Justice Gita Mittal Is An Example Of Failure Of Collegium System : Justice AK Sikri On Her Non-Elevation To SC [Video]

Former Supreme Court Judge Justice AK Sikri on Friday said 'Justice Gita Mittal is an example of failure of Collegium system'.

Justice Sikri was speaking at the Inaugural function of the Cornell India Law Centre.

Justice Gita Mittal is the present chief Justice of Jammu and Kashmir High Court.

Senior Advocate Abhishek Manu Singhvi delivered the public lecture on the topic "Transforming India's Judicial System:Proposal for Reforms.

"It is not difficult to pick the persons (for appointment to the bench) but, as (Senior Advocate and Congress MP Abhishek Manu Singhvi) made the comment, the politics in judiciary is worse than that in the Executive and the Parliament. I am happy that he made the remark that the government withholds the files. So he accepts that the Executive is equally responsible. Everybody knows why those names get stuck. It is discussed in the corridors of the SC and the HCs...", iterated Justice A. K. Sikri.

Mentioning the insufficiency of judges in the country, he expounded, "The judge-population ratio in India is one of the lowest in the world. Even in China, it is 1 million to 300 plus judges, which is far more than America. Here, it is 20-21. In America also, it is 150 or so...even the strength which is there, they are unable to fill the posts- of the strength of 1070-1080 HC judges, we have a vacancy of 400 judges"

Although under the constitution, the minimum age for recommending a person as a HC judge is 35, it has become a practice, a firm convention today that a name will not be sent unless the person is at-least 45 years of age. In the process, what happens is that much of the talent is lost. One joins the profession at 24-25. After 15 years, by the time they are 39-40 years, they are very, very good. I am saying this from my experience of 20 years as part of collegium in the High Court and the Supreme Court. You will find in all HCs, particularly in the metropolitan HCs of Mumbai, Delhi, Kolkata, Madras, Gujarat, that there are many budding, good lawyers. In the first 10 years, they are able to make their mark. In the next 5 years, they hone their skill further. When they are 40, we can pick them up from that community but we are not allowed to recommend. 40-45 is a very crucial stage, good lawyers are designated as Senior Advocates . They start earning so well that at the age of 45, they refuse to be elevated to the bench. We find that there are really good advocates who don't want to become judges thereafter...", explained the judge.

"Now when 45 is the minimum age set, there is also an unwritten convention that the name of a person who is more than 55 years of age must not be sent. There may be a rationale behind it because a person who comes from the bar should be a judge for at-least 7 years. But if a person is already 58,59 or 60, what is the use because the age of retirement is 62 years. But if that is so, then why do you raise the bar at the lower level to say it should be 45?", he asked. 

"When it comes to the Supreme Court, there is another unwritten rule that a candidate should not be less than 55. Now people may be picked up directly from the bar also for elevation to the SC. In the last 60-65 years, we had only 4 such judges, but now we have 4 judges picked up from the bar in the last 2-3 years itself. But even for this, the minimum age is 55. And that doesn't mean that once you are 55 you are picked up! Sorry, no! By the time the person comes as judge, he is 57, 58...As per one study, the average age of a judge in the SC- based on all judges appointed till date and their tenure- came to be 4-4.5 years...Persons come at the verge of retirement. They are about to retire from the HC at 62 so they get an additional 3 years here. Or at the most, 5-6 years. This happens in the largest number of cases. Maybe there is 1 in 10 cases where a judge gets more the 7 years...", continued Justice Sikri.

"When a person has this kind of experience and can contribute a lot to the growth of the law and jurisprudence, the date of retirement comes. This has to be taken care of", he reflected.

