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The troubling ‘courtroom policy-making’ by the Supreme Court

🔴 Prashant Reddy T, Chitrakshi Jain write: There are serious issues of constitutional propriety with how the apex court is gradually taking over the administration of the district judiciary

Written by Prashant Reddy T , Chitrakshi Jain |
Updated: December 23, 2021 8:48:21 am
The Supreme Court of India

On December 1, a bench of the Supreme Court gave wings to the Chief Justice of India’s (CJI) vision for the creation of a National Judicial Infrastructure Corporation (NJIC) to administer judicial infrastructure across the country. Since early this year, the CJI has made multiple speeches on the need for an NJIC to improve the quality of judicial infrastructure in the country. His office also sent a proposal on these lines to the Law Ministry, as disclosed by the Union Law Minister on December 3 during question hour in Parliament.

Rather than wait for the Minister to respond through the administrative route, the CJI’s colleagues on the bench have taken up the issue on the judicial side and have given the Law Ministry three weeks to reply to its proposal for a “national umbrella organisation” to deal with the issue of judicial infrastructure. One cannot help but get the impression that the court is trying to secure through the judicial route what it is unlikely to get through administrative negotiations.

Separate from the idea of whether an NJIC is a correct solution, there are serious issues of constitutional propriety with how the Supreme Court is gradually taking over the administration of the district judiciary. While the Supreme Court is the apex judicial institution, the Constitution clearly vests the administration of district judiciary (appointments, budgeting, daily running) with the High Courts and state governments. Over the last three decades, the Supreme Court, in utter defiance of this scheme, has gradually anointed itself the de facto administrative head of all courts in India.

This incremental usurpation of administrative power began with the All India Judges Association (first case) where the AIJA, representing the judges appointed to the district judiciary, approached the Supreme Court through the PIL route to secure better service conditions for their members. Since that first judgment in 1991, there have been at least three other major judgments in cases involving the AIJA, in 1993, 2002 and 2020 where the Supreme Court has been in a tussle with the Union and state governments over the issue of pay for the district judiciary. The latest iteration of this litigation which began in 2015 continues to date.

In another litigation, Malik Mazhar Sultan v. U P Public Service Commission, the Supreme Court has been monitoring the recruitment cycles of judges for the district judiciary who are selected through open examinations in various states and has prescribed timelines within which states are expected to complete recruitments. In its original avatar when this case was filed in 2006, the Supreme Court was required to decide a legal question regarding the UP Judicial Service Rules, 2001. Somewhere along the way, this regular appeal got transformed into a vehicle for the Supreme Court to control the way appointments are made to the district judiciary — the case continues to date and has expanded to include infrastructure.

A third series of litigation, Imtiyaz Ahmad v. State of UP, which was an appeal filed originally in 2009 against a prolonged stay of criminal proceeding granted by the Allahabad High Court, was transformed by the Supreme Court into a vehicle for an assortment of judicial reforms. The first iteration of this litigation involved only directions to the Law Commission to study specific issues but somewhere along the way, the Supreme Court passed directions on the use of a specific formula by all High Courts to calculate the required number of judges for the district judiciary. The new method of calculation contradicted a formula proposed by the Supreme Court in 2002 in one of the AIJA cases. On December 1, this same case became the launchpad for the Supreme Court’s demand for the creation of a “national umbrella organisation” to look after the judiciary’s need for infrastructure.

In several of the examples given above, the Supreme Court ends up summoning government officials and registrars of High Courts to stand before them and provide explanations, while also claiming that the proceedings are non-adversarial. The other common feature in these cases is the amici curiae appointed by the court to advise it on the nature of judicial reforms to be implemented. The amici in these cases are generally selected from amongst the senior lawyers of the Supreme Court. Not only do most amici have little experience of practising before the district judiciary, but they also usually lack the skill and time required for policy research. Most importantly, court-appointed amici rarely point fingers at the judiciary for their shortcomings. There is nary a squeak about the opacity with which High Courts are administered or the complete lack of accountability mechanisms within the judiciary.

This courtroom policy-making by the Supreme Court, apart from being fragmented across various benches and amici, with little hope for consistency, is also undemocratic since it lacks avenues for public participation. It also treats principles like federalism (which the court has held to be part of the “basic structure”) very casually, often proposing “one size fits all” solutions for the entire district judiciary across India, with little attention being paid to the differences between states.

In certain cases, judicial reform could be better served by the Supreme Court’s withdrawal. It must begin by creating a culture of transparency within the judiciary.

This column first appeared in the print edition on December 23, 2021 under the title ‘Minding the courtroom’. Reddy is a lawyer and Jain is a legal researcher

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