FAULT IN THE STARS OF INDIAN JUDICIARY Kavya Gupta & Subhashree Jena Judiciary is one of the most influential institutions in our country as it is a body responsible for deciding the collective destiny of over one billion people who are diverse in many respects, yet united under a democratic constitution. Among all the establishments of the state, Indian Judiciary is the one which boasts the utmost deference and confidence of the public. From minor torts to major crimes, all are brought before the Courts because of the absolute reliance on them. The purportedly indestructible trust which was being displayed towards the judicial system since 1947 is however falling victim to the tectonic disturbances. The Judiciary, which enjoyed the faith of the people only because it can reinforce the same on an everyday basis in the way it conducts itself is now facing such a curve-ball that the hon’ble lordships of the Supreme Court are questioning the integrity of the Chief Justice himself.
The recent developments in the Supreme Court forces one to look into reasons for this instability in the judicial system of the nation. This volatility is not a recent phenomenon, but a cascading effect of much deeper problems.When one looks into the root of the problems clouding the judiciary, prima facie the thickest thorn in the flesh is the number of vacant seats in the judicial body.
According to Vidhi report 2017, the data as in 2016 shows that there are a total of 16,119 judges against the minimum required strength of 60,476, as recommended by Law Commission of India. As on 1st November 2017, there were only 25 judges in the Supreme Court as against the required strength of 30+1, trying to shed off a backlog of 55,259 cases. In May 2016, Justice TS Thakur quantified this inadequacy with a claim that India is in dire need of 70,000 judges. The basis for this is the benchmark of having 50 judges per million population. However, the status quo begs to differ with alarming statistics showing a ratio of 18 judges per 1 million population. All of this suggests that getting anywhere close to the erstwhile CJI’s benchmark of 70,000 or even 65,000 is going to be a herculean, if not impossible, task in the next few decades.
If the delay in appointing requisite number of judges is a finger raised accusing the government (assuming it is deliberately holding current judicial appointments), other fingers point towards the judiciary. In the landmark case of All India Judges’ Association v Union of India the Apex Court expressed its desire that the number of judges be increased in a phased manner in 5 years so as to raise the Judge-Population ratio to 50 per million. This case found its support in the report published by Committee on Reforms of Criminal Justice by Justice V.S.Malimath. Also, as mentioned by Justice Thakur, there has been a rise in vacancies in High Courts to 470, with only 58 new appointments being made after the National Judicial Appointments Commission (NJAC) was struck down. The central govt points out that collegium system is the main culprit behind the empty benches.
The procedure consists of having the senior-most judges in Supreme Court and 3 senior-most in High Court tasked to recommend, with the Supreme Court having the last word. The executive has no role to play in the process. The collegium system has been often critiqued by several judges who point out the lack of transparency in this process and that there is no constitutionally mandated mechanism to select suitable candidates. Though the central government has been trying to bring reform in the process of appointing the judges by advocating NJAC, it has not achieved the desired results yet.
Ergo to blame the government for all the delays is surely uncharitable, for the simple fact is that it is the Court’s predilections that have held up the appointments. The NJAC was introduced in 2015, only to be rejected by the Apex Court bench, which took six months to do so. The delay in rejection itself meant no appointments during the period. To add to the impediment, Supreme Court directed government to formulate a Memorandum of Procedure for short-listing and finalising judges for appointment; which again is work in progress.
This memorandum, ultimately came to a standstill in the government-judiciary cold war. The humongous build-up of vacancies is largely because of the sabbatical in judicial appointments between April 2016 and now, most of the delay was due to the judiciary’s decision to block the NJAC. The dogfight between the judiciary and government does little good in protecting the stakeholders and imparting justice on them.While Collegium system versus NJAC might be the reason for vacancies in Higher Courts, the erratic and under-staffed District Courts are infested with entirely different issues. The lack of incentives and opportunities for the district Court judges is a major setback for the suitable candidates for the position. A lawyer in fact might come across greater opportunities in comparison to a district Court judge. The lack of motivations clubbed with an early retirement age, low prestige and shrivelled pay-packages act as major deterrence for the aspirants. There is more often than not political pressure that judges face.
The nepotism which taints judiciary, creating a nexus of judges from the same bloodline is again a huge dissuasion and thus the last nail in the coffin. The empty benches in the Court are the major cause of arrears and delays in disposal of cases, which might as well be older than a decade. One of the stalwart examples, of the judicial system being slow is that cases such as 1984 Sikh riots are still waiting for a final verdict. The ratio decedendi in the landmark case, P Ramachandra Rao v State of Karnataka is that “The root cause for delay in dispensation is poor judge-population ratio”The 245th report of the Law Commission of India Highlights the data obtained from the Supreme Court Publication Court News according to which High Courts are backlogged and are unable to keep pace with new cases. The annual data from Court News was for the time period 2011-2012 during which though 1909543 cases were brought to the High Courts, only 1764607 matters were disposed of. The backlog, therefore, increased by 144936. On an average in this time period, High Court judges disposed of 2821.07 cases per judge.
As of 2012, 4407861 matters were pending before all the High Courts. At such a sluggish rate of disposal, High Courts require an additional 56 judges to breakeven and an additional 942 judges to clear the backlog. This data from the 2014 Law Commission Report has now become even worse . The figures are enough to Highlight the deplorable condition under which the Indian judicial system is reeling.
According to the data collected by DAKSH average time taken to dispose of various types of cases suggest that there is a serious problem of case management in procedure law in India. A criminal writ petition takes 373 days on an average to be disposed off while a civil writ petition takes 523.5 days. Criminal appeals take 2264 days to be heard and adequately dealt with. The figures are witness to the fact that cases linger for years and justice is certainly denied by virtue of its delay. Clearly enough, to wait for 9 dog years before a suit is heard puts a great strain on the parties to the dispute.
