Context: Recent breaking of deadlock between collegium and GoI is a welcome step. We should take it further to cut on judicial hierarchy.

• Recently, the Supreme Court Collegium headed by Chief Justice of India recommended nine names for appointment as judges to the top court, with presidential approval.
• They all will soon be appointed. This is the largest number of entries approved in one go.

Background

• The August 11 order of the Himachal Pradesh High Court directed that “hereinafter, all the courts in the state other than the high court shall be referred to as district judiciary”. Furthermore, “these courts shall not be referred to as subordinate court” but as trial courts.

Issues with the judicial hierarchy Vs. hierarchy of judges

• The expression “subordinate courts” used by Part VI, Chapter 6, of the Constitution of India cannot signify that judges are subordinate.
• The term subordinate has implications for the independence of the judiciary, entrenched with and since Kesavananda Bharati (1973) as the essential feature of the basic structure of the Indian Constitution.
• No judge is “subordinate” to any other, constitutionally judges are limited in the jurisdiction but also supreme within their own jurisdiction.
• However, Article 235 speaks of “control over subordinate courts”.
• This Article created the notion of subordination by describing these entities and agents as persons “holding a post inferior to the post of a district judge”.

Constitutional provision

• The Constitution no doubt contemplates a hierarchy of jurisdictions, but no judge, acting within her jurisdiction, is “inferior” or “subordinate”.
• On appeal, or review, a court with ample jurisdiction may overturn and even pass judicial strictures but this does not make the concerned courts “lower” or “inferior” courts.
• Supervisory powers: High courts always have considerable powers of superintendence on the administrative side but this “supervisory“ power has been recognised by the apex court as a “constitutional power” and subject to the right of appeal as granted by Article 235.
• While the Constitution allows “supervision”, it does not sanction judicial despotism.
• Despite this, arbitrary practices in writing confidential reports of district justices seem to continue.

Suggestion

Constitutional amendment: A complete recasting of Article 235 is needed, which does away with the omnibus expression of “control” powers in the high courts.

• The amendment should specifically require the high courts to satisfy the criteria flowing from the principles of natural and constitutional justice and all judicial officers who fulfil due qualification thresholds should be treated with constitutional dignity and respect.

Collegiate system at high court’s level: For most matters (save elevation), senior-most district judges and judges of the high courts should constitute a collegiate system to facilitate judicial administration, infrastructure, access, monitoring of disposal rates, minimisation of undue delays in administration of justice, alongside matters concerning transfers, and leave.

• If an ACR is to be adversely changed in the face of a consistent award for a decade or more, it should be a collegiate act of the five senior-most justices, including the Chief Justice of the High Court.
• CJI Ramana has recently agreed in principle, following the request of the Supreme Court Bar Association, that chief justices of the high courts should consider lawyers practising in the Supreme Court for elevation to the high courts.

What is needed

• A complete recasting of Article 235 which does away with an expression of “control” powers in the high courts.
• In fact, it is time for Parliament to remove the substantial nomenclature of “subordinate judiciary”.

Road Ahead

• The changes suggested here needs to be implemented to ensure the independence of the judiciary at all levels. Thus, India needs to focus on transparency in the collegium system. At the same time, we should work to reduce the artificial feudalism that has been created by the judicial hierarchy.

By: Shubham Tiwari