All India Judicial Service For District Judiciary Would Be Absolute Disaster : Kapil Sibal

On Saturday, Senior Advocate Kapil Sibal, President of the Supreme Court Bar Association, criticised the Supreme Court Collegium, which is headed by the Chief Justice of India and four senior-most judges of the Supreme Court. He added that the judges appointed through the Collegium system are necessarily not on merits but no one wants to do away with it because there is "inbuilt pressure to continue with status quo".

The collegium system is responsible for the appointment of the judges of the Supreme Court and the High Courts. 

Sibal was delivering a lecture at the Sikkim Judicial Academy where he spoke on the history of how the subordinate judiciary came under the control of the High Court. He stated that back in 1934, the Joint Select Committee set up for reforming the Indian Constitution had addressed the subject of appointment, although it was not a subject matter of the White Paper which brought in the recommendations. It was stated that High Court and Federal judges shall be appointed by the Crown. However, for the appointment of a subordinate judiciary, the same shall be done by the authorities in India. 

Sibal mentioned that in the Government of India Act, 1935, Section 254 prescribed that the appointment of the district judges shall be made by the Governor of the province in the exercise of his individual judgment with the consultation of the High Court. However, during the conference of judges in 1948, it was found that the judges were not free as long as they were dependent on the provincial executive. That's how Article 235 of the Indian Constitution came into the picture and the control of the subordinate judiciary was given to the High Courts. 

On this, Sibal asked: Are members of subordinate judiciary now independent of influence?

Sibal himself answered this in negative. He stated that the Collegium has been the central point of power. This is because the High Courts exercises control over subordinate Courts and the Supreme Court exercises control over High Courts, the latter not being permissible by Constitution. 

He said: "High Court are not subordinate to Supreme Court. In Entry 67, List II says the justice system is vested in the High Court, except where the jurisdiction of the Supreme Court comes. Entry 77, List I says SC jurisdiction is all over the country but they can't impinge the jurisdiction of the High Court."

What district judges look up at High Court is what High Court judges look upto Supreme Court

Sibal said that when the Collegium system was proposed, the idea was to move the power of appointment away from the executive to the judiciary because lawyers and judges were seen running to politicians for their appointments. Now, with the collegium system, the subordinate judges run to High Court judges and High Court judges run to Supreme Court judges.

He added: "I say this with some sense of responsibility, when the judicial committee in 1934 said you should have judges away from those who appoint you, now the very basis on which they wanted to move the power of control was to ensure there is no pressure from Government on subordinate courts but the same issue arises today But same power is exercise by High Court instead of State."

Sibal averred that there is a lot of "dissatisfaction" within the Court system, especially at the subordinate judiciary and this is because the High Court is in complete control and every individual judge at the district level has some "equation" with the High Court judges. This becomes worse when the Chief Justice of the High Court is appointed by the Collegium system in which the Government has a role to play. 

Sibal also mentioned that when M.C. Setalvad was the Chairman of the Law Commission, he had recommended for judicial service where recruitment should be done by All India basis. Sibal added that this recommendation has been reiterated by other law commissions as well.

He stated: "According to me this would be an absolute disaster because if you have judicial service for district judges, ultimately who are going to appoint them? Who is to post them? Which judge will go where? It can't be decided by Government. It will be decided by the Collegium. But does the collegium system have the machinery as who which judge should be appointed where? What will be the constitution? Will we have a cadre system? A lot of judicial reforms take place in a country that has no idea what the ground reality is."

In subordinate judiciary, no spaces for judges 

Sibal addressed that the ground reality of the subordinate judiciary reflects that there is "very little space" left for subordinate judges because the decision-making is subject to the "whims and fancies of the judges sitting in the High Courts".

He said: "The ground reality we all know is the fact that within the subordinate judiciary, there is very little space left for subordinate judge, for magistrate, for additional district judge, district judge to take decisions. Much of this is because of the fact that he is afraid. Now with the collegium system, he does not look to the politician, he looks to the judge in the High Court. That is the reality of India. Now, he[district judge] looks to the particular judge in the High, and he wants to make sure that the decision he takes, does not make the judge who is going to ultimately where he is going to go and his promotions. That he is not unhappy."

Sibal stated that the judges at the subordinate level are concerned more about their future in terms of their promotion and everything else. 

Adding another urgent issue, Sibal noted: "Why do you think in this country, even though the law is: Bail is the rule and denial is an exception, how many subordinate courts give bail and why they don't give? This is the heart of the problem. They are worried because if they give bail, somebody would say its motivated. So its better not to give bail."

Referring to the case of former Justice S. Muralidhar and Justice Akhil Kureshi, Sibal underpinned how subordinate judges are afraid because they may be transferred or may not be elevated if they do not decide in a particular way. 

Culminating from his lecture is the point that the heart of the matter remains: concentration of power leads to arbitrariness. 

He said: "As long as you have a centre of power vested in a particular institution which calls the subordinate courts, you will not get the independence that we are talking about. We have to move away from a centralised system of control. You can't have the High Court on its own controlling everything in the subordinate judiciary. Just as you cannot have the collegium system deciding who should come to the Supreme Court"