Collegium must question government over pending recommendations: Justice Abhay S Oka

Former Supreme Court judge Justice Abhay S. Oka on Tuesday said that the Supreme Court Collegium must ask questions of the government when recommendations made by it for appointment of judges to the higher judiciary remain pending for months.

Former Supreme Court judge Justice Abhay S. Oka on Tuesday said that the Supreme Court Collegium must ask questions of the government when recommendations made by it for appointment of judges to the higher judiciary remain pending for months. Speaking on the subject concerning accountability of judges of the Supreme Court and High Courts, Justice Oka said the Collegium system itself was not the problem and should carry on its workings until a better system is brought in to replace it.

He added that judges at the helm of the Collegium may not follow it properly and mistakes could be attributed at times to the persons at helm of it, but that doesn’t make the system itself bad. “I am a firm believer in the Collegium system. Maybe there are certain persons at the helm of affairs who may not implement it properly, but that does not make the system bad,” he said.

“Recommendations made by the Collegium remain pending for months. Last year, a string of 30-40 High Court recommendations were cleared in three months. That was an exception. Collegium must ask questions to the government,” Justice Oka said. He said merely publishing detailed Collegium resolutions on the Supreme Court website does not by itself ensure transparency, but the same must exist in the process and functioning of the Collegium.

“By publishing detailed resolutions on the website, that does not bring transparency in the system. Transparency should be there in the functioning and the process which is followed in the Collegium,” he said. Justice Oka said accountability of judges begins with the oath they take to uphold the Constitution and the laws of the country in their judicial decisions.

“Accountability of judges first comes from the oath of office, to uphold the laws and Constitution of India. So first they are accountable to the Constitution of India,” he said. He said accountability of judges covers several aspects, including judicial decisions, rosters, appointments made through the Collegium and complaints against judges of the Supreme Court and High Courts.

“Every dimension of accountability must be strengthened without compromising on first — litigants who come before the court seeking timely justice,” he said. Justice Oka said the Supreme Court also needed to examine its roster system and administrative functioning to make itself more accountable to litigants. He said the absence of a clear and simple roster in the Supreme Court could leave litigants and lawyers uncertain about which Bench would hear their cases.

“In some High Courts, the roster is so complicated. Varied cases are given to the same Bench. So the roster needs to be fixed in a simple manner so that lawyers and litigants are able to understand,” he said. Referring to the Supreme Court’s subject-wise roster, Justice Oka criticised the lack of an auto-dating system in fixing of cases before benches, as it is follows in most of the cases. In the apex court, he said several categories of similar types of cases can be assigned to multiple benches. This raises questions about who decides before which bench a particular matter will be listed.

“For a litigant, it becomes an issue as to before which bench their case is going to be listed. The moot question arises: if the same type of cases is assigned to four or five Benches, who decides that one (particular) case is going to be listed before which Bench? Is it the CJI or someone else?” he said. Justice Oka reiterated what has been said before by other judges and himself at earlier occasions that the Supreme Court was “too CJI-centric” and would become more accountable to litigants if it adopted a proper roster system similar to the High Courts, with manual intervention kept out.

He also referred to Dr BR Ambedkar’s warning in this context, against hero-worshipping, saying excessive concentration of administrative powers could contribute to such a culture around the office of the Chief Justice. On cause lists (list of cases which are to be heard by Courts), Justice Oka said it belongs to the court and not to the Chief Justice or the Registry.

“If a date is given and the case is listed, if it does not reach, the litigant must get another date. It should not be that the litigant is left without a date,” he said. He also questioned the practice of drastically curtailing cause lists, saying that if 100 cases are listed, judges may be required to reduce the number to 40-50 cases, leaving the Registry to decide which matters are taken up.

“By curtailing the cause list, the judges play into the hands of the Registry,” he said, while referring to the principle followed in the Rajasthan and Bombay High Courts that the cause list belongs to the court. Justice Oka said the accountability debate must also cover the manner in which judgments are discussed and criticised.

He said judgments must be subjected to constructive criticism on their legal correctness and not on the basis of whether they favour the government or any other party. “Judgments must be criticised for their legal correctness or incorrectness, not because whether it was pro-government or not,” he said.

He said critics should explain where a judgment has gone legally wrong instead of attributing motives to judges. “Constructive criticism of judgments — not to say ‘I don’t agree’, but to say where the judgment has gone legally wrong,” he said.

“There should be constructive debate on judgments. If a judgment favours the government, motives shouldn’t be attributed,” Justice Oka said. He said courts must encourage dispassionate discussion of judgments delivered by the Supreme Court and High Courts, pointing out that the adversarial system naturally leaves one party aggrieved by a judicial decision.

“We have an adversarial system. One party is always aggrieved by the decision. We cannot have judges constantly remain subject to complaints,” he said. Justice Oka also referred to his own experience as a High Court judge, saying even judges who dispose of a large number of cases and take bold decisions can face complaints.

He recalled an instance when a complaint against him as a High Court judge reached the President of India. “In one case, somebody complained to the President. The President of India directed an inquiry against a judge of the High Court. It was myself,” he said.

Justice Oka said accountability should also extend to the lower levels of the judicial system, while stressing that the term “lower courts” should not be used for district and trial courts. “Another aspect of accountability is seminars and discussions. We discuss accountability of High Courts and the Supreme Court. Rarely do we discuss trial courts and district courts,” he said.

“No court should be called lower courts,” he said. He said there was a need to examine transparency and accountability in the district judiciary because judges there handle the cases of ordinary citizens for decades.

Justice Oka also raised concerns over frequent transfers of judicial officers within states, saying judges in trial and district courts may be transferred every three or four years and, in some cases, within a few months. He said the Supreme Court should lay down parameters for a rational and uniform transfer policy for judicial officers.

Justice Oka also criticised the practice of higher courts directing time-bound disposal of cases by subordinate courts without considering the ground realities faced by those courts. “Higher courts should not direct time-bound disposal of cases from lower courts,” he said.

He said judges of higher courts may not know the “grassroot situation” in the trial court, including the number of older cases pending before it. “There may be much older cases pending. Many deserving litigants are left out because certain litigants could afford to get to the higher court and get a favourable order to get their case disposed of faster,” he said.

Justice Oka also raised the question of which categories of cases should receive priority before trial courts. The higher judiciary should lay down uniform guidelines in this regard, he said. He said the issue required detailed consideration rather than blanket directions from higher courts.

He also referred to a lighter exchange at the beginning of his address, saying he had met a person at the airport who told him that people expected “fireworks” from his speech at today’s event. Justice Oka clarified that he could not be expected to provide “fireworks” as it was his bench’s decision in 2024 that completely banned firecrackers that pollute the environment.

The former Supreme Court judge was delivering the keynote address at a panel discussion on “Accountability of Judges of the Supreme Court and High Courts” organised by the Campaign for Judicial Accountability and Reforms (CJAR). Senior Advocate Kapil Sibal, former Delhi High Court judge Justice Rekha Sharma, senior journalist Manish Chibber, Advocate Prashant Bhushan, Advocate and CJAR executive member Indira Unninayar, CJAR Co-convener Alok Prasanna and executive member Anjali Bhardwaj were also part of the panel. (ANI)