“Judges need to sit down and discuss the functioning of the Judiciary. They need to introspect into what has gone wrong in the past. These kinds of discussions can help in improving the Judiciary” said Justice (Retd) Madan Lokur in a panel discussion on the Independence of Judiciary organised by the India International Centre, Delhi.
The other panelists included N. Ram, Former Editor-in-Chief, The Hindu, Tarunabh Khaitan, Professor Faculty of Law, University of Oxford and Menaka Guruswamy, Senior Advocate Supreme Court of India. The discussion was moderated by Suhas Borker, Managing Trustee, D.S. Borker Memorial Foundation & Editor, Citizens First TV.
Justice Lokur pointed out that the Judiciary had lost its prestige in the last two years and we need to look at what needs to be done rather than dwelling on the past.
He had a few suggestions for the improvement of the Judiciary:
There should be a PRO (Public Relations Officer) or spokesperson for the Courts so that the Judiciary becomes more accessible to the public.
The highest court of the country should be having enough technological support.
There should be live-streaming of important cases
Case management should be done through computers.
There should be a cooling period for retired Judges.
Has the Supreme Court become an Executive Court?
Former editor of the Hindu,N. Ram began his discussion on this aspect. He said that this was the instance in the case of NRC in Assam and other Contempt of Court Cases.
He said: “The Supreme Court failed to uphold the Fundamental rights. Judiciary should be open to strong and robust criticism, but the Contempt of Court Act is a great obstacle. Judiciary should take steps to strike down the provision because the Parliament is unlikely to do so.”
The impeachment of Judges is a difficult process, this also hampers the independence of the Judiciary, he said.
What are the crises faced by the Indian Judiciary?
Tarunabh Khaitan, a professor at the University of Oxford, opined that incapacity in discharging the function and the unwillingness to discharge the function are the two crises faced by the Indian Judiciary. A Judgement should be based on reasoning rather than the outcome.
He compared the Special Leave Jurisdiction with the Writ Jurisdiction. The Special Leave is the residue jurisdiction of the Supreme Court, but right now it occupies 85% of the admissions while the Writ Petition only occupies 2%. The highest court of the country spends most of its time hearing corporate cases while hundreds of habeas corpus writs are waiting. . The petitions during the abrogation of article 370 are still pending before the court.
“A multi-partisan approach should be adopted for the appointment of Judges”, he said.
In the case of appointing Judges, the same committee shouldn’t be recommending and shortlisting the names of judges. There should be a division between the two. He further suggested that there should be a bar on the post-retirement appointment of Judges.
Can E-Courts help in the independence of Judiciary?
“Virtual Court gives a greater opportunity for bringing transparency to the Courts. It brings the process of judicial decision making to the public eye.” said advocate Maneka Guruswamy.
She began the discussion by looking into the recent Parliamentary Committee Report on the Functioning of E-Courts. The reports spoke about the advantages and disadvantages of E-Courts. The advantages include equality in access to justice because there is no need to travel to the capital, reduction in the cost of litigation and the advocates can easily attend the proceedings of different courts. However, the major drawback is the connectivity divide within the country.
There should be an open court system in India. This is a way for ensuring judicial integrity and judicial independence. The Constitution and the statutory laws emphasise the need for an Open Court. Hence, the digital platform enables public access.
Guruswamy added that in the 12th five-year plan funds were allocated for the functioning of E-Courts. But the funds remained unutilised. “The problem is not just with the allocation of funds, it’s with the planning and implementation” she added.
(Navya Sony is a law student at Symbiosis Law School, Pune and an intern at The Leaflet.)