14 Dec 2021 3:00 AM GMT
While considering the Supreme Court and High Courts (Salary and Conditions of Service) Amendment Bill, 2021, members of the Rajya Sabha raised the issues of lack of social diversity in the judges of higher judiciary, post-retirement appointments, lack of transparency in the appointment of judges and the need to re-introduce National Judicial Appointments Commission. The members...
While considering the Supreme Court and High Courts (Salary and Conditions of Service) Amendment Bill, 2021, members of the Rajya Sabha raised the issues of lack of social diversity in the judges of higher judiciary, post-retirement appointments, lack of transparency in the appointment of judges and the need to re-introduce National Judicial Appointments Commission. The members also flagged concerns over the judicial pendency, judicial delays and vacancies across district and high courts in the country.
There is lack of Social Diversity in the Judiciary: Members
DMK MP P Wilson raised the issue of utter lack of social diversity in the higher judiciary. He said that the country had been witnessing a decline in representation from all members of society in judiciary. He brought the attention of the House to a 2011 report by National Commission on Scheduled Castes which had noted that out of 850 High Court judges only 24 belonged to SC/ST communities; 14 Hight Courts did not have members belonging to these communities and 5 High Courts had no women judges at all.
"Where is equality in this nation?" he asked.
Elaborating on the need to have diversity, he added:
"Judicial diversity is fundamental to the quality of judging. People are afraid that a very narrow homogenous group of judges belonging to certain social classes are not necessarily going to reflect the views of society as whole. Particularly on issues involving diverse culture and generational matters because they would require more perspective as judges would interpret law based on their own background."
He added that lack of diversity would widen the trust deficit and there would be a likelihood of "affinity bias."
Adding that there was an urgent need to address the "diversity deficit in our courts", he urged the government that appointments should consider representation from all sections of society. Since the current system of judicial appointments has resulted in "significant over-representation of certain sections" there is a need to reconsider "the objectivity of current system and inability to recruit from different social groups," he added. He appealed the government to bring in constitutional measures to ensure diversity in the appointment of judges.
While other members too raised the issue of abysmal representation of certain sections of society, MP John Brittas from CPI (M) putting it very bluntly said, "out of 47 Chief Justices of India till date, atleast 14 have been Brahmins. There is no diversity in judiciary!"
In addition to the lack of representation of members belonging to SC,ST and OBC communities, MP Prabhakar Reddy Vemireddy from YSRCP raised the issue of lack of gender diversity in the court. He said that while it is laudable that Justice B.V.Nagaratha is on track to become the nation's first female Chief Justice in 2027, "it is tragic that India had to wait 80 years for this simple feat."
He brought to the House's attention the statistics that the Supreme Court currently has only 4 women judges, whereas High Courts have about 81 and 5 High Courts have no women judges at all.
"We have done very little to provide women representation in the courts. Women's reservation in judiciary needs to be implemented at the earliest." He added.
MP Vandana Chavan from the NCP also spoke on the issue of lack of gender diversity and added that "it is ironical that behind every judge stands a Lady of Justice. Unfortunately, she stands behind the seat and doesn't sit in the seat." She urged her fellow parliamentarian to pass a law to ensure that 50% of the seats in all levels of the judiciary are reserved for women. Speaking on the issue of women and judiciary Chavan also raised the issue of women's safety. Averring to the allegations of sexual harassment made against former Chief Justice of India and the manner in which the complaint were disposed off, she added:
"One judge was accused of sexual harassment…We have passed the POSH law which mandates an Internal Complaints Committee. Why was he made an exception? If there has to be an exception make it part of law. You cannot have arbitrary things."
Members of the Rajya Sabha also spoke on the issue of post-retirement appointments of judges of the higher judiciary and the impact it has on the independence of the institution. MP John Brittas suggested that there is urgent need to reconsider the system of post-judicial appointments. He point out that while B.R.Ambedkar did not agree with the proposition to prohibit judges from taking up post-retirement posts, in hindsight, considering how it has been misused by the Executive, he would have held a different opinion. Further he added the Late Minister Mr. Arun Jaitley has also flagged the issue of post retirement appointments saying that "pre-retirement judicial conduct is influenced by post-retirement judges." He brought the Treasury Benche's attention toward Union Minister Nitin Gadkari's statement that there should be cooling off period of 2 years before post-retirement appointment.
Speaking on the same issue, MP Prof. Manoj Kumar Jha from RJD also cited the statements made by Late Mr. Jaitly in the Parliament on the issue of post-retirement jobs and the possibility of executive influence. Further, the MP added:
"We have examples of that here. I don't want to take names. As long as we have such examples there will be a shadow of doubt over judgements."
MP Sanjay Singh from the Aam Aadmi Party also pointed out that to preserve the if a judge is appointed to a high post immediately after retirement then he cannot impart justice in a non-partisan manner there will always be a shadow of doubt over the judgements delivered. In this light, he suggested a cool-off period of five years to be introduced along with an increase in retirement age of judges to address this issue.
MP K J Alphons from BJP also held a similar opinion on this issue. Saying that "post-retirement jobs are too much of a temptation", the MP added that judges should be paid many times more than what they are paid currently as they would "never feel the temptation to take a bribe."
The view found concurrence with MP P Wilson who said that "it is high time we comprehensively revise the salaries of judges. A good salary is vital to attract talent from Bar to take up judgeship. Currently, the monthly salary of a SC judge is less than a single day's fee of a leading advocate!"
The suggestion to increase the salary of judges in order to curb the urge to take up post-retirement appointments was clubbed with the suggestion to increase the age of retirement of judges.
