Judiciary - A Near Feudal Set Up and Superintendence
It took a long time for me to decide on writing this chapter; writing this chapter is likely to tread on some delicate and fragile toes in High Courts and Supreme Court. What ultimately decided me was what some friends of mine told me “If you do not write on such a subject, nobody else will write on it”. I have personal experience of one High Court as judge and acting Chief Justice and two High Courts as Chief Justice. Ever since my settling down in Bangalore and practicing as senior advocate, I have been actively associated with the activities of National Judicial Academy and Karnataka Judicial Academy and associated occasionally with Kerala Judicial Academy and Andhra Pradesh Judicial Academy and consequently had opportunity to interact extensively with judicial officers of Kerala, the seven states of North –East and states of Madhya Pradesh, Karnataka and Andhra Pradesh and none can deny my competency to write on the relationship between High Courts and what I would prefer calling “district Judiciary” as also the Supreme Court.
It is indeed unfortunate that heading of chapter VI of the constitution is given as “Subordinate Judiciary”. No doubt, the expression “Subordinate” has been used since judicial officers who function as judges in various courts in “district judiciary” are under the administrative “superintendence” of the High Courts as mandated in Article 227 of the constitution. These courts are “subordinate” in one sense to the High Courts; but on the judicial side they function independently though subject to the doctrine of precedent and the law declared by the Supreme Court by virtue of article 141 of the Constitution. Under Article 144, all authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court. Articles 127, 141 and 144 do not make the High Courts “subordinate” courts or “Subordinate” to Supreme Court. It was for this reason that in its early years the Supreme Court while remanding a case to a High Court, invariably made a polite request to the High Court to dispose off the remanded case expeditiously. Alas, politeness and brotherly courtesy are becoming things of the past.
The constitution conceives of High Courts as functionally independent organs, subject only to appellate jurisdiction of and law declared by Supreme Court. The idea that High Courts should be subject administratively to any sort of superintendence of Supreme Court is wholly repugnant to the language and ethos of the constitution. When the then Chief Justice of India, Justice M.N. Venkatachaliah, in the 1994 Chief Justices conference suggested a constitutional amendment empowering the Chief Justice of India to co-opt one or more High Court Chief Justices to sit in the Supreme Court with regular Supreme Court judges on rotation basis and conversely post one or more of his brother judges to function as Chief Justice of High Court, though I did not react unfavourably, I pointed a few pitfalls in the procedure suggested, namely control over High Courts slowly passing into hands of Chief Justice of India and some of his senior brother judges. Gradual lowering of standards, talent and judicial acumen in the High Courts with consequent lowering of prestige and respect commanded by them led to corresponding strengthening of the influence and unspoken control of the Chief Justice of India and his senior brother judges over the functioning of the High Court Chief Justice and judges.
This phenomenon intensified by the judicial interference with the constitutional scheme of appointments to High Courts and Supreme Court and transfer of High Court Chief Justices and judges. The constitutional scheme was not without its’ faults; but the remedy imposed by the Supreme Court by virtue of its decisions, namely creation of collegium in the Supreme Court whose unanimous choice will be binding on the central government, has proved, by experience, to be worse than the disease. It is alleged that attempt is made to create on artificial unanimity in the collegium, by apparently following the method of adjustments. Having monopolised the power of appointment and transfer, the Supreme Court signally failed in evolving a foolproof procedure and machinery to help in choosing suitable candidates for judgeship, from the point of view of character, integrity, capacity, competency, knowledge and common sense. We are prone to the age-old system of sycophancy, here-say, gossip and wholly subjective and personal impressions formed as a result of a few casual or deliberate meetings and perusal of stray judgments on the judicial side. The deterioration of standards is clear from the spectacle of Chief Justice of India and his senior brother judges being invited to inaugurate or preside over functions organized or inspired by High Court Chief Justices and involving red carpet treatment across the board. A close friend of mine, while he was serving as a judge of Supreme Court, rang me up from New Delhi to say that he was due to inaugurate a seminar organized in the Karnataka Judicial Academy the next Saturday and pressing me to attend the function. He also informed me that he has made a similar request to Justice V.S. Malimath, former Chief Justice. He was then no (6) in the hierarchy. I attended the function. My Chief Justice, V.S. Malimath was also present. The Chief Justice of Karnataka High Court and other judges of the court were present. My friend, in his interesting speech, paid tributes to Justice V.S. Malimath and me and after the close of the function, we retired for tea and snacks. The distinguished invitees left one by one, finally leaving only my friend from the Supreme Court and me. My friend was known for writing good and innovative judgments, particularly on the criminal side. I quietly asked him “my friend, why do you think the Chief Justice invited you for this function”. He was embarrassed, nevertheless said in a humble manner, “It must be because I am known to have some expertise on the criminal side”. I replied “That you certainly have”. Thereupon I called the director of the academy and asked him how many Supreme Court judges had been invited for such functions in the academy during the year. He replied that in all six such judges had been invited, including the current guest. I asked him “will you check up their seniority among the Supreme Court judges”. He went back to his office, returned after a couple of minutes and said “sir, they are nos (1) to (6) among the judges, in terms of seniority”. I told my friend that this kind of thing is happening around the country. I assured him that the invitation to him would have been extended to him on merits in view of his undoubted and considerable expertise in the field of criminal law, but the general trend seen here and else where is very unhealthy. I told him that several High Court Chief Justices are at the mercy of senior judges of Supreme Court, many of whom, of course, possess sterling character and integrity, but the trend seen in recent events is not healthy or desirable. The assumption of vast power by the Supreme Court collegium has resulted, in practical terms, denigration and down-grading of the office of High Court Chief Justices. Similar consequence has resulted in regard to High Court collegiums.
