The executive’s steadfast refusal to address the shortfall of judges in India’s courts endangers the very concept of constitutional justice.
Distrust between the judiciary, the executive and the legislative branches of the state is not new. Soon after taking over as president of the US, Thomas Jefferson expressed displeasure with the Judiciary Act of 1801, which had been passed by a lame-duck, Federalist-dominated Congress five days before the expiry of the term of his predecessor, John Adams.
The law created 16 new federal judgeships, positions which Adams promptly filled with Federalists. The Act reduced the number of Supreme Court justices, delaying Jefferson’s opportunity to name a new Supreme Court justice. Eventually, Jefferson’s supporters in Congress repealed the Judiciary Act.
William Marbury, who had been appointed to a judgeship by Adams during his last hours of office, filed suit and requested the Supreme Court to order the Jefferson administration to give him a formal letter of appointment. However, if the Supreme Court ordered secretary of state James Madison to give Marbury his judgeship, the Jefferson administration was determined to ignore the court.
Writing judgement in Marbury v. Madison, chief justice John Marshall inventively prolonged the court’s power without directly infuriating the federal government. Marshall conceded that Marbury had a right to his appointment but ruled that the court had no authority to order the Jefferson administration to act. This was because the section of the Judiciary Act that gave the court the power to issue such an order was in fact unconstitutional.
Thus, for the first time, the US Supreme Court declared a Congressional act unconstitutional. Jefferson and Marshall’s clear incompatibility over political and constitutional issues created an institutional distrust that continued for a long time.
Mounting resentment and mistrust
“Why there is mistrust? “Don’t force us to ask where the files are. Don’t force us to judicially intervene. Don’t try to bring this institution to a grinding halt. That’s not the right thing to do.”
“Send the file back to us if you have a problem with a name suggested by us. We have no problem re-looking into it … But this kind of logjam … whole situation is getting very difficult.”
“Do you know that most High Courts are working with only 40% of their sanctioned strength? People are languishing in jails for 13 years for a hearing.”
Chief Justice of India T.S. Thakur made these remarks while hearing a public interest litigation (PIL) on August 12, 2016.
The executive has for a long while been provided with evidence-based issues and recommendations on increasing the number of judges. But its response, or the lack thereof, to the issue is disturbing. On October 17, 2015, this hostility came to a head after the apex court quashed the National Judicial Appointment Commission, or the NJAC, which was followed by the episodes in Uttarakhand and Arunachal Pradesh, leaving the government embarrassed.
Following Prime Minister Narendra Modi’s Independence Day speech, Thakur once again expressed his discontent with Modi making no mention of the problems faced by the judiciary. The situation may now be regarded as Modi vs. Thakur, the prime minister vs. the chief justice, or the advocates of a strong central government vs. the proponent of liberties. But the rising mistrust is bad for India’s democratic institutions.
Modi, who values good governance, would not like to create an Indira Gandhi-like regime, which openly attempted to create a committed judiciary. Notably, Gandhi made an unconventional move after the Keshvananda Bharati v. State of Kerala case, when three senior judges of the Supreme Court were superseded (for taking anti-establishment positions) and Justice A.N. Ray, junior to the three judges, was appointed the chief justice of India. For the first time, the convention of the the senior-most justice becoming chief justice of the country was broken, ostensibly for political reasons. Cases decided by Ray indicate that he either favoured the government’s stand on issues whenever he could or dissented when he was not in position to do so.
In another instance, Justice H.R. Khanna was passed over for a position after he wrote a strong dissenting opinion that painted Gandhi’s government adversely. Justice M.H. Beg, a long-time friend of the Gandhi family, was appointed chief justice by taking a quantum leap in seniority. Beg took a pro-government stand in a number of cases, including the Fundamental Rights case and Habeas Corpus case.
If the Modi government has any intention of employing a similar approach, following through will earn the prime minister the stamp of being authoritarian.
Concerns about institutional legitimacy
Judicial independence, a basic constitutional structure, is not conceivable unless the executive ensures that the strength of the judiciary is adequate to discharge its constitutional duty of rendering effective justice to all within a reasonable time. This becomes impossible if there is an inadequate number of judges at the subordinate courts, the high courts and the Supreme Court to deal with the backlog of pending cases and the inflow of new cases.
