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It is time to end judicial feudalism in India

Upendra Baxi writes: No judge is ‘subordinate’ to any other. As constitutional beings, judges are limited in jurisdiction but also supreme within their own jurisdiction.

Written by Upendra Baxi |
Updated: August 24, 2021 7:53:03 am
Any recommendation for constitutional change proposed by the conference should carry great weight and be assured of smooth passage in Parliament.

“What’s in a name?”, asked Romeo in Romeo and Juliet and answered the question memorably by stating: “That which we call a rose /By any other name would smell as sweet.” But legal rules make new social meanings by imperative definitions; the legislative fiat consists of words that bind or persuade; judicial interpretation either follows, constructs or expands the future meanings of legislative or judicial utterances.

But what may be true of romance and literature is often democidal in politics and law. I have always pointed out at public fora and in my writings that the expression “subordinate courts” used by Part VI, Chapter 6, of the Constitution of India cannot signify that judges are indeed so. This inelegant enunciation menaces the independence of the judiciary, entrenched with and since Kesavananda Bharati (1973) as the essential feature of the basic structure of the Indian Constitution. Now is the time for Parliament to remove the substantial nomenclature of “subordinate judiciary”, and the courts to eliminate the last vestiges of judicial feudalism — the moral fault line of judicial hierarchy.

When I rhetorically posed a question to then Chief Justice of India Y V Chandrachud at a public meeting, he was visibly annoyed and retorted: “What is the difference between the CJI and the sarpanch of a nyaya panchayat?” I meant no disrespect to him or the judiciary. To his credit, he contained his annoyance but the fact is that no judge is “subordinate” to any other. As constitutional beings, judges are limited in jurisdiction but also supreme within their own jurisdiction. However, Article 235 speaks of “control over subordinate courts”. This Article adds insult to injury by describing these entities and agents as persons “holding a post inferior to the post of a district judge”.

The Constitution no doubt contemplates a hierarchy of jurisdictions, but no judge, acting within her jurisdiction, is “inferior” or “subordinate”. On appeal, or review, a court with ample jurisdiction may overturn and even pass judicial strictures but this does not make the concerned courts “lower” or “inferior” courts. True, high courts always have considerable powers of superintendence on the administrative side but this “supervisory“ power has been recognised by the apex court as a “constitutional power” and subject to the right of appeal as granted by Article 235.

This means that the powers are not absolute. As Justice S H Kapadia observed in a dissenting opinion in 2006: “Standards of evaluation in matters of promotion and posting have to be uniformly applied” lest “arbitrariness comes in”. Rightly insisting on the integrity of “the evaluation process”, he said that varying “standards” or “no standards” breach “the integrity of the process” and bring in “discrimination and arbitrariness” violating “Article 14 and “therefore judicial review”.

Despite these sage observations, arbitrary practices in writing confidential reports of district justices seem to continue. Though not very common, the practice of downgrading a senior district judge constantly commended in Annual Confidential Reports (ACR) as “very good” suddenly to a “good” or lower grade continue to occur. However, while the Constitution allows “supervision”, it does not sanction judicial despotism. It erects a safeguard by the provision of the constitutional right to appeal to the Supreme Court. But should such a guarantee be necessary in the first place to maintain the integrity of the process of judicial elevations?

The August 11 order of the Himachal Pradesh High Court comes as a breath of fresh air. It resolves that “hereinafter, all the courts in the state other than the high court shall be referred to as district judiciary”. Furthermore, “these courts shall not be referred to as subordinate court” but as trial courts. This judicial action is replete with good intentions and, hopefully, there would be no opposition from the Supreme Court or intervention by the State. The colonial idea of “subordination” stands replaced by the constitutional idea of independence of the judiciary. This decision replacing the term “subordinate judiciary” is completely justified, as, in fact, Article 235 speaks of the “district judge”. However, it also says, “the courts subordinate thereto”. Now the Himachal Pradesh HC has decreed that there are no such entities — all courts in the state other than the High Court are to be named “district judiciary”.

The new designation is, of course, necessary, but it is not sufficient. What then is to be done? My view endorses a complete recasting of Article 235, which does away with the omnibus expression of “control” powers in the high courts. They may exercise “supervision” under detailed performance norms. But there is no reason why for most matters (save elevation), senior-most district judges and judges of the high courts may not constitute a collegiate system to facilitate judicial administration, infrastructure, access, monitoring of disposal rates, minimisation of undue delays in administration of justice, alongside matters concerning transfers, and leave. The amendment should specifically require the high courts to satisfy the criteria flowing from the principles of natural and constitutional justice and all judicial officers who fulfil due qualification thresholds should be treated with constitutional dignity and respect. If an ACR is to be adversely changed in the face of a consistent award for a decade or more, it should be a collegiate act of the five senior-most justices, including the Chief Justice of the High Court.

Further, CJI Ramana has recently agreed in principle, following the request of the Supreme Court Bar Association, that chief justices of the high courts should consider lawyers practising in the Supreme Court for elevation to the high courts and, to this end, proposed a set of names. How all this is to be constitutionally codified is a matter calling for the combined wisdom of the Chief Justices Conference. Any recommendation for constitutional change proposed by the conference should carry great weight and be assured of smooth passage in Parliament. Citizens remain entitled, even in a situation of parliamentary turbulence, to a smooth passage as the recent example of passing of the 126th Amendment (on reservations) notably suggests.

This column first appeared in the print edition on August 23, 2021 under the title ‘Undoing judicial feudalism’. The writer is professor of law, University of Warwick, and former vice-chancellor of the Universities of South Gujarat and Delhi

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