Judicial inefficiency takes several forms and a reluctance in delivering judgments, as V. Venkatesan has noted in his article in The Hindu (editorial page, “Judges have to watch their scorecard,” May 27, 2013), is one among them. In Anil Rai v. State of Bihar (2001), the Supreme Court prescribed a procedural solution for delay in pronouncing judgment. Accordingly, if the High Court reserves a case for judgment and if it does not come out, the appearing counsel can initially file a petition for early pronouncement of judgment. Such applications should be posted before the said bench and if they do not yield result, a petition to change the bench could be filed. But even the Anil Rai formula would be of no use with a judge who does not reserve a case for judgment at all.

However, judicial inefficiency has individual and institutional facets. Even individual issues are essentially institutional issues and vice versa. At the same time, as implied in the article, the system shows itself out, through individuals. The correlation is well explained by Prof. B.O. Nwabueze in his celebrated work, Constitutionalism in the Emergent States:–

“Experience has amply demonstrated that the greatest danger to a constitutional Government in emergent states arises from the human factor in politics, from the capacity of politicians to distort and vitiate whatever Governmental forms may be devised. Institutional forms are of course important, since they can guide for better or for worse the behavior of the individuals who operate them. Yet, however carefully the institutional forms may have been constructed, in the final analysis, much more will turn upon the actual behavior of these individuals — upon their willingness to observe the rules, upon statesman-like acceptance that the integrity of the whole Government framework and the regularity of its procedures should transcend any personal aggrandizement.”

What is said about political institutions is all the more true of judicial institutions. However, the men at the helm of judicial affairs are not elected, but selected. This is why the institutional scheme of selection and evaluation of performance attains greater significance in the judiciary than in other branches of constitutional democracy.

Collegium system

A comprehensive and basic reform is very much due in the justice delivery system in the country and it should start from ensuring fairness, transparency and propriety in judicial appointments. The fallacy of the collegium system is widely known and the question of its propriety is a matter now referred to a larger constitutional bench as per the Supreme Court order of April 2011. The correctness of the judgments that “invented” the collegium system in the 2nd judges case (AIR 1991 SC 128) and 3rd judges case (AIR 1999 SC 1) will have to be examined by the larger bench. However, this has yet to happen. The cabinet decision to review the collegium system is also being “kept in abeyance” for unknown reasons. Thus, the reform process has again come to a standstill, and happening in a country with the most powerful Supreme Court in the world.

The legislative delay in promulgating a statute on judicial accountability is also equally disturbing. Though Bill No.136/2010 was placed before the Lok Sabha on December 1, 2010, it remains in cold storage. Even the proposed Bill contemplates judge-dominated committees, which lack participative character. There are other problems with the Bill too. It has provisions to punish the complainant, if the complaint is found to be “irresponsible.” Publication of allegations in the complaint is generally prohibited and secrecy in the matter is ensured. The right to information is discarded and procedural hurdles are intensified. Ultimately, other than to recommend prosecution, or “to request” the delinquent judge to resign, no effective action against the erring judge is contemplated. True, there is reiteration of the impeachment mechanism, but this is a device that has been proved ineffective and outdated.

Need for commission

Unless there is a duly constituted National Judicial Commission and a Performance Commission with a participative character, the institutional solutions to the present issues will remain unreal.

As Mr. Venkatesan rightly says, judges should watch their scorecard. But who will prepare the scorecard and what are the parameters to be adopted? The Indian Courts have (wrongly) taken the view that comparison of individual virtues and deficits on the bench would invite contempt. However, it is only public criticism, especially by the media and intellectuals, which ensures the probity of the system. As Bentham put it, “In the darkness of secrecy sinister interest, and evil in every shape, have full swing..…. Publicity is the soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying, under trial.”

(Quoted in Scott v.Scott (1911) All ER 1)

Max Boot, a former editor on The Wall Street Journal, authored a book on the judicial system in America with an unambiguous title, “Out of Order: Arrogance, Corruption and Incompetence on the Bench.” Would such a book be possible here? In India, only a section of the media shows democratic vigilance and journalistic courage in issues related to legal reforms. The Hindu has been playing a proactive and positive role in this regard. But the tragedy is that, at the decision-making level, we have failed to formulate and implement radical reform strategies and, therefore, individual incompetence has become an “integral part” of the system.

(Kaleeswaram Raj is a lawyer in the Kerala High Court. E-mail: kaleeswaramraj@gmail.com)

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