Master of roster system destroying accountability of judicial system: Kapil Sibal

Senior Advocate Kapil Sibal on Tuesday launched a critique of the administrative functioning of the higher judiciary, warning that the "master of the roster" system, backroom bargaining within the Collegium and complete opacity surrounding in-house disciplinary inquiries against judges accused of misbehaviour have triggered a crisis of public confidence.

Sibal was speaking at a discussion organised by the Campaign for Judicial Accountability and Reforms (CJAR) at the India International Centre in New Delhi.

He observed that while judicial pronouncements are publicly debated, the unreviewable administrative discretion of Chief Justices has left the judicial institution vulnerable to systemic erosion.

"There is a public debate on the judicial side of judgments of the court. But there can't be a debate within the public on decisions which are administrative. I can't criticise a judge for fixing a matter, or Chief Justice for fixing a matter before another judge," he said.

He went on to note that ultimately, a judge is only answerable to his own conscience in such matters.

"How do we get accountability into the system? You know, as a human being, at the end of the day, you're accountable to your conscience. That is the real accountability. And we are all human beings; even judges are human beings. At the end of the day, if they ask themselves and ask their conscience, 'was this right for us to do?', then the answer will be clear to them. But they don't ask that many a time. That's where the problem arises," he said.

Sibal also singled out the Chief Justice’s administrative power as the "master of the roster" as the single most corrosive element undermining judicial accountability.

"The master of the roster is the one administrative decision-making process which is destructive of the accountability of the judicial system. Unless you deal with that, I'm afraid we're going to get nowhere."

He argued that the exercise of this power should also be backed by reasoned explanation.

"The master of the roster power and the allocation of cases are administrative functions that affect the substance of justice. They cannot remain beyond reasoned explanation if the institution is to retain the confidence it requires," he said.

Sibal explained that without transparent standards for the exercise of such powers, concerns may arise regarding how sensitive cases are listed.

Referring to politically sensitive cases under the Prevention of Money Laundering Act (PMLA), he added,

“You send cases of a particular individual to a particular judge, and we know from the outside, Sir, that you are not going to get any relief. That’s pakka. Toh hum jaante hain ki bhai is judge ke aage gaya, toh hum gaye. Aur hum kuch kar bhi nahi sakte (So we know that if it goes before this judge, we are done for. And we cannot do anything about it)."

The veteran lawyer also called before a credible and transparent system to handle complaints against judges accused of corruption or misconduct in a time-bound manner. He characterised the Supreme Court’s 1999 In-House Procedure for handling such complaints as an internal, non-statutory, black box.

“A complainant who writes to the Chief Justice of India rarely learns what became of the complaint; the public almost never does...A system that receives thousands of complaints and publishes almost nothing about their fate cannot claim to be accountable; it can only claim to be closed," he said.

He also took critical note of how a judge's resignation has evolved into an escape hatch when inquiries into corruption allegations become inconvenient.

“Resignation has become the ordinary exit when accountability becomes inconvenient,” he remarked.

He went on to call for a permanent body to be established to deal with complaints against judges, within concrete timelines.

"A permanent body with a judicial majority, but including independent members from the Bar, can inquire into serious allegations while preserving the constitutional protection against easy removal. The law should also provide that an inquiry, once commenced under the Judges (Inquiry) Act, continues and its findings are recorded even if the judge resigns. Resignation cannot be allowed to close the record," he said.

Another issue flagged by Sibal concerned the need for more transparency in the appointment of judges by the Collegium. He flagged concerns of backroom bargaining in such appointments.

"A Chief Justice comes from one High Court; he has been sitting with certain judges in that High Court. Naturally - that's human nature - he would want some of those judges to come to Supreme Court. Another judge will say, 'No, no, no, the person I was sitting with is excellent.' And the Chief Justice of India will have his own person. And the government will have its own interest. So whose interest will prevail? Everybody's. You take one, I take one, we give them one," he pointed out.

He opined that the Collegium must publish its reasons for recommending a judge in a form that does not violate privacy.

"Accountability does not begin after a judge takes office; it begins with how he is chosen," he added.

He also underscored that the Supreme Court cannot insulate itself from critiques on its functioning.

"A court that claims the right to scrutinise every other institution must accept that it too must be scrutinised...Constructive criticism of judgments and of institutional practice must be distinguished from scandal," he said.