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What is courtroom policy-making?
- Courtroom policy-making or judicial policy making refers to the formulation of policies by the judiciary.
- In general, the domain of policy making in India is reserved for the executive and legislative branches of the government. This is a consequence of the concept of separation of powers– a part of the basic structure of the Indian Constitution.
How did this happen?
- There is a concern that the judiciary has been incrementally usurping the administrative power.
- This began with AIJA case (All India Judges Association):
- In this case, the AIJA represented judges, appointed to district courts, at the Supreme Court to seek better service conditions.
- The 1st judgement was given in 1991 and it saw a tussle between the Supreme Court and the government (at centre and at the states) over the issue of district judiciary’s pay.
- Since then, there have been at least 3 other major judgements- in 1993, 2002 and 2020– in cases involving the AIJA and tussle between the judiciary and the executive.
- This litigation’s latest iteration commenced in 2015 and is still continuing.
- Another important case with regards to this issue is the Malik Mazhar Sultan vs. UP Public Service Commission:
- In this case, the apex court has been monitoring the district judiciary’s recruitment cycle through open examinations in different states. The court has prescribed timelines for the states to complete the recruitment.
- When the case was filed originally, in 2006, the apex court was required to decide on a legal question regarding the 2001 Judicial Service Rules of UP.
- Over time, this appeal got transformed into a means for the court to control the district judiciary’s appointment procedure.
- This case has now expanded to cover infrastructure too. This case too continues till date.
- Imtiyaz Ahmad v. State of UP:
- In 2009, an appeal was filed against the prolonged stay of criminal proceedings. This stay was granted by the Allahabad High Court.
- This appeal was transformed into a vehicle for a number of judicial reforms by the Supreme Court.
- In its 1st iteration, this case saw the court directed the Law Commission to look into specific issues.
- Along the way, the court also passed directions on the use of a formula by High Courts to determine the number of judges required for the district judiciary. The new calculation method contradicted a formula put forth the court in one of the AIJA cases, in 2002.
- In December, this case turned into a launchpad for the court’s demand for a ‘national umbrella organization’ to administer the judiciary’s infrastructural requirements.
- On NJIC issue:
- NJIC or National Judicial Infrastructure Corporation is a vision of the Chief Justice of India. It is an umbrella organization for administration of the judicial infrastructure.
- The CJI has been calling for its establishment to improve the quality of infrastructure available to the judiciary.
- According to the Union Law Minister, as disclosed during the question hour in the Parliament’s winter session, the CJI’s office had even sent proposals on the NJIC to the Union Law Ministry.
- A Supreme Court bench, on December 1st 2021, gave a boost for the NJIC concept. Rather than wait for the Law Ministry to respond through administrative route, the issue has been taken up on the judicial side and the Ministry has been given 3 weeks to respond to the proposal.
Why is this of concern?
- Considering how the NJIC issue is being handled by the judiciary, there is an impression that the court is attempting to secure, what is difficult to get through administrative mechanism, through judicial route.
- Apart from the questions on whether or not the NJIC is an appropriate solution, there are concerns over the constitutional propriety of the apex court incrementally taking over the district judiciary’s administration.
- Though the Supreme Court is the top judicial institution in India, the Constitution vests the functions of appointments, daily administration and budgeting for the district judiciary with the respective High Courts and the state governments. Over the past 30 years, the apex court has gradually taken up the post of de facto administrative head of all the courts.
- In many instances, the apex court summons government officials and High Courts’ registrars to seek explanation, while claiming that the proceedings aren’t adversarial.
- The court appoints amici curiae in these cases for advice on the nature of the judicial reforms required. The amici curiae are generally senior lawyers of the Supreme Court and they rarely call the judiciary out for their shortcomings.
- In addition to this, the amicus curiae have little experience with the district judiciary and often lack the required skill and time for proper policy research.
- Given that there are multiple benches and amicus curiae in the Supreme Court, the fragmentation leaves little hope for consistency in courtroom policy-making.
- Courtroom policy-making is un-democratic as it has no avenue for participation by the public.
- It tends to treat principles of basic structure, such as federalism, very casually. Eg: it pays little attention to differences among the states and proposes ‘one size fits all’ solutions for the district judiciary across India.
What is the way ahead?
- In policy-making, the judiciary’s role is limited to that of judicial review for conformance with Constitutional principles.
- The Supreme Court itself has held that the courts cannot interfere or disturb the policymaking functions of the state, unless found to be grossly irrational or arbitrary.
- Judicial reform, in certain cases, could be best served by the court’s withdrawal from policy-making function.
- In order to effect the much needed judicial reform, the Supreme Court must start by creating a culture of transparency in the judiciary.
In the quest for judicial reforms, care must be taken to ensure that the 3 branches of the government don’t interfere in each other’s jurisdictions, for separation of powers is a basic feature of the Constitution.