Law minister DV Sadananda Gowda said that there would not be any appointment of new judges to the apex or high courts, unless the Supreme Court disposes of the public interest litigations (PILs) challenging the National Judicial Appointments Commission (JAC), reported the Economic Times today.
The NJAC was ratified by 16 of 29 states in late December, according to the PTI, sufficient for passing the constitutional amendment. However, Chief Justice of India (CJI) HL Dattu said that the collegium system would remain in place until the NJAC was put into place by the government.
However, Gowda told the ET: “The ball is in CJI’s court as he is the chief of NJAC and his cooperation is very much needed for framing of rules and appointing two eminent personalities. There should not be any confrontation… If (CJI) says go ahead, we can do it, otherwise it will be a problem.”
The NJAC multitude of NJAC challenges were shelved because the Supreme Court found that a law could not be challenged until it had entered into force.
The government theoretically has the power to delay collegium recommendations for judgeship indefinitely.
Hat-tip @SauravDatta29
Comments
# We can audio-video record what a politician says and hold them accountable without being threatened with legal action.
# We can seek access to a politician without having to hire an intermediary who usually drives a bigger car than mine.
# We can motivate a politician by a variety of tools for public interest and not depend on a largely colonial outlook on life in India.
# We can change the politician every 4-5 years and junk the bad ones while we are stuck with the JDS lot till they collapse.
# We can double-check the claims made by politicians while we can't even get the JDS to sign their asset declarations.
# We can challenge, disagree with, discuss and opine on what politicians say without going to jail for "contempt".
And so, that's why I think this is a great step.
Also do Judges appoint Judges in any other country in the world? I don't think so.
'(A) Let us see what is happening in the country.
1. Who selects the Ministers? The Prime Minister and the Chief Ministers.
2. Who selects the Generals? The Generals.
3. Who selects the Army Commanders? The Army.
4. Who selects the Governors and the Government servants? The Government.
And so on. Then, why do we want a different method for the Judiciary? Why should the Judiciary be not allowed to select the Judges? Is it an effort to destroy the Institution that alone has performed and exposed the scams and scandals like the Coalgate and 2G?' unquote
I think thats an interesting point.
We have a bureaucracy that tows the line and is willing to genuflect.
Do we need a judiciary like that?
One reason given by Justice Scalia against video is that cut outs from the recordings will be misused by TV channels to paint a picture of court proceedings which might be scandalous. For example, one question from a Judge may be taken out of context and shown repeatedly to canvass that he/she was biased. The allegation can be for vested interests.
Justice Breyer said that some issues that seem obvious to the people are not that obvious.
Televising may prevent the judges from a free thinking and they may be pander to the crowd. As observed by Justice Sinha in Bariyar/s case - 2009 (6) SCC 498 para 77,
'The constitutional role of the judiciary also mandates taking a perspective on individual rights at a higher pedestal than majoritarian aspirations. To that extent we play a countermajoritarian role.'
This counter majoritarian role may be undermined if courts are televised. A free and fair decision making process without the fear of public backlash is a good system.
If the majority of Indians do not approach Courts, it does not mean that they do not suffer injustice. It is likely that they do not go to Courts, because the system does not inspire confidence that the constitutional right can be dreamt of as a luxury/rare privilege even after years/decades thanks to the liberal adjournment culture which is never recorded.
Justice should not only be done, it should also be seen to be done. Can lack of transparency be justified in any vibrant democracy except where national security is concerned?
Why are our judges opposed to even audio recordings. Because judicial misconduct and corruption would be exposed?
Also video recordings can be made but need not be provided to the public or televised, whereas audio recordings by court registry should be made available to the parties to the case. These audio recordings would be records of court hearings.
http://www.supremecourt.gov/oral_arguments/argument_audio.aspx
"The audio recordings of all oral arguments heard by the Supreme Court of the United States are available to the public at the end of each argument week. The audio recordings are posted on Fridays after Conference.
The public may either download the audio files or listen to the recordings on the Court’s Web site. The audio recordings are listed by case name, docket number, and the date of oral argument.
The Court began audio recording oral arguments in 1955. The recordings are maintained at The National Archives and Records Administration. Prior to the 2010 Term, the recordings from one Term of Court were not available until the beginning of the next Term. The Archives will continue to serve as the official repository for the Court’s audio recordings."
In India the impeachment process has not delivered.There is no way to remove a corrupt Supreme Court or High Court judge.
