Friday, November 06, 2015

Does it matter how you select a judge if cases remain hanging?

Although appointed by the president judges to the Supreme Court and High Courts are chosen in secret by a group of judges, called the Collegium. Since no one knows how they are chosen there have been allegations of favoritism and unfair selection. The government can object to the selection of a particular judge but cannot block his appointment. Politicians have long been wanting a say in the appointment of judges and passed a National Judicial Appointments Act but the Supreme Court struck it down as unconstitutional. The Supreme Court's reluctance to allow politicians any say in the appointment of judges probably dates back to the dark days of the Emergency when the then Chief Justice, AN Ray, appointed by Indira Gandhi, was seen to be partial in his judgement. The striking down of the NJAC Act has precipitated a controversy over the supremacy of the parliament in passing laws. Now the Supreme Court has invited suggestions from the public on how judges should be appointed. Trouble is that most of us have no knowledge of the law so suggestions will come from lawyers, who are creaming the system, and from politicians, who want to remain immune to any punishments for their crimes, so any changes they suggest will be worse. We could have a system wherein the Collegium suggests a list of names with detailed histories of each candidate and a select committee gets to vote on it. Or we could have an Indian Judicial Service, like the IAS, where top candidates will be trained in law, jurisprudence and ethics. Promotion of judges will be based on how many cases they have tried and how many of their judgements were reversed by higher courts, showing the rate of errors. At present judges to the higher courts are appointed from among lawyers. Top lawyers charge per appearance and so the more times they appear on a case the more they are able to milk the client. This maybe the reason why cases drag on for years. The Supreme Court has a backlog of over 60,000 cases with 28 judges sitting at present  while the US Supreme Court has only 9 judges with a much shorter waiting list. If judges are appointed from among lawyers and if the future chief justice threatens to remove them from the court by calling the army it does not inspire a great deal of confidence in our system. Instead of arguing about the selection of judges the Supreme Court should be talking about how to conclude cases faster and not allow lawyers to drag things on for years. It is a joke to hear a case for 2 minutes just to pick the next date for hearing it. The Uber rape case has been concluded within months but Mr Lalu Yadav has been out on bail since December last year and campaigning in the Bihar elections in a rape of democracy. Whatever they decide judges must remember that they are also citizens of the nation and have a duty to perform. 

No comments: