Even in these iconoclastic times, the Indian judiciary, especially the High Courts and the Supreme Court, command respect and credibility which has been further enhanced by their judgements in the Right to Privacy, Triple Talaq and Ram Rahim cases.

The public remembers with gratitude the numerous occasions when the courts stood up for the common man against executive excesses. Courts have often laid down norms of good governance in Public Interest Litigation (PIL) cases which has reformed administrative practices. On the other hand, the same public shows its dissatisfaction with the judicial process by idolising “encounter specialists” and meting out instant justice to the unfortunate petty criminals caught in the act. So what is the true face of the judiciary?

Is it the wise and fearless judges who uphold the rights of the common man or judges like the infamous Justice Karnan whose bizarre doings forced the Supreme Court to jail him? Unfortunately, mavericks like the Rajasthan High Court judge, whose views on avian reproduction had us all in splits, have taken the gloss off the image of judges in the public mind.

However, some bad eggs in an otherwise healthy lot is not the most pressing of the judiciary’s problems. The touchstone of judicial performance is quick and efficient delivery of justice but recent statistics show that 2.8 crore cases are pending in District Courts, 40.5 lakh cases are pending in High Courts and 61,000 cases are pending in the Supreme Court, which combined with a shortage of 5,000 judges in the lower courts, 40 per cent shortage in the High Courts and a 13 per cent (now 20 per cent) shortage in the Supreme Court (Source: ‘Indian Judiciary Annual Report 2015-2016’ published by the Supreme Court), ensure that quick justice remains a mirage. Rather, decisions in most cases are delayed inordinately.

Time bound resolution of cases is also a pre-requisite for a healthy business environment. Make in India would definitely get a fillip if we had a more efficient judiciary because a prudent investor would prefer to invest in a country where business disputes are resolved expeditiously. Recognising this problem, in a recent case, the Supreme Court observed that: “…no country can progress if there was no functional and effective judiciary. No person from abroad would like to come to India and contest his case for 15 years.”

An added problem is corruption, which is rampant but ignored by all. Noticing an irregular bail order in a minister’s case, a probe was ordered by the Chief Justice of Allahabad High Court which established that Rs.10 crores had been paid to judges and advocates to grant bail. Interestingly, no case was registered against the erring judges and advocates. Poor infrastructure and an unprofessional environment further erode the confidence of the public in the judiciary. Housed in shabby paanstained buildings, with mountains of records falling over and dungeon like corridors, District Courts in India evoke pity and dread in equal measure.

Once you enter the court premises you are surrounded by hordes of lawyers literally begging you to avail of their services but their torn black coats and worn out shoes evoke sympathy but not confidence. The court staff, sitting below the chair of the Judge receives small bribes from litigants right under the Judge’s nose, which the Judge pretends to ignore. Cases are called out, one after the other; the majority are adjourned.

Mostly, lawyers or litigants are not available. No wonder cases do not get decided, many of the decisions of the court are in cases abandoned by one or the other litigant because the case had become irrelevant with the passage of time. Selection of judges to High Courts has been in the eye of the storm recently. One has to understand that High Courts in India are ivory towers; prisoners to archaic procedures. Your chances of becoming a judge go up astronomically if you are the son/nephew of a judge – sitting or retired.

Judges from the State Judicial Service who are promoted to the High Court have very short tenures of two to three years which leaves them with little time to learn the ropes while the meagre pay of a High Court judge prevents top notch advocates from opting for the Bench. With such a limited talent pool to draw upon, the quality of judges and the justice meted out has suffered. Probably, the process of selection of judges of higher courts needs a relook but with the Parliament and the Supreme Court taking extreme views on this subject, the public can only pray that the issue would be resolved amicably and expeditiously.

The Supreme Court of India is the highest judicial forum with plenary powers but with an overfull calendar it is not able to do justice to its role as the protector of laws and the protector of the Constitution. The disposal of cases in the Supreme Court can hardly keep pace with the filing of new cases. There is a murmur that the Supreme Court is now functioning more as a court of appeal neglecting its role of a Constitutional Court. For an ordinary person, pursuing a case in the Supreme Court is well nigh impossible. Firstly, the Supreme Court sits only at Delhi and then the Supreme Court has its own set of lawyers who charge a bomb.

By the time a case reaches the Supreme Court, it is quite likely that the litigants would have moved on. Any effort to reform the judiciary soon gets mired into controversies created by vested interests. If a reformative proposal enhances the Judiciary’s powers it is resisted by the Executive which already feels that the Judiciary has trespassed in the Executive domain. If a reformative proposal reduces the Judiciary’s powers then the Supreme Court steps in. Then there is the army of lawyers which wants things to continue in the same chaotic state.

t is worth mentioning that even the Supreme Court finds itself unable to curb the lawyers’ lawlessness. Some self regulation on the part of the Courts is also required. Courts often play to the gallery, taking up sensational cases to the neglect of more deserving ones. Then there is the tendency of leaving important cases midway or prolonging them indefinitely. Courts are also very finicky about their own importance, power and decorum. Tribunals cannot be adequately empowered because the Courts feel that tribunals with sufficient powers would supplant Courts. Apart from the judges’ own conscience, there is no effective mechanism to counter corruption in the High Courts or Supreme Court.

There is no worthwhile discussion of corruption in the judiciary because of the fear of contempt of court proceedings. The Augean stables of the Judiciary can be cleaned only if there is will and cooperation on part of all stake holders.

For example, tackling the humongous shortage of judges in subordinate courts can only be a long term project (because the new judges would require training, supporting manpower and infrastructure) but if the large number of amendments in the Civil Procedure Code and Criminal Procedure Code aimed at quick trials are operationalised in their true spirit then the large pendency of cases can be cleared quickly. Retired judges can be called upon to hold court outside normal working hours to decide specific categories of cases like cheque bounce cases, of which 30 lakh are pending. Two proposals currently under consideration need to be implemented quickly.

The first is the centralised selection of judicial officers for the district courts which would improve the quality and calibre of the subordinate judiciary. These officers would reach the High Court quickly and have a longer and more meaningful tenure there.

The second proposal moots recording of court proceedings; higher courts will then actually realise what exactly happens in lower courts. Some long term reforms would also merit consideration. Petty criminals and young offenders often take to crime because they have no income earning skills or opportunities. Instead of being sent to jail, where they hone their criminal skills, such persons should be sent to correctional facilities for rehabilitation.

For civil cases, advocates of both parties can sit down and finalise an agreed position in the case to save time. The menace of briefless lawyers has to be curbed by imposing a cap on the number of advocates eligible to practice at a particular court. Finally, outdated judicial philosophy and procedures have to be discarded. Proceedings in court have to be such that an ordinary educated person should be able to understand the goings on and participate, if required.

However, Indian courts have often said that they are courts of law and not courts of justice. In the Vodafone case, a three judge bench of the Supreme Court headed by the Chief Justice held that form was more important than substance. Till this philosophy holds sway, justice would continue to elude the masses.

(The writer is a retired Chief Commissioner of Income Tax and is registered as an advocate with the Bar Council of Maharashtra)