Decentralising Justice through Regional Supreme Court Benches: Exploring the 144th Report of the Parliamentary Standing Committee

Decentralising Justice through Regional Supreme Court Benches: Exploring the 144th Report of the Parliamentary Standing CommitteeOn February 7, 2024, the Department-Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice presented its 144th Report outlining the response of the Union Law Ministry to the recommendations made for judicial reforms in the 133rd Report of the Committee. The 133rd Report of the Committee on the action taken by the Ministry of Law & Justice was presented to the Rajya Sabha and tabled in Lok Sabha on August 7, 2023. The Report includes 22 recommendations under 4 chapters regarding the functioning of the Courts in India, such as the establishment of regional benches of the Supreme Court across the country, the age of retirement of the judges at the Supreme Court and High Court, reassessment of post-retirement job options for judges, and increased diversity in judicial appointments.

Recommendations Made by the Committee and Accepted by the Department

Regional Benches of the Supreme Court of India

In its Report, the Committee recommended the establishment of regional benches of the Supreme Court to enhance access to justice. It was asserted that the demand for establishing regional benches emanates from the fundamental right to access justice enshrined in the Constitution of India. The Report further posits that regional benches could alleviate the burden of caseload on the judiciary and reduce litigation costs for the common man. It was observed that the Delhi-centric Supreme Court had posed a significant obstacle for litigants coming from distant regions of India. Litigants face issues stemming from language barriers, high legal fees, and other costs associated with travel and lodging in Delhi.

As such, the Committee recommended that the Supreme Court of India utilise Article 130 of the Constitution to establish regional benches at four or five locations throughout the country. The primary court in Delhi should continue to handle the interpretation of the Constitution and Constitutional matters, while the regional benches should be responsible for appellate matters only. However, the Committee noted that the decisions made by the appellate benches should not be viewed as an additional layer of the judiciary.

Annual Reports by the Supreme Court and High Courts

The Report recommended the preparation and publication of annual reports by the High Courts and the Supreme Court to chronicle their activities over the preceding year. The Committee observed that only some High Courts in India publish their annual reports voluntarily, while others must follow suit. Therefore, the Committee recommended that the Department of Justice urge the Supreme Court of India to issue necessary directions to all High Courts to prepare and publish their annual reports regularly on their respective websites. The Supreme Court may also suggest the items to be included in these reports to ensure uniformity among the different High Courts. This measure aims to provide greater transparency and accountability in the functioning of the judiciary and to ensure that the public is kept informed of the activities of these institutions.

Recommendations/Observations Not Pursued by the Committee in Light of the Government’s Replies

Possibility of Increasing the Age of Retirement of Judges at the Supreme Court and High Courts

The Committee recommended that the retirement age of judges should be increased in line with the advancements in medical sciences, leading to improved health of the population. However, the Committee stated that it was imperative to evaluate the judges’ performance based on several key factors, including their health condition, quality of judgments, number of judgments delivered, and other relevant metrics. To facilitate this, it recommended the creation of a comprehensive appraisal system by the Supreme Court collegium, which could be used to evaluate and recommend the extension of tenure for any judge.

The government responded that the proposed increase in the retirement age of High Court Judges would promote parity between the retirement ages of Judges of the High Courts and the Supreme Court, while potentially reducing the appeal of elevation to the Supreme Court among High Court Judges. This could also result in a higher number of High Court Judges choosing to remain in their Parent High Court, either as a Judge or as Chief Justice, in the event that the retirement ages of the Supreme Court and High Court Judges become identical. It was also noted that many retired Judges of High Courts are appointed as members of Tribunals, and raising the retirement age to 65 may result in the absence of Presiding Officers or Judicial Members who are retired High Court Judges, having drastic implications for the Tribunals.

Further, the government considered the proposal to increase the retirement age in tandem with other measures that ensure transparency and accountability in appointments to the Higher Judiciary. It was found to be essential to make a concerted effort to fill the existing vacancies, and if the proposal were to be implemented, it might lead to a situation where no regular vacancies exist for the post of High Court Judges for the extended years of service. This could deprive the authorities of the opportunity to recruit deserving and meritorious candidates from the feeder channel, namely Judicial Officers and Advocates.

