Problems with Judiciary

Notebook: Governace
Created: 18-09-2017 21:42 Updated: 01-01-2019 22:23
URL: http://www.thehindu.com/todays-paper/tp-opinion/talking-over-a-law/article22459515.ece

In News:
Four senior most judges transcended the traditional judicial protocol and addressed a press conference.
Accusing SC administration of not being in order - propriety of Judiciary
Separation of power v/s checks and balances - President conscience keeper, creating a law like in case of salaries by the
parliament to usher in transpareny

Latest: SC open for tours, in house think tank to strengthen the knowledge infrastructure
Also SC wants lower court vacancies to be filled
Bench Shopping charges

Overreach:

1. Arun gopal v. Union Of India (UOF) - time for bursting crackers and only green crackers allowed
2. M.C Mehta v. UOF - only BS 6 Vehicles from 2020
3. Removing the provision of non availability of anticipatory bail under SC/ST prevention of atrocities act
4. Rajesh Sharma v/s state of UP - recommendation by Family Welfare Committee under IPC 498A
5. NGT saying no more 15 years old petrol or 10 years old diesel vehicles to ply in New Delhi

ISSUES:
High courts working with acting Chief Justices

The press conference by the judges have opened them for public debate which is against the intention of constitution makers.
Art. 121 - prohibits legislature from discussing official conduct of any court
Also against the Restatement of Values of Judicial Life -a charter issued by the SC

Senior Advocates - as a precaution persons approaching the court need the sign from them - to present infront of SC
bench. They charge a large sum.
Also - in the morning - they get to present infront of the bench the urgency of cases and to let it be heard before its designates
slot
Advocates on Record - those who are mentioned in the list at AC

Speedy trials and efficient justice: Nirbhaya rape case, shakti mills gang rape case Mumbai. all give quick verdict

Trial courts awarding death penalty: Seems be due to the public pressure.
but HC have to confirm. so produce a balance

Hight Number of Vacancies: SC struck down NJAC and stalemate between the Govt and Judiciary over Memorandum of
Procedure

the opaque internal structure of the judiciary - the fear of politicisation from interference from parliament to reform
judiciary with any legislation. nefarious methods of political interference in the judiciary exist, which are opaque, subjective
and has lack of norms

Placing trust in absolute ability of CJI - B.R. Ambedkar warned that no matter how upright the CJI might be, like any other
mortal he too would have frailties - this w.r.t veto power in selection

Solutions:
1.CJI asked - if judiciary can work for Saturday
2.All India judicial Services
3. advocates on record can prove the urgency of the case in front of the bench
4. Supreme Court Act to be passed by Parliament after an open public discussion involving all stakeholders — civil society, the
judiciary, the Bar and members of all shades of political opinion
 Supreme Court into three divisions: Admission, Appellate and Constitutional.
Admission to decide what case to admit preferably through circulation
Appellate of 21 judges - all matter admitted and writ petitions
Constitutional bench of 5 senior most judges

CJI is the Master of the Roster Issue:

with division of various category work among the judges according to various subject categories - but without revealing the
procedure of decision making and the justification
Solution:
A just and fair roster must be one that is divided subject-
wise among judges according to their experience and expertise in those subjects.
Collective decision-making

Removal of Judge:
Complex and difficult procedure to protect judiciary from the people in power but in recent years questions have been raised
regarding the difficulty

WAY FORWARD:

Performance committee like the US. the committee will take the complaints pertaining to misconduct of judges and
take constitutional action against them
Crown court management Services - to reduce delay from UK.
Giving more power to CJI to suspend the judges for misconduct
proceedings against judges who retire before the completion of trials
A time bound action
bill was introduced in 2010 (Judicial Accountability bill) but got lapsed - with a oversight committee, complaint
scrutiny committee and investigation committee - can recommend removal. this was over and above the existing
constitutional mechanism
Victim Impact Statements - to empower the victims, so that even they have a say in the sentence

Increasing the Age Of Retirement for Judges:

Practised in western liberal democracies

Will reduce the attractiveness of post retirement appoints - reinforce independence of judiciary
deal with the problem of mounting arrears
impending litigation explosion due to increase in size of economy
More experienced judges