The Hindu Business Line : Ensuring speedy justice

Independence of judiciary does not mean unaccountability. In a democratic system every institution is accountable to people — the ultimate sovereign. Judiciary and lawyers exist for litigants and general public.

— Speech by Dr N. M. Ghatate, Vice-Chairman, Law Commission of India at the National Conference on "Reinventing Indian Legal System for Achieving Double Digit Economic Growth" in New Delhi on April 10, 2004.

IT IS an imperative requirement of healthy body politic and good governance that every creature of the Constitution is accountable to its sovereign masters, "We, the People," and with that end in view, is subjected to an appraisal under a relevant set of performance criteria from time to time. By and large, this principle is observed under the system of checks and balances envisaged in the Constitution. However, the judiciary alone, in the name of independence, has assumed a pose of touch-me-not.

Whether it is pile up of cases, adherence to a stringent code of conduct, transparency in respect of facts and figures for adjudging the manner, rate and quality of disposal, or allegations of corruption, the judiciary as an institution has jealously been insisting on its right to be answerable to nobody outside its own hierarchical boundaries. Its answer to the age-old question, "Who will keep watch over the watchman?" is, "The watchman himself, none else!"

The Vice-Chairman of the Law Commission, Dr N. M. Ghatate, in a speech from which an extract has been reproduced above, makes these disturbing observations: "Unfortunately, our judiciary is reluctant to part with even simple statistics available with them. For example, pursuant to a Parliamentary question about the time lag between conclusion of hearings and delivery of judgments, the number of judgements delayed over a period of one year and the number of cases decided by judges in the High Courts, the government asked for information.

"One High Court replied that it would infringe its autonomy to furnish such information... There have been instances when some judges took more than two years to deliver judgment. Also there are cases when judges having heard the case retired without delivering judgment. As a result there had to be fresh round of hearing causing unavoidable delay but also expense to litigants. There was a case when one Chief Justice did not deliver a single judgement during his entire tenure."

Mounting arrears

The result is that the flow of all advice, orders and admonitions imposing norms of good behaviour is all one way — from the judiciary to the rest of the polity — with the sovereign masters, their elected servants and the various important stakeholders such as the academics, the media and the civil society feeling cowed down by the fear of contempt from having their legitimate say on how they expect the judiciary to perform its duties.

For starters, let us take up the corrosive phenomenon of rapidly mounting arrears of cases. This is the one single chronic affliction from which the judiciary suffers and on which the discussions so far have invariably been getting side-tracked by all manner of confusing propositions and pronouncements.

As per the 85th report on `Law's delays: Arrears in courts', laid in Parliament during the Budget session of 2002, a staggering 2.4 crore cases were pending in the country's courts as on October 31, 2001, of which 2,03,25,756 cases were pending in the district and subordinate courts, 35,57,637 in the High Courts and 21,995 in the Supreme Court. This flies in the face of the right to speedy trial which was declared by the apex court to be an inviolable Constitutional entitlement of citizens implicit in the broad sweep and content of Article 21 on protection of life and personal liberty.

The Indian Constitution, unlike its American counterpart, does not expressly guarantee "the right to speedy and public trial". But the Supreme Court made good this omission by its unequivocal decision and even laid down that the right encompasses all stages of the trial, namely, enquiry, trial, appeal, revision and retrial.

(Interestingly, the Supreme Court took a lenient view of any obstructionist tactics resorted to by the accused or his counsel, holding that this need not be regarded as delaying the trial. It went so far as to direct in Stephen T.J. v Parle Bottling Company that it would not be in the interest of justice to allow a prosecution and trial to recommence after 20 years even though one of the accused was mainly responsible for the delay. This should gladden the heart of the former Union Coal and Mines Minister, Mr Shibu Soren!)

Need for yardsticks of disposal

To further rub in the importance of speedy trial as a basic right, the Supreme Court, in one case, directed the release of all under-trial prisoners against whom charge-sheets had not been filed within the prescribed period.

It categorically made it the constitutional obligation of the state to facilitate speedy trials without making an excuse of financial and administrative constraints and followed this up with the issue of directions in the matter of setting up new courts, providing more staff and equipment to courts, appointment of additional judges and other appropriate measures.

The cumulative impression given by the Apex Court's judgments as also statements of individual Justices on various public occasions is that the law's unconscionable delays are mostly ascribable to the apathy of the Executive and the Legislature, and that there is very little that the courts themselves can do to remedy the situation.

While that may be, in the absence of any yardsticks of performance and data in relation to the manner and nature of disposal of cases by the courts, it is hard to come to any definitive opinion on whether delays may be attributed entirely to the omissions and commissions of the executive and legislative branches of the state.

On the advantages of such a result-oriented strategy enforced with vigour, one cannot do better than quote once again from very perceptive speech of Mr Ghatate: "This data should include details such as the number of cases disposed by each judge, names of judges who heard and lawyers who appeared in the case; adjournments granted with names of advocates and judges, time taken to decide the case, time lag between judgement and the conclusion of hearing, legislation under which cause of action is evoked or is appealed; what was the result and defect pointed out and suggestions made to amend laws by the judiciary.

"Such a database will provide the basis for assessing the efficiency of judges and the advocates and the impact of laws in generating litigation. It will also facilitate mapping the judicial activity subject-wise, Act-wise as well as judge and lawyer-wise. It will also help legislature to amend laws to plug loopholes and take remedial actions to control litigation.

"Such a database will also facilitate monitoring the progress of pending cases and help Chief Justices to find bottlenecks and take action in management of cases and enable him to assess the quality and performance of the judges and the Bar on the basis of facts and figures.

"Publication of such statistics will increase the judicial efficiency as found in the US and Britain. The American and the British courts annually publish such reports. This has not only helped in reducing delays but has also made legal system more transparent and thereby more efficient and accountable to the people. It will also enhance the image of the judiciary in the public eye."

In other words, if only all levels of the judiciary turn the searchlight within, much can be achieved even within the existing limitations by exercising normal management skills and by directing its effort at the drawbacks in a concerted manner.

(I can vouch for the tremendous psychological and functional impact of the method advocated by Mr Ghatate. When I joined the IAS in the early 1950s, there was no separation of judiciary from the executive, and I found myself appointed the chief magistrate of a division with 16 subordinate magistrates and a backlog of more than 6,000 cases.

By simply putting up an information board in my office room, on which my Bench Clerk recorded every night the day's performance by the magistrates on the lines Mr Ghatate has recommended, it was possible to bring about a spectacular drop in the arrears to 2,000 or so within a few months.)

Systemic deficiencies

The need for internal drive apart, there can be no question that the disposal is also affected by some systemic deficiencies for the continuance of which both the Executive and the Judiciary are responsible. The first and foremost has to do with the inordinate time taken to fill up the vacancies that arise. As of April this year, the total sanctioned strength of judges in High Court is 669 out of which there are 163 vacancies, that is, more than 25 per cent. The total strength of judges in Supreme Court is 26, and there are two vacancies.

As per information available, the vacancies in some of the High Courts are as follows: Allahabad 37; Madras 14; Gujarat 10; Punjab and Haryana 9; Calcutta 8; Bombay, Rajasthan and Patna, 7 each, and Delhi and Jammu and Kashmir, 5 each. The number of vacancies in lower judiciary is reported to exceed 1,500.

While there is no doubt about the adverse trends, there has been plenty of cross-talk on who or what exactly should be held responsible.

(To be concluded)