The Chief Justice of India breaking down on national TV over a burdened and short-staffed Judiciary often blamed for justice delayed and denied, brings into sharp focus the whopping 3.38 crore cases pending in various courts across the nation. SHAlINI SAKSENA tries to find a way out of this legal maze
At a joint conference of chief justices of High Courts and Chief Ministers in the Capital last week, Chief Justice of India (CJI) TS Thakur broke down — he became teary eyed and bemoaned to the Prime Minister that the Judiciary has been made a scapegoat for the mountain of pending cases which stand currently at 3.38 crore.
For some this outburst doesn’t bode well as it shows up the judiciary as weak. But Manana Kumar Mishra, chairman of Bar Council of India and senior advocate, Supreme Court of India, says that it is but natural for the CJI to express his helplessness in the matter considering that he is working overtime to ensure that courts put cases on fast track.
“He has a plethora of duties; he has to maintain the roster, he has to appoint court officials and then there are several general and miscellaneous matters relating to the supervision and functioning of the Supreme Court. He is the head of the family and the fact that there are over 3 crore pending cases and not enough judges to preside over them for speedy disposal is bound to affect him. It is always easy to blame the Judiciary but that should not be the case. If there is one profession that is honest and truthful in entirety, it is this. The Government needs to step in to address the situation,” Mishra insists.
Data tells you that the number of pending cases with the Supreme Court as on December 1, 2014 were 64,919. The data available for the 24 High Courts and lower courts up to the year ending 2013, showed pendency of 44.5 lakh and a whopping 2.6 crore cases, respectively. Of the over 44 lakh cases pending in the 24 High Courts, 34,32,493 were civil and 10,23,739 criminal.
Parliament data states that increasing number of legislations, accumulation of first appeals, adjournments and lack of logistics are the main causes for the pile-up. The Supreme Court website states that more than 50 per cent of the pending cases are miscellaneous and not regular hearing matters.
These figures may be alarming but not surprising, experts say. They are troubling too, because this means that the judges are over-worked. Dispelling popular belief that judges enjoy long vacations, fact is that they put in 10-14 working hours a day, sometimes even more. Most Saturdays are working days for them. A typical day for a magistrate in Mumbai’s lower court starts with 200-300 cases listed a day. It takes one minute for the peon to give the file to the judge and for him to give it back and calling out the case number. So, 200 minutes (more than three hours) are spent just to pass the file and back. This doesn’t include the time for hearing and arguments. In the whole day of work, the judge may thus be able to spend only two hours on hearing and deciding cases.
“It is but natural for a judge in such a situation to give a date when a lawyer asks for it since it is not humanly possible for him to dispose of all the cases that have been listed. The judges need to also write judgments and orders that need to be prepared and announced. This takes time as well,” Supreme Court advocate Dr Ashok Dhamija explains.
Former judge of the Patna High Court Justice Rajendra Prasad who is president of the All India Judges Association, says that a typical day for a judge starts at 10:30 am in the courtroom where he sits till 1:30 pm. He gets back on the seat at 2 pm and hears cases till 4:30 pm. He then returns to his chamber where he spends another three to four hours dictating judgements and orders.
“There are many judges who work through Saturdays. They are the ones who have a conscience and feel that they have a moral and ethical duty towards work. They are the ones who try and speed up matters and make sure that the common man gets justice at the earliest,” Justice Prasad says.
Many lawyers assert that adding more judges will help expedite matters It is a simple Maths problem: If two men take 10 days to finish work, how much time will it take for five men to complete the same workIJ The same holds true for the courts as well.
Dhamija says that the latest approved strength, working strength and vacancies of judges in the Supreme Court and various High Courts, released by the Department of Justice, Ministry of law and Justice, shows that as many as 392 positions of High Court judges are lying vacant since September 1, 2015 out of the approved strength of 1,017 judges.
“This comes to about 38.5 per cent vacancies. Moreover, as many as eight High Courts from a total of 24 High Courts in India do not have regular chief justices and they have officiating or acting chief justices. This figure includes Bombay High Court, where the post of chief justice became vacant on September 9, 2015,” Dhamija tells you.
The vacancy situation in the Judiciary has always been bad due to the inefficient process of appointing judges. However, it has never been worse than now. This is due to the controversy over the National Judicial Appointments Commission (NJAC) — the new system to appoint judges in place of the previous collegium system — over which several writ petitions were filed in the Supreme Court and a Constitution Bench of the Supreme Court completed hearing the arguments on July 15, 2015. Ten months down the line, it is yet to pronounce its verdict.
“It is more or less certain that the decision of the five-judge Constitution Bench, comprising Justices Jagdish Singh Khehar, J Chelameswar, Madan B lokur, Kurian Joseph and Adarsh Kumar Goel, will not be the last word on the NJAC issue, since its judgment, as and when it comes, and whatever be its outcome, is likely to be challenged before a larger Bench of the Supreme Court, and probably it may ultimately land with an 11-judge Bench of the Supreme Court in view of the fact that previous judgments of the Supreme Court on the collegium system, which has been replaced by the NJAC system, were delivered by nine-judge Benches. So, the vacancies position is not going to be improved in the near future,” Dhamija asserts.
