Today’s article by K.K.Venugopal, a well known figure of the bar, proposing a set of four appellate courts to deal with the majority of general appeals while reserving only a small number of cases dealing with important constitutional questions is a welcome step in dealing with judicial reform. The issues are complex enough to require at least a journal article for their detailed exposition. This post does not attempt that but makes a few observations which need to be remembered while considering his suggestions.

1. An appraisal of the effectiveness of Mr.Venugopal’s suggestions can only be made by recalling how and why the SC has landed in its present predicament. As he points out, the basic philosophy of the judiciary has undergone a shift over time with its primary obligation to make good law for the country giving way to its Gandhian desire to wipe every tear off every eye. That led the court to take up all sorts of cases, expand its own powers to deal with them and interpret provisions to benefit ‘progressive’ agendas. So long as this basic philosophy remains the guiding principle of the Supreme Court, adding another layer of courts will do little to ease the burden. It will simply add one more layer of appeals to the existing ones, the current trend of mounting arrears will continue to add more cases to the SC’s docket and not very long from now, a huge burden will return and things will be back to where they were before the plan was initiated.

2. To add to this, there is also a considerable problem of mistrust. SC judges do not always fully trust HCs because it suspects High Court judges may be unduly influenced by local politics to do full justice in many cases. Likewise, HC judges do not fully trust trial courts because they suspect trial court judges to be incompetent or worse, corrupt. That leads judges at every level to want to take a close look at the overall trial with respect to every appeal coming before them. Added to this, judges do not have a well developed system of law clerks doing most of the case review and of course, if they do not trust judges, they are not all that likely to trust law clerks with important responsibilities. So they end up accepting too many appeals and with having to do all the review themselves, an accumulation of arrears is inevitable unless more and more judges are added to deal with the burden. In addition to that is the manner in which cases are accepted by the courts. Judges hold preliminary hearings of the parties before admitting a petition and that takes up a lot of their time. Even if appellate courts are set up, appeals with their judgments will continue to lie with the Supreme Court which will still have to go through each of them and decide which ones are worthy of a full fledged hearing and in depth consideration.

3. So setting up appellate courts is unlikely to solve this issue unless there is a change in the philosophy and discipline of individual judges and a more efficient case management system is evolved. The two problems are more closely interconnected than they seem. Without judges willing to delegate powers and police themselves, no system is likely to work. The only way to change that is to be able to attract the best available legal talent and in addition, create a new culture in the appellate judiciary with timely and efficient disposal of cases as one of the principal aims of its core mission.

4. Many judges in HCs are those elevated from the trial courts and almost all judges in the SC were earlier judges in the HCs. In the British (as distinct from the French) model, this is not considered ideal. The best lawyers are those in the private bar and the effectiveness of the functioning of the system is judged by its ability to attract them. Based on that criterion, our system obviously scores very low since none of the well known names in the profession even dream of joining the bench. That problem is partly that of pay which has been addressed to some extent by implementation of the sixth pay commission but more importantly the early age of retirement. Lawyers in the bar practice well into their 80s and the age limits of 62 and 65 prescribed for retiring HC and SC judges all but rules out the smartest talent from even considering the bench as a serious career prospect. Contrast this with the US where federal judges are both life tenured and retire with full pension. Mr.Venugopal’s suggestion to raise the bar to 68/70 may be a practical suggestion but is unlikely to be adequate.

5. There is a nexus among judicial philosophy, discipline and talent but the first two are also distinct aspects. In the developed West, appellate courts recognize that their primary duty to make good law for the country trumps their obligation towards petitioners in court. Their main job is not to solve the public’s problems but to settle prominent questions of law for the benefit of the bar. In many cases, courts have a choice between interpreting a law in a way so as to be favorable  to a petitioner before them (and in that sense, ‘just’) but end up making bad law for the rest of the country with hundreds of others having to endure its consequences for years to come or the reverse. In most countries, that choice would be quite clearly resolved in the latter’s favor but in India, even the SC has tended to favor the former delivering ‘individualized justice’ rather than laying down clear principles to guide lawyers and litigants in scores of future cases. This case specific approach is, in a sense, typical of trial court judges who are required, by the nature of their job and temperament, to focus on doing justice to the aggrieved victim(s) before them but adopting the same approach at the level of appellate courts ends up making the entire system dysfunctional. Today, the big challenge to changing that culture stems not only from a lack of talent but also media pressure. Restoring a measure of political accountability must therefore also be a vital part of judicial reform.

6. One last point is that a large part of the SC’s case burden is owing to special leave petitions filed under Art.136. The framers were under the misimpression that this provision would seldom be used but it turned out that the SC was flooded with these petitions almost right from the time when the constitution was adopted. To this day, they constitute a huge part of the docket. I suspect Mr.Venugopal’s proposal will take away this responsibility from the SC (it ought to do so if the measure is to be meaningful at all) but without significant limitations being imposed on the scope of appeal or the grant of relief, the same problem simply ends up being transferred mutatis mutandis to the newly formed appellate courts.

(This post also appears at CBCNN)

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