Moreover, extending the retirement age might lead to non-performing and underperforming judges continuing in their roles, which could adversely impact the judiciary’s functioning. Therefore, a cautious approach was necessary to ensure that the proposed measure is implemented in a manner that does not compromise the judiciary’s quality and efficiency. The government also stated that if the retirement age is increased, there would be no limit to it, and there may be efforts to increase the age in the future.

Vacancies in the Supreme Court and High Courts

The 133rd Report highlighted that the high pendency in the higher judiciary was primarily due to vacancies and not vacations. It was observed that presently, over 60 lakh cases remain pending with the court, which was a cause for concern when it comes to the accessibility of prompt justice. It was also noted that almost all High Courts experience a high level of vacancies, with an overall vacancy rate of 30% of the sanctioned strength as of December 31, 2022, with many of the Courts reporting a vacancy rate ranging from 40-50%.

In response, the government expounded that filling vacancies in High Courts was a continuous, integrated, and cooperative process between the Executive and the judiciary. Such a process necessitates consultation and approval from various Constitutional Authorities both at the State and Centre levels, and the government periodically receives the names recommended by the Supreme Court Collegium for appointment as Judges in various High Courts, which are processed for necessary approval as per the provisions of Memorandum of Procedure. Thus, the government observed that it was a constant endeavour to expedite the filling of existing vacancies, and such vacancies of Judges in High Courts persistently arise due to retirement, resignation, elevation of Judges, and an increase in the number of Judges.

Recommendations Rejected by the Government but Reiterated by the Committee

Social Diversity in Appointments of Judges

The Committee Report also brought to light a significant concern regarding the lack of diversity in the higher judiciary, which presents a clear ‘diversity deficit.’ The Report suggested that there was a lack of diversity in the representation of Scheduled Castes (SCs), Scheduled Tribes (STs), Other Backward Classes (OBCs), women, and minorities. It was also evident that the current level of representation does not reflect the social diversity of the country and falls far below the desired levels. It was noted that there is no provision for reservation in the judicial appointments at the High Court and Supreme Court levels. However, the Committee believed that adequate representation of various sections of Indian society was essential in further strengthening the trust, credibility, and acceptability of the judiciary among the citizens.

The Committee determined that in order to ensure diversity and inclusivity in the Higher Judiciary, both the Supreme Court and High Court’s Collegiums should recommend an appropriate number of women and candidates from marginalised communities, including minorities when making recommendations for appointments. This provision should be explicitly outlined in the Memoranda of Procedure (MoP), which is presently undergoing finalisation. By doing so, the Collegiums can ensure that their recommendations are reflective of the diverse perspectives and experiences that exist within the society, ultimately leading to a more equitable and just judicial system.

The government of India has emphasised that the appointment of Judges to the Supreme Court and High Courts is governed by Articles 124, 217, and 224 of the Constitution of India, which do not provide for reservation based on caste or class. The responsibility for initiating proposals for the appointment of High Court and Supreme Court judges lies with the judiciary, and it is the judiciary’s prerogative to address the issue of social diversity in appointments.

To this, the government expressed its strong commitment to promoting social diversity in the appointment of judges to the higher judiciary. Consequently, it urged the Chief Justices of High Courts to give due consideration to suitable candidates from SCs, STs, OBCs, minorities, and women while forwarding proposals for the appointment of judges. It was also noted that the government’s commitment to social diversity in the appointment of judges to the higher judiciary does not conflict with the Constitution of India’s provisions on appointments. Rather, it seeks to promote a more diverse and inclusive judiciary that is better representative of India’s pluralistic society.

The Committee observed that the Supreme Court has yet to provide its views or comments on the draft Memoranda of Procedure (MoP). Once the MoP is finalised, the government should consider incorporating the aspect of social diversity into it. The Committee also requested that the Ministry urge the Supreme Court to provide its views on the MoP at its earliest convenience.

