Undoing Judicial Feudalism

Context: The recent Himachal High Court’s decision to stop the use of ‘subordinate courts’ is justified, restores dignity to judges.

Background:

• The use of “subordinate courts” used by Part VI, Chapter 6, of the Constitution of India is being thought of as denoting the inferiority of the courts other than the High Courts and the Supreme Court.
• This popped up a question whether CJI and the sarpanch of a Nyaya panchayat are similar in stature?
• To rectify the inequality, the August 11 order of the Himachal Pradesh High Court resolves that “hereinafter, all the courts in the state other than the high court shall be referred to as district judiciary”.

Issues with the alleged subordination of district courts

• Judicial feudalism --a moral fault line of judicial hierarchy: Article 235 speaks of “control over subordinate courts”. This Article adds insult to injury by describing these entities as “holding a post inferior to the post of a district judge.”
• True, high courts always have considerable powers of superintendence on the administrative side, but this “supervisory“ power has been recognised by the apex court as a “constitutional power” and subject to the right of appeal as granted by Article 235.
• Arbitrary practices: Arbitrary practices in writing Annual Confidential Reports (ACRs) of district justices seem to continue. However, while the Constitution allows “supervision”, it does not sanction judicial despotism.
• Compromised independence: The colonial idea of “subordination” stands replaced by the constitutional idea of independence of the judiciary.
• The omnibus expression of “control” powers in the high courts under Article 235 depicts the intense subordination.

Way Forward:

• Recasting Article 235: High Courts may exercise “supervision” under detailed performance norms. But there is no reason why for most matters (save elevation), senior-most district judges and judges of the high courts may not constitute a collegiate system to facilitate judicial administration.
• Adhering to the principle of natural justice and constitutional justice (removing the arbitrariness): If an ACR is to be adversely changed in the face of a consistent award for a decade or more, it should be a collegiate act of the five senior-most justices, including the Chief Justice of the High Court.
• Expanding the elevations: CJI Ramana has recently agreed in principle, following the request of the Supreme Court Bar Association, that chief justice of the high courts should consider lawyers practising in the Supreme Court for elevation to the high courts and, to this end, proposed a set of names.