JUDICIAL REFORMS: A NEED OF AN HOUR

Indian Supreme Court is considered as our conscience keeper of justice and regarded as custodian of our constitution. As Montesquieu proposes “there can be no responsible government without separation of powers between its three organs I.e. legislature, executive and judiciary is maintained.”     After independence Indian Supreme Court has replaced privy council as the highest court of appeal. Our sovereign constitution has established integrated judiciary common for both union and states and give it powers that will, enable judiciary to protect fundamental rights of citizens (art 32, art 226),  prevent legislature from enacting any law that ultra vires constitution, prevent executive from any administrative action that is against constitutional principles. While giving such powers to judiciary, strict separation of powers is not prescribed by the Indian constitution as it only prescribe weak separation of power with various checks and balances as affirmed by  supreme court in Indira Nehru Gandhi vs Raj narain case (1975). Evolution of our judicial system has been monumental while fulfilling constitutional mandate our judiciary has given us unique gift- by establishing basic structure doctrine in Kesavananda Bharati case (1973).     While working to fullest fulfilling its constitutional mandate,our judiciary is marred by few problems that includes- lack of complete transparency in functioning, lack of complete transparency in appointments to higher judiciary, lack of redressal system for complaints from citizens, pendency of cases, enforcement of RTI Act, post retirement appointment of the judges of high courts and supreme court, lower judiciary is particularly marred by problems of dysfunction, corruption and lack of transparency. All this problems call for judicial reforms. we will look at it one by one.     Firstly, transparency in functioning- Indian supreme court in order to increase transparency in functioning and making the information accessible to citizens and making  information related to all judgements, pending litigations etc available has launched the website of court. Online availability of information including case status has enabled transparency about functioning. But such availability is largely absent in case of district courts and other lower courts so reforms are needed in this sphereqs.     Secondly, transparency in appointments to high courts and supreme courts- this is very well contented issue, our constitution in art 124 and 217 prescribes that the President should appoint judges of supreme court and high courts by consultation with Chief Justice of India (CJI) and in case of high court judges CJI, Chief Justice of high court and Governor of concerned states. This gives primacy to executive over judiciary in appointments. This system was continued till 1993. Even First Judge’s case 1982 reaffirmed executive's primacy in appointments. This leads to politicisation of judiciary to an extent eg appointment of A. Ray as CJI in 1978. Executive primacy was replaced with judiciary's primacy as in second judges case 1993. Supreme Court held that, consultation with CJI while appointment means “concurrence” and introduced collegium system where panel of judges headed by CJI will appoint judges to Supreme Court and high court. This collegium system too has various drawbacks like lack of objective criterion, lack of transparency, nepotism etc. So to address these concerns govt had established National Judicial Appointments Commission (NJAC) by 99th constitutional amendment act which was multimember body with representation of both judiciary and executive. But recently Supreme Court scraped NJAC by passing the  judgement that NJAC Amendment violate principles of the independence of judiciary and separation of powers which form the basic structure of the constitution. Such being the case now reforms must be sought to make existing collegium system more accountable, transparent. This can be done by laying down objective criteria on for appointment, calling applications from all eligible candidates for appointment for making details of the process available to common masses.     Thirdly, Grievance Redressal- At present if citizens have any complaint about worries (corruption) of judge of higher judiciary, even complaints about sexual harassment, he/she have to remedy for grievance redressal. Recently CJI on receiving written complaints from citizens about sexual harassment from judges has initiated inquiry (internal) this is welcome step but institutional structure for grievance redressal must be ensured by government by enacting legislation. One such legislation National Judicial Accountability Bill was introduced in parliament which seek to provide institutional mechanism for grievance redressal relating to competition in higher judiciary. The bill has since lapsed and  should be reintroduced.     Fourth, Pendency of Cases & Cost of Litigation- Total cases pending in higher judiciary alone are about 29 lakh. This problem can be solved by filling the vacant posts (about 30% of total) in various high courts. Separating commercial cases from other cases, introducing time bound national litigation policy. Also cost of litigation, particularly in higher judiciary is enormous that prevent poor and even middle class pensioners from moving to higher courts of justice. This can be addressed through National Legal Service Authority that provide free access to justice delivery system to needy, weaker sections of population as enshrined in Art 39 (b) of our constitution. Also alternate dispute redressal systems like Lok Adalats are very effective in providing speedy, cheap & efficient justice at lower level.     Fifth point is Post Retirements Appointment- Post retirement appointments of judges of supreme & high court judges may lead to politisation of them for future political favour. So, post retirement appointments of judges to posts like Governor, Chiefs of Regulatory Bodies should be regulated by enacting guidelines. In this direction the method of 'cooling off' period of 2-3 years after retirement may be introduced. Similarly in this regard Ex CJI RM Lodha had proposed that three months before retirement all judges of high courts and supreme court shall be given an option either to take full salary for 10 years (excluding other benefits) or to take pension as fixed by the law and only those judges who choose to take full salary for 10 years shall be considered for post retirement appointments. The idea is to insulate judges from the lure of post-retirement jobs.     Sixth point is Problem of Lower Judiciary - In lower judiciary in India the problems of corruption, dysfunction, inefficiency are very rampant. So they should be dealt with severely by respective high courts and state governments. In this direction vigilance mechanism should be strengthen in the lower courts, also principles of judicial life should be strictly enforced for the judges of  lower judiciary. Citizens grievance should be properly addressed and Alternate Dispute Redressal (ADR) mechanism should be strengthened. Also, govt should fill the vacant posts of public prosecutors in lower judiciary as they are agents of cheap and efficient justice for poor.     Seventh, reforms in Quasi Judicial and Regulatory Bodies and preventing tribunalisation of justice- Many quasi judicial and regulatory tribunals  like CAT, SEBI, competition commission of India etc have overlapping judicial functions so at least section of their decision makers should be from legal background. This would avoid situation like intellectual property appellate board (IPAB) established under patents act ,1999 which was declared unconstitutional by Madras High Court as it lacked technical personnel for competent decision making. Conclusion- Judiciary is last ray of hope for a citizens in distress and in India robust judiciary has served this purpose very well. If above reforms are carried out it will further strengthen the judiciary making it more accountable, transparent, responsive and this eventually will fulfil the constitutional mandate of judiciary as the protector of rights of citizens and custodian of the Constitution.