“What’s in a reputation?”, requested Romeo in Romeo and Juliet and answered the query memorably by stating: “That which we name a rose /By every other identify would scent as candy.” However authorized guidelines make new social meanings by crucial definitions; the legislative fiat consists of phrases that bind or persuade; judicial interpretation both follows, constructs or expands the long run meanings of legislative or judicial utterances.
However what could also be true of romance and literature is usually democidal in politics and legislation. I’ve at all times identified at public fora and in my writings that the expression “subordinate courts” utilized by Half VI, Chapter 6, of the Structure of India can not signify that judges are certainly so. This inelegant enunciation menaces the independence of the judiciary, entrenched with and since Kesavananda Bharati (1973) because the important function of the essential construction of the Indian Structure. Now’s the time for Parliament to take away the substantial nomenclature of “subordinate judiciary”, and the courts to get rid of the final vestiges of judicial feudalism — the ethical fault line of judicial hierarchy.
Once I rhetorically posed a query to then Chief Justice of India Y V Chandrachud at a public assembly, he was visibly irritated and retorted: “What’s the distinction between the CJI and the sarpanch of a nyaya panchayat?” I meant no disrespect to him or the judiciary. To his credit score, he contained his annoyance however the truth is that no decide is “subordinate” to every other. As constitutional beings, judges are restricted in jurisdiction but in addition supreme inside their very own jurisdiction. Nevertheless, Article 235 speaks of “management over subordinate courts”. This Article provides insult to harm by describing these entities and brokers as individuals “holding a submit inferior to the submit of a district decide”.
The Structure little question contemplates a hierarchy of jurisdictions, however no decide, performing inside her jurisdiction, is “inferior” or “subordinate”. On attraction, or overview, a courtroom with ample jurisdiction might overturn and even move judicial strictures however this doesn’t make the involved courts “decrease” or “inferior” courts. True, excessive courts at all times have appreciable powers of superintendence on the executive aspect however this “supervisory“ energy has been recognised by the apex courtroom as a “constitutional energy” and topic to the fitting of attraction as granted by Article 235.
Which means the powers aren’t absolute. As Justice S H Kapadia noticed in a dissenting opinion in 2006: “Requirements of analysis in issues of promotion and posting should be uniformly utilized” lest “arbitrariness is available in”. Rightly insisting on the integrity of “the analysis course of”, he mentioned that various “requirements” or “no requirements” breach “the integrity of the method” and herald “discrimination and arbitrariness” violating “Article 14 and “due to this fact judicial overview”.
Regardless of these sage observations, arbitrary practices in writing confidential experiences of district justices appear to proceed. Although not quite common, the follow of downgrading a senior district decide continually counseled in Annual Confidential Studies (ACR) as “excellent” all of a sudden to a “good” or decrease grade proceed to happen. Nevertheless, whereas the Structure permits “supervision”, it doesn’t sanction judicial despotism. It erects a safeguard by the supply of the constitutional proper to attraction to the Supreme Court docket. However ought to such a assure be essential within the first place to take care of the integrity of the method of judicial elevations?
The August 11 order of the Himachal Pradesh Excessive Court docket comes as a breath of recent air. It resolves that “hereinafter, all of the courts within the state apart from the excessive courtroom shall be known as district judiciary”. Moreover, “these courts shall not be known as subordinate courtroom” however as trial courts. This judicial motion is replete with good intentions and, hopefully, there can be no opposition from the Supreme Court docket or intervention by the State. The colonial concept of “subordination” stands changed by the constitutional concept of independence of the judiciary. This resolution changing the time period “subordinate judiciary” is totally justified, as, in truth, Article 235 speaks of the “district decide”. Nevertheless, it additionally says, “the courts subordinate thereto”. Now the Himachal Pradesh HC has decreed that there aren’t any such entities — all courts within the state apart from the Excessive Court docket are to be named “district judiciary”.
The brand new designation is, in fact, essential, however it’s not enough. What then is to be achieved? My view endorses an entire recasting of Article 235, which does away with the omnibus expression of “management” powers within the excessive courts. They might train “supervision” underneath detailed efficiency norms. However there isn’t a motive why for many issues (save elevation), senior-most district judges and judges of the excessive courts might not represent a collegiate system to facilitate judicial administration, infrastructure, entry, monitoring of disposal charges, minimisation of undue delays in administration of justice, alongside issues regarding transfers, and depart. The modification ought to particularly require the excessive courts to fulfill the standards flowing from the rules of pure and constitutional justice and all judicial officers who fulfil due qualification thresholds must be handled with constitutional dignity and respect. If an ACR is to be adversely modified within the face of a constant award for a decade or extra, it must be a collegiate act of the 5 senior-most justices, together with the Chief Justice of the Excessive Court docket.
Additional, CJI Ramana has lately agreed in precept, following the request of the Supreme Court docket Bar Affiliation, that chief justices of the excessive courts ought to take into account legal professionals practising within the Supreme Court docket for elevation to the excessive courts and, to this finish, proposed a set of names. How all that is to be constitutionally codified is a matter calling for the mixed knowledge of the Chief Justices Convention. Any advice for constitutional change proposed by the convention ought to carry nice weight and be assured of clean passage in Parliament. Residents stay entitled, even in a scenario of parliamentary turbulence, to a clean passage because the current instance of passing of the 126th Modification (on reservations) notably suggests.
This column first appeared within the print version on August 23, 2021 underneath the title ‘Undoing judicial feudalism’. The author is professor of legislation, College of Warwick, and former vice-chancellor of the Universities of South Gujarat and Delhi