Unless something is done about the huge backlog of appeals, the Indian judiciary will soon be beyond redemption regardless of the system used to appoint judges
The recent verdict of the Supreme Court quashing the National Judicial Appointments Commission (NJAC) Constitutional Amendment Act has reopened the debate over the manner in which judges in India are appointed. The October 16 verdict only restores the collegium system created by judges themselves in the Second Judges and Third Judges cases, which, apart from having no constitutional basis whatsoever – there is no mention of any collegium in Article 124 of the Constitution – has set up a mechanism by which judges appoint judges. This is a system totally lacking in transparency, as Justice Chelameshwar, the sole dissenting judge, has pointed out in his judgment.
The same had earlier been said by Lord Cooke in his article, ‘Where Angels Fear to Tread’ in which he called it a “sleight of hand”, by Justice Krishna Iyer and Justice Ruma Pal, who had said the collegium decisions were often reached by ‘ trade-offs’, – i.e. “You agree to my man, and I will agree to yours” – and which often resulted in undeserving persons being appointed.
In fact, a number of undeserving persons who were appointed as Supreme Court judges on the recommendation of the collegium, or were recommended by the collegium but blocked at the eleventh hour when it was discovered that they had committed serious improprieties, were mentioned by name by some counsels during oral arguments before the court.
My own opinion is that it matters little whether we have the NJAC or the collegium system or any other system, as the Indian judiciary is beyond redemption thanks to the burden of cases it is shouldering.
Pendency is the problem
Consider the facts. In the Allahabad High Court (my parent High Court), criminal appeals filed in 1985 are coming up for hearing today, that is, after 30 years. The same is true for civil appeals. Is this a judiciary or a joke? As an aside, I have been informed by lawyers that if a case is adjourned after the first date (because the opposite party or government counsel wants to file a reply or for some other reason) in some courts, the case will never be listed again unless the interested litigant is resourceful enough to ensure it.
The present Chief Justice of India, Justice HL Dattu, said soon after being appointed CJI last year that cases in the Supreme Court would ordinarily be disposed off in two years, and criminal trials in five years. Almost every CJI makes similar claims. Justice RM Lodha, a former CJI, made the meaningless remark that judges will work 365 days a year.
There are 33 million cases pending in the law courts of India, and by one estimate even if no new case is instituted it will take 360 years to clear the arrears. While many people talk of clearing the arrears, no one is really serious about it. Arrears, including arrears in the Supreme Court, have kept mounting.
When I was in the Supreme Court, a bench of which I was a member heard a case in 2007, Moses Wilson vs. Kasturiba which had been instituted in 1947. Another case, Rajendra Singh (Dead) thru Lrs. & Ors. Vs. Prem Mai, which was decided by a bench of which I was a member, took 50 years, since it was initiated in 1957 in the trial court and was finally decided on appeal in 2007. The decision in the case observed:
We may quote a passage from the novel Bleak House written in Charles Dickens’ inimitable style :-
“Jarndyce vs. Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated, that no man alive knows what it means. The parties to it understand it least; but it has been observed that no two Chancery lawyers can talk about it for five minutes, without coming to a total disagreement as to all the premises.
“Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce vs. Jarndyce, without knowing how or why; whole families have inherited legendary hatreds with the suit…
“There are not three Jarndyces left upon the earth perhaps, since old Tom Jarndyce in despair blew his brains out at a coffee house in Chancery Lane; but Jarndyce vs. Jarndyce still drags its dreary length before the court, perennially hopeless.”
Is this not descriptive of the situation prevailing in India today? I mentioned the situation in the Allahabad High Court earlier; when criminal appeals come up, the lawyer who filed it is usually dead, and the accused in the criminal case is also often dead or untraceable. I am informed that in the Bombay High Court, original suits have been pending for 25 years or more.
I doubt whether the lawyer community seriously wants any reform, and as for Supreme Court judges, they mostly have a term of only a few years to seriously attempt it (despite the tall talk of almost every CJI).
A person who gets involved in litigation usually ends up weeping after some time as date after date (tareekh par tareekh) is given by the court but the case is never heard.
The Allahabad High Court had set a norm that no judge of the subordinate judiciary should at one time have more than 300 cases pending before him. When I was a judge of that High Court, a judge of the U.P. subordinate judiciary (the CJM Kanpur Nagar) came to meet me, and I asked him how many cases were pending in his court alone. He said 30,000. Another subordinate judiciary judge (CJM Ghaziabad) told me he had 21,000 cases. Yet another said 15,000. Now if a man can carry 100 pounds weight but an elephant is put on his head what will happen? He will collapse. And that is precisely what has happened to the Indian judiciary.
And this is apart from the massive corruption which has crept into the Indian judiciary. When I started my law practice in the Allahabad High Court in 1971, there was no corrupt judge in the High Court, nor in the Supreme Court (though corruption had started in the lower judiciary). Today, I believe the higher judiciary is not immune. Shanti Bhushan, a very senior lawyer of the Supreme Court, and former Union law Minister, had filed an affidavit in the Supreme Court several years back stating that half of the previous 16 CJIs were corrupt (he named them in a sealed envelope which he gave to the court), and he was uncertain about two more. Since then, more Chief Justices of India who retired had serious allegations of corruption against them.
In these circumstances, what difference will it make whether we have the NJAC or collegium? So far as the public is concerned, it the difference is the same as that between Tweedledum and Tweedledee.
Markandey Katju is a former judge of the Supreme Court of India