My Article in Today’s Times of India (23rd Aug)”Open Letter To Incoming CJI”

You are about to head the world’s most populous functioning democracy’s apex court, the planet’s most dynamic judicial institution, a final court with globally the highest degree and scope of judicial review, the global inventor of basic structure theory and PIL and the Indian institution in which maximum faith is reposed by over 1.25 billion Indians. Any wish list for such a powerful and all encompassing institution is bound to be overflowing. I will, due to exigencies of space, limit mine to a few priorities.

Firstly, you and your successor Chief Justices, down to the last known one presently on the bench, should sit down together at least once every two months to create and then monitor the implementation of one, two and five year plans for the entire judiciary, including your court. It is tragic that for the last 70 years such plans have not even been formulated with a minimum perspective of five years, subsuming sub plans for shorter periods.

This is especially vital since most of you have roughly one year (or shorter) Chief Justiceships (with one exception reaching two years). On the many fundamental issues on which the brethren may and do have disagreements, you should agree to disagree and leave them aside to be decided by each incumbent CJI.

Secondly, this agreed five year perspective plan must not be changed for any reason, except fine tuning and calibration for better achievement. Synergistic results are bound to follow. The practice of each CJI anxious to stamp his own brand of policy tends to create transitory and disruptive paradigms, precluding accelerated cumulative consequences.

Thirdly, an example of Thomas Hardy’s admonition “Take care of the small things and the big things will take care of themselves” arises in the case of our collective war on the biggest scourge of judicial arrears and backlog, besmirching the otherwise glorious face of the Indian judiciary. Since your colleagues have now firmly re-established the primacy of the collegium for judicial appointments at all except the district court level, why is it not possible to establish a flow chart which is uniform, unchangeable and institutional (not personal) to expedite appointments? The single biggest reason for backlog is unfulfilled vacancies, reaching a peak of 450 out of a total 1,100 high court judges about a year ago (plus a normal 25-33% vacancy amongst the lower judiciary, where appointments fall within the jurisdiction of the respective HCs).

This flow chart must ensure throwing up names at least six months before a SC or HC vacancy. The process must be managed by a senior non-legal, non-judicial managerial officer whose only job is to see that a judicial replacement is known at least a fortnight before the incumbent’s retirement. The flow chart must factor in that there are serious delays and stalemates amongst yourselves, but that can be taken care of by constantly throwing up names at least three times the number of vacancies.

Irrespective of the merits of the appointment, the rigidity of the “pre-retirement fortnight rule” will ensure that your whole team works to a deadline. It will obviate serious hit wickets and self-goals like the apex court committed while adopting a self-defeating standstill policy of non-meeting of collegium and non-appointment of anyone while the NJAC hearing and judgment process was on for almost 18 months.

Fourthly, having reiterated the exclusive jurisdiction of the apex court regarding judicial appointments, you as a judicial collectivity cannot adopt a policy of “prepared to strike afraid to wound”. If there are deliberate and persistent government-related reasons for delay in clearing files, it is time you began to exercise coercive powers reaching upto and including contempt against secretary and even ministerial level functionaries to ensure timely appointments. There can be no dyarchy of appointment power in practice despite a definitive SC judgment asserting exclusivity of the collegium (this comes from a supporter of the NJAC Bill like me; final SC orders must be final in letter and spirit).

Lastly, it is time that the collegium started adopting a uniform marking system for HC and SC elevations, even if it is destroyed immediately after the event. My wish list would be an equal weightage on quality of judgments written, integrity issues and a residual category of all other factors like temperament, experience, etc. The headings, though important, are less important than the fact that they must be uniform and intergenerationally consistent, forcing the various collegiums to have some uniformity of focus.

Ideally, one of your Committee of CJIs or one amongst the collegium should, like the erstwhile Sultan of folklore, sit in the court of potential appointees, disguised and completely anonymous, and report back. Physical reality is often shockingly different from paper reality! Since that will never happen, a group of 10 senior advocates of each court should be informally consulted.

None of this is rocket science. It arises from the experience of each one of us who have spent a lifetime at the Bar. It presupposes a reasonably bona fide attempt to improve the speed and quality of judicial appointments. It does not presuppose an ideal world without “the politics of the judiciary” or the “politics of the political system” but seeks to accommodate those realities. It is a great opportunity for you to start. I have no doubt that you will get full collegiate support. But even if you do not, it’s is always better to try and fail rather than fail to try.

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