Former Supreme Court judge Justice Abhay S. Oka delivering the keynote address on "Accountability of Judges of the Supreme Court and High Courts" at an event organised by the Campaign for Judicial Accountability and Reforms in New Delhi

The Supreme Court Collegium must put questions to the Union Government when its recommendations for appointment of judges to the higher judiciary are kept pending for months, former Supreme Court judge Justice Abhay S. Oka said on Tuesday, while maintaining that the Collegium system itself remains sound and ought to continue until a better system replaces it.

Justice Oka 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) in New Delhi.

Over the course of his address, he turned the accountability debate towards the administrative side of the courts: how the Supreme Court allocates matters among its Benches, who controls the cause list, how trial court judges are transferred, and how judgments ought to be criticised.

The collegium is not the problem

Justice Oka made clear at the outset that he did not regard the Collegium system as the source of the difficulty. Any shortcomings, he suggested, could at times be attributed to the persons in charge of it rather than to the system itself.

"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.

On delays in clearing appointments, Justice Oka described the prompt clearance of a large batch of High Court recommendations last year as an exception rather than the norm. "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," he said.

Justice Oka said the practice of uploading detailed Collegium resolutions on the Supreme Court website does not, by itself, make the system transparent. Transparency, in his view, has to be built into the manner in which the Collegium functions. "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.

Locating the source of judicial accountability in the constitutional oath, Justice Oka said: "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 accountability of judges covers several dimensions, 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 judicial independence," he said. "Judges are first and foremost accountable to litigants who come before them with the great hope of getting speedy and quality justice."

Once a roster is fixed, the CJI cannot interfere with it

Justice Oka said the Supreme Court needs to examine its roster system and administrative functioning if it is to become more accountable to litigants. Without a clear and simple roster, he said, litigants and lawyers are left uncertain about which Bench will hear their cases. He noted that the problem is not confined to the Supreme Court.

"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.

Turning to the Supreme Court's subject-wise roster, Justice Oka criticised the absence of an automatic dating system for listing cases before Benches. Several categories of similar cases, he said, can be assigned to multiple Benches in the apex court, which raises the question of who decides where 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.

"You don't know which matter will be assigned to which bench," he said, adding: "Once there is a roster, the CJI has no right to interfere in it."

Reiterating a view that he and other judges have expressed on earlier occasions, Justice Oka said the Supreme Court is "too CJI-centric", and that it would become more accountable to litigants if it adopted a proper roster system similar to that of the High Courts, with manual intervention kept out.

He invoked Dr. B.R. Ambedkar's warning against hero-worship in this context, saying that excessive concentration of administrative power could foster such a culture around the office of the Chief Justice.

Justice Oka said that getting freshly filed cases listed for their first hearing remains a major challenge, particularly in High Courts with substantial filings and pendency.

"The only solution is auto-date all freshly filed cases," he said, suggesting that bail applications be listed within a day or two and other cases within about a week.

The cause list belongs to the Court; not CJI or Registry

On cause lists, Justice Oka said that the list belongs to the court and not to the Chief Justice or the Registry, and that a litigant whose case is listed but not reached must not be left without a date. "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. Where 100 cases are listed and judges require the number to be cut down to 40 or 50, he said, it is effectively the Registry that decides which matters are taken up. "By curtailing the cause list, the judges play into the hands of the Registry," he said, referring to the principle followed in the Rajasthan and Bombay High Courts that the cause list belongs to the court.

Judgments should be criticised for legal correctness, not for favouring the government

Justice Oka said the accountability debate must also address how judgments are discussed and criticised. Criticism, he said, should engage with the legal correctness of a decision rather than with whether it favoured 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.

"Constructive criticism of judgments; not to say 'I don't agree', but to say where the judgment has gone legally wrong," he added. "There should be constructive debate on judgments. If a judgment favours the government, motives shouldn't be attributed."

Calling for dispassionate discussion of judgments of the Supreme Court and High Courts, Justice Oka pointed out that complaints against judges are, to some extent, an incident of adversarial litigation. "We have an adversarial system. One party is always aggrieved by the decision. We cannot have judges constantly remain subject to complaints," he said.

Drawing on his own time as a High Court judge, he said that even judges who dispose of a large number of cases and take bold decisions can face complaints, and recalled one that 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 that discussions on accountability rarely reach the district judiciary, even though judges there handle the cases of ordinary citizens for decades. "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 added.

Raising concern over frequent transfers of judicial officers within States, Justice Oka said that trial and district court judges may be moved 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 subordinate courts to decide particular cases within fixed timelines without regard to the ground realities in those courts, saying such orders could burden judges who are already dealing with older and more complex matters. "Higher courts should not direct time-bound disposal of cases from lower courts," he said.

Judges of the higher courts, he said, may not be aware of the "grass root situation" in a 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.

He said the question of which categories of cases should receive priority before trial courts requires detailed consideration rather than blanket directions, and that the higher judiciary should lay down uniform guidelines on it.

Justice Oka had opened his address on a lighter note, recounting that a person he met at the airport told him people were expecting "fireworks" from his speech. He said 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 Panel comprised of

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.

[Source: ANI and Indian Express]

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