Everybody in the country, including the tallest among the Indian judiciary, proclaim often that the district judiciary forms the back bone of the judiciary as it functions at the grass root level, dealing directly with crores of cases naturally involving crores of citizens of India. Till the implementation of the directions issued by the Supreme Court on the basis of Justice Jagannatha Shetty Commission recommendations, the pay structure and service conditions of members of the district judiciary were abysmally poor. The position is now much better from this perspective, as I saw in the course of implementing the Supreme Court directions when I was Chief Justice of Madhya Pradesh High Court. There are still, of course, areas requiring improvement; I have no doubt they will be taken care of in course of time.
High Courts have the constitutional task of “superintendence” over members of the district judiciary. Such “Superintendence” involves “responsibility”, “obligations” and “duties” – not “rights” as such. Judiciary presently almost resembles a feudal setup and relationship. The Chief Justice at the apex is like the feudal lord, assisted by a few dozens of feudal nobles, lording it over serfs who constitute members of district judiciary. This is what I have personally seen in some states and heard of in some other states. Why are district judges and those working under them in mortal fear of the High Court judges, including the Chief Justice? The reasons are the writing of ACRs, power of patronage and power of transfer, particularly in larger states involving large distances. Imagine a situation where senior most district judge, who has about 25 years to 30 years of experience if he entered judicial service at the bottom rung or 10 to 15 years service if he entered service as a direct recruit district judge, being recommended for elevation as a High Court judge along with two members of bar at least ten years younger to the senior most district judge and of untested merit and integrity and total inexperience in the task of “superintendance”. In some High Courts the two members of the bar are as a matter of principle put at the top of the list of three candidates and the senior most district judge at the bottom of the list. The words addressed to me by Justice K. Bhaskaran of High Court of Kerala (who later became Chief Justice) are even now ringing in my years – “Mr. Bhat, your rich experience of ten years as a district judge and the reputation you have earned for competency and integrity as a district judge are going to matter more in the High Court than qualities of many of the judges drafted directly from the bar”. Similar sentiments were shared by many of his brother judges. Then why this humiliating treatment of the senior most district judge by making him junior to comparatively younger and inexperienced members of the bar? It is nothing else but rank prejudice and an unconscious bias against district judges and perhaps an unconscious desire to ensure that no High Court judge who has come from the district judiciary can ever become the senior most judge in the High Court. Let me mention what I did in Madhya Pradesh within a few months of my taking over. I had more than twelve vacancies in the High Court. I decided to recommend twelve persons from the two sources. Considering the then existing ratio between the two sources, there was a short fall in the strength of High Court judges appointed from the district judiciary. I selected seven among the district judges (I overlooked about eight district judges for valid reasons) and five members of the bar, (one of them being Justice Deepak Varma, who is now in the Supreme Court). I placed the seven district judges who were naturally older than the five advocates at the top of the list of candidates and placed the five advocates below them, taking particular care to arrange the names of the advocates in the descending order of their ages. Of course these district judges as also the oldest among the five advocates would never have become number (1) among the judges at any time. Rest is history as I have narrated in an earlier chapter.