,In MP P Wilson's opinion, an increase in age of retirement of judges would deal with multiple issues at the same time- deal with pendency of cases and reduce the need to take of post-retirement jobs.
On this issue, MP Vandana Chavan posed an interesting question to the House: "If judges are appointed to Tribunals then it implies that their intellect is in place. So why not extend their retirement age?"
Another issue which members expressed strong opinion was the system of appointment of judges. The Collegium System, as most members saw it, was transparent and inadequate and required review.
B.R.Ambedkar must be turning in his grave seeing how judicial appointments are made and how judicial independence is being trampled with: MP John Brittas
Speaking on this issue, MP John Brittas added that the system of judges appointing judges was found only in India. "People should know the competency, integrity, ability of the judges. Is there any other system of appointment of judges completely shrouded in mystery and secrecy? Only in India," he said.
Further he flagged the issue of dynastic appointments by was perpetuated by the present system. He added:
"We are creating an oligarchy. We have 'judges families'…I have seen the profile of a High Court judge whose grandfathers, father, uncles all were judges of higher judiciary… There are brilliant judges from 'judges families' but that should be the exception and not the rule in a democracy."
He pointed out that while there is dynastic rule in politics too, "atleast they have passed the test of the people and won their confidence. This is clear case of dynasty. Why are we keeping mum over this?"
Prof. Jha added that the Collegium system was "an auto-loving ecosystem" which needs to change.
MP K J Alphons also pointed out the issue of judges who came with a judicial legacy. He added that "a judge whose father was once CJI is going to become CJI soon. He is brilliant but we can't continue like this."
All members pressed that a system must be evolved that respects independence of the judiciary, attracts the best of talent, ensures adequate representation of all sections of society and puts an end to the seeming domination of certain sections or classes of society.
The debate on the Bill also saw some novel issues and recommendations being raised by some members. MP Navaneethakrishnan from AIADMK pointed out that it is the district courts that are most approachable to the common citizen of the country and in this light urged that the Parliament empower all district courts to exercise powers under Art.32 of the Constitution to issue writs.
Some members raised the issue of safety of judges and referred to incidents of firing in courts and attempts to their lives. MP Alphons added: " Recently a judge was murdered..he was going for a walk. Our judges need to be protected. Provide them with the protection they need. Let's not be stingy."
Nominated MP Swapan Dasgupta raised the issue of the role of Judiciary and the Parliament in interpretation of the Law and the issue of "Judicial over-reach."
He added:"Is the role of judiciary to interpret the law or the make the law? Many of the problems in India today are because of judge made laws. When Parliament abdicates its responsibility, that's when problem start. If there is consensus that a law should be repealed, we should come to the Parliament to change the law. It is our responsibility. Ultimately is Parliament does not step in and takes responsibility we will be passing on the buck to someone else who may or may not fulfill its duty. Distortions will happen as has been the case in judicial appointments… We have taken a bad precedent from the European Union whereby sovereign decisions are overruled by the Court. This is a disease which seems to be creeping into India. We are taking recourse to the judiciary."
Carrying on he added:"We are getting into a situation where we are getting into what sort of judges we are appointing. We have some judges who want to atone for what their fathers did..some other judge whose only contribution seems to have written a book saying how many shayaris he recited in his judgements."
Citing the example of S.377, IPC Dasgupta urged the House to take on its responsibility of framing and repealing laws instead of resorting to the judiciary.
Union Law Minister responded to the statements made during the debate. On the issue of Collegium System, Mr. Rijiju pointed out that members of the judiciary support the idea of revisiting the system of appointment of judges. He also read out a letter written by SCBA President suggesting that a legislation be brought in creating a permanent secretariat to recommend names as judges are busy with their judicial duties to deal with the issue of recommendation of names expeditiously.
Reiterating the comments, he had made in Lok Sabha while debating te Bill, Mr.Riijiju added that "before 1993 judges were appointed according to the procedure laid down in the Constitution. After '93, consultation became concurrence but consultation has remained consultation in other places."
He further added that while there is no disagreement that the present system does not have transparency and accountability", the question is how to make changes to existing Memorandum of Procedure. He stated that the Ministry had placed a draft MoP before the Supreme Court and was awaiting its directions on the issue. "The intent of the Constitution has to be carried forward. We are in consultation with the Supreme Court over the Memorandum of Procedure," he added.
Like in the debate in the Lok Sabha, the Minister raised the issue of the Mahanadi case in which the Supreme Court has directed that appointments have to be made within 3-4 weeks of reiteration of the Collegium's recommendation. The Minister said- "this is a difficult proposition for the government.. If the govt is put in a difficult place, we will be forced to refer back to the provisions of the Constitution."
Interestingly, while speaking of judicial appointment and the Collegium system, Mr. Rijiju made an interesting statement that- "when people talk about independence of judiciary, so is there independence of executive and legislature. Constitution has decided the domains of all organs of the government...We are working within our domain. When we are not stepping outside our domain we will also try that no one else steps into our domain"- a statement that was met with rare applause from all sections of the House.
While speaking before the Lok Sabha, Mr.Rijiju had made a similar statement regarding the Independence of the Executive and Legislature.
On the issue of lack of social diversity that was flagged by members, Mr.Rijiju explained that while there could not be a constitutional direction mandating reservation, the Ministry had urged the Courts "to ensure social diversity by recommending names please include as many names of SC, ST, OBC, women and other backward classes."
After prolonged debate, the Rajya Sabha today approved the High Court and Supreme Court Judges (Salaries and Conditions of Service) Amendment Bill, 2021.