Prof. (Dr.) Devinder Singh
Chairperson and Professor, Department of Laws, Panjab University, Chandigarh, India
Shruti Dahiya
Senior Research Fellow, Department of Laws, Panjab University, Chandigarh, India
Pragati Thakur
B.A LL.B. (Hons.), University Institute of Laws, Panjab University, Chandigarh, India
Indian citizens turn to the Judiciary as a last resort when the Legislature and the Executive fail to address their concerns. Therefore, it is essential that it retains its independence for the administration of justice. The Indian Constitution has ensured this by establishing a quasi-federal framework which distributes power between the Union and the States, with the Supreme Court acting as an independent adjudicator, having original jurisdiction to resolve conflicts between the Union and the States as well as between States, and deciding upon questions of Constitutional significance. However, to ensure its autonomy, the following crucial variables come into play i.e., the appointment and removal of Judges and the terms and conditions of their service. For instance, at present Judges are appointed by their fellow higher-ranking judges, in a peer system and their conditions of service are also determined by Judges in a collegium system, operating as closed proceedings. However, our research proposes that they should be appointed by an independent agency in an open and transparent way.
Secondly, their removal is also a cumbersome process, performed by the legislature and finalized with the President’s assent. It has been tried twice since the constitution went into effect, but neither time has been successful, giving the impression that once a judge is selected, they are there to stay, which also impacts the accountability process. The detailed analysis of relevant literature comprising of precedents, law commission reports etc. also suggests that at the higher judiciary level there is an absence of inclusivity as far as appointment is concerned as a considerable number of judges come from the pool of Supreme Court advocates and there are almost negligible advocates from lower courts. It sometimes causes a lack of comprehensive understanding of social circumstances of stakeholders, thereby causing a purely mechanical application of the law. Therefore, our doctrinal research proposes that an overhaul of the Judicial system is required which can be done by expanding the ambit of appointments and including professionals such as jurists with an understanding of social issues; the institution of statutory measures to ensure accountability; along with the incorporation of punishments less severe than removal and the establishment of open selection criteria of Judges.
Leave a Reply