In Kerala, successive Chief Justices have been compartmentalizing what are called “bar” vacancies and “service vacancies”. This led and continues to lead to unfortunate consequences. For example, we may have a brilliant district judge as number (1) in seniority, but no “service vacancy” arises in the High Court till his retirement, though bar vacancies” arise during the period and such vacancies are filled up from the bar. The result is, the state and the High Court would have lost services of a judge who would have served the High Court well. A “service vacancy” may arise and two or three senior most district judges might be judges of average talent and competency and one of such judges would be elevated as a High Court judge, thereby affecting the quality and effectiveness of the court. In our experience, often poor human material is inducted into the High Courts from both the sources. It is axiomatic that not all “service judges” are of indifferent quality and not all “bar judges” are of good quality: I once suggested to Chief Justice Malimath that a very good and effective district judge should be elevated even if the vacancy available is what is regarded as a “bar vacancy” and the temporary shortfall in judges from the bar could be made up when the next “service vacancy” arises. His reply was that none had hitherto made such a suggestion. My answer was that some Chief Justices do not think deeply and holistically about what is really good for the judiciary. Speaking of High Court of Kerala, during various periods, we had “service judges” who commanded respect and admiration of the bar and colleagues. At a time when the strength of High Court ranged between fifteen to twenty-one, we had good “service judges”, namely Justices Janaki Amma, S.K. Khader, U.L. Bhat, M.M. Pareed Pillai, K.T. Thomas, K. Sreedharan and S. Padmanabhan. In the next generation of judges also we had distinguished “service Judges” just as we always had “bar judges” of indifferent quality; though one could see decline in quality as decades passed, and in particular, after the advent of outside Chief Justices.
Judiciary has similarity with a feudal setup. Everything and anything depends on status, that is, seniority – this is particularly so in “superior” courts. In the district judiciary, everything depends on seniority and the position or post one occupies. District judges are unhappy because they are treated with disdain by some High Court judges, but some of them similarly treat judicial officers working under them or officers junior to them. Some Supreme Court judges believe they are above all and everything. All this may not be true of all judges at all levels; but this true of several of them.
I have already referred to the circular issued by Gauhati High Court and the practice in Madhya Pradesh which required district judge and other judicial officers to wait at the border of the district to welcome High Court judges visiting the district. Both in the north east and Madhya Pradesh, I was shocked to see members of the district judiciary waiting by the side of national highway or public road to welcome visiting judges with garlands. The Gauhati High Court withdrew the circular at my instance. I stopped this practice in Madhya Pradesh, but I am told that the practice has been revived. Such visits, strangely, cause financial burden on district judges who are also, sometimes held responsible for absence of certain facilities in government guest houses and quality of food served in guest houses. Guest houses or circuit houses generally have one or two V.I.P. rooms, all under the control of the Dy. commissioner (district collector) who invariably provides such rooms to visiting ministers and the like, thereby denying such rooms to the visiting judicial personalities. This results in the district judge concerned being blamed for the alleged lapse. There are some High Court judges who deliberately maintain distance from and assume a grand air of aloofness from officers of the district judiciary. Of course, in any hierarchical system, those lower in the hierarchy are expected to show respect to those who are placed higher in the hierarchy; but should not the latter show cordiality, sympathy and courtesy to the former? Sometimes such treatment and consideration seem to be lacking.
How effective is the “superintendence” exercised by the High Courts with regard to functioning of members of district judiciary? Often, the superintendence begins and ends with looking at the statistics relating to number of cases filed and disposed off; disposal norms and targets are frequently revised upwards. After taking charge in Madhya Pradesh, I found that no norms of disposal had been prescribed by the High Court. In the first full court meeting, at my instance, norms were fixed for every class of courts. The registrar (who was later elevated and served the High Court with distinction) entered a caveat saying that the norms proposed were excessive. I said it was for judicial officers to show commitment and determination and make an honest attempt to achieve the norms, which were by no means extra-ordinary, but before the end of my tenure, we can review the norms and the implementation thereof. As I promised, in the last full court meeting presided over by me, the judges had a detailed discussion on the subject and revised the norms downwards to some extent. The contested disposal of cases did show a remarkable improvement during the period after the prescription of norms. Of course, this result was achieved due to a combination of factors, the most important of which being the marked perception among members of the district judiciary that the High Court was their real friend, philosopher and guide working also to achieve around improvement in their own lives. Sympathy, understanding, kindness and courtesy always draw a good response while condescension, arrogant attitude, unimaginative strictness and unrewarding toughness draw exactly the opposite kind of response. I have also no doubt that sloth, inefficiency, dishonesty and lack of integrity have to be faced squarely and firmly.
