Democratising the functioning of highest court is top priority

The fracas that played out in Supreme Court last week during the hearing of a case relating to the medical colleges’ scam underlines the urgency with which judicial reforms need to be pursued in a country that is embroiled in litigation of every variety. Without going into the merits of the two separate rulings given by chief justice of India (CJI) Dipak Misra and justice Jasti Chelameswar in the medical scam, it would suffice to say that democratising the functioning of highest court should become the moving point for reforms.

Friday’s incidents relate to the medical colleges scam involving justice IM Quddusi, a former judge of the Odisha High Court, who was arrested by the CBI. Two separate petitions filed by advocates Kamini Jaiswal and Prashant Bhushan seeking a special investigation team (SIT), was dealt with differently by the two benches headed by chief justice Misra and justice Chelameswar. Given the sensitivity of the issue, justice Chelmeshwar did not take upon himself to hear the case. Instead, he referred it to a bench of five senior-most judges headed by the CJI himself. But, the central issue here revolves around the powers of judges to allocate work in different cases.

Democratisation by content and intent implies that the apex court should function through a presidium of top judges and cannot become the precinct of one judge, even if it is the chief justice of India. Constitutional bodies work on the presidium principle, even though the law bestows absolute powers on head of the organisation. The election commission, for example, is a three-member body with the chief election commissioner bestowed with the veto powers on any proposal. But by and large, most decisions are taken by consensus. In fact, it goes to the credit of then chief election commissioner TN Seshan, who had broad based and democratised the functioning of the commission in the early 1990s.

Similarly, Reserve Bank of India (RBI) governor Urjit Patel willingly gave up his absolute powers in favour of a multi-member monetary policy committee (MPC), though he too enjoys veto powers over his colleagues. The Securities Exchange Board of India (Sebi) again is a multi-member regulatory body with the chairman holding veto powers even though most proposals are cleared by consensus or a majority vote. The same principle applies to regulators Irdai, Trai or Pfrda.

The chief justice of India, without doubt, is the custodian of all legal powers wrested with him under the Indian Constitution. He alone has over-riding powers on every single issue relating to the top court of the land. Without sounding prejudiced, it is fair to suggest that the CJI set a precedent to manage affairs of the apex court by consensus and convention. A presidium of top five or seven judges should have final powers on issues, procedures, cases and allocation of work. The collegium of judges headed by the CJI anyway takes the final call on appointments, transfers and posting of judicial officers in the country.

 It is time such collegiums run our courts on a day-to-day basis with firm allocation of powers based on specialisation, experience, talent and orientation of top judges. A national debate on the key issue of functioning of courts will augur well for the world’s largest democracy that boasts of a robust non-political and clean judiciary.