THERE IS A NEED TO END JUDICIAL FEUDALISM IN INDIA

A few days ago, while speaking at a National Conference on Mediation and Information Technology, organized by the High Court of Gujarat, senior Supreme Court judge Justice Dr. D. Y. Chandrachud said that the Indian judiciary continues to be “feudal” and it should change its mind set to become “modern and futuristic”. He suggested enhancing the use of technology to modernise the judiciary and end the feudal structure. Justice Chandrachud said: “We all know Indian judiciary even today is essentially feudal. These feudal practices are evident to us by the element of subordination between practice amongst judges of the district judiciary judges being made to wait when a judge of the higher court is coming to the district, at the border of the district. Judges of the district judiciary are not allowed to sit when they talk to high court judges or even higher. These are some of the symbols of the subordination of the district judiciary”.

Justice Chandrachud further said that technology can be useful to bring necessary reforms to the judicial system. He said that inspection of districts, which is a source of grave stress to our district judiciary, can be radically changed if we allow for electronic registers for inspection by the High Courts. “Likewise, when we assess the performance of judicial officers, or promotion of judges all the way across, I believe, not just from district judiciary to High Courts but from High Courts to the Supreme Court, we can do a lot to assuage the grievance, that our processes are not objective and we can assuage that grievance provided we use technology in an objective manner for those who are under consideration for higher judicial office. So I do believe that technology is full of untapped potential for changing the face of the Indian judiciary and for making it more modern,” said Justice Chandrachudin his virtual address. Justice Chandrachud is considered a liberal, technology-friendly, and progressive judge who has always stood against the feudal culture and mindset prevalent in the judiciary. The time has come when more judges and lawyers should speak against the feudal environment prevalent in the judiciary. Recently, some states like Himachal Pradesh have taken steps to abolish this culture by replacing the word “subordinate courts” with district judiciary. This is a good decision that should also be emulated by other states to protect the dignity of the judges working at the grassroot level.

Time and again, many public intellectuals, legal thinkers, and constitutional pundits have raised this issue on different platforms but no effective action has yet been taken to abolish the feudal culture from the judicial branch of the state either by Parliament or the Supreme Court. The district judiciary needs a dignified treatment. In one of his pieces published in the Indian Express on 24 August 2021, eminent legal philosopher Professor Upendra Baxi also raised his concerns against feudalism in the judiciary. This is what Professor Baxi had said about this issue: “I have always pointed out at public fora and in my writings that the expression “subordinate courts” used by Part VI, Chapter 6, of the Constitution of India cannot signify that judges are indeed so. This inelegant enunciation menaces the independence of the judiciary, entrenched with and since Kesavananda Bharati(1973) as the essential feature of the basic structure of the Indian Constitution. Now is the time for Parliament to remove the substantial nomenclature of “subordinate judiciary”, and the courts to eliminate the last vestiges of judicial feudalism-the moral fault line of judicial hierarchy”.

Further, Professor Baxi states: “When I rhetorically posed a question to then Chief Justice of India Y. V. Chandrachud at a public meeting, he was visibly annoyed and retorted: “What is the difference between the CJI and the sarpanch of a nyaya panchayat?” I meant no disrespect to him or the judiciary. To his credit, he contained his annoyance but the fact is that no judge is “subordinate” to any other. As constitutional beings, judges are limited in jurisdiction but also supreme within their own jurisdiction. However, Article 235 speaks of “control over subordinate courts”. This Article adds insult to injury by describing these entities and agents as persons “holding a post inferior to the post of a district judge. The Constitution no doubt contemplates a hierarchy of jurisdictions, but no judge acting within her jurisdiction, is “inferior” or “subordinate”. On appeal, or review, a court with ample jurisdiction may overturn and even pass judicial strictures but this does not make the concerned courts “lower” or “inferior” courts. True, High Courts always have considerable powers of superintendence on the administrative side but this “supervisory” power has been recognized by the apex court as a “constitutional power” and subject to the right of appeal as granted by Article 235”.

Professor Baxi offers a few suggestions to end the feudal culture in the judiciary: “My view endorses a complete recasting of Article 235, which does away with the omnibus expression of “control” powers in the High Courts. They may exercise “supervision” under detailed performance norms. But there is no reason why for most matters (save elevation), senior-most district judges and judges of the High Courts may not constitute a collegiate system to facilitate judicial administration, infrastructure, access, monitoring of disposal rates, minimisation of undue delays in administration of justice, alongside matters concerning transfers, and leave. The amendment should specifically require the High Courts to satisfy the criteria flowing from the principles of natural and constitutional justice and all judicial officers who fulfil due qualification thresholds should be treated with constitutional dignity and respect. If an ACR is to be adversely changed in the face of a consistent award for a decade or more, it should be a collegiate act of the five senior-most justices, including the Chief Justice of the High Court”.

Justice Sanjib Banerjee, former Chief Justice of Madras High Court, had also spoken on this issue during his farewell function in Madras. “My regret is that I could not demolish feudal culture in which you serve”, Justice Banerjee had told the staff of the High Court. Justice Banerjee is a brilliant judge who is well-known for his commitment to the cause of human rights protection and free speech.

Gone are the days of feudalism. There is no place for this culture in the 21st century which is the era of human equality, and dignity. The observations made by Justice Chandrachud, Professor Upendra Baxi, and Justice Banerjee need a serious consideration. The Chief Justice of India and the Chief Justices of High Courts may consider sensitizing the judicial community to end the feudal culture prevalent in the judiciary to protect the independence of the judges working in the district judiciary, the first point of interface to the citizen. No judge should be called subordinate or inferior, or lower judge. There is no place for the word “subordination” in the judiciary. All judges are free and independent. No judge is subordinate to another. Every judge acts in his/her own jurisdiction. No senior judge can direct his junior judge to decide a case in a particular way. The judges are not members of the police or armed forces who need orders from their superiors to discharge their functions. All judges get their powers from the statutes and exercise them within the four corners of the statutes. Also, sufficient checks and balances are made in the judicial system to correct the errors of judicial actions. The High Courts have constitutional powers to check the errors of the district judiciary and tribunals and the Supreme Court is the final appellate court. As per Article 141 of the Constitution, the law declared by the Supreme Court is binding on all courts and tribunals within the territory of India. The law of precedent ensures judicial discipline. In addition, sufficient remedies are made to approach the higher forum in appeal, and revision. Thus, no question arises to call the judges as subordinate, lower, or inferior. A judge is a judge, and his/her dignity must be respected by everybody including his/her senior colleagues working in the judicial community. Therefore, the Constitution should be amended and the words “subordinate courts” should be renamed the “district judiciary”. In the Arnab Goswami case, the Supreme Court also observed: “Our district judiciary is wrongly referred to as the ‘subordinate judiciary’. It may be subordinate in hierarchy but it is not subordinate in terms of its importance in the lives of citizens or in terms of the duty to render justice to them”.

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