Judges appointing judges a myth, others also involved in selection process: CJI N V Ramana

Stating that filling vacancies is one of the persistent challenges that face the judiciary, the CJI appreciated the government’s efforts in appointing several judges in recent times. However, urging the Centre to strictly adhere to the timelines laid down in the Malik Mazhar Case, Ramana said, “Some recommendations made by the high courts are yet to be sent to the Supreme Court by the Union Law Ministry.”

The CJI also defended the judiciary against criticism of judicial overreach through the power of review. He said that “such generalisations are misguided” and that “if the judiciary does not have the power of judicial review, 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”.

Ramana, who has been critical about the lack of impact assessment or basic scrutiny of constitutionality before legislations are passed, said, “The least that is expected of the legislature while drafting laws is that they abide by settled Constitutional principles. While making laws, they must also think of providing effective remedies for issues which may arise out of the law. But these principles are being seemingly ignored.”

Highlighting the importance of debate in law making, he said that it appears that the Parliament has not been able to make optimum use of the standing committee system.

“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 the standing committees. However, it appears that the legislature has not been able to make optimum use of this,” the CJI said.

The CJI also pulled up the executive, saying that “there appears to be a growing tendency to disregard, and even disrespect court orders”. He added that “ensuring justice is not the responsibility of the judiciary alone” and that “unless the other two coordinate organs make sincere efforts to fill up vacancies, appoint prosecutors, strengthen infrastructure, and make laws with a clear foresight and stakeholders’ analysis, the judiciary cannot be held solely responsible”.

Speaking on the lack of independence of public prosecutors, the CJI stressed that there is “a need to liberate the institution of public prosecutors” and “total independence must be granted to them by making them answerable only to the courts”.

“Historically, prosecutors in India have been under the control of the government. 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 added.

Suggesting corrective measures, Ramana said: “An independent selection committee may be constituted for their appointment. Best practices should be adopted after a comparative analysis of other jurisdictions.”

The CJI also went on to speak about fixing accountability for “faulty and inordinately delayed investigations”.

“Another facet of the criminal justice system that needs to be changed relates to investigators. 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 added.