CJI: No foresight in drafting law clogs courts, Bihar prohibition is example

In his speech, the CJI also defended the judiciary in the wake of charges that the Collegium system of appointment of judges amounted to judges appointing themselves, terming it as “one of the widely propagated myths”.

Speaking on the absence of well-considered legislation, the CJI said that “there is usually no impact assessment or basic scrutiny of Constitutionality before passing of legislations”.

“A lack of foresight in legislating can directly result in the clogging of courts. For example, the introduction of the Bihar Prohibition Act 2016 resulted in the High Court being clogged with bail applications. Because of this, a simple bail application takes one year to be disposed of,” he said.

Highlighting the importance of debates in law-making, the CJI said: “Unrefined law leads to a mushrooming of litigation. A proposed law can only be refined through the involvement of all stakeholders and through meaningful debate. Parliament introduced a remarkable mechanism in the 1990s to enhance scrutiny of bills — that of standing committees. However, it appears that the legislature has not been able to make optimum use of the Committee system.”

Speaking about the selection of judges, CJI Ramana said it has become “fashionable to reiterate phrases such as, ‘judges are themselves appointing judges’”.

“I consider this to be one of the widely propagated myths. The fact is the judiciary is merely one of the many players involved in the process. Many authorities are involved, including the Union Law Ministry, state governments, Governor, High Court Collegia, Intelligence Bureau, and lastly, the topmost executive, who all are designated to examine the suitability of a candidate. I am sad to note that the well-informed also propagate the aforesaid notion. After all, this narrative suits certain sections,” he said.

Pointing out that filling vacancies is one of the challenges facing the judiciary, the CJI appreciated the Government’s efforts in appointing several judges in the recent past. “However, some recommendations made by High Courts are yet to be transmitted to the Supreme Court by the Union Law Ministry,” he said, adding that “it is expected that the Government needs to strictly adhere to the timelines laid down…”.

The CJI also responded to criticism of judicial overreach through the power of review, saying that “such generalisations are misguided”. He said that “if the judiciary does not have the power of judicial review, then the functioning of democracy in this country would be unthinkable”.

Stating that “a popular majority is not a defence for arbitrary actions taken by a Government”, the CJI said “the concept of separation of powers cannot be utilised to restrict the scope of judicial review”.

The concept, he said, “only protects bona fide legitimate actions” and added that “it is required that the legislative and executive wings recognise their limits under the Constitution to ensure the smooth working of the democracy”.

The CJI pulled up the executive for what he said was “a growing tendency to disregard, and even disrespect Court orders” and said that “ensuring justice is not the responsibility of the judiciary alone”. He said that “unless the other two coordinate organs make sincere efforts to fill the judicial vacancies, appoint prosecutors, strengthen infrastructure, and make laws with a clear foresight and stakeholders analysis, judiciary cannot be held responsible alone”.

Referring to pressures faced by public prosecutors, the CJI stressed that there is “a need to liberate the institution of public prosecutors” and that “total independence must be granted to them and to make them answerable only to the courts”.

The CJI said that “historically, prosecutors in India have been under the control of the Government” and “hence it is not a surprise that they do not act independently”.

“They do nothing to prevent frivolous and non-deserving cases from reaching the courts. Public prosecutors automatically oppose bail applications, without independently applying their mind. They attempt to suppress evidence during trial, which could benefit the accused,” he said, adding that “a holistic rework needs to be undertaken”.

“In order to insulate the public prosecutors, an independent selection committee may be constituted for their appointment. Best practices should be adopted after a comparative analysis of other jurisdictions,” the CJI said.

The CJI also highlighted the need to fix accountability for “faulty and inordinately delayed investigations”.

“There is absolutely no system of accountability in place for faulty and inordinately delayed investigations. A person wrongfully incarcerated due to false implication loses his right to liberty, property, etc. He suffers enormously. There is no real remedy left for him and no compensation whatsoever even after an acquittal,” he said.

The CJI flagged what he said is the “increasing attacks on judges”.

“In recent times, physical attacks on judicial officers are on the rise. At times, there are also concerted campaigns in print and social media against judges if parties do not get a favourable order. These attacks appear to be sponsored and synchronised,” he said.

CJI Ramana also termed as “alarming” the number of vacancies in various tribunals, and pointed out that the “rising number of media trials” is another aspect that affects the independence of judiciary.