in India is too expensive to access for most citizens in the country.

• The survey was conducted across 305 locations in 24 States between November 2015 and February 2016 to hear the voice and explore the profile of people making use of judicial system in India.

Important observations made:

• 90% of the litigants earn less than Rs. 3 lakh per annum and the median expected cost of litigation for this group is around Rs. 16,000.
• For most, the judicial system of our country is shut because they cannot access lawyers in the first place and the quality of legal aid is poor.
• Though legal aid aims to provide free legal services to the weaker sections who otherwise can't afford it, the survey found that that just 1% of the respondents make use of this service.
• Accountability of legal aid lawyers towards their clients and lack of communication between the two are serious concerns plaguing the system.
• The financial barrier is not just limited to accessing courts. The main reason individuals could not meet the conditions of bail was found to be lack of funds. Also, around half the litigants cited expense as a major deterrent for filing appeals in the High Court if their cases were not resolved in their favour.