Several cases of established corruption in higher judiciary have not been addressed.
In no country other than India do judges appoint judges.
The result of the collegium system has been the absolute concentration of power within a small group of judges and lawyers (read jurists).
Note the rise of judicial dynasties.
Also,we must admit that sections of the bar (and this is the more powerful section) depend upon patronage from these judges. Ramjet once told me that there can be no judicial corruption without lawyer participation. That is true.
It is time for the collegium system to go.
Let's put the blame for any delay in appointment of Judges on the CJI. Heard of separation of powers? The head of the "Judiciary" has nothing to do with the "legislative function" of framing rules under an Act of Parliament. By making this statement, the Ministry has unnecessarily placed the onus on the CJI who has no control over this.
How can the NJAC, which has not yet been constituted...in fact, no effective step has been taken to constitute it...already replace the Collegium? By this logic, we have NO mechanism of appointment of Judges existing as on date.
And now, any effort by the CJI to fill the vacancies in the Courts will be a subject-matter of controversy and drama.
End result- vacancies will not only continue in the courts, but will also increase. And the blame has been conveniently shifted away from the Ministry and onto the CJI.
Consequence- the Ministry will blame the Judiciary for the vacancies...and will raise fresh cries for Executive interference in the Judiciary.
Goodbye Independence of the Judiciary?
Tch!
Why has my response on the recording issue not been published?
Also, all litigating lawyers know that judicial orders do not capture oral arguments. This would also be physically impossible.
In US courts, oral arguments are transcribed by court reporters so a transcript record of oral arguments has existed for a long time. The transcription process would mean that the court reporter does audio record the proceedings.
Now US courts also allow digital audio recording of oral arguments as an improvement over transcripts.
see http://www.dmlp.org/blog/2014/hear-ye-hear-ye-some-federal-courts-post-audio-recordings-online
& http://federalevidence.com/pdf/2010/CamerasICt/Cameras_JCUS_Proceed_9_15_1999.pdf
So there is no valid argument against the need for some independent and authoritative record of oral arguments as being necessary for an efficient and fair justice delivery system.
See website of one US District Court as an example - http://www.cand.uscourts.gov/transcripts
"Transcripts / Court Reporters
Guardianship of the record of court proceedings is a key historic responsibility of the Court. Each court session and proceeding designated by statute, court rule, general order or order of an individual judge is recorded verbatim by stenotype or electronic audio recording equipment.
A written transcript is produced upon the request of a party or order of the Court. This page connects you to information on ordering a transcript or recording, available formats and delivery options and pricing, contact information for court reporters and all necessary forms."
So US Courts see it as their responsibility to maintain and guard records of court proceedings including oral arguments.
A
On the separate issue of cameras in US Courts see http://www.cand.uscourts.gov/cameras
See the form EX 107 for tape transcription requests http://www.johnlarking.co.uk/ex107.pdf
Here's the procedure to get a transcript of oral arguments in the UK as set out on the website of a transcription service provider. http://www.johnlarking.co.uk/ex107.html
"To order a transcript of a civil/family court hearing you will need to complete an EX107 Form. You can download the form here:
EX107 Form
EX107 Form (adapted to accommodate orders at shared cost)
Once you have completed the EX107 Form, please send a copy to the court where the hearing took place, send a copy to us (preferably by email) and keep a copy for your own records. Information about court addresses and court contact information can be found on the GOV.UK website.
Once you have submitted the EX107 Form to the court, the court will process your request and send us the recording for transcription. How long this takes depends on the court.
Once we have received the recording we will type the transcript. Once the transcript has been typed we will send it to you by post, DX and/or by email. Where you have requested a judgment (or your hearing contains a judgment) the judgment will be sent to the court for approval by the Judge. One approved, the judgment can then be sent to you by post, DX and/or by email."
We are mistaking the woods for the trees. Lack of transparency has no place in a democracy and that too at the expense of the taxpayer. Nobody questions the autonomy of the Judiciary. What is urgently required are Judicial reforms and accountability.
That said, do I think the NJAC (as envisaged by GoI) is the answer? Not really; it does seem to make the judiciary a stooge of the legislature, but do we need greater transparency and accountability in the judiciary? Most definitely!
I agree with Seema and the Major as far as allowing audio recordings is concerned. Indeed, it makes sense to have supreme court proceedings televised live like RSTV and LSTV.
http://www.supremecourt.gov/oral_arguments/argument_audio.aspx