Introduction
Indian legal system being based on the common law system, is a highly sophisticated framework of law and morality, however, it has retained its “lordships culture” along with the experienced jurisprudence which has led to inefficiency in the system along with larger threats of failure under its own weight, and this observation is not limited to judges rather their colleagues across the bench, the public prosecutors. Further, ancillary issues within the appointment process of Judges have also surfaced in the form of nepotism, casteism and favoritism as the profession is tainted with these vices, coupled with a notion of gender bias within the Judiciary, as the appointment of women judges to higher judiciary is very low. Further it is important note the lack of Uniform Civil Code in India, despite its existence since 1950 as a directive principle within the Indian Constitution as multiple times the government is told informed about the issue, but the executive and the parliament have not taken any steps to ponder over the situation, due to factors some call as “minority appeasement.”
Transparency Deficit
The general lack of trust on the institution of judiciary is not based on the ground level detachment of judges, rather there is elevation as a separate class of persons within Indian public life. Certain recent disclosures, such as those in inconsistency in their appointment and need for scrutiny reflect.
It must be guaranteed that benches are assigned in a reasonable, fair, and transparent manner. To disclose the SC roster is a step in the right direction, even though the CJI is the Master of the Roster. However, discretion should not be interpreted as arbitrariness. It is critical that the CJI draught the roster in conjunction with other judges, preferably the collegium. Cases must be assigned to judges based on their competence, and if there is more than one judge dealing with a given area, cases should be assigned to them at random.[1]
The Supreme Court decision in Supreme Court Advocates-on- Record Association v. Union of India (“NJAC”)[2] case highlighted the need for greater transparency in the functioning of the collegium system. Judge Chelameswar said, ‘The refusal to attend collegium meetings because their work is so opaque that even the members do not know the basis for the appointment of a judge shows the intense malice that appointments create. There is a need to ensure that “Judicial independence and accountability go hand in hand.” Although some steps have recently been taken to disclose the panel’s decision, the memorandum of work on the appointment of judges is stated on the website of DOJ, however the interpretation of such consultation and opinion needs reclarification on the context.
On the question of application of RTI over Judiciary there has been much debate, but repeatedly courts vague employ the terms that a balance is required to be drawn between judicial independence and judicial and judicial accountability, so neither the judiciary could be “precluded from rule of law” and neither the tool of RTI could became a surveillance tool over the judicial independence, and judiciary is needed to be protected from any breach of privacy even though the right to privacy is not absolute under Constitution.[3]
As even Delhi HC had held earlier that the independence of the judiciary is the responsibility of the judges, not the privilege, the competing public interest claims and must be weighed along with the privacy concerns. Finally, the Supreme Court accepted a limited restraint upon itself in the case of Supreme Court of India v. Subhash Chandra Agarwal[4], holding that the Supreme Court of India, being a public body, is expected to include the office of the Chief Justice of India as well as other judges, according to Article 124 of the Constitution.[5] It was also found that the offices make up the Supreme Court as a whole and are thus a part of the Supreme Court.
The institution of Public Prosecutor
The Public Prosecutor is an important functionary of the Criminal Justice System who prosecutes on behalf of the state and, in essence, represents the community, but challenges are raised on the conduct of the prosecutorial system, with the combination of allegations being in the form of impartiality, political subjugation of interests, excessive powers, ineffectiveness etc.
