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Judiciary – Need For Introspection

by Rajindar Sachar, 21 October 2008

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A discussion is afoot about some important aspect of judiciary. One suggestion of having regional Supreme Court Benches with main Bench at Delhi hearing only constitutional matters has been floating around for over quarter of Century. Though there has been some support from lawyers from some state head quarters there has equally been differences in view not only on basic premises but also on the location of Regional Benches amongst various states (say whether Hyderabad or Chennai for southern Region). Also there is a view that splitting the Supreme Court in regions will reduce the effectiveness of the court, there being 3 to 5 judges sitting in each state, and then also by rotation and the risk of too many variations in the enunciation of law by different benches not having a common homogeneous atmosphere of mutual discussion.

Also the question of separation of constitutional matter from other appeals many a time is difficult to unravel. So notwithstanding the tentative suggestion by CJI the matter is rather complicated and needs more indepth study and discussion.

Frankly I am against it. As far as I know there is no country in the world where the highest court is split up at various places. U.S.A. Supreme Court, with even larger area than India has its place at Washington DC – Judges do not sit in circuits.

Regarding the increase of age of retirement of both High Court and Supreme Court judges there is almost unanimous agreement. A chairperson of a Administrative Tribunal ( dealing with service matters ) is a retired High Court judge and other service members – their retirement age is above 65, ironically the orders of service Tribunal are subject to the Control of High Court.

A retired judge of High Court is appointed a Chairperson of State Consumer Commission – the other members may be non judicial – their retirement age is 67. Another anomaly – the Chairperson, and members of National and State Human Right Commission also include judges of High Court. Their retirement ages are 70. Why has age then not been increased for Judges. Is it because in all other bodies, the members are from the cozy bureaucratic fold of Administrative hierarchy and the favourites of political masters that enhanced age is provided.

I see no justification to have retirement age difference of Judges of High Court and Supreme Court. The nature and stress of work is the same – many a time that of a High Court Judge is greater – he is answerable to the Supreme Court – the later have only themselves to judge – apart of course by the legal fraternity and the public – the common denominator.

A judge of High Court does not suddenly and automatically become more experienced and learned by appointment to the Supreme Court . The only difference is that though Supreme Court judge is as fallible as High Court judge, but where he scores more is that he becomes infallible only because he is final , and not necessarily that in reality he is wiser than High Court judge.

Also differences in age of retirement makes, unfortunately many High Court judges trying to be in good books of Supreme Court collegiums — the embarrassing spectacle of High Court judges sitting and waiting in the ante room of the collegiums and more embarrassingly in Law Ministers waiting Room. I have no doubt that if the retiring age of Judges of High Court and Supreme Court was the same, a great many of the High Court judges will not even think of coming to the Supreme Court – after all who would want to leave the familiarly comfort of family and original place of residence and get caught in the anonymity and rough vortex of life in the city of Delhi which one retired Chief Justice of India
described to me as a lifeless and soulless city ( with due apologies to those who pride being called Delhi wallahs ).

I feel therefore that the age of retirement of both the High Court and Supreme Court judges be fixed at 70.

Of course at the same the Legislation on National Judicial Council and accountability of Judges, must be brought on the Statute book to keep balance of privilege and accountability intact.

There is another matter which is causing more and more pain to those who revere judiciary i.e. whether children of sitting judges of High Courts should be permitted to practice in the same court. Frankly I have always resisted the idea in the confidence that Judges and their children would themselves so act as not to occasion any scope for criticism. In the not too distant past, no one even raised the question – judges integrity was taken for granted – their wards equally understood the sensitivity of the situation. But then if morality is taking back seat in public life, how long could judiciary remain immune. It is not that judges play any active part. But unfortunately the litigating public has become so cynical that it assumes that children lawyers of the Judges will be able to get them relief even in bad cases. I was told by a senior lawyer that his client for the last decade and whose cases fortunately be has always won told him apologetically while reiterating his confidence in him that as the rival party had engaged a lawyer son of sitting judge, he was also going to engage another sitting judges son, (instead of him apparently in an attempt to neutralize the rival party) – just think of the fall in the estimation of average litigant who seems convinced that efficiency, seniority of lawyers is not the criteria, but the closeness of relationship to the judge is the requirement. Such assessment gets boosted when the young lawyers gives no thought as to how it will harm own family reputation and make it worse by charging exorbitant fee – even in excess of seniors fee.

This is a dilemma for those of us who are committed to the clean face of judiciary. I can only hope that judiciary it self will appreciate the delicacy of the situation and act in a appropriate manner if it wishes to avoid the indignation of the public and prevent the executive to stealthily interfere with the judicial independence. After all issue concerns small number and could and must be resolved within the judiciary, if the clamor of the Bar for mass scale transfers is to be avoided.

- New Delhi.