Exploring the Possibilities of Increasing Retirement Age of High Court and Supreme Court Judges

The Committee viewed the practice of awarding post-retirement assignments to judges of the Supreme Court and High Courts in organisations financed by the public exchequer be scrutinised to ensure their impartiality in light of the increase in the retirement age of judges. The government, however, stated that appointments of retired Supreme Court judges to various constitutional posts, commissions, tribunals, etc., are made according to the relevant rules and regulations by various Ministries or Departments, some of which require the expertise and experience of judges of the Supreme Court or High Courts. However, the Committee suggested that the Ministry comprehensively examine and reassess the entire range of issues related to such appointments of retired judges.

Vacations in High Courts and the Supreme Court

The Committee opined that the most pressing need of the hour was for an efficient judiciary that is not only committed to meeting the needs and interests of citizens but also effectively communicates this commitment by making necessary modifications to its practices. As such, the judiciary must be sensitised against the practice of mass court shutdowns for extended durations each year. By doing so, the judiciary will ensure prompt and seamless resolution of disputes, thereby enhancing its credibility and upholding the rule of law. The Committee further supported the suggestion of former Chief Justice of India, RM Lodha, that individual judges should take leave at different times throughout the year instead of all judges going on vacation at the same time. This would ensure that courts remain open and accessible to citizens at all times.

In response, the government clarified that the vacation schedules for the Supreme Court and various High Courts were determined according to the rules established by the corresponding courts. The Department of Justice has transmitted the recommendations of the Committee to the Supreme Court and the Registrars General of the High Courts with the approval of the Minister of State (I/C) for Law & Justice. The government is currently awaiting a reply from these courts.

The Committee advised the government to solicit responses from the Supreme Court and High Courts regarding the recommendation made. It opined that subsequent to the resolution of this issue, the Courts will have an increased number of days at their disposal, thereby enabling them to manage their caseloads effectively and reduce the backlog of cases. As a result, the inconvenience presently faced by litigants will be alleviated to a significant extent.

Recommendations in Which Final Replies of the Government Have Not Been Received

Mandatory Declaration of Assets by Supreme Court and High Court Judges

The Committee recommended that judges in the higher judiciary annually declare their assets and liabilities, as is the general practice for constitutional functionaries and government servants. This move can bolster trust and credibility in the system since there has been a lack of compliance with the voluntary declaration of assets by judges. Therefore, it recommended that the government make it mandatory for judges in the higher judiciary, including the Supreme Court and High Courts, to furnish their property returns annually to the appropriate authority. Such a measure would help foster transparency and accountability in the judicial system, further strengthening public confidence.

The government stated that it intends to establish Rules under the High Court Judges Act, 1954 and Supreme Court Judges Act, 1958, in accordance with the recommendations of the Parliamentary Standing Committee. The Rules will provide guidance on the declaration of assets by Supreme Court and High Court Judges following their initial appointment and annually thereafter, within a set timeframe. The government has initiated consultations with the Registry of the Supreme Court to obtain their views on the proposed Rules. However, it has yet to receive a response from the Registry. In light of this, the Parliamentary Standing Committee requested the government to expedite the consultation process and keep the Committee informed of any developments.

In Conclusion

The recommendations put forward by the Committee hold significant value in terms of promoting justice and refining the operational efficiency of the Indian judiciary. The establishment of regional benches of the Supreme Court, reporting by the High Courts and Supreme Court, and other suggestions to address pertinent operational issues stand as major highlights of these recommendations. If implemented, these initiatives are likely to pave the way for a more equitable and accessible legal system in the country, thus lending greater credibility to the Indian judiciary. In addition to enhancing the efficacy of judicial proceedings, embracing these recommendations is also expected to foster a higher degree of public trust in the Indian judiciary.

Authors: Manisha Singh and Shivi Gupta

First Published by: Mondaq Here