The Chief Justice of India, a man of great integrity and learning, has done signal service to the cause of democracy and the rule of law by openly expressing his concern over the problem of mounting court arrears. He was addressing the highest levels of judiciary and the executive recently.

The warning bell could not have been sounded a day too soon. There is a growing danger of the Judiciary collapsing under its own weight. According to the Union Law Ministry, around 60,000 cases are pending in the Supreme Court, around four million in the High Courts and 27 million in the lower courts. Accumulation of more than 30 million court cases translates to a time-span of more than 300 years to dispose of these, assuming no new cases are filed.

The situation is fraught. Justice, quick and inexpensive is a basic certitude of democracy. So much so that our Supreme Court, in a landmark judgment, has said that the right to a speedy trial is now a Fundamental Right. It was not so when the Constitution was first drafted but is a later addition, looking to the situation as it developed and wheels of justice started moving in slow motion. In the memorable words of the late Nani Palkiwala, one of the greatest jurists of independent India: “I do not know if law in India is an ass, but it is certainly a snail.”

According to the Chief Justice, there is a backlog of vacancies of judges in the various courts. He has quoted the Law Commission which has fixed a norm of 50 judges per million people. The actual strength is much lower. As a result, disposal of cases is slow and the existing strength is not able to cope with the backlog. The average pendency of a case in a subordinate court is about six years.

After disposal in the lower court, if there is even a single appeal, the total time taken to dispose it of is ten years. Though not all cases end up in the Supreme Court, if there is a second appeal, another three years will lapse before the case is finally disposed of. And this does not take into account the recurring costs to the litigant in the form of time and money spent in the courts of law. “There is a haemorrhage of costs in our law courts”, was Palkhiwala&’s lament. Drastic ills need drastic remedies.

The solution suggested by the learned Chief Justice is somewhat simplistic. Mechanically adding more numbers to the existing strength is a quantitative approach which does not take into account the type of cases that are being regularly entertained by the courts, and the resultant encroachment into the domain of the legislature and the executive. The Law Commission carried out an exercise of the rate of disposal in the High Courts, and there was no correlation between rate of disposal and the actual strength — in the Delhi High Court itself.

One must examine the basic Constitutional jurisprudence. Ironically enough, it has been laid down by the Apex Court itself in the celebrated case of Keshvananda Bharati caseway back in 1973. There is a separation of powers among the three coordinate organs of the State — the legislature, the executive and the judiciary. This has been described as the ‘basic structure’ of the Constitution, which is immutable. None can encroach on the turf of the other.

Secondly, the Supreme Court has also laid down that public policy is clearly in the domain of the elected government, since it reflects the will of “We, the People.” The political executive is directly in touch with the masses, and can feel their pulse. It is accountable to them. Law making is the exclusive domain of the elected legislature. Judiciary, being an unelected body, is far removed from the common people.

When the Law Commission worked out the judge-population ratio, it is not in the public domain if they factored in the fact that in 1996, Parliament enacted the Arbitration and Conciliation Act which was expressly designed to ‘minimize’ judicial intervention in most of the civil cases. This was a follow-up of a model UN law for all countries to adopt, or adapt. India did likewise. The Act envisaged an ‘alternative civil disputes resolution’ forum, where it would not be mandatory to have judges, or ex-judges preside.

Today, the arrears of civil cases in the Apex Court itself outnumber criminal cases by a ratio of more than 4:1, and in the High Courts by 3:1. Most of these cases, barring title suits and disputes over immovable property need not be entertained by the regular courts at all. These should be left for disposal to other fora where non-judges can preside. Indeed, India already has an institution of a highly-qualified executive magistracy which could take up this responsibility post-retirement, leaving the judiciary to concentrate on criminal and serious civil cases.

A major reason for an almost unmanageable pendency is that there is no screening of civil cases at the threshold. In the US, only 15 per cent of the civil disputes are admitted in the regular courts of law. The rest are sent for compulsory mediation. Fortunately, in the US as in India, there is no law of Mediation, and the mediators are expected to ‘judge’ on the basis of equity. As a result, disposal is quick and the regular courts are not over-burdened.

Once there is a law on alternative dispute resolution, it is subject to varying interpretations not only of the High Courts but also the Supreme Court itself. This only adds to the problem of lack of clarity of law and slow disposal. It has happened already under the Arbitration Act. Two coordinate benches of the Apex Court have given varying interpretation of the issue of imposing interest in cases of delayed contracts. Till this issue is resolved by a larger bench, the losing parties will take full advantage of this anomaly to delay.

The British gave us with a priceless legacy of well-drafted and well-crafted laws. One such law was the Arbitration Act of 1940, mandating a time-barred disposal of civil cases. When Parliament in 1996 enacted the successor Act, it brought Conciliation within its fold. This was somewhat ill-considered . It now subjects the Conciliation process to the vagaries of the courts’ interpretation. Conciliation is not an adjudicatory process, a point that was overlooked.

One of the reasons for the unmanageable pendency is the increasing encroachment by the judiciary in matters executive. The latest example, from the Apex Court itself is the inquiry by the former Chief Justice of India into the affairs of BCCI, a private entity. The former CJI is undeniably a man of great brilliance and integrity. But the issue is Constitutional. A judge, once he demits office, is functus officio, irrespective of rank. Modern jurisprudence defines a judge as someone “acting judicially”.

The CJI acted as an Inquiry Officer, a function that should have been left to the Executive. Thereafter, the Apex Court has taken up the follow-through of the investigating officer&’s report and asked the private entity to “implement” it on a time-barred basis. The entity has been asked to retire all office-bearers beyond a certain age, and debarred members of the executive, both permanent and political from holding office, according reports in the national media.

(To be concluded)

The writer is a retired  IAS officer.