Judicial Reforms-- Reduction of Judges’ Discretion First Imperative

The Government of India has failed to bring the bill for judicial reforms in parliament. One of the reasons of obnoxious practices in judiciary especially in some section of the higher one is too much liberty exercised by a judge in using discretion in judicial proceedings particularly at the admission stage.

There are provisions in the procedural or Constitutional laws to use discretion in securing ends of justice. But now a days this discretion is being misused in selective manner. One bench goes on to decide the matter on merits in case of gross violations of fundamental or legal rights; another bench dismisses a writ, application or SLP purely on the point of maintainability, alternative remedy or technical lacuna in similar situation.

In a righteous judicial stance there must not be any variation with change of benches. Decisions from the same set of facts and laws must be the same irrespective of benches.

Discretion invariably affects justice. More the discretion the more are the chances of arbitrariness. The first step should be to eliminate the element of discretion or reduce it to minimum level so that unscrupulous judges do not promote arbitrariness, partiality and favoritism. For this, research should be undertaken to effectively lay down programmed and charted format/paradigm where there is a sense of predictability about the outcome of a case depending upon the facts and law.

The second point of reform should be to make accountable a judge who gives grossly wrong decisions at the cost of fundamental and human rights. Complaint disposal system should be transparent & effective.

The third reform should evolve on recruitment policy of judges and the collegium system must go in favor of a broad spectrum selection panel.

The fourth one should aim at spurring the replacement of or amendment to the impeachment provision so that without diluting the independence of honest judges there must be a mechanism to effectively discipline an errant or corrupt judge.

The fifth and the most important step of reform should focus on the character, moral robustness, incorruptibility and conduct of a judge in his social surroundings.

The sixth reform should entail constant performance appraisal with a focus on quality judgments.

The seventh point of reform should restrain judges indulging in criticism of institutions or individuals off record. A check on judges’ sermons in courts which do not form a part of their orders must be enforced. Only yesterday we noticed news about a judge lamenting denial of justice to ordinary citizens but his own performance belies his own words.