Sunday, September 20, 2009

Fali Nariman on a Judicial Ombudsman and other things

Fali Nariman was interviewed last night on NDTV's Walk the Talk (reprinted in the Indian Express on 21/9/09). In the interview Nariman stated - with some prodding by Shekhar Gupta - that the judiciary was in its greatest moment of crisis since the Emergency because of a seeming decline in it's integrity in the eyes of the public. He made several suggestions to correct this problem - three of his recommendations that I particularly agree with I will highlight in this post (although the entire interview is well worth watching).

First, he recommended that a judicial ombudsman, independent of the Chief Justice, should be appointed to investigate allegations against judges and act on them in consultation with the Chief Justice. Second, he argued that the judges on the Supreme Court collegium were men of good integrity, but overworked and did not have time to properly screen judicial candidates. The collegium should be better institutionalized so that they have staff to help them with this screening. Third, he felt that High Court judges retirment age should be raised from 62 to the Supreme Court's 65. This way High Court judges would not feel like they have to toe the collegium's line in order to get promoted and so extend their time as a judge three more years.

On first glance, I think the judicial ombudsman is a great idea. As Nariman points out in the interview, there might not be another country with this type of ombudsman, but there aren't many countries where the judiciary effectively self-appoints itself. There needs to be a check on this power if the political branches can't or aren't capable of playing this role. An independent ombudsman would be one way to institutionalize such a check.

Institutionalizing the collegium is also important if it is to continue selecting judicial candidates. In other countries, the staff of the executive or legislature often play this role when these branches help select judicial candidates. In India the appearance is too often given that selection by the collegium is a complete insider's game (i.e. you are selected if you are friends/ideologically connected to someone in the collegium). A staff could be used to more systematically go through perspective candidates on seemingly more objective criteria.

Many have commented on the need to raise the High Court judges retirement age to be on par with the Supreme Court, and this change is long overdue. Not only can the collegium exercise an unhealthy controlling influence over High Court judges wanting to get on the Supreme Court so they don't have to retire earlier, but it is difficult to recruit talent when candidates know they will have to retire at the tender age of 62. In the constituent assembly debates members argued such an early retirement age for High Court and Supreme Court judges was needed because the average life expectancy wasn't very high in India and the difficulty older persons encounter working long hours in India's heat. Neither of these seem good justifications today. An across the board age limit of 68 or 70 would be more appropriate.

Finally, Nariman also commented in the interview that the Supreme Court was right to keep taking so many appeals from the High Courts because in many High Courts lawyers were more likely to get positive judgments if they were the same caste as the judge. In the Supreme Court such caste politics was diluted, and so fairer justice could be ensured. One of the primary reasons often put forward for the Supreme Court hearing so many cases is a distrust of the High Court judges: a feeling that some are incompetent, others may favor or discriminate on parochial interests such as caste, and some may be corrupt. If these are the reasons the Supreme Court is taking so many appeals they should be researched far more. Which High Courts seem particularly corrupt? Which discriminate unfairly? Which are less competent? Which judges? Maybe the Supreme Court should make appeal from some High Courts easier out of these fears. More to the point, maybe the collegium, or an ombudsman if they were to be appointed, should investigate such allegations and take corrective action. Either way, the problem needs to be put out into the open and then systematically tackled.

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