SEKAR REPORTER

Court News from Madras High Court

Dmk mp wilson To Thiru. Arjun Ram MeghwalHon’ble Minister for Law & Justice,Government of India.

by ·

28.06.2024
To,

Thiru. Arjun Ram Meghwal
Hon’ble Minister for Law & Justice,
Government of India.

Dear Thiru. Arjun Ram Meghwal,
Vanakkam!

Subject: (a)Establishment of Permanent Regional Benches of the Supreme Court in Delhi, Kolkata, Mumbai and Chennai for the North, South, West and East Zones apart from a Constitution Bench at Delhi.
(b)Representative Judiciary- ensuring Social Justice and Social Diversity in the appointment of Judges to the Hon’ble Supreme Court of India and Hon’ble High Courts;
(c)Request to increase retirement age from 62 years to 65 years for High Court Judges and from 65 years to 70 years for Supreme Court Judges by bringing Constitutional Amendments;
(d) Notify appointments of withheld/overlooked names recommended by SC collegium for appointment of Judges of various High Courts and place them in the seniority position as recommended by the Hon’ble Supreme Court.

I hope this letter finds you well.

At the outset, I wish to offer my heartiest congratulations to you on your assumption of the office of Minister for Law & Justice, Government of India for the second time, however, I wish to bring your kind attention to the pressing issues regarding the Indian Judicial System which need reforms.

I. Establishment of Permanent Regional Benches of the Hon’ble Supreme Court in Delhi, Kolkata, Mumbai and Chennai for the North, South, West and East Zones, apart from the Constitution Bench at Delhi.

  1. The principle of access to justice has been indelibly etched in our Constitution. In order to ensure that access to justice is available at a grass root level, the Supreme Court of India must be easily approachable and available to the poor and the marginalised communities across the length and breadth of this vast nation.
  2. Even though the Hon’ble Supreme Court does not distinguish between rich or poor, it is now a fact that de facto Article 32 is now practically available only to (i) citizens who are geographically close to the Supreme Court and (ii) the financially privileged class to whom costs of litigation and travel does not matter. The recourse under Article 32 cannot be deprived due to economic factors, and such a situation is antithetical to the constitutional mandate under Article 39. Considering the fact that the Supreme Court is located at New Delhi (which is not equidistant to all parts of the country) and far away from many States, particularly the Southern, South Western & Eastern States, the citizens in these States are deprived of their fundamental right to approach the Court not only due to distance but also due to the cost factor. Apart from Article 32 Writ Petitions, the Court regularly hears civil and criminal appeals, special leave petitions (SLPs), disputes between Governments and petitions pertaining to international commercial arbitration matters. This ever-expanding docket of the Court has transformed it from a body that hears constitutional matters to a final Appellate Court.
  3. To remedy this situation, the Standing Committees of Parliament recommended the setting up of Regional Benches of the Supreme Court in 2004, 2005, 2006 and 2008. The 107th Report of the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice which was tabled before both the Houses on 16.3.2021, has also recommended for the establishment of Permanent Regional Benches of the Supreme Court (“PRB”). Various Law Commission Reports have also recommended establishment of Regional Benches. In its 229th Report, the Law Commission submitted a report to the Union Government on the Need for Division of the Supreme Court into a Constitution Bench at Delhi and Cassation Benches in Four regions at Delhi, Chennai, Kolkata and Mumbai discussed in detail the possibility of setting up PRB.
  4. I have repeatedly raised this issue inside the Rajya Sabha on many occasions and made representations to your distinguished predecessors as well. Further, I have also introduced a Private Members’ Bill in the Rajya Sabha on 26.07.2021 to amend Article 130 of the Constitution to provide for the establishment of PRB.
  5. By establishing PRBs, we will be strengthening the judicial institutions by creating more access to justice and not weakening it. This would lead to an increase in number of judges resulting in speedy disposal of cases and clearing the surmounting backlog of opening cases. That, apart the Judge to population of the Hon’ble Supreme Court would also increase. Therefore, looking at it form any angle, the establishment of PRBs is the need of the hour.

