The Hindu Business Line : Ensuring speedy justice

Every one of the remedies to reduce pendency in courts is within the purview of the Supreme Court. The consequence of failure to do the best it could by way of enforcing the same criteria of good governance as it rightly prescribes for functionaries in the other branches of government would be a loss of confidence in the one institution which has so far been looked up to as the undefiled fount of the immutable values the founding fathers framing the Constitution enshrined in its Preamble.

WHILE the astronomical nature of the arrears and the manifest tardiness in filling the unjustifiably large number of vacancies are not in dispute, there is no clear picture as to the root cause of this deplorable state of affairs because of the blame game mutually indulged in by the authorities on whom the collective onus for addressing the malaise is cast.

As regards want of any visible efforts to enable High Courts and the subordinate courts to function with their full sanctioned strength, the Government's defence is that the power of initiating the necessary steps for appointments has been taken out of its hands following the Apex Court's judgment in the Supreme Court Advocates-on-Record Association v. Union of India (1994) case, read with the advisory opinion given by the same court on a Special Reference (1998) made by the President requesting for clarification of certain parts that judgment.

The gist of the two opinions taken together is that it is on the Chief Justice of India that the initiative for making the recommendation rests, and in exercising it, he will consult, and obtain in writing the views of at least two senior most puisne judges of the Supreme Court who are conversant with the affairs of the High Court concerned and one or more senior judges of that High Court, besides its Chief Justice.

It is the recommendation of the CJI that will prevail and no appointment can be made by the President to the Apex Court or High Courts unless it is in conformity with the CJI's recommendation. (There could be rare exceptions such as in cases where the Government has in possession facts disqualifying the person recommended and the CJI is not aware of them, or when there is difference of opinion between the CJI and the collegium of judges he consults.)

Various Constitutional authorities (Chief Justice of the High Court, Chief Minister/Prime Minister and the CJI) are required to observe a strict time-schedule to guard against vacancies remaining unfilled for long periods.

Hurdles race

It governs every stage of the process beginning from the initiation of the proposal (six months in advance of the occurrence of the vacancy) to the periods within which each of the Constitutional authorities should take the proposal to the next stage of processing. The binding guidelines framed by the Supreme Court require the CJI to ensure that the consultative procedure is completed and his recommendation forwarded to the President at least one month before the date of an anticipated vacancy in order that the appointment is announced soon thereafter "to avoid any speculation or uncertainty".

Apparently, the elaborately laid out procedure and time schedule have failed to deliver the goods. The then Law Minister, Mr Arun Jaitley, told the Rajya Sabha on one occasion that he had not come across a single case where the process had been initiated six months earlier than the date of retirement.

The latest in the series of the hurdles race that judges' appointment has to run is the long and unexplained delay of eight months in the processing of nine names for appointment to the Madras High Court sent by the Chief Justice of the High Court as early as in January 2004.

In view of the continuing lack of coordination and timely action, the Standing Committee of Parliament, chaired by a senior Congress(I) leader and the then member of the Rajya Sabha, Mr Pranab Mukherjee, and consisting of more than 40 members drawn from the Lok Sabha and the Rajya Sabha, in a report submitted in March 2002 had this to say about the prevailing situation:

"The Union Law Minister is accountable to Parliament for the delay in filling up of the vacancies of Judges, but he has functionally no contribution to make. The Supreme Court read into the Constitution a power to appoint Judges that was not conferred upon it by the text or the context... The judiciary in whom the power and the responsibility now vest has failed to fill up the vacancies in judicial posts promptly and punctually and those vacancies of Judges in all courts contribute to the huge pendency in a big way."

`Politics of the judiciary'

Expressing its fear that the mode of collegiate consultation among Judges (before initiating a proposal) might lead to a `politics of the judiciary' resulting in members of the collegium bringing in candidates of their choice, the Committee says: "The give-and-take in the collegiate consultation has the potential of undermining merit. It is also fraught with the potential of undermining the office of the Chief Justice and his primacy.

On the other hand, the executive is unable to secure due consideration of its own inputs in respect of the personal and professional standing of the candidate. More often than not a transferred Chief Justice in a High Court is unfamiliar with the situation. As a result, there are unacceptable delays without the benefit of a higher quality in the intake".

The Committee's punch line is that "failure to fill judicial vacancies promptly and punctually cannot be defended in the name of judicial independence."

As against this stingingly candid criticism, the proponents of the procedure mandated by the Supreme Court base their explanation for the law's delays essentially on the want of sufficient number of judges in proportion to the population and the utter inadequacy of facilities such as buildings, staff and so on. The most forceful advocacy of both these propositions is to be found in the Law Day address delivered by Justice S. P. Bharucha (one of the Judges of the nine-member Bench prescribing the norms for appointment) on November 26, 2001.

Unsparing castigation

Drawing attention to the recommendation of Law Commission in its 127th Report, made as far back as 1988, that the judge-population ratio (which at that time was 10.5 judges per million population) should be raised to at least 50 judges within the next five years and that by the year 2000 the ratio should be at least 107 judges per million of population, Justice Bharucha said the current ratio was 12/13 Judges per million, whereas 12 years ago it was about 41 in Australia, 75 in Canada, 51 in the United Kingdom and 107 in the United States. He was emphatic in asserting that "It is only when we have far more trial courts functioning that we shall be able to dispose of more cases than are being filed and thus cut down on arrears." He was unsparing in his castigation of the State and Central governments for their utter lack of interest: "They have no money to spend on the judiciary. That it is the obligation of the state to secure justice for its citizens does not bother the states: Litigants are not a vote bank they need to cater to.

That the obligation of the state to secure justice to its citizens is honoured in the breach every day is evident from the fact that the jails in the country are chock-a-block full and a very large proportion of those who are within are not convicted criminals but accused awaiting trial."

He bitterly commented that the expenditure on the judiciary in India in terms of gross national product (GNP) was only 0.2 per cent, and that half of it was recovered by the States through court fees and fines.

The judge-population ratio alone cannot be the decisive yardstick for arriving at the number of the judges, without first exploring the possibility of increasing the rate of disposal and the efficiency of judges. Provided there is a will, a way can certainly be found, for instance, by drastically curtailing vacations, refusing adjournments except on grounds of an emergency or crisis, cutting down appeals and putting in place the kind of performance monitoring system urged by Dr N. M. Ghatate, Vice-Chairman, Law Commission of India.

Every one of these remedies is within the purview of the Supreme Court. The consequence of failure to do the best it could by way of enforcing the same criteria of good governance as it rightly prescribes for functionaries in the other branches of government would be loss of confidence in the one institution which has so far been looked up to as the undefiled fount of the immutable values the founding fathers framing the Constitution enshrined in its Preamble as the hallmark of the nation and its people.

(Concluded)