Transfer is one of the most important and significant source of trauma for judicial officers. Proximity to native place, availability of educational and health facilities are their prime concern. A judicial officer will reconcile himself to an uncomfortable transfer if similarly situated officers are dealt with similarly. Demoralisation sets in when he perceives that some receive good postings (attributed to proximity to senior or administrative judges, religion and caste considerations and certain officers being natives of an area from which such High Court judges hail). I think my own experience in various states I worked can be regarded as rewarding in this behalf.
The system of administrative judges in administrative charge of districts has been in vogue in High Court of Kerala and a few other High Courts. I introduced this system in the north-east and Madhya Pradesh. All periodical statements of pendency at the beginning of a period, filing, disposal and contested disposal during the period and pendency at the end of the period, are placed before such judges, who may also call for other kinds of statistics. Courts in Kerala are also required to forward to the High Court, quarterly statements of three (or five) year old pending cases, indicating also the reason for pendency. They also forward to the High Court statements relating to cases held up on account of stay orders passed by higher courts, identifying the higher court (say whether district court or High Court) and the number of the case in the higher court in which stay order had been passed. These statistics enable the judge in charge of the district, assisted by the registry, to keep track of progress in old cases and take appropriate action for disposal of the matters pending in higher courts in which stay orders had been passed.
There is a wholesome practice in Kerala according to which, all sessions judges, additional sessions judges and assistant sessions judges (of the rank of civil judge, senior division) are required to forward to the registrar, copies of judgments pronounced by them in sessions cases. The copies are required to the accompanied by calendar statement furnishing various dates such as date of offence, date of charge sheet, date of committal, dates of commencement and closure of trial and date of pronouncement of judgment. If there be any delay in the judicial process at any stage, the calendar must also indicate the reasons for such delay. The calendar is an excellent document which indicates, at a glance, how the case had been dealt with by the committal magistrate and the sessions judge. The High Court judge in charge of a district is required to carefully peruse all such judgments and calendar statements and make appropriate comments, pointing out serious errors in appreciation of evidence or dealing with questions of law or fact. Some of us used to pass remarks of appreciation for well-considered and well-written judgments. Of course, several High Court judges appointed directly from the bar found it difficult to do attend to this job and evaluating sessions judgments; however, they used to take the assistance of “service judges” in the discharge of this duty. This system was of immense help to the High Court in the task of performing the function of “superintendence” over the district judiciary. Some of us issued special directions requiring a few civil court judgements also to be forwarded to the registry to be placed before us for perusal, evaluation and comments. All such comments in civil or sessions cases will be transmitted to the judicial officers concerned. In some cases, the district judges would be required to call the officer concerned and give him appropriate advice or caution, as the case may be, on the basis of remarks recorded by the High Court judges concerned. In extreme cases, copy of the comments may be directed to be retained in the confidential file of the officer concerned. I am told that presently, High Court judges concerned in Kerala do not peruse such judgments on the ground of lack of time and the job is done by judicial officer of the rank of a senior district judge whose comments are placed before the High Court judge. Lack of time is no excuse for a High Court judge not performing an essential aspect of “superintendence”.
At the conclusion of these stray thoughts, let me assert my strong belief that much better “superintendence” could be exercised, if all the High Court judges in all High Courts are prepared to work very much harder in relation to administrative work. I have always been conscious that in Kerala, North East, Madhya Pradesh and Karnataka there have been a good number of judges who took considerable pains and devote considerable amount of time and work to administrative work. Perhaps, the National Judicial Academy at Bhopal can arrange a workshop for High Court judges on this aspect of their work.
In a few states, there are “inspecting district judges” drawn from top level district judges. I introduced this system in Madhya Pradesh with some degree of success, though, after my retirement, I heard that one of the inspecting district judge was misbehaving with judicial officers and trying to influence officers in judicial matters. Unfortunately none, including the administrative judge or the registry or the bar, brought this to my notice. Any human institution is prone to misuse. Paying no attention to this aspect was a serious lapse on the part of the administrative judge concerned. Otherwise, the new system worked well. The task of inspecting district judge is to regularly and at short intervals, inspect every court in the area under his jurisdiction and check the functioning of the court and the judge (except the principal district judge) and report to High Court. Registry is expected to study the reports and put up proposals before the administrative judge, who will take necessary steps, if he deems necessary, after consulting the Chief Justice. It is for High Courts to consider if this system, with appropriate changes, if need be, in their jurisdictions.
Read how Justice U.L.Bhat became the first martyr of Collegium system here
Justice U.L.Bhat is the former Chief Justice of High Court of Madhya Pradesh and Gauhati High Court.The above Article is taken from his Autobiography “Story of a Chief Justice” published by Universal, with special permission from Justice Bhat.