Fixed tenure for Chief Justice
OVER the weekend R. M. Lodha took over as the Chief Justice of India (CJI) from P. Sathasivam, who had headed the Supreme Court with distinction but for only a short period. No wonder, therefore, that on the day of his retirement he suggested that the chief justices of the Supreme Court as well as the high courts should have a fixed tenure of two years. Interestingly, his successor disagreed and argued that the present system of the chief justices retiring on attaining the prescribed age of superannuation must continue.
Mr Lodha's reasoning for sticking to the present system is that a fixed tenure for the chief would deny other equally qualified judges on the Bench an opportunity to fulfill their aspirations. It needs to be added that the new CJI will reach the retirement age in five months. However, all things considered, Mr. Sathasivam's proposal merits the most serious consideration and eventual acceptance. For the quick turnover of those presiding over the apex court is hardly conducive to reforms and changes for which the country is crying out because these need a stable leadership of the highest judicial team.
Mr Lodha is the 41st CJI during the 64 years since the Supreme Court's inception on the day the Constitution came into force on January 26, 1950. This gives an average of one-and-a-half years' tenure for the CJI, which is surely inadequate. In one case the CJI served for precisely 18 days. There have also been several other ridiculously short tenures, too. An eminent CJI took over just before the court's vacation and retired soon after the court reassembled.
Now compare this with the state of affairs in the United States where the total number of chief justices of the US Supreme Court through its 238-year history is far fewer than 41. That, of course, is the result of a strange American provision of not having a retirement age for those appointed to the American apex court. It is up to every Supreme Court judge to resign whenever he or she chooses to. If this is very odd, then so is our inflexible adherence to seniority as the sole criterion for the selection of the CJI. As long as this persists the most senior Supreme Court judge is almost certain to be close to 65, the age of retirement.
Seniority has always had sanctity in Indian ethos in every walk of life. Seniority-cum-merit is often talked of as the best criterion for promotion but never adopted. One reason for this is that there is little faith in the fairness of the selection process. In the case of the highest judiciary in this country, seniority acquired an even greater stranglehold during the early years after the inception of the Supreme Court
As a reporter I was witness to what happened when the time was nearing for the first CJI Harilal Kania to retire. The judge next to him in seniority was Patanjali Sastry. He had only a few months of service left. So Prime Minister Jawaharlal Nehru suggested that the judge just below Sastry in seniority should be made the next Chief Justice. All hell broke loose. No one protested more vehemently than Justice B. K. Mukherjea, who was being offered the job. Ironically, there came a time when, as a result of Indira Gandhi's confrontation with the judiciary, senior judges were superseded several times, and their juniors readily accepted the top job. Those superseded usually resigned. Isn't it time, therefore, to review all this? Or should advancement in every institution continue to be like riding an escalator?
This said let me add that a fixed tenure for the CJI is not the only issue about the higher judiciary that needs urgent attention and action. There are quite a few other problems and matters that need to be taken up even earlier. An extremely important one is the question of judges' appointment and accountability. In their interaction with the media both the outgoing and incoming CJIs have stated that the present system of the group of most senior judges dealing with these matters was appropriate. There is widespread disagreement with this. The Congress-led United Progressive Alliance government had even a Bill ready for the formation of a mechanism for higher judicial appointments and for enforcing judicial accountability. The new government will have too much on its plate but that is no reason to delay a decision on this issue. Parliament also must be watchful.
Of late there has been a spate of complaints across the country of kith and kin of judges practising in their courts in defiance of all established norms. The malpractice has acquired the moniker "Uncle Judge". In the case of the Punjab and Haryana High Court it was recently reported that the bulk of public prosecutors and other judicial functionaries were relatives of judges and Advocates-General. A parallel phenomenon that is no less deplorable has earned the nickname "Bench hunting" or "forum shopping". In simple English this means that many petitioners manage to get their case heard by a particular judge from whom they receive a favourable judgment. On one occasion one senior counsel created a sensation by declaring before a Bench headed by the retired CJI, Mr Sathasivam, that "Bench hunting" was rampant even in the apex court. He went so far as to name two Supreme Court judges who, he alleged, were involved in the racket. Mr Lodha blames the Bar councils for the spread of these unethical practices. He also says that the selection of better judges would automatically improve things.
There is no problem as alarming as the colossal arrears of undecided cases. There are 56, 893 such cases in the apex court itself. In high courts and lower courts the number has soared to crores. Mr. Lodha has promised to set up three designated Benches to clear this mess. Let these fine words be translated into action speedily.
