INDIAN JUDICIARY – 3 INSIGHTS

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 INDIAN JUDICIARY – 3 INSIGHTS

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• The Collegium system
• Constitutional morality
• Prolixity in higher judiciary
• THREE JUDGES CASES AND COLLEGIUM SYSTEM
• What does the Collegium do? The Collegium of the  Supreme Court is vested with the responsibility of appointments, promotions and transfer of Chief Justices and other judges of the SC and High Courts (HCs) of India. It consists of five senior-most judges of the Supreme court which includes the Chief Justice of India.
• Origin of Collegium system :  It is not mentioned in the Constitution of India, but evolved later.This evolved through “The Three Judges Cases”, viz., (a) S. P. Gupta v. Union of India - 1981 (also known as the Judges' Transfer case), (b) Supreme Court Advocates-on Record Association vs Union of India – 1993, and (c) In re Special Reference 1 of 1998.
• Over the course of the three cases, the court evolved the principle of judicial independence to mean that no other branch of the state - including the legislature and the executive - would have any say in the appointment of judges.

1. Collegium system has been evolved out of the constitutional necessity mentioned in Article 124 and 217, which insists on the provision of 'consultation by the President of India' for making appointments and promotions of judges in the courts of the higher judiciary.
2. This mechanism evolved as a result of the three judgments of the Supreme court, collectively known as the ‘Three-Judges Cases’.
3. The First Judges case : It was the SP Gupta case (December 30, 1981), where the SC in its judgment said that the ‘primacy’ of the CJI’s recommendations concerning the appointment, promotion and transfer of a judge to the President can be refused by him.
4. Later, in the Second-Judges case in 1993, Supreme Court Advocates-on-Record Association vs Union of India case, the SC having overruled its previous judgment said that ‘justiciability’ and ‘primany’ required that the role of CJI should be given ‘prime’ role in such appointments. This historic judgment in the Second Judges case paved the way to usher in the mechanism of the Collegium system for the appointment, promotion, and transfer of the judges of the SC and HC.

• The Third Judges Case (1998) : The SC reaffirmed its 1993 judgment and expanded the Collegium to include the CJI and the four most-senior judges of the court after the CJI.  Though not specifically mentioned in the Constitution, the evolution of the collegium system may be traced to the provisions mentioned in Articles 124 and 217. Article 124 says that appointment of SC judges should be made by the President after consultation with such other judges of the High Courts and the Supreme Court as the President may deem fit. Article 217 deals with the appointment of High Court judges, and says a judge should be appointed by the President after consultation with the CJI and the Governor of the state. The Chief Justice of the High Court concerned too should be consulted.
• CONSTITUTIONAL MORALITY
• What is Constitutional morality? It means adherence to the core principles of the constitutional democracy. Its scope not limited only to following the constitutional provisions literally but is broad enough to include commitment to inclusive and democratic political processes in which both individual and collective interests are satisfied.
• Which values does it encompass? It encompasses ensuring various Constitutional values like rule of law, social justice, democratic ethos, individual freedom, judicial independence, egalitarianism, and sovereignty. 
• How to ensure it? The practical percolation of these values in governance and citizen entitlements requires a sensitive State apparatus –  (a) Parliament that is representative in a true sense, (b) Executive that is responsive and empathic, and (c) A judiciary that is vigilant and empowering.
• Morality in Laws : There are many laws made by Parliament that show great moral commitment like Food Security Law, CrPC amendments made in 2013 in favour of women etc. Multiple judicial verdicts too have tried it. 
• Preamble to our Constitution : It contains the most worthy goals whose realization requires greatest commitment to morality. Corruption-free, transparent and accountable governance will go a long way in making one and all in India realize their potential : the sum and substance of Constitutional morality.
• Two excerpts from Ambedkar's speeches in the Constituent Assembly:
• The first one is from his speech on November 4, 1948 while introducing the draft constitution for debate. The second one is from one of Ambedkar's reply to the Constituent Assembly debate on November 25, 1949 referenced in Constituent Assembly Debates, Volume 12, 1978.
• Excerpt 1:
• "Constitutional morality is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it. Democracy in India is only top dressing on an Indian soil, which is essentially undemocratic."
• Excerpt 2:
• "It is quite possible in a country like India---where democracy from its long disuse must be regarded as something quite new---there is danger of democracy giving place to dictatorship. It is quite possible for the newborn democracy to retain its form but give place to dictatorship in fact. If there is a landslide, the danger of the second possibility becoming actuality is much greater.
• If we wish to maintain democracy not merely in form, but also in fact, what must we do? The first thing in my judgement we must do is to hold fast to constitutional methods of achieving our social and economic objectives. It means, we must abandon the bloody methods of revolution. It means that we must abandon the method of civil disobedience, non-cooperation and satyagraha. When there was no way left for constitutional methods for achieving economic and social objectives, there was a great deal of justification for unconstitutional methods. But when constitutional methods are open, there can be no justification for these constitutional methods. These methods are nothing but the Grammar of Anarchy and the sooner they are abandoned, the better for us.
• The second thing we must do is to observe the caution which John Stuart Mills has given to all who are interested in the maintenance of democracy, namely, not 'to lay their liberties at the feet of even a great man, or to trust him with power which enable him to subvert their institutions'. There is nothing wrong in being grateful to great men who have rendered life-long services to the country. But there are limits to greatness. As has been well said by Irish poet David O'Connell, no man can be grateful at the cost of his honour, no woman can be grateful at the cost of her chastity and no nation can be grateful at the cost of its liberty.
• This caution is far more necessary in the case of India than in the case of any other country. For in India, Bhakti, or what may be called the path of devotion or hero-worship, plays a part in its politics unequalled in magnitude by the part it plays in the politics of any other country in the world. Bhakti in religion may be a road to the salvation of the soul. But in politics, Bhakti or hero-worship is a sure road to degradation and to eventual dictatorship."
• PROLIXITY IN HIGHER JUDICIARY
• In the judgment delivered on 19 March 2015, with Justice PC Pant, in the case of Priyanka Srivastava and Anr vs State of UP and Ors, Justice Dipak Misra had written a very long sentence of 193 words :