The sentiment is echoed by Justice Prasad. From 1993, the appointment of judges was on the basis of the collegium system and this appeared to be working till there was talk of the method of judge appointments. “The Supreme Court and former CJIs wanted to continue with the collegium system with certain changes. This backfired on the Judiciary because the Government said that this meant that the collegium system was not perfect and all appointments of judges were stopped,” Justice Prasad says.
Other lawyers say the Memorandum of Procedure (MoP) of appointment of Supreme Court Judges is acting as a hindrance. With its present conditions and riders, it is not likely that the CJI or, for that matter, the Supreme Court are going to accept the terms and conditions stated in the MoP. This means that the Judiciary and the Executive are at loggerhead on the issue. This, in turn, means that the vacancies are not likely to be filled up any time soon despite the present burden on the courts.
But Dhamija is more vocal to point at a lack of will on the part of the Government to appoint judges. He wonders that when the Supreme Court can step in and give directions to the Government on every issue, including policy matters and issues like starting a flight from Delhi to Simla which is not a judicial matter, why does it not direct the Government to appoint more judgesIJ
Then there are other reasons cited for the backlog. In 1951, India’s population stood at 31 crore. Today, it’s 130 crore — an increase of 100 crore. Back then, for the case to reach from the lower court to the Supreme Court, it would take anywhere between three to five years. But now, there are some cases that reach the Supreme Court in 30 years. There have been some cases that reach the SC in 50 years!
In the last five-six decades, several new laws have been framed like the service laws, consumer laws, builder laws etc. Earlier, the State had a very limited role to play but it has entered into several commercial activities for which different licences are required. This means that litigation has increased.
Also, there is a lot of migration from villages to towns to cities. This has upped the crime rate which automatically leads to people seeking justice. When it comes to civil matters, the process is lengthy and over the years, the number has only gone up with the system failing to appoint the number of judges needed to deal with the high number of cases in courts.
“At present, the judge to people ratio is 15 to a million. What is required is 60 to a million, at least. There was a time, in the late 80s, when this was 10 to a million and even then there was a recommendation for this figure to be five times. Given the present situation, the figure would be higher than 60 but at least the courts should be given this ratio to clear the backlog. But this figure of 60 also needs to be seen in the context of the present strength of 20,000 or on the basis of the working strength which stands at around 15,000 judges,” Dhamija says, adding that for now what is needed is an additional 5,000 judges to the actual sanction. “That will go a long way to tide over matters,” he says.
Though the Government increases the strength of judges, it doesn’t actually appoint them and so, the working judges remain at 15,000 only. There is no planning. For example, if 100 judges are retiring in a year from various courts in the country, the process to fill the vacancies should be initiated but that is never done on time.
“let’s take the example of the High Courts. The present sanctioned strength stands at 1,069 but the working strength is only 600 judges. A gap is created, not because there is lack of competence. After all how does one judge the competency of the present judgesIJ It is not about whether we have people but whether the Government wants to appoint them to begin with,” Dhamija says.
One is told that there are approximately 20 lakh lawyers pan-India and even if we double the number of judges from 15,000 to 30,000, the law fraternity has that many and many more people who can do a great job as a judge. “We are looking at only 20 per cent. But I would say that there is a far greater number of people who can make fantastic judges. But the procedure to appoint them has to take place,” Mishra says.
“Another factor is that the Judiciary is neglected. Increasing the strength will not get the political parties the votes but schemes like MGNREGA will. So the emphasis is on spending money on schemes rather than on appointing judges. If the Government was to double the strength of the judges it would cost Rs6,000 crore, including a staff of four per judge, per year. Unfortunately the Government prefers to spend Rs35,000 crore on NREGA but not a penny on judges,” a lawyer says on condition of anonymity.
The third reason for a delay in appointments is that the Executive is scared of the Judiciary. There have been instances where the Judiciary has stepped in and not allowed certain policy matters to be taken up or appointments made to some positions. But sometimes the Executive gets an upper hand and the result is that it won’t appoint the judges as a means of getting back at the Judiciary.
A solution would be to streamline the process because the laws are simplified. There are several cases which can be done away with and need not come in for litigation in the first place, like cases pertaining to cheques bouncing. There are several lakh pending cases relating to this. One can have a system where the money transfer is made compulsory through a negotiable bond or Internet transfer. Similarly, there are many cases related to rent litigation; these can also be done away with if the laws are simplified.
Also, there should be public awareness. “A campaign should be organised to educate the public about legal matters. There are legal clinics in all law schools where students can educate the public on whether their case even merits going to the court. This will not only save the court’s precious time, it will also ensure that people are not taken for a ride by a very small percentage of unscrupulous lawyers. People should also know that in such cases, they can approach the Bar Council of India to lodge their complaint. We have a strict code of conduct and the punishment is harsh if the lawyer is found guilty of misconduct,” Mishra points out.
Meanwhile, the Government has taken note of the CJI’s plea to plug the loopholes in judicial system for efficient results, the pendency of cases, infrastructure of the courts and the requirement of more judges. But Justice Prasad has a cynical viewpoint on this and he tells you that even if one judge per case were to be appointed, there would still be a backlog, thanks to our legal system and the mindset of the people. “We are still following the system that the British left us with. We have been independent for more than six decades. It is time that we revamped our judicial system to address the present predicament,” he concludes.