The Hindu Business Line : Reorganising the judiciary

The backlog of cases on the books of Indian courts will take 250 years to settle with current personnel complements. Thus, the country’s ability to display a world-class institutional system is seriously in doubt. The institutional characteristics associated with potential dispute resolution mechanisms and judicial system delays could render obsolete the value of subject matters under dispute.

The lack of speed of the judicial process carries with it very substantial costs in terms of lost investment opportunities. This state of affairs raises the costs of doing business in India and ensures that investments migrate elsewhere.

India’s judicial system needs a thorough overhaul. The understaffed judicial set-up needs reorganisation so that the sanctity of rights over life, livelihood and property are upheld in the least possible time and at lowest cost.

Solving THE Issues

The following organisational issues need to be tackled quickly:

Age: Many countries have no retirement age for apex court judges. In the UK, for instance, the retirement age is 75.

With healthcare and longevity improving considerably in India, the retirement age for Supreme Court judges should be raised to 75. Most apex court judges get very little time on the Bench, even at their peak of competence. . In conjunction with this, the age limit for High Court judges should be raised as well.

Jurisdiction: The High Courts could probably be made appellate courts. All original litigation should first be filed and decided in the lower courts. The burden of High Court judges struggling through thousands of fresh cases can be lightened by designating the court as, say, the High Court of Appeal.

Additional layer of courts: Judicial bottlenecks arise because, in every State, there is only one High Court. Take the case of Maharashtra. The Bombay High Court considers not only original matters but also those from well over 30 district courts of the State. Thus, bottleneck situations are reached rapidly.

To obviate this, in each administrative division, that exists in almost every State, a Chief Court should be set up to consider appeals from district courts as well as original matters hitherto handled by the High Courts. In Maharashtra, there are six administrative divisions. Thus, there would be six Chief Courts.

The head of the Chief Court would be designated as a Judicial Commissioner and supported by at least 20 judges, to make the judicial process much faster. The judges of the Chief Court and the Judicial Commissioner would be entitled to be addressed as “Justice.” They would enjoy the status and privileges High Court judges currently enjoy.

The Chief Courts would supplant the activities of the High Court in a decentralised manner, so as to dispense justice faster. The age limit of the judges of the Chief Court and the Judicial Commissioner could be 65.

Vacations: Holidays are entitlements for everybody. But courts should operate throughout the year, and the practice of shutting down for vacations should be dispensed with. Judges can operate on a roster. This roster system can take into account the fact that some judges will be on leave. This would automatically enhance the capacity of courts to process disputes.

Solving Human Capital Issues

There aren’t enough judges in India. A moderately successful lawyer in practice makes 20 times the monthly emoluments of a High Court judge. And a hugely successful lawyer earns a hundred times more.

Such salary problems have existed for a century, and it was only the prestige of being a High Court judge that propelled individuals such as M. C. Chagla or N. Rajagopala Ayyangar to leave their practices to adorn the Benches of the Bombay and Madras High Courts.

Sadly, the motivation that drove the best lawyers to become judges has disappeared.

Increasing emoluments: If not prestige, what is the motivational driver? Clearly, it is money. This is an obvious solution. Yet, it is worth reiterating that only if judicial emoluments were to increase by a factor of at least ten would the Benches attract the best minds from the bars. Even then, those making this career switch would make irrational pecuniary sacrifices.

Executive cadre transfers: Prior to Independence, at any given time, at least one-fourth of the Indian Civil Service officersserved in the judiciary. In time, some became District and Sessions judges. And, eventually, some became High Court judges. Overall, some 18 per cent of ICS officers were judges.

The first Indian to join the ICS, S. N. Tagore, was a District and Sessions Judge in Ahmedabad, Hyderabad in Sind, Karwar and Satara. The first two Indians to join the ICS in the Madras presidency, A. C. Dutt and V. V. Chetti, were judges. A number of Supreme Court judges, S. K. Das, K. C. Dasgupta, R. Dayal, V. Ramaswami and V. Bhargava, were from the ICS.

Several High Court Chief Justices, M. Anantanarayanan in Madras, R. L. Narasimhan in Cuttack, D. E. Reuben in Patna, M. C. Desai in Allahabad, H. K. Chainani in Bombay, N. D. K. Rao in Hyderabad, J. Narain in Jodhpur, P. T. R. Nayar in Trivandrum and V. B. Raju in Ahmedabad, were ICS officers.

In the Punjab, till 1967, all four post-Independence Chief Justices, E. Weston, A. N. Bhandari, G. D. Khosla and D. Falshaw, were ICS men. One Chief Justice of India, K. N. Wanchoo, was an ICS member.

The logic of transferring an ICS officer after about ten years of service to the judicial cadre was to ensure that those resolving disputes had first-hand knowledge, as Assistant and Sub-Collectors, of the realities Indians faced. With such first-hand knowledge, matters of fact and custom were competently dealt with and justice dispensed.

It is time to reconsider deploying officers from several Group A services as judges. There is a pool of officers, in the age group 45-55, recruited around 20 years ago when over-recruitment happened. A number of can be made High Court judges after an appropriate period of briefing. Of course, this would need changes in the qualifications required for appointment as a High Court judge.

A number of the younger officers would find congenial occupations in becoming District and Sessions judges, with the possibility of joining a High Court. In addition, the creation of Chief Courts would permit many executive officers to become judges of Chief Courts and Judicial Commissioners quickly.

Finally, the extension of age limits for judicial service would considerably increase the attractiveness of the judiciary as a long, second career option for individuals.

The aforementioned suggestions can galvanise change in India’s judiciary. A rapid overhaul is needed so that the judicial process reaches the standards of efficiency globalisation demands. Else, India’s ability to provide the institutional environment necessary to make it an attractive global business destination will be found wanting.

(The author is Professor of Technology Strategy, University of Texas at Dallas.)