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The Waning Judiciary

Mounting backlogs of cases, and vacancies in courts have combined to bring the judicial process to its knees, says Devendra Saksena

Devendra Saksena | KOLKATA |

The unfinished task of having the executive overshadow the legislature and the judiciary, initiated by Mrs. Indira Gandhi, appears to be well-nigh accomplished. Parliament is seldom successful in controlling the executive. Even meaningful discussions in Parliament are becoming a rarity; after noisy disruptions, walkouts and boycotts all bills brought by the Government are hurriedly passed with the opposition co-operating in politically fruitful legislations.
Saddled with a pendency of more than 4.65 crore cases (4.08 crore cases in District Courts, 56.5 lakh cases in High Courts and 70,000 cases in the Supreme Court) along with a perennial shortage of judges and infrastructure, the judiciary is all set to implode. Worryingly, pending cases include more than two lakh cases, equally divided amongst the District Courts and the High Courts, that are pending for more than 30 years.
A 2018 strategy paper of the Niti Aayog (New India @75), predicted that at the present rate of disposal, it would take 324 years to clear the backlog of pending cases. Retired Supreme Court judge, Markandey Katju was slightly more pessimistic, according to Justice Katju, if no fresh case is filed, it will take about 360 years to clear the backlog of cases. Significantly, pendency of cases has increased by more than 60%, since the time these two observations were made.
Most right-thinking individuals including retired judges, constitutional experts and public-spirited citizens, feel deeply concerned by the decline of the judiciary. Madan B Lokur, a retired judge of the Supreme Court was constrained to observe: “The Chief Justice of India has two options before him: (1) Take revolutionary steps with revolutionary fervour to remedy the malaise afflicting our justice delivery system, or (2) Be ready to light its funeral pyre.” He identified delay in appointment of judges and poor management of the huge pendency of cases as the main problems confronting the judiciary that had led to loss of credibility, public confidence and public trust. Justice Ranjan Gogoi, a former Chief Justice of India, called the Indian judiciary “ramshackle” and stated in an interview: “If you have to go to court, you will only be washing dirty linen in court and you will not get a verdict. I have no hesitation to say so. You regret it if you go to court.”
A large number of vacancies in High Courts (42 per cent vacancies) and District Courts (26 per cent vacancies) has led to the mounting pendency. Even the Supreme Court is not immune from shortages. Recently, nine vacancies were filled in the Supreme Court at one go, but after a wait of twenty-two months and only after the Supreme Court Collegium omitted the names of two senior-most judges in its list of recommendations. In a telling instance, despite the Supreme Court’s insistence, the Government is dragging its feet over filling up more than 230 vacancies in various tribunals such as ITAT, CESTAT, CAT, NGT, NCLT and NCLAT. The judiciary is not entirely blameless; many Chief Justices have not shown promptitude in recommending names for appointment and often consensus eludes the Supreme Court Collegium, as it did for twenty-two months recently.
The human cost of judicial delays is grievous; recently an undertrial prisoner, who had been in jail for 40 years, was released by the Calcutta High Court. Similarly, a man accused of rape was found ‘not guilty’ by the Allahabad High court, after 20 years in jail. In another such instance, the Chief Judicial Magistrate, Surat acquitted 122 persons arrested in December 2001, accused of being members of the banned outfit SIMI for lack of “cogent, reliable and satisfactory” evidence.
The time is long past when the Government of the day used to respect the judiciary. Recently, a Special Bench of the Supreme Court was constrained to observe that the Central Government had no respect for its orders, noting that the recently enacted Tribunal Reforms Act, 2021 revived certain provisions that had been struck down by the Supreme Court earlier.
Out of necessity, many a times the judiciary adopts a decidedly conciliatory attitude while dealing with ‘sensitive’ cases. For example, last year at the height of the migrant workers’ exodus, a bench of the Supreme Court led by the Chief Justice unquestioningly accepted the Solicitor General’s contention that there were no migrant workers on the roads, as the Government had ensured that all migrant workers were being housed and fed. The judges pointedly ignored images of endless hordes of migrant workers trudging wearily in the hot sun appearing on their TV screens as also myriad reports of the migrant worker’s privations in newspapers. The Court also accepted the SG’s statement that fake news had led to the workers’ exodus. Later on, when the question of payment of wages to workers came up, the Chief Justice asked why workers needed money when they were being fed? Many important cases like petitions of persons jailed under preventive detention laws are not taken up expeditiously. Such pusillanimity undermines public confidence in the judiciary.
The lower judiciary has all but surrendered to the executive, and lower courts routinely uphold the detention of dissenters and their arraignment under stringent sections of various criminal enactments. The Supreme Court had to remind all subordinate courts to hear and dispose of bail applications with expedition and that the basic rule of criminal jurisprudence was still “Bail not Jail.” Reiterating its observations, in a recent case the Supreme Court said that personal liberty is an important aspect of constitutional law and only because an arrest can be made it does not necessarily mean that an arrest should be made.
The Economic Survey 2017-18 as also the Niti Aayog have taken note of the problems confronting the judiciary and have suggested various measures for improvement. While the Economic Survey suggested filling-up of judicial vacancies and increasing working days to reduce case pendency, the Niti Aayog suggested constitution of an All-India Judicial Service and introduction of a Judicial Performance Index. Sadly, even after three years, none of these suggestions has been implemented.
The Supreme Court has often held that the “right to a speedy trial” is a fundamental right under Article 21 of the Constitution, and the Code of Civil Procedure and the Code of Criminal Procedure lay down stringent timelines for various stages of trial, but cases drag on interminably in Indian courts because all deadlines can be extended by the trial court merely after recording reasons for doing so. Perhaps, we need an Act on the lines of the US Speedy Trial Act, 1974 that lays down absolute deadlines. Case management also is a purely judge-driven process, with little application of scientific methods or technology. Digitisation of case records, live webcast of trials and better management of court dockets would go a long way in ensuring speedy disposal of cases.
Some recent amendments have introduced provisions for plea bargaining, compromise and summary procedures for trials, so that disputes could be resolved quickly to the satisfaction of both parties. Yet, most judges revel in continuing with legalistic and archaic procedures that result in disputes dragging on for years. Taking this trend further, specialist tribunals often clothe themselves with the procedures and trappings of courts, defeating the very purpose for their creation. A conscious decision of the Government and superior courts to make laws easily comprehensible to the public and encouraging public participation in judicial processes would go a long way in reducing pendency of cases and the delivery of substantive justice.
An unaddressed and often unrecognised problem is the failure of superior courts to instil confidence, fearlessness and a will to do substantive justice in the lower judiciary. Aggravating the problem further, superior courts often pass strictures against judges of subordinate courts at the drop of a hat. The judge-made law of the land – that form is more important than content and that all courts are courts of law and not courts of justice – impede the dispensation of substantive justice. Then, superior courts often go on a tangent, setting a bad example for lower courts. For example, Madras High Court, while deciding an issue about marks awarded in the Teacher Eligibility Test laid down that Vande Mataram be sung in all schools.
Finally, despite all pretensions, one cannot ignore the decisive role of money in the judicial process. As a famous American lawyer once said: “Money will determine whether the accused goes to prison or walks out of the courtroom a free man.”