Judicial Reforms: Is the hope in Chief Justice Chandrachud waning?
Mathews J Nedumpara
08.04.2024
While some say that their hope in Justice DY Chandrachud, in bringing about judicial Reforms has been waning, I still remain hopeful. There are areas where I differ in opinion from Justice Chandrachud, but when compared to those areas where we are on the same page, the former pales. Many of my fellow lawyers, particularly those who hail from rural areas and who belong to SC/ST and have had their early education in the vernacular language, had expected sweeping changes during Justice Chandrachud’s tenure as Cheif Justice. 14 months have gone by, less than 10 months to his retirement. First generation lawyers who constitute a large chunk of the legal fraternity are to a large extent disillusioned. They were jubilant because nobody understood the problems which the common lawyer and litigants face as Justice Chandrachud seemed to. In recent times, none of the judges of the SC had spoken as he did, barring the few like Justices Bhagwati, Krishna Iyer and YV Chandrachud. I believe his Lordship certainly knows the solutions because Justice Chandrachud has repeatedly said that to have competent men and women from less privileged backgrounds we must be able to attract the best talents into the profession and create an environment where they can remain in the profession and prosper. Something which I have been personally campaigning for.
In my innumerable letters addressed to his Lordship and other judges, I have been urging that unless we are able to bring about a modicum of equal treatment to all sections of the bar and a meaningful opportunity for the underprivileged section of the bar to climb up the ladder, the current unfortunate scenario of apartheid among lawyers will continue.
The solutions are simple. Abolition of the collegium system, making appointments to all levels of judiciary open to all and making selection purely on the basis of merit. The current system is wholly unconstitutional, undemocratic and unfair. There is no running away from that fact. Nobody can deny that in a system where judges appoint themselves they have appointed mostly their kith and kin.
Equally pernicious is the practice of judges designating lawyers as senior advocates. There could be no mechanism which has been more abused than this. Powerful lawyers got their children designated at the age of 34-37 etc, quite literally juniors, as senior advocates. This was done taking advantage of Section 16 of the Advocates Act which most strangely allows for “two classes” of lawyers. As though enough discrimination didn’t already exist as it is. By creating the Advocate on Record (AOR) system, the SC bar is divided into three categories. As they say, Divide and Rule.
The legal profession in India has been feudal in nature. The bar and the bench historically was the monopoly of a few elite families. They got their progenies designated as seniors. With the advent of PIL, the Courts quite literally crept in to become the third chamber of the Parliament, subjugating the executive and the legislature. An all-powerful court meant the legal profession becoming extremely lucrative for the designated bunch. All the time of the court is consumed by them, sometimes on non-issues that attract media attention, leaving little time for the cause of the common people to be heard.
It is said that the average time taken for the hearing of an SLP is 93 seconds. I find the situation today no different from when Justice Chandrachud assumed office as CJI. The fate of junior lawyers across the breadth and width of the country, so too of the common litigant and his lawyer, remains the same. The casteism and apartheid in the profession, a manifest result of the designation system, continues unabated. Despite all the genuine concerns which Justice Chandrachud has expressly ventilated many times, the kith and kin and the elite continue to be elevated as judges, worse is the situation with the senior designation. The representation of women and first generation lawyers continue to be a mere tokenism.
When it comes to Justice Chandrachud’s stand on freedom of speech and expression, and the right to dissent and criticise those in power, Justice Chandrachud can only be compared to the likes of legendary Justice Krishna Iyer, Justice Mathew, Justice Bose. But when it comes to the criticism of judiciary, I am afraid to say in the eyes of the common man, his lordship has not lived up to the expectation. I have in mind a recent incident where the Delhi High Court had convicted a lawyer for contempt of court for certain allegations which his client, the complainant in a case of rape, had made. The lawyer refused to tender an apology stating that he had said nothing but the truth. The lawyer who was convicted for contempt had a statutory right of appeal in the SC. The HC was duty bound to suspend the sentence to enable him to prefer an appeal. But that was denied. He was taken to the Tihar Jail. Later, I came to know that the SC released him reducing his conviction to the time he had spent in jail, accepting his unconditional apology.
The scenario is worrisome. Because we look upon the Supreme Court as the guardian of fundamental rights. The Court has failed to uphold the fundamental rights and the fundamental principle of judicial procedure, to say the least.
As Justice Kaul, so too, Justice Chandrachud, and in fact every other judge and lawyer, would agree, the ever growing, nay, infinite, volume of precedent has made the law absolutely uncertain and litigation a gamble. We don’t see any initiative so far to extricate our justice delivery system from the menace of “predecent” and towards the simplification of law. The solution is to go by the statue.
So far am largely disappointed. However, I am hopeful that Justice Chandrachud will take some bold initiatives to save our Justice delivery system from further collapse before his Lordship’s retirement. The solutions are simple and offers no real difficulty in execution. They are: Abolition of Collegium and Senior designation systems; abolition of the contempt of court by scandalization a jurisprudence which belongs to the dark ages, much abused to suppress criticism; doing away with menace of “uncle judges syndrome” by reintroducing the transfer policy, now in cold storage; doing away with the useless PILs/suo motu PILs grossly abused to trench into the province of the executive and legislature; video recording of court proceedings and access to such records to the litigants, e-courts, doing away with discretionary jurisprudence such as under Articles 226 and 32 (the reason has been dealt with in previous articles), undoing of the tribunalisation, nay trivialisation of dispensation of justice; and most important of all, the restoration of the pristine glory of the civil courts as the true constitutional courts, a position civil courts had enjoyed prior to independence.
From my 40 years of practice, I can say that without strengthening and empowering subordinate courts and its bar, no meaningful judicial reforms are possible. I am sure, Chief Justice Chandrachud would certainly agree with me with most of the above-mentioned Reforms/agenda of the National Lawyers’ Campaign For Judicial Transparency and Reforms which are very much in the public domain. Am sure his Lordship would graciously extend his whole hearted support to the aforesaid agenda of NLC in his Lordship’s actions, as much as in principle.
The single reason for the sorry state of affairs is the suppression of criticism of the working of the institution by common litigants and lawyers by way of the contempt law. The situation, today, in subordinate courts is abysmal. To restore its pristine glory is a herculean task, but there is no other way out. The Court should introspect and address the burning problems it faces today rather than wander into the domain of the legislature and executive and in the process allowing its authority and effectiveness to greater jeopardy. When the Courts enter into the forbidden province of governance it cannot expect to be beyond the criticism of the public just like any other public authority.
