Bootstrapping ---- Election/replacemen of Lower Court Judges
Proposed administrative procedure - CT.08
Election/expulsion   of   Lower   Court   Judges
Purpose : To reduce nexuses in lower court judges, and increase their autonomy.
- Existing procedure to appoint/expel Lower Court judges
- Flaws with existing appointment/explusion procedure
- CT.08 : Proposed procedure to elect/expel Lower Court Judges
- Draft of the act to create procedure CT.08
The purpose is to bring India's administration/courts at par with West. How? By improving record keeping in GoI-offices and reducing nexuses in GoI-offices and courts. How? We would need several laws to achieve that.
CT.08 is one of these proposed laws. (to see the list of some of the laws, please click here). The proposed law CT.08 creates a LESS nexusprone mechanism to decide if lower court judge should be allowed to continue or expelled.
Existing procedures to appoint/expel lower court judges
The details may vary from state to state, but in general the lower courts judges are appointed/recruited as follows
Existing appointment rules
- The Magistrates are recruited by open competitive exams - first, the written exams are conducted, and then oral interviews are taken by the High Court judges. The merit list is prepared using the scores of written exams and interviews, and the toppers are offered the position of Magistrates.
- The judges in Sessions Courts are eighter promoted from Magistrate, or the High Court judges may select any advocate they like and appoint him as Sessions Court judge. As a rule, the Chief judge of High Court forms a committee of 3-5 High Court judges who decide the appointments. But it is this HCj or that HCj who decides, and no one else.
Existing expulsion rules
- The HCjs transfer Magistrates and Sessions Court judges every 2-4 years. The transfer are NOT random, but at the discretion of HCjs. And no one except HCj, not even CM or PM, can transfer a Magistrate or a Sessions Court judge.
- The HCjs/SCjs can suspend, or even expel any Magistrate or Sessions Court judge, without seeking any permission from anyone or without even giving any reason to any authority (excep themselves). And no one except HCjs/SCjs, not even CM/PM, can suspend or expel any judge.
How/Why citizens suffer due to above appointment/explusion rules
The ONLY good part of existing system is that a large number, perhaps all, of Magistrates are recruited by written exam and NOT by interviews i.e. nexuses. The personal interviews that are held after written test does make the process a bit nexused, but still the process of recruitment of Magistrates is by and large nexusless.
As a result, a large number of upright and independent minded young men do manage to become Magistrate. This is the ONLY reason why Indian courts are still protecting the innocents against career criminals.
But other than that the procedures of appointment/explusion of Lower Court judges is so nexusprone (and nexused) that Lower Courts have become defunct and nexused to the core.
The fact that HCjs can promote any Magistrate or appoint any lawyer they like as Sessions Court judge creates undue psycophancy in lawyers. Since Magistrates and Sessions court judges can be transferred/expelled by HCjs, most Magistrates and Sessions court judges train themselves to behave in a way that would please HCjs, and don't give a damn about anything else. In addition, the Magistrates etc also feel eager to please HCjs by making favors, which can drastically jeopardize their integrity and independence.
What is worst that Magistrates and Sessions Court judges know that NO ONE, not even MLAs/CM, no one, except HCjs/SCjs can do any damage to them. So they completely become immune to citizens' demands to run a court speedlily as per the laws, and do NOT hesistate in indulging into nexuses with laywers and even criminals, as long as HCjs permit/tolerate. HCjs, on their side, are too busy with their own cases, career and life, and have no reason to ensure that Lower Court judges are NOT establishing nexuses.
All in all, today's Lower Courts in India have become completely defunct, and two of the reasons are
- Citizens have NO procedure to expel a defunct lower court judge
- HCjs have no time and motivation to expel defunct judges
CT.08 : Election/recall of City Judge
The MAIN solution to the problem of nexuses (nexuses like nexuses between judges and lawyers and nexuses between judges and career criminals) is procedure "CT.06 : Jury Trial in Lower Courts". To see details of CT.06, please click here.
The Jury System empowers the Jurors to decide the facts, as well as the validity of the law in the specific case, and decide the punishment as well (below the maximum punishment stated in the law). The role of the judge reduces to advise/guide the Jurors. The procedure CT.06 drastically reduces the power of the lower court judges. So there will be fewer reason for private individuals to form nexuses with judges, and nexuses will play less damaging roles.
But still, it is necessary that Jurors get guidance from unnexused judges, who have independent minds and no fear from any other authority except the citizenry. The procedure CT.08 achieves that to a far greater extent than existing procedures of appointing judges in lower courts, where ALL power is in the hand of HCjs.
The summary of the proposed procedure CT.08 is as follows
- The City/District Council will decide the number of Lower Court judges it needs, and manage the funding using wealth tax, and NO other tax
- Say a city's population is 10,00,000. Such a city may need say 20-100 City Judges. Say the City Council decides to have 80 City Judges.
- Then each year, citizens will elect 1/4th of Judges for a term of 4 years. In above example, each year, citizens will elect 20 Judges.
- A person can serve as City Judge for at most 8 years in his life in one city/district.
- The senior most City Judge will become the Chief City Judge. The seniority will be in terms of number of years he has served as City Judges, and age. The City Judges will give verdict as per the decisions of Jurors.
- Expulsion rule :
- If a citizen has evidences of wrong doing by a judge, he may present the evidences to the City Grand Jury. And if majority of the Grand Jurors see a prima facie case, they may call a Jury to examine the complain.
- If over 8 out of 12 Jurors declare the Judge as "unfit to serve the citizens", the Chief Judge will expel him, and replacement will get elected in the next poll.
Advantages of CT.08 over existing judge appointment/explusion procedure
Following are the advantages of CT.08 over existing procedure
- The lower court Judges under CT.08 will be independent and autonomous of ALL authorities including HCjs. Whereas today, the lower court judges have becomes puppets before HCjs.
- As of today, HCjs neighter have time not motivation to discipline Lower Court judges. Whereas in CT.08, the threat of NOT getting re-elected itself is a major factor that would bring discipline over him. And to that, possibility that Jurors may expel him will act as another detterent. The Jurors are nexuseless, do have time to study the evidences presented before them, and so have motivation (Hatred) to expel defunct judges. So the threat of Explulsion by Jurors will serve as bigger detterent.
Draft of the act to create procedure CT.08
To enact the election/recall over City Judges, two acts will need to be passed, one in the Parliament and another in the Assembly. To see the the drafts, please click here.
Now citizens can ask MLAs/MPs to pass these laws. But IMO, it will be wiser for citizens to first enact procedure LM.02 and LM.03, and then use LM.02 and LM.03 to pass these drafts WITHOUT any help from MLAs and Councilors. To know about procedure LM.02, please click here and to know about procedure LM.03, please click here.
If you have any other question, please mail it to MehtaRahulC@yahoo.com. Thousand thanks in advance.
Next - CT.11 : Election/expulsion of District Prosecutor