The question of appointment of PP is widely debated as it is alleged that as the state being the appointing authority it could use the office of a PP on their will and pleasure by misusing their powers including the power of withdrawal from Prosecution thus, politicization of the solemn office of a PP, as even recognized by the Supreme Court in Sheo Nandan Paswan v. State Of Bihar[6] where they highlighted that on pressure from State Government honest PP’s are left with only one option i.e., to resign. The question as to suitability and fitness of PP was considered by the Supreme Court in the case of Laxman Rupchand Meghwani v. State of Gujarat[7], the Court classified that the term fit must not be construed in a mechanical way so as to refer to eligibility or objective criteria under section 24 (7) of CrPC[8], but it must be such that the capability of the person to discharge the functions of a PP must be there along with that the reputation of the person must also be in consonance with the institutional integrity of the office, thus the quality of his work, the manner of his conduct in the court would make a person fit to be appointed as PP. While the PP whose appointment sparked the controversy in the present case was solely appointed on the eligibility criteria by looking at marksheet, the challenge to the law that it being excessively objective has been watered down with such interpretation of the Court which gives primacy to institutional integrity of the office and once this objective criteria is subjected to the true meaning of the word ‘fitness’ then the panel of names sent to the State Government would also require even the government to choose the candidate by ensuring that he is ‘fit’ and ‘suitable.’ However, the fitness of the candidates must be tested on the touchstone of more objective data which would enable the Judicial scrutiny of the material employed to determine the fitness of the candidates, in my opinion even the quality of the work of the candidate and his conduct towards the bar members may itself be scrutinized through objective data and not mere opinion of the Sessions judge who may note the opinion of other bar members and some independent enquiry be conducted on objective data, and when such objective data is employed then it could be even tested by the Courts, as opinion which formed the basis for the enlistment of the candidate cannot be scrutinized by the Courts. Thus, such favoritism could be minimalized by this newly employed criterion along with an approach towards more objective data which may help formation of opinion as to fitness.
There are certain values which are analogous with the functioning of PP, one such being his impartial temperament towards a case. However, at times the public scrutiny turns to criticism, and allegations are made on the impartial character of the PP who they see as tilting towards the accused, especially when withdrawals are made due to lack of evidence. The impartial nature of the PP was discussed by the Supreme Court in Shiv Kumar v. Hukum Chand,[9] it was observed that the PP is not supposed to show a desire to resolve the case into conviction in any way, regardless of the true evidence present in the case, such that any legitimate benefit which the accused is entitled to must be provided by the PP to the accused even when overlooked by the defense counsel, this policy is based on high principles on which the office of PP rests. Such that, while evaluating evidence the PP must see whether the evidence would amount to conviction or whether it would result in undue hardships to the accused and he must be detached of his will to reach conviction at any costs, as he is not act as a private counsel on behalf the victim.
Additionally, there are times when the Courts have interpreted Section 2(u)[10] in a mechanical wat while referring to the terms “means and includes,” here reference is made to the case of Varghese John v. State of Kerala[11], where the PP delegated a murder case to a Junior with only four months of experience the court interpreted the definition of PP under 2(u) in liberal manner and considered such delegation as valid. However, the Court in this case failed to understand that such liberal interpretation will open floodgates for delegations by Public Prosecutors and such delegations may be in arbitrary fashion, as it is the public opinion of the PP’s is deteriorating and there is a need for inspiring the confidence of people in this office. At the same time, there is a dire need for regulation of the delegation by prosecutors in the form of some ethical or practical guidelines, also the Court subject the exercise of these delegated powers to the requirement of overseeing by the PP. Thus, certain challenges to the Prosecutorial system may be well founded but they are not irreconcilable with the overall requirement of justice and fairness which is associated with this office.
Now, since the PP is under tremendous pressure for exercising his withdrawing power from state and policy makers, the Courts have interpreted the power to be ‘solely the discretion of the PP on the basis of wider considerations of public interests,’ and any instruction or recommendation with respect to policy consideration could merely act as a suggestion. However, this power itself is
tamed by the rider of consent of the Court, where the Court has to use its Judicial discretion and, it becomes obligatory on the part of the Court to satisfy that from the material it can reasonably be held that the withdrawal of the prosecution would serve the public interests. Though, in many cases this power had been given wider interpretation in terms of the Independent exercise of mind and other factors, and in some cases even when there was private complaint. Thus, the rider asking for consent of the Court ensures that there is no undue influence being exercised by the State government over the PP, as the ultimate scrutiny before giving the consent will always be due at the hands of the Court.
