Merits and demerits of ‘outsider’ CHIEF JUSTICE in the High Courts

FROM THE TRIBUNE CHANDIGARH – DEBATE “APPOINTING CHIEF JUSTICES”

The article, “Remedy worse than the malady” (September 9, 2010) by six eminent judges on the appointment of Chief Justices of High Courts from outside (instead of selecting the seniormost Judge to the top slot from the same High Court) has evoked mixed reactions. In continuation of our debate on September 13, we carry today comments from experts.

CJ is the very soul of the High Court

THE practice of having Chief Justices from outside is having a negative effect. The Chief Justice is not a computer; he is the very soul of the High Court. A Chief Justice from outside is not even familiar with the names of the advocates practising in the High Court he has been transferred to. How does he function? A local Judge has his own advantages. He knows the Bar. And if there are misunderstandings with some of the members, he is in a position to informally sort them out in the larger interest.

RAJINDAR SACHAR, Former Chief Justice, Delhi High Court

The system has failed to select the best

THE entire transfer policy which originally had a purpose of having one-third judges from some other high courts has totally collapsed and the policy itself has come to an end. The appointment of Chief Justices was part of the transfer policy. The transfer of a CJ from one state to another for a very short period of time is often engineered to bring certain people to the Supreme Court. This is not a correct approach. Puisne Judges should be elevated in their own courts as also to the Supreme Court. There may be puisne judges who are of distinction who may often be overlooked and will not get a chance based on both seniority and merit. Transferred CJs are often unfamiliar with the state and sometimes lose interest, waiting to be transferred to the Supreme Court. Therefore, in qualitative terms, the best Judge familiar with the state is not appointed as CJ of that state. The appointment of CJs has become a merry-go-round which is entirely whimsical and often punitive. This is unacceptable whatever is the laudable purpose of the policy. The present system has neither elevated the best judges to be in command nor produced the best catchment for selection to the Supreme Court. The best method is to equalise the retirement age of High Court and Supreme Court Judges so that all this manipulation and mad rush come to an end.

Rajeev Dhavan, Senior Advocate, Supreme Court

CJ from outside has no enemies

THE transfer policy has both merits and demerits. The person appointed to the post of Chief Justice of a High Court, who is an outsider, does not have friends or enemies, nor does he have any pre-conceived notion. He would not have any senior or a junior with whom he has worked. He does not have relatives nor does he know the relatives of other judges. While these are the merits, there are demerits too. For instance, the CJ does not have personal experience of the members of the Bar practising in the HC which is a handicap for recommending names for appointment as Judges. He doest not know the district court judges — how good or bad they are. The present system is not bad. The problem is one of working the system and everything depends upon the people who are manning the system. In fact, many times members of the Bar are very happy with the fact that the CJ is from outside. He does not have any prejudices or pre-conceived notions about the fellow colleagues, about members of the Bar and about the subordinate judiciary. There are many outside CJs who have come very popular at the new place. Similarly, there are many CJs who have become unpopular. On the whole, this system should be continued subject to improving upon the functioning of the CJs at the new place.

P.H. PARIKH, Senior Advocate, Supreme Court

Judicial Commission, the only panacea

THE issue is complex. Outside CJs are not the most desirable thing. But in the present situation, it is the least of the evils. If we do away with it, we have a larger evil. The six Judges have a point that it is affecting the working in some ways. As against this, having CJs from the same courts would lead to odd situations and this has been experienced in the past. My personal view is that the present system of appointments and transfers may have shortcomings, but it is necessary until we have a proper judicial commission which will deal with appointments, elevations to the post of CJs and transfers and disciplinary action. We need that. Until we get a constitutional body, this ad hoc arrangement will have to continue.

HARISH SALVE, Senior Advocate, Supreme Court

Change the system of appointments

I agree with the views of the former Judges that there is no need for appointing CJs only from other High Courts. CJs from outside don’t know anybody in the court they are appointed and as such they cannot really control the courts. They have to depend on the views of the fellow Judges and it takes time for them to become familiar with the state of affairs.The whole system of appointment of Judges and CJs must be changed. There must be a Judicial Appointments Commission which must be independent of both the judiciary and the government. The Commission should appoint these people, not the Collegium of senior Judges as at present. The entire system must be rationalised with proper criteria laid down allowing total transparency.

PRASHANT BHUSHAN,
Advocate, Supreme Court

The system has merits and demerits

THEappointment of outside CJs in the High Courts has certain advantages and disadvantages too. An outsider will be above local politics, more objective, will inspire more credibility and command greater credibility.But then, he will not have the first-hand knowledge about the suitability of lawyers to be considered for elevation to the Bench. He will not be familiar with the local language and the practices and rules of the new High Court. Unless he is assured of a reasonably long tenure, he cannot make an effective contribution by providing necessary leadership on the administrative side or on the judicial side. Therefore, it is necessary to ensure a minimum tenure of about three years as CJ in the new High Court.To enable the CJ acquaint himself with the new High Court, he should first be posted as a puisne Judge at least for one year. Transferring of CJs of doubtful integrity from one High Court to another High Court should be stopped. Transfers may not help improve the level of honesty. There should be a provision in the Constitution for not allowing a Judge or a CJ against whom there are complaints which are under investigation to function as a Judge. Such judges should be allowed to remain at home for the period during which the investigation/inquiry goes on without any loss of emoluments. The judiciary today suffers from an erosion of credibility. Every step necessary to restore credibility should be taken.

P.P. RAO,
Senior Advocate, Supreme Court

A whiff of fresh air in High Courts

THE infusion of outside judges has brought about a whiff of freshness to the various high courts. No hard and fast rule can be prescribed whether the Chief Justice must be from the same High Court or from outside. But one thing is apparent that it doesn’t take an outside Judge too long to make himself familiar with the local conditions prevailing in the High Court he has been transferred to. It is for this reason that the practice currently being followed is of bringing prospective Chief Justices to the High Courts where they are likely to be elevated in the near future. The transfer of Acting Chief Justice of the Guwahati High Court Justice Ranjan Gogoi to the Punjab and Haryana High Court is an example.

R.S. CHEEMA,
Former Advocate-General, Punjab

The issue deserves a close look
IT was in the eighties that I first discussed the issue of having local Chief Justices. Two senior-most Judges of the Punjab and Haryana High Court had just returned to the city after stints as Chief Justices; and I happened to ask them their opinion on elevating local judges, instead of importing them from the High Courts of other states. Nearly three decades have lapsed since then, but the response is still fresh in my memory. “It doesn’t help” was the answer. For the first time, a retired Supreme Court Judge and five Chief Justices of High Courts have raised the issue at a public platform; and it should be looked into. We have a huge pool of information available from retired judges of the Supreme Court and Chief Justices of the High Courts. Without much ado, an exercise should be launched to seek their opinion. And if they too are not in favour of having Chief Justices from outside, we should revert to the old order of elevating local judges.
M.L. SARIN,
Senior Advocate, Punjab and Haryana High Court
The question of commitment
Besides what is written in the article, “Remedy worse than the malady”, the commitment a Judge would have for his court would be missing when he is shifted to another court. Further, the local Judges have much better understanding of how best to achieve an efficient justice delivery system for their state.
R.K. CHHIBBAR,
Senior Advocate, Punjab and Haryana High Court

http://www.tribuneindia.com/2010/20100914/debate.htm#4

From - indianlawers.wordpress