The Attorney General Is Right, Justice Delivery in India Is Indeed Looking 'Hopeless'

There are a few steps might mitigate the problems of millions of litigants.

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Thank you Attorney General K.K. Venugopal (respectfully and popularly referred to as KKV) for speaking your mind and addressing the “hopeless situation” caused by the pendency of millions of cases in the high courts and the district courts. An update: the number of pending cases at the time of writing has crossed 48 million.

You are right sir, the situation is hopeless. Justice P.N. Bhagwati said in his Law Day address in 1985 that our judicial system is on the verge of collapse. In 1996, Justice Bhagwati said that the Supreme Court of India is the most powerful court in the world. I wonder what made him change his opinion. Assuming what he said in 1996 is correct, please compare it with the situation today.

Recently, Chief Justice of India N.V. Ramana addressed a very high powered conference in which he said that decisions of the courts are “not implemented by government for years together” resulting in a rise in contempt of court petitions. Has our justice delivery system now collapsed or is it teetering and still on the verge of collapse? I am reminded of Mark Antony’s: “O, what a fall was there, my countrymen!”

I believe the staggering number of pending cases and an equally staggering number of judicial vacancies are only the symptoms of a deep-rooted malaise. Judicial vacancies are blamed for the pendency of cases, ignoring the Medusa-like head of a powerful political executive that is reducing Lady Justicia literally to a statue, despite her blindfold. Let me address these concerns.

Judicial vacancies

The recruitment of judicial officers at the district level is through an examination conducted under the aegis of the high court. The Supreme Court has laid down a yearly calendar of events for the recruitment process with timelines. This is undoubtedly well-intentioned, but does the Supreme Court have administrative control over the high court through prescriptive guidelines? Do we know how many high courts are actually following the schedule? I would be surprised if even a handful are following the mandate. The fault lies with the system that is not able to ensure filling up vacancies.

The situation with regard to high court vacancies is worse. This is where the almighty political executive comes into the picture. The CJI rightly said that judges do not appoint judges – they only recommend candidates for appointment. The president makes the appointment when the papers are put up to him for issuing the necessary warrants by the political executive. This can take months and years in most cases, because of government’s whims and fancies. Recently, Aditya Sondhi of the Karnataka high court withