In the recent past, in every forum of legal seminar, there has been a long debate about introduction of judicial reforms. It is only being talked about and not so far been implemented. The time has now come to give a serious thought to it.
The 18th Law Commission of India has already given varied recommendations on the subject of Reforms in the Judiciary, which subject is very dear to my heart, and in particular, the Commission has submitted a detailed report to the Government of India to reconsider the Judges' cases I, II and III by its Report Nos. 2 and 4 giving ample reasons as to why the three judgments should be reconsidered.
The word 'Collegium' is nowhere present in the Constitution of India. It was first used by Bhagwati, J. in the majority judgment of SP Gupta v. Union of India. The expression of Collegium and the Collegium of Judges has been freely used in Paragraphs 15 and 22 of the said judgment. The Collegium is now to consist of the Chief Justice of India and 4 Senior most Judges of the Court and in the appointment of a High Court Judge, the Supreme Court Judge acquainted with that particular High Court should also be consulted raising the number to 6. There is no indication as to what happens if there is no consensus among the Consultees or if the majority disagrees with the Chief Justice of India. On a scrutiny of several Constitutions of other countries, it may be seen that in all other Constitutions, either the Executive is the sole authority to appoint Judges or the Executive appoints in consultation with the Chief Justice of the country. Our Constitution has followed the latter method. Our Constitution provides a beautiful system of checks and balances under Articles 124 (2) and 217 (1) for the appointment of Judges of the Supreme Court and High Courts where both the Executive and Judiciary have been given a balanced role. This delicate balance has been upset by the II Judges' case and the opinion of the Supreme Court in the Presidential reference. It is time the original balance of power is restored. The Parliament Standing Committee on Law and Justice also recommended the scrapping of the present procedure for appointment and transfer by Supreme Court and High Court Judges.
It may be noticed in this context that in every High Court, the Chief Justice is from outside the State as per the policy of the Central Government. The Senior most judges who form the Collegium are also from outside the State. The resultant position is that the Judges constituting the Collegium are not conversant with the names and antecedents of the candidates and more often than not, appointments suffer from lack of adequate information. Two alternatives are therefore available to the Government. of the day. One is to seek a consideration of the three judgments aforesaid before the Hon'ble Supreme Court. Otherwise, a law may be passed restoring to the primacy of the Chief Justice of India and the power of the Executive to make the appointments.
The 18th Law Commission has also submitted another detailed report suggesting various reforms in the Judiciary and in particular, the selection and appointment of High Court Judges. The post of the Judge of a High Court has importance under our Constitution and the incumbent is often supposed to be not only fair, impartial and independent, but also intelligent and diligent. The general eligibility criteria is that a person should have put in 10 years of practice/service in the legal/judicial field. The post of Chief Justice should not be transferable. This practice was introduced in our country after the emergency had been imposed. The Chief Justice who comes on transfer for a short period of 6 months, one or two years is a new man, rather an alien for the place and passes his time anyhow. He has to depend on others for policy decision in administrative matters. If the Chief Justice is from the same High Court, he will be in a better position to not only control the lower judiciary, but also to assist the persons both from the Bench and the Bar for elevation to the High Court. This will also curtail the unnecessary delay in filling up the vacancy in the High Court. If the functioning of the High Courts is to be improved, the policy of transferring the Chief Justice has to be given up forthwith. Now the time has come when this policy needs re-evaluation.
Likewise, the policy needs to be changed for enhancing ARTICLE retirement age of the High Court Judges and Supreme Court Judges at least by 3 years. Similarly, there is no uniformity in the age of retirement of the Judges of the Tribunals in the country. The 18th Law Commission has also submitted a report recommending uniformity in the age of retirement of the Chairmen and the Members of the different Tribunals at the age of 70 and 65 respectively. Considering the huge pendancy of cases at all levels of judicial hierarchy, it has become necessary to increase the number of working days of the Court. It has to be introduced at all levels of judicial hierarchy and it must start from the Apex Court. The recommendations for the need for an urgent and immediate review of the present procedure for appointment of Judges is being fortified by various legal luminaries and many retired Judges of the Supreme Court.
It may be noted that the time has now come to re-consider my suggestions as aforesaid.