Master of Roster and Juristocrat

Hello, Sophophilic this is my 2nd blog. After deliberating for hours and going through lots of legal news, I finally decided to write on the collegium system (CS, for sake of brevity) and the role of the chief justice of India in allotment of cases. I find this issue relevant as lots of debate and controversy is ongoing these days regarding the appointment of senior high court judges to the Supreme Court. From these debates, one thing which is clear is that the Supreme Court seems to suffer from a perpetual disease of lack of transparency.
There are a long line of cases on the issue of CS and humongous material is there on this issue, but I doubt if this can be accommodated in a research paper, let alone this blog. I will concisely discuss the pertinent part related to CS.

Talking briefly about the history of CS, Supreme Court in the case of
In re Special Reference 1 of 1998(Third Judge Case)  laid down that the recommendation should be made by the CJI and his four seniormost colleagues. It also held that Supreme Court judges who hailed from the High Court for which the proposed name came, should also be consulted. It was also held that even if two judges gave an adverse opinion, the CJI should not send the recommendation to the government. This is our present CS. It is interesting to know that there is no mention of CS in the constitution, this is indeed the innovation of judiciary itself.

The recent decision of CS to elevate 2 High Court judges to Supreme Court has ignited a controversy. The convention is of appointing the senior-most judge or someone from the list of top senior judges to the Supreme Court. But, CJI Ranjan Gogoi went ahead by completely ignoring the convention and in making a recommendation he superceded name of other 32 other senior judges. Not only the convention, but he also didn’t consult the government and withhold the publication of the resolution of the collegium. Various judges have reprobated the resolution taken by the collegium.  The CS then reconsidered its decision and
This is a recent example where CS is being questioned by the judicial fraternity.

The decision of CS is taken in camera and by a handful of judges (mainly CJI). The criteria adopted for appointment remain unknown. This is leading to the erosion of people’s faith in collegium. The never-ending opacity of Supreme Court is giving rise to nepotism, favouritism and casteism. This is the reason why this system is loathed so much in a judicial fraternity. CS is defended on the ground of ‘judicial independence’ as it keeps away the legislative and executive interference in the appointment of judges, but this does not justify giving untrammelled power and scope of discretion. On the basis of independence of the judiciary, Supreme Court held NJAC to be unconstitutional. In the same holding court also observed that the 2-decade old CS requires revival and transparency.

In 2018, 4 judges of Supreme Court held an unprecedented conference against the misuse of power by then CJI Dipak Misra. Being a ‘master of roster’, CJI has administrative power of allocation of cases to the bench. He was alleged to have been allocating the paramount constitutional cases to his favourite one (or maybe sycophant one). Not sure about the allegation, but certainly there is a scope of misuse of power. This is giving a push to juristocracy where few judges in the apex court are having untrammelled power. So, not only in appointment but also in the formation of benches, CJI has been given lots of discretion without checks and balances. This way in any legal matter or constitutional issue, the decision will always be the one which CJI desired.

India is the only democratic country where the judges themselves appoint the other judges. There is no problem in this innovation until the power to appoint is not given in the hands of few. There should be some criteria and system of checks and balances on the basis of which judges are appointed and benches are allocated. There has to be transparency in the decision-making process. To the extent judicial independence is not hampered, the executive should be allowed to interfere as the system of check and balances.

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Judgments: Saga of elitism

In India, judiciary is also a law making body. Law is enacted or interpreted by the mechanism of judgment writing by judges sitting in high court and supreme court. Pages of such judgments varies from case to case. Some may end up just in passing orders which is of around 3-4 pages and some judgments like on ‘aadhar case’ goes around 1500 pages. My focus in this blog is on later types of judgments which are too lengthy and intricate. The questions that usually pops up in the mind of layman is why judges write such voluminous judgments and who gets to read them. Some ill-fated and compelled law students who reads them often jokes ‘do judges themselves get time to read their decisions’. Former judge markandey katju in his FB post remarked that he was not enthusiastic about writing long and embroiled judgments. According to him judges often to show their erudition cites jurisprudential thoughts of thinkers like dworkin and hart, sometimes it is unnecessary and non-sequitur. So they equate quantity with quality. It is like more the content in exam the more marks you will fetch (this is the paramount thing i learned in my law school).

The difficult part is to find the precedent in the verbiage saga of judges which is like finding needle in the haystack. Not only they are lengthy and intricate but sometimes they are incomprehensible even to the highest majesty of law.
Judges often race with others in playing with words and to make emphasis less on the precedent and more on making language flowery. To exhibit judgments more like a piece of literature, they are reserved for months even after conclusion of arguments in a lis, so judges (or part time author of literature) in their chamber can spend time with thesaurus and excerpts of piece of literature and make it more wordy (and eventually less worthy). This is how the fraternity of judges vaunt their judicial merits in the same way law students do by writing more in exams (irrelevant may be) and scoring more marks. It is evident that beholder in the judiciary does’t see beauty in the brevity.

These horrible looking judgments contains verbatim reproduced pleadings on both side, previous judgments, literature work (by literary doing Cntr C+ Cntr V), re-narrating facts (by paraphrasing them (things we learn in law school to deal with turnitin)). This puts burden on lawyers or the one seeking precedent in the judgment only to the extent of scrolling down faster to the last or penultimate paragraph, skimming or mostly skipping the 95% of the part. Since these judgments sets a precedents, the arguments made there in serves as a predicate of that precedent, this gives lots of scope to the lawyer to interpret these long and complex arguments and to present them in an entirely new way which is completely oblivious of the context it was presented.

This goes without saying how much overburdened our Indian judiciary is. Given the plethora of cases pending in courts, it is imprudent for the judges to squander time in thinking about making a judgment long and making their audiences less enthusiastic.

In UK, court of appeal has lamented writing long judgment . I expect something similar from Indian judiciary by making it official that length is not proportional to relevancy.

(Note: The underline part is a hyperlink or simply link of accessing the source)