So also, the law’s delays cannot but have a dampening effect on commercial intercourse as judicial delays in the disposal of litigation stand in the way of legal recovery, increase credit risks and encourage over-cautious attitudes which stand in the way of economic expansion. The adjournments of law along with creating a sense of frustration amongst thousands of individuals, have a more insidious effect of inducing people to by-pass the Courts of justice and to settle issues expeditiously on the streets.The dearth of judges leads each of them to handle a large no of cases, thereby, overstraining them, resulting in frequent adjournments and erroneous judgements. The recommendation of setting up fast track Courts in 2011 should have ideally meant appointing more judges.
Instead sitting judges have been transferred to these Courts. In any case the supportive infra and administrative resources are nowhere near sufficient to handle the extra load. Clearly, a few fast track Courts conducted by judges already presiding over other Courts are not enough to deliver justice to the millions of people seeking the same. Apart from the problems of vacancies and delays, the judiciary is also plagued by the vices of antediluvian methods of work and lack of digitalisation of the courts. Dust-laden files are lost in the sands of time and several cases never see the light of the day even after decades. While the status quo of India is very disheartening, for some nations, their judiciary stands out to be very competent and successful.
Despite having the Highest workload, reporting over 5000 cases per judge per annum, the Chilean Courts have a remarkable clearance rate. Only when the clearance rate is greater than 100 percent, as seen in France and Peru, are the Courts able to catch up on case backlogs. To add to France’s credentials, it exhibits maximum number of judges per capita i.e. 8.45. It is also significant that, while Singapore is among the countries with the fewest judges per 100,000 capita (0.
64), it has one of the Highest clearance rates. It has been found that, in some Courts, an increase in filed cases causes the Courts to internally adapt to the change to maintain its rate of case resolution. Hence it would not be objectionable to infer that if the Courts are well-organized, even with low judge count and increased filings, the Courts often in fact deliver judgements conducive for the stakeholders.A responsible citizen should not just slander like a cantankerous ‘passer-by’ but should be a constructive critic with solutions for a desired reform because the role of a robust judiciary in a nation’s development is pivotal.
Several wide-ranging measures have been suggested by various jurists and the public alike. For instance, Former CJI Justice R.M. Lodha had proposed to make Judges work throughout the year. He however did not propose increasing the number of working days/hours, rather, meant judges taking leave at different time slots. Justice AP Shah, as the chairperson of the Law Commission of India, had opined that trivial cases and minor offences, like those of traffic challans, need to be separated from the regular Court system, and instead be resolved by other Quasi-Judicial mediums which might even involve retired judges in foreplay. This would leave the Courts to deal only with grave criminal offences and matters of gravitas.The row between SC and UOI on the Memorandum of Procedure is the pari ratione of the undesired vacancies.
The quashing of NJAC by the judiciary remains a grouse with the executive. But there is no sense in crying over spilt milk and the ongoing brinkmanship will help no one. The least which can be done is the government moving dynamically on finalising the MoP and clearing the vacancies. On the SC’s part it should frame another mechanism to appoint judges which guarantees transparency in selection of judges since the indiscriminate power of the judges to appoint other judges has to be checked. Inter alia, the work-milieu and ethics of the lower Courts have to be enhanced to boost the overall proficiency in imparting justice. This can be done by, firstly, augmenting the salaries of the judges and administrative staff. Secondly, an All India Examination (in the lines of Civil Services) for Judges in lower judiciary should be conducted to ensure increased aspirants in terms of both quality and quantity so that the retiring lot can be replaced quickly.
These measures would eventually make the career in lower judiciary more lucrative. The retirement age of the judges need to be increased as early retirement deprives the judges, who are fit and willing to work, of the opportunity to do so, moreover, if lawyers in India work up to their 80s and more, the judges should also be allowed to do the same. Instruments of alternate dispute resolution need to be promoted so that the uncalled-for-cases, frivolous matters and unnecessary workload doesn’t keep the judiciary engaged and obstruct the path of speedy justice. Judiciary as a profession too needs to be promoted.
The Supreme Court needs to be expanded with the best High Court judges, High Court expanded with the best Session Court judges and expand Session Court judges with the best lawyers. Another issue is that the Judiciary is still caught up in the pre-liberalisation era where it was okay to shut offices with the sunset and have skeleton services on weekends. Today the Indian citizen is active round the clock round the year. So why can’t the Courts be opened 365 days a year like various other services. Similar to doctors, police officers, intelligence services working graveyard shifts, there should be a special magistrate to cater to emergency cases after the regular working hours are done and not have the victims waiting till the break of dawn.Just like all the High Court having benches it is high time for the Supreme Court to have benches in all corners of the country so that accessibility increases and people, both rich and poor could avail the same.
In 2009 the Law Commission too had recommended that the Supreme Court be split into a Constitution Bench in New Delhi and Cassation Benches in the four regions to deal with all the appellate work arising out of High Court decisions. Retired judges, who are willing to serve the cause of clearing such a huge backlog can also be encouraged to take up certain cases and help dispose them equitably. Moreover, the main job of a judge is to reach at a logical conclusion of the case laid in front of him however, the major time and resources of our judges is wasted in managing and setting priorities of the cases. There is therefore a need of Judicial Administrators to manage the Court affairs and prevent this unnecessary delay and wasting of both time and resources. The judiciary is the backbone of any society and strengthening the same by plugging in the loopholes can help both the country and this institution flourish. When the pillar of judiciary is made firm, the democracy with its people will grow and develop.
Any issue doesn’t get resolved on its own and certainly not when a blame game ensues. Therefore, it is the need of the hour to strive and help the Judiciary revert to its original condition, that of a beacon of hope and platform to provide justice to the people