OVER the weekend R. M. Lodha took over as the Chief Justice of India (CJI) from P. Sathasivam, who had headed the Supreme Court with distinction but for only a short period. No wonder, therefore, that on the day of his retirement he suggested that the chief justices of the Supreme Court as well as the high courts should have a fixed tenure of two years. Interestingly, his successor disagreed and argued that the present system of the chief justices retiring on attaining the prescribed age of superannuation must continue.
Mr Lodha's reasoning for sticking to the present system is that a fixed tenure for the chief would deny other equally qualified judges on the Bench an opportunity to fulfill their aspirations. It needs to be added that the new CJI will reach the retirement age in five months. However, all things considered, Mr. Sathasivam's proposal merits the most serious consideration and eventual acceptance. For the quick turnover of those presiding over the apex court is hardly conducive to reforms and changes for which the country is crying out because these need a stable leadership of the highest judicial team.
Mr Lodha is the 41st CJI during the 64 years since the Supreme Court's inception on the day the Constitution came into force on January 26, 1950. This gives an average of one-and-a-half years' tenure for the CJI, which is surely inadequate. In one case the CJI served for precisely 18 days. There have also been several other ridiculously short tenures, too. An eminent CJI took over just before the court's vacation and retired soon after the court reassembled.
Now compare this with the state of affairs in the United States where the total number of chief justices of the US Supreme Court through its 238-year history is far fewer than 41. That, of course, is the result of a strange American provision of not having a retirement age for those appointed to the American apex court. It is up to every Supreme Court judge to resign whenever he or she chooses to. If this is very odd, then so is our inflexible adherence to seniority as the sole criterion for the selection of the CJI. As long as this persists the most senior Supreme Court judge is almost certain to be close to 65, the age of retirement.
Seniority has always had sanctity in Indian ethos in every walk of life. Seniority-cum-merit is often talked of as the best criterion for promotion but never adopted. One reason for this is that there is little faith in the fairness of the selection process. In the case of the highest judiciary in this country, seniority acquired an even greater stranglehold during the early years after the inception of the Supreme Court
As a reporter I was witness to what happened when the time was nearing for the first CJI Harilal Kania to retire. The judge next to him in seniority was Patanjali Sastry. He had only a few months of service left. So Prime Minister Jawaharlal Nehru suggested that the judge just below Sastry in seniority should be made the next Chief Justice. All hell broke loose. No one protested more vehemently than Justice B. K. Mukherjea, who was being offered the job. Ironically, there came a time when, as a result of Indira Gandhi's confrontation with the judiciary, senior judges were superseded several times, and their juniors readily accepted the top job. Those superseded usually resigned. Isn't it time, therefore, to review all this? Or should advancement in every institution continue to be like riding an escalator?
This said let me add that a fixed tenure for the CJI is not the only issue about the higher judiciary that needs urgent attention and action. There are quite a few other problems and matters that need to be taken up even earlier. An extremely important one is the question of judges' appointment and accountability. In their interaction with the media both the outgoing and incoming CJIs have stated that the present system of the group of most senior judges dealing with these matters was appropriate. There is widespread disagreement with this. The Congress-led United Progressive Alliance government had even a Bill ready for the formation of a mechanism for higher judicial appointments and for enforcing judicial accountability. The new government will have too much on its plate but that is no reason to delay a decision on this issue. Parliament also must be watchful.
Of late there has been a spate of complaints across the country of kith and kin of judges practising in their courts in defiance of all established norms. The malpractice has acquired the moniker "Uncle Judge". In the case of the Punjab and Haryana High Court it was recently reported that the bulk of public prosecutors and other judicial functionaries were relatives of judges and Advocates-General. A parallel phenomenon that is no less deplorable has earned the nickname "Bench hunting" or "forum shopping". In simple English this means that many petitioners manage to get their case heard by a particular judge from whom they receive a favourable judgment. On one occasion one senior counsel created a sensation by declaring before a Bench headed by the retired CJI, Mr Sathasivam, that "Bench hunting" was rampant even in the apex court. He went so far as to name two Supreme Court judges who, he alleged, were involved in the racket. Mr Lodha blames the Bar councils for the spread of these unethical practices. He also says that the selection of better judges would automatically improve things.
There is no problem as alarming as the colossal arrears of undecided cases. There are 56, 893 such cases in the apex court itself. In high courts and lower courts the number has soared to crores. Mr. Lodha has promised to set up three designated Benches to clear this mess. Let these fine words be translated into action speedily.