This has been the singularly constant finding of all the government committees and commissions on arrears in courts. The following fact-finding bodies have unwaveringly endorsed increasing the strength of judges – based on evidence on the institution, the disposal of cases and the net annual build up of arrears, which add to the already pending arrears.
- Rankin Committee (1925)
- Chief Justice of Calcutta High Court’s Report (1949)
- Uttar Pradesh Judicial Reforms Committee Report(1952)
- 14th Law Commission Report on ‘Reform Of Judicial Administration (1972)
- 79th Law Commission Report on ‘ Delay and Arrears in High Courts and Other Appellant Courts (1986)
- 31st Report the Estimates Committee of the Parliament (1986)
- Satish Chandra Committee Report (1987)
- 120th Law Commission Report on ‘Manpower Planning in Judiciary (1989-90)
- Report of the Arrears Committee (Malimath Report 2002)
- Report of the National Commission to Review the Working of the Constitution (Venkatachaliah Committee 2003)
- 189th Law Commission Report (Feb 2004) and 245th Law Commission Report on Arrears Backlog: Creating Additional Judicial Manpower (2014).
The recommendations of these committees, as those by the All India Chief Justices Conference, have remained unimplemented. It is a similar case when it comes to implementing the Supreme Court’s orders in the following cases: All India Judges Association vs Union of India (2002) 4SCC247, Ramachandra Rao v. State of Karnataka (2002)4 SCC 607, Brij Mohan Lal v. Union of India ( 2012) 6 SCC 502, Malik Mazhar Sultan & Anr. v. UP Public Service Commission & Others (2006)9 SCC 507, Imtiyaz Ahmad vs State Of U.P. (2012) 2 SCC 688
The consequence of ignoring these recommendations retarded human and economic development. Disputed contracts, properties and securities lie frozen in the courts for years, mocking the constitutional right to property and the human right to dignity. Prisoners under trial burden the state’s finances with avoidable costs to be covered by public money and a seething discontent with political, police and prison governance. The angst of criminal and contractual innocence – unable to wait for a judicial decision that’s been held up due to an inadequate number of judges – converges into a problem of law and order as people attempt to find other ways of resolving their disputes. The rule of law, another basic structure, stands violated.
Notwithstanding the knowledge provided by law commissions, inquiry committees and parliamentary committees, the executive wing of the state continues to be in denial when it comes to the issue of judges’ numerical strength in the country. Hence, another basic feature of the constitution – access to justice within a reasonable time – stands violated. What is at stake here is not judges, the judiciary or governance, but the very process of human and economic capital building and accumulation – to meet India’s international commitment at the UN and to achieving the millennial goals through sustainable development. The incessant denial of inadequate judge strength gets at the very constitutional idea of India – an India whose courts deliver justice within a reasonable time, estimated by the normal human life cycle.
Economic planning by the Indian state would have revealed that increasingly resorting to courts is an inevitable consequence of India’s rise in the demographic values recorded in the human development index. At the same time it has not figured anywhere, conspicuously absent from appropriate budgetary allocations for the judiciary. The absence of a nodal ministry for judicial planning, a national judicial policy and a provision for a regular cadre review in terms of judicial work or the impact of new legislation, are self-evidentiary indicators in this regard.
In a globalised world faced with similar problems of human misery, currently or historically, comparisons are inevitable. According to a recent report by the Huffington Post, “In 2016, India’s judge-population ratio of 17 judges per million is among the lowest in the world. On an average, developing nations have 35-40 judges for a million citizens, while developed countries have 50.” Applying the commonly used methods of gauging India’s socio-economic development – weighted caseload method, HDI method, rate of disposal method, literacy rate method or time based method –converges to conclude that more judges are required to ensure the constitutional promise of meaningful justice. Even as there is a national debate on pending cases or arrears, new arrears are accumulating daily. The ignorance of the government is perilous to us as it is trying to settle scores at the cost of justice and the constitution.
Yogesh Pratap Singh is an associate professor of Law at National Law University Odisha and currently on deputation as Deputy Registrar, Supreme Court of India