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Sunday, August 14, 2016

Supreme court’s anguish on non-appointment of judges in higher courts


SUBHASH CHANDRA AGRAWAL
(Guinness Record Holder & RTI Activist)

Chief Justice of India has rightly expressed his anguish on delay in appointment of judges in High Courts running with 478 (44.3-percent) vacancies with pendency of 4 million cases. But central government alone is not responsible for the delay which is primarily because of judiciary-legislature tussle on selection-process of judges in higher courts. Is it fair that judges only may have say in selection of judges where there are some selected families in the country which have an appreciable share in total strength of judges in higher judiciary? Allegations of favouritism in appointment of judges have also been levelled at times. But it does not in no way mean that whole judicial-system lacks cleanliness. After all judges also are normal human-beings coming from the same society which has good and bad people.

Best is to have a permanent National Judicial Commission (NJC) with retired Supreme Court judges as member-nominees of Prime Minister, leader of largest opposition party in Lok Sabha, Chief Justice of India and Bar Council of India with Chief Vigilance Commissioner as member-secretary of the Commission. This Commission may be the sole authority for deciding transfer and appointment of judges at higher courts apart from looking into complaints against judges of higher courts with power to order punishment and/or removal of guilty-found judges. (If necessary, a second such Commission on same lines may be separately constituted for looking into complaints against judges of higher courts replacing non-practical and cumbersome procedure to remove judges through impeachment by Parliament).

Such a Commission will thus have a judicially-refined say of legislature in appointment of judges. Moreover sitting judges will not have to be over-burdened in looking into complaints against judges which otherwise also adversely affects their judicial task. Enquiry-commissions set up by political rulers even though headed by retired judges are usually an eye-wash with panels usually giving findings in tune with requirement of political rulers having appointed them. National Judicial Commission should be the only authority to suggest names of retired judges in all judicial panels/commissions appointed by the centre and/or states.

There should be a ban of two years in post-retirement postings of retiring judges. Even chairpersons of Human Rights Commissions at national and state level should be selected from amongst retired judges of Supreme Court by National Judicial Commission, after two years of their retirement. Retirement-age of High Court judges should be 65 years to be at par with that of Supreme Court judges to effectively check lobbying by some High Court judges for elevation to Supreme Court. Chief Justice of India should be made for one year by rotation amongst senior-most judges with at least one year of tenure left to check contrast cases with Justice Kamal Narain Singh having been CJI for just 18 days (25.11.1991 to 12.12.1991) while Justice Yeshwant Vishnu Chandrachud having been CJI for more than seven years (22.02.1978 to 11.07.1985). All High Court judges should be compulsorily appointed from outside their home-states to avoid chances of locally-appointed judges being approached/influenced through former bar-colleagues and local relations/friends etc.

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