"Much can be said about the NJAC and the collegium system. On paper, going by the Indian conditions, it maybe the best system as there is no alternative to it. But it can be, and should be reformed!...Recently, at the launch of Justice D. Y. Chandrachud's son, Chintan Chandrachud's book, the moderator Shekhar Gupta said that when in every bill, there is so much debate and opposition, how was NJAC passed unanimously within hours? There must be something wrong with the Parliament also... that was a very apt remark...There has to be some hybrid system. We have to improve the collegium system. Recommendations are made many times based on the impression about a person in the HC- the impression which is also of 5 persons, and not necessarily of all 5 persons! If am being very candid, I may say that it may be of 1 person also. Even if one person is objecting, it creates a deadlock or a stalemate situation. Today, the position is that if individual members want to appoint someone, it is difficult. But if someone is being appointed and they want to put a spoke, they maybe successful...", declared the judge.

"When the NJAC case was pending here, no appointments were made. The simple reason was which law to make the appointment under- whether the law which is just passed or the existing collegium procedure. The SC could have stayed the operation of the law and continued with the old system. But I remember the then-CJ had said, 'I can't tell the bench hearing the case to pass the stay and give me a way out to appoint the judges'. I am telling you the internal story...It took one year's time to decide the case. And for that one year, there were no recommendations and a backlog built up...", he narrated.

"FICCI had appointed a committee which submitted its report on judicial reforms to the government 2 months ago.I was on that Committee and so was Justice Madan B. Lokur...the first thing we recommended is efficient management of Courts and Tribunals...I had visited California in 2005-06 as a judge of the High Court. Justice Lokur had also been there. It was in the context of ADR, mediation etc. We saw that they had a bar chart, like civil engineers do to show the stages of building construction, as to what time, from the date of filing, each of the stages would be completed- pleadings, issues, evidence, arguments, when the judgment would be reserved, when it would be pronounced. After seeing that, I told Justice Lokur that all of this is in our CPC also. The only thing is that we don't follow it...", he discussed.

"There must be no unnecessary adjournments...court management and case management must be institutionalised. In the district courts and even the HCs, we see that there will be a list of 30, 40 or 50 cases! It is not possible to finish all of that. So everyday, after hearing for 5-10 minutes, the matter is adjourned. Much of the time is wasted in taking up the matter and adjourning it! So why not have a realistic list of those matters which can be finished, subject to the condition that there are no adjournments. This has to be carried out in a scientific manner...We had even introduced the system of managers in courts, where persons who had done management courses were picked, but the experiment has failed. I would again the blame the judiciary for the way it was taken up...", Justice Sikri canvassed.

"There also has to be judicial performance evaluation- how much work the judges have done and all...There is a system of ACR for district court judges. But every HC follows its own system and only a few have been able to streamline it. Even then it is not scientific...the evaluation should not be limited to the disposal of cases but also encompass what kind of cases they were and what kind of contribution to the law the HC judge has made, what kind of vision and acumen he has in writing judgments. This can be used when a judge is to be later posted as the Chief Justice or elevated to the SC...", he propounded.

"Also, what about the litigation policy of the government? The major litigant in the country is the government, being party to more than 60% of the cases. Litigation policies are formulated but never adhered to. Frivolous cases are filed, there are appeals after appeals..."

"Then there is reducing the cost of adjudication...regulatory governance...ADR! Today, in America, 95% cases are settled in mediation- civil cases, and even criminal cases, which go for plea bargaining. In India, that has to come in a big way! And it is not that the filing of cases is more in India. In the US also, it is very much!"

Finally, he suggested amending Article 136 on the SLP jurisdiction-

"Because every case, even which is petty in nature or frivolous, lands in the Supreme Court...We can start with the amendment that if there is a criminal matter, where the punishment is imprisonment of upto 3 years, then the High Court's verdict should be final. These matters have been examined at three levels already and hence, no SLP should be allowed. In civil cases, start with local Acts- land reform, rent control, Acts by the state legislature. The High Court is the highest court in the state. And anyway, by the time they reach the High Court, they have been through three-four layers of the appeals. These matters should come to the Supreme Court only if they involve the constitutionality of some statute- say some provision of the Delhi Rent Control Act, or a question of law where two HCs gave contradictory opinions"