1. The present appeal projects and frescoes a scenario which is not only disturbing but also has the potentiality to create a stir compelling one to ponder in a perturbed state how some unscrupulous, unprincipled and deviant litigants can ingeniously and innovatively design in a nonchalant manner to knock at the doors of the Court, as if, it is a laboratory where multifarious experiments can take place and such skillful persons can adroitly abuse the process of the Court at their own will and desire by painting a canvas of agony by assiduous assertions made in the application though the real intention is to harass the statutory authorities, without any remote remorse, with the inventive design primarily to create a mental pressure on the said officials as individuals, for they would not like to be dragged to a court of law to face in criminal cases, and further pressurize in such a fashion so that financial institution which they represent would ultimately be constrained to accept the request for “one- time settlement” with the fond hope that the obstinate defaulters who had borrowed money from it would withdraw the cases instituted against them.

• In the judgement delivered in 2016 in the case of Subramanian Swamy vs Union of India, Law Ministry and Ors, a 228 word sentence is found!

1. The assertion by the Union of India and the complainants is that the reasonable restrictions are based on the paradigms and parameters of the Constitution that are structured and pedestaled on the doctrine of non-absoluteness of any fundamental right, cultural and social ethos, need and feel of the time, for every right engulfs and incorporates duty to respect other’s right and ensure mutual compatibility and conviviality of the individuals based on collective harmony and conceptual grace of eventual social order; and the asseveration on the part of the petitioners is that freedom of thought and expression cannot be scuttled or abridged on the threat of criminal prosecution and made paraplegic on the mercurial stance of individual reputation and of societal harmony, for the said aspects are to be treated as things of the past, a symbol of colonial era where the ruler ruled over the subjects and vanquished concepts of resistance; and, in any case, the individual grievances pertaining to reputation can be agitated in civil courts and thus, there is a remedy and viewed from a prismatic perspective, there is no justification to keep the provision of defamation in criminal law alive as it creates a concavity and unreasonable restriction in individual freedom and further progressively mars voice of criticism and dissent which are necessitous for the growth of genuine advancement and a matured democracy.

• Justice Ruma Pal, and the Seven Sins of higher Judiciary in India
• Delivering the fifth V M Tarkunde Memorial Lecture on November 10, 2015 in Delhi, Justice Ruma Pal slammed the higher judiciary for what she called the seven sins. Justice Tarkunde (1909-2004) was never elevated to the Supreme Court, but is remembered as the father of the civil liberties movement in India.

1. Turning a blind eye to the injudicious conduct of a colleague
2. Hypocrisy – the complete distortion of the norm of judicial independence
3. Secrecy – the fact that no aspect of judicial conduct including the appointment of judges to the high and Supreme Court is transparent
4. Plagiarism and prolixity – meaning that very often SC judges lift whole passages from earlier decisions by their predecessors and do not acknowledge this, and use long-winded, verbose language
5. Arrogance of the personal nature – wherein the higher judiciary has claimed crass superiority and independence to mask their own indiscipline and transgression of norms and procedures; professional arrogance
6. Whereby judges do not do their homework and arrive at decisions of grave import ignoring precedent or judicial principle; and finally 
7. Nepotism – wherein favours are sought and dispensed by some judges for gratification of varying manner.

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