Pendency of Cases
The backlog of cases is one of the most severe issues with the Indian judicial system. The backlog will be decreased if the vacancies are filled, making the judicial system more efficient. However, according to a 2015 research, there were over 400 vacant positions in the country’s 24 High Courts. The number of Supreme Court cases pending has grown to over 60,000. In various courts, there are around 25-30 million litigations pending. Budgetary support for the courts is barely 0.2 percent of GDP. The judge-to-population ratio is 10.5-11 per million people, whereas it should be 50-55 per million.
At the same time, due to the general lack of availability of judges, there is also a high chance of decrease in the effectivity of the already pronounced judgements, as recently witnessed by the Supreme Court where the court found that section 66A of the IT Act was still employed by police officers to charge people under the said enactment even after it being rendered null & void.[12]
Thus, the immense issues we face now, along with the urgent needs of the future, force us to reconsider and review our current jurisprudence in order to properly cope with the rising complexity of our problems. A discussion of our fundamental and procedural principles is urgently needed. Such a debate must focus on reducing the judicial procedure without jeopardizing the existing highly polished principles or the pursuit of further refinement. It is regrettable that judicial reform has hitherto been focused on making exterior enhancements to the judicial superstructure (e.g., enlarging courts, establishing e-courts, adding support personnel, etc.), with little discussion of reassessing our jurisprudential goals. I am convinced that an informed debate along the lines outlined above will provide a long-term solution to our issues.[13]
Less Opportunities for Women
Justice Sridevan has described state of Indian Judiciary as an “old boys club.” Recently this issue was raised by The Women’s Lawyers Association in the case of M/s PLR Projects Pvt Ltd v. Mahanadi Coalfields Ltd, for filling the pending vacancies of Lawyers in HC’s, this came up before former CJI Bobde, while showing the data which reflected the skewed representation of women in the Judiciary, even though CJI called for more women in the Judiciary but gave a stereotypical response to the lack of women in Judiciary, he highlighted that many women citing domestic responsibilities do not want to step up in the Higher Judicial field, this reply is stereotypical because even while highlighting the issue it states a gendered notion of domestic responsibilities. A gender balanced representation is important, even though empathy is gender neutral, as there must be critical thinking of both the genders in decision making process of the highest Court of the Country. Moreover, existence of less than 10% of female judges in itself is a worrying figure of representation. However, the recent appointments of four women Judges at SC generate a hope that this “glass ceiling” breaks in 2027 and Justice Nagarathna becomes the first woman CJI.[14]
Problem of Nepotism
The problem of nepotism in India is well known, but least addressed, due to the fear of curtailing “the Independence of Judiciary” this issue occurs mostly due to the “shady” appointment procedure that concerns judiciary, recently the appointment of 1/3rd Judges out of 33 Judge panel of the Allahabad High Court was in question as some of them were blood relatives of former or sitting Judges of SC and Allahabad High Courts. Some have even alleged that the NJAC judgement was not an attempt to save the independence of judiciary, rather an attempt to save nepotism, casteism and favoritism that operates at the level of higher Judiciary.[15] Justice Rang Nath Pandey also shared these concerns with PM Modi, while describing to him that people with no proper knowledge of law are being appointed as judges, he went on to highlight the flaws in the collegium system while noting that the Judges are appointed first, and only after their appointment their names are disclosed, this eliminates any possibility of due diligence over this appointment leading to extraneous factors to creep into appointment process.[16]
Need for Uniform Civil Code
The Indian Constitution states in Article 44[17] that “the state must try to provide for the citizens a uniform civil code across the territory of India.” In view of Article 44 of the Indian Constitution, it is often questioned if it is not past time for India to establish a uniform civil code. Personal laws are civic laws that govern issues such as marriage, divorce, adoption, and inheritance. The item, as one of the guiding principles of state policy, should obviously be “cherished” rather than imposed on any society or communities.
Almost every country in the world has a standard civil code for its people. The primary goal behind the creation of a uniform civil code is to put an end to religious discrimination. Personal law of virtually all religions has functioned as a weapon of oppression of women, suppressing them most of the time under the guise of religious and societal duties. Personal laws have traditionally played a significant role in increasing gender inequality.
Further, in a country like India where personal laws are in a manner laying different set of rules for people, and a uniformity of laws which is a basic feature of any jurisprudence in the world, there emerges the need for adoption of UCC. The SC in the case of Mohd. Ahmed Khan v. Shah Bano Begum[18] observed that The Uniform Civil Code would aid in the preservation of the country’s unity. The court also stated that the conflict of ideas coming from various laws in the country will be resolved. At the same time, it expressed a hope that Uniform Civil Code could be implemented in India, however, after 36 years also the debate is still going on and again has been reiterated through the demand posed by Delhi High Court.[19] However, the judiciary itself is relying on the government, even when it itself can issue binding guidelines as done in the past.
Conclusion
There are a number of issues surrounding the operation of Judiciary ranging from structural issues such as in the appointment of judges, the consequent transparency deficit to sociological issues like the implementation of Uniform Civil Code, however, the existence of these issues cannot be taken as a yardstick to determine the responsiveness of the Indian Judiciary, as steps are being taken in every critical issue surrounding the issue and necessarily the Executive and the Parliament must employ innovative tools to rectify these issues without infringing the basic structure of the Constitution (independence of judiciary).
References:
[1] Prashant Bhushan & Anjali Bhardwaj, A transparency deficit, The Indian Express (Feb. 22, 2018). https://indianexpress.com/article/opinion/columns/supreme-court-judges-conference-cji-indian-constitution-5073294/.
[2] Supreme Court decision in Supreme Court Advocates-on- Record Association v. Union of India, AIR 2015 SC 5457.
[3] Justice Rangan Gogoi, Challenges facing the Indian Judiciary – Identification and Resolution, during the One Day Special Programme for District Judges (Dec. 7, 2013).
[4] Supreme Court of India v. Subhash Chandra Agarwal, 2020 SCC OnLine SC 1459.
[5] The Constitution of India, 1950. Art. 124.
[6] Sheo Nandan Paswan v. State Of Bihar, AIR 1987 SC 877.
[7] Laxman Rupchand Meghwani v. State of Gujarat, 2016 GLH (1) 485.
[8] The code of Criminal Procedure, 1973. §24 (7).
[9] Shiv Kumar v. Hukum Chand, (1999) 7 SCC 467.
[10] The code of Criminal procedure, 1973. §2(u).
[11] Varghese John v. State of Kerala, O.P. No. 16607 of 1994.
[12] Krishnadas Rajagopal, ‘States have equal duty to comply with SC judgment on Sec. 66A of IT Act’, The Hindu (August 01, 2021). https://www.thehindu.com/news/national/states-have-equal-duty-to-comply-with-sc-judgment-on-sec-66a-of-it-act/article35670305.ece.
[13] Id. at 3.
[14] Glass ceiling finally broken as Justice Nagarathna set to be India’s first female CJI in 2027, The Indian Express (Sept. 01, 2021). https://www.newindianexpress.com/nation/2021/sep/01/glass-ceiling-finally-broken-as-justice-nagarathna-set-to-be-indias-first-female-cji-in-2027-2352591.html
[15] ‘Nepotism, casteism’: Judge pans judicial appointments in letter to PM Modi, The Hindustan Times (July 03, 2019). https://www.hindustantimes.com/india-news/judge-writes-to-pm-modi-over-appointments/story-PSVAIh3Xz2WMP9h71GPGBL.html
[16] Id.
[17] The Constitution of India, 1950. Art. 44.
[18] Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945.
[19] Delhi HC backs Uniform Civil Code, urges Centre to take necessary steps, The Economic Times ( July 09, 2021). https://m.economictimes.com/news/india/delhi-hc-backs-uniform-civil-code-urges-centre-to-take-necessary-steps/articleshow/84266205.cms.
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