By Arushi Sharma
Following the January 12 press conference that questioned Indias current judicial procedures, Justice J Chelameswar has emphasised the need for continued examination of the mechanisms of the Supreme Court (SC). Speaking at the launch event of the book Supreme Court: The Beginnings, authored by late Prof George H Gadbois, he also highlighted the issue of rising arrears of the countrys top court.
The current scenario
Earlier this month, Justice Chelameswar along with his fellow SC judges Ranjan Gogoi, Madan B Lokur, and Kurian Joseph, aired their grievances against the arbitrary allocation of cases by the current Chief Justice of India (CJI) Dipak Misra. Alluding to the possibility of misconduct on the CJIs part, the four top judges asserted that certain critical cases had been allotted to benches that lacked the representation of many senior judges. These hearings relate to important matters such as the reconsideration of Article 377 of the Indian Penal Code, the petition banning the entry of women in Keralas Sabarimala temple, and challenges to Aadhar, among others.
The incident has brought to the fore the need to re-examine the transparency of Indias judicial system. SC decisions not only affect the one-eighth of the population that directly interacts with the judiciary but also have an indirect impact on citizens lives. Take for instance the case challenging the SC judgment criminalising homosexual relationships between consenting adults. Therefore, now more than ever, there is a need to examine the functioning of the apex court.
According to Chelameswar, the SC has become a superintendent court in practice despite the fact that the Indian Constitution does not recognise it as such. It exercises superintendence in the appointment and transfer of high court judges as well as dictating the law regarding the administration of the various court levels. All this points to the intersection between the administrative and judicial functions of the SC and the stark absence of transparency therewith.
Progress so far
In October 2017, a welcome step was taken to quash the opacity of the procedure of judicial appointment. The decision involved publishing the Collegium Resolutions, detailing the reasons for acceptance, rejection, and transfer of candidates, on the SC website. The notification came about in the wake of Justice Jayant Patels resignation from the Karnataka High Court.
However, the discourse has now evolved toward the ambiguity in matters where the judicial and administrative functions of the institution intersect. While the adjudication of disputes is quite transparent, a large chunk of the administrative functions happens behind the scenes. This does not augur well for the overall process of delivery justice.
Moreover, the recent crisis has raised concerns about the unity of the institution as well as the uprightness of the key appointments made by it. Although the Bar Council of India released a statement assuring the restoration of normalcy in the higher judiciary, no specific facts have been sent out through any official channels yet.
Reaching the goal of a liberal democracy
As per the Law Ministry data, more than 58,000 civil and criminal cases were pending in the Supreme Court as of July 2017. The huge backlog piling up with the apex body has made it clear that the gap in judicial appointments has to be filled urgently. As regards the transparency, the decision to disclose the judicial appointment resolutions aims to cut the arbitrariness; however, it would become pointless unless it also gives a peek into the procedures adopted of the body making such appointments. Additionally, a structural reform is required in order to build a foundation of trust in the judicial system. One way to introduce accountability is to have a screening system for the Collegium, comprising a permanent administrative office.
Finally, echoing Justice Chelameswars statements, there is a need for continuous examination the institutions achievements and failures so as to sustain and improve it for the welfare of the people. All those connected with the institution should come together to preserve the basic democratic principles and move forward with the view of establishing a liberal democracy with an impartial and independent judiciary in place.
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