II. Representative Judiciary- ensuring Social Justice and Social Diversity in the appointment of Judges to the Hon’ble Supreme Court of India and Hon’ble High Courts

  1. As on 27.06.2023 there are about 83665 matters pending before the Hon’ble Supreme Court. In addition to the “efficiency deficit” there is also a “diversity deficit” in our Hon’ble Supreme Court and the Hon’ble High Courts. Judicial diversity is fundamental to the quality of judging. Many social groups have been poorly represented in the Judiciary. Many social groups have been poorly represented in the Judiciary. People of this country are afraid that a very narrow, homogenous group of Judges belonging to certain class alone cannot necessarily reflect the views and values of society as a whole, particularly on issues which involved diverse, linguistic, cultural and generational matters because they would require a different perspective as Judges would interpret and enforce law based on their own backgrounds.
  2. These issues were also raised in the Parliament by the Department-Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice in its 133rd Report on “Judicial Processes and their Reform” which I am a member of. The Committee had made the following recommended that while making recommendations for appointments to the Higher Judiciary, both the Supreme Court and the High Court’s Collegiums should recommend an adequate number of women and candidates from the marginalized sections of the society including minorities. This provision should be clearly mentioned in the Memoranda of Procedure (MoP), which is presently under finalization. That furthermore, the Committee had recommended the Department of Justice to find ways and means to collect such data in respect of all judges presently serving in the Supreme Court and High Courts and for doing so, necessary amendments may be brought in the respective Acts/service rules of the judges.
  3. A more diverse judiciary adequately representing different States and different communities is desirable because without one, the chances of violation of the unrepresented classes are greatly increased which would indirectly imply discrimination. Diversity on the benches enhances judicial impartiality as well as would increase public confidence in the administration of justice. Furthermore, diversity is needed in the judiciary to address the growing diversity in society itself as out Indian society consists of a mix of people hailing from different religions, communities, castes, languages and cultures. It is truism that impartiality is essential to a well-functioning judiciary.

III. Increase in retirement Age from 62 to 65 for High Court Judges and from 65 to 70 years for Supreme Court Judges by bringing Constitutional Amendments

  1. One of the chief causes of delay in disposing cases is the large number of vacancies in High Courts across the country. This situation is further worsened by the fact that when judges retire, appointment of new judges in their places is not immediate. The Memorandum of Procedure for appointment of Judges states that the process of filling up of vacancies must commence six months prior to the expected date of retirement of High Court Judges, so that the vacancy is immediately filled upon retirement of a judge. As on 01.06.2024, there are over 345 vacancies of judges in all High Courts including 11 vacancies in the Madras High Court.
  2. One of the immediate measures for ameliorating this situation is by increasing the age of retirement of High Court Judges from 62 to 65 years and increasing the age of retirement of Supreme Court Judges from 65 to 70 years. When the Constitution was originally enacted, Article 217 (1) fixed the age of retirement of High Court Judges as 60 years. Subsequently, within 13 years, it was realised that the human body and mind does not become so incapacitated at the age of 60 so as to that Judge must compulsorily retire. Hence, by virtue of the Constitution (Fifteenth Amendment) Act, 1963, the age of retirement was increased to 62 years. From 1963 onwards, the age of retirement has remained at 62. Over the past five decades, advancement in science and technology, medicine, better infrastructure and lifestyle has allowed Indians in other walks of life to be efficient, functional and work well up to the age of about 75 years.
  3. It may be noted that countries across the world are already ahead of us in this regard. Retirement age of 70 years is a common practice in some of the most developed democracies. For instance, in Austria, Greece and USA Supreme Court and constitutional Courts, judges have the option of opting for life tenures. Similarly In Belgium, Denmark, Ireland, the Netherlands, Norway and Australia, the retirement age for judges is 70 years.
  4. The early retirement age for both High Court and Supreme Court judges acts as a visible threat to the independence of the judiciary. Naturally, when approaching the retirement age, Judges start thinking about post-retirement jobs. This leads them to take a pro-government approach in the hope that they secure appointments to Tribunals, Commissions or even political positions in the Legislative or Executive branches of Government. From a purely human perspective, they cannot be faulted for this because the fact is some Judges still need to earn a living at 62 years of age. They may have children and elderly parents to support and the pension offered is not enough to survive in an urban city. Not every Judge can transition into legal practice after 10-15 years as a Judge.
  5. The Parliamentary Standing Committee on Personnel, Public Grievances and Law and Justice in its 96th report, 2018 also favoured increasing the retirement age of judges, saying it would help retain the existing Judges and reduce judicial vacancies as well as the pendency of cases. Furthermore, the 107th Report of the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice which was tabled before the both the Houses on 16.3.2021 has also given its recommendation to increase the retirement age of Judges of the High Court from 62 to 65 years. They have also consistently recommended for increase of age of retirement of High Court and Supreme Court Judges to 65 and 70 respectively.
  6. In furtherance of the same, I have also introduced a Constitution Amendment Bill as Private Member’s Bill in the Rajya Sabha on 06.12.2019 to amend the Constitution and to increase the retirement age of Judges in the High Courts to 65 years.

IV. Clearing of the withheld/overlooked names recommended by SC collegium for appointment of Judges of various High Courts.

  1. As you are well aware that there is no time limit fixed for processing the names of the judges for appointment to the post of High Court and Supreme Court after Collegium of Supreme Court recommends. In lieu of the same, the Law Ministry without any justification has withheld or overlooked certain names recommended for appointment as judges to various High Court and Supreme Court. The result of such overlooking and withholding of the names recommended by the Supreme Court collegium by the Law Ministry of the Union Government, meritorious candidates have lost their interest and morale and many are now uninterested to take up such noble posts because of the uncertainty in the approval of recommendations by the Collegium.
  2. I want to emphasise the fact that the Collegium recommendations are binding on the Law Ministry of the Union Government by virtue of the law laid down in the “Second Judges Case”. Hence withholding or overlooking the names recommended for the appointment of High Court judges by the Supreme Court Collegium after much deliberations and inputs from the State Government, Union Government, Intelligence Bureau amounts to an arbitrary use and abuse of power besides overreaching the approved methodology in selection of Judges of Higher Judiciary which is well settled law of the land. There are no reasons for the Law Ministry to sit over these recommendations particularly when the Collegium has reiterated twice.
  3. In the Constitutional scheme, this deadlock can never be condoned or appreciated as no one is above rule of law and we are bound by it.
  4. The measures enumerated above are nothing new and have been seldomly suggested and spoken about in the public arena. By bringing such reforms to the Indian Judicial System, it would not just curb the leaks in the system, but would ensure that it is a well-oiled machine dispensing speedy justice to the citizens of India. I therefore request you to take immediate steps to (1) Establish Permanent Regional Benches of the Supreme Court in Delhi, Kolkata, Mumbai and Chennai for the North, South, West and East Zones apart from a Constitution Bench at Delhi; (b)Ensure Social Justice and Social Diversity in the appointment of Judges to the Hon’ble Supreme Court of India and Hon’ble High Courts; (c) Increase retirement age from 62 years to 65 years for High Court Judges and from 65 years to 70 years for Supreme Court Judges by bringing Constitutional Amendments and (d) Notify appointments of withheld/overlooked names recommended by SC collegium for appointment of Judges of various High Courts and place them in the seniority position as recommended by the Hon’ble Supreme Court.

I remain in the fond hope that you will consider this request favourably and oblige.

Thanking You

P. Wilson
Member of Parliament, Rajya Sabha
Tamil Nadu

.

You may also like...