Undoing judicial feudalism

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Undoing judicial feudalism

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• The power in a name: "What's in a name" as a rose by any other name would smell as sweet, indeed. But that's not so in the case of legal and judicial terms, as the case of "subordinate courts" explains.
• Subordinate courts: In Part VI, Chapter 6, the term "subordinate courts" is used. But it does not mean that the judges are subordinate, too. So judiciary indeed is independent, and that is a part of Basic Structure of constitution (Kesavanand Bharti case, 1973).
• Judicial feudalism: It is time for the courts to eliminate the symbol of judicial feudalism, which is something not totally moral, in a judicial hierarchy. 
1. No judge is subordinated to another
2. Within their own (limited) jurisdiction, judges are supreme beings. 
3. Article 235 talks about "control over subordinate courts" (also uses the words "persons holding a post inferior to the post of a district judge")
4. These is a hierarchy, but no superior or subordinate
• What when decisions are overturned: When cases are appealed, or reviewed, a court with bigger jurisdiction may "overturn" the verdict, but the councerned courts do not become "lower" or "inferior" by it.
• Supervisory powers: The High Courts have administrative and supervisory powers, recognised by the S.C. as a constitutional power, subject to right of appeal u/Art. 235. So, they are not absolute powers.

1. 2006 - J. SH Kapadia - "standards of promotions and postings have to be uniform otherwise arbitrariness comes in"; varying standards breach the integrity of the process, and violate Article 14
2. But arbitrary practices have continued, in writing ACRs of District Judges (annual confidential reports)
3. Often, a senior district judge always commended as "very good" may become "good" 

• 2021 August order by Himachal HC: The latest order by High Court of Himachal Pradesh has said - "hereinafter, all courts in the state (other than HC) will be called 'district judiciary'", and no court will be called 'subordinate court' (but only trial courts). Now, let's hope the SC or State doesn't interfere.
• What more: This new designation is necessary, but not sufficient. The wording of the Article 235 itself needs to change now. "Control" should be replaced by "supervision". 

1. In fact, senior judges of the HCs and district judiciary may form a collegiate system for administration, infrastructure, access, disposal rate monitoring, transfers, leaves, etc.
2. The amended Article should clearly specify the criterial (based on principles of natural and constitutional justice) 
3. Any abrupt change in ACRs must require consent of a collegiate of five senior-most judges

• Elevation of lawyers: India's CJI NV Ramana has recommended names of SC lawyers for elevation as HC judges, and that process needs to be structurally codified now. An amendment to the constitution is required, and govt. must ensure smooth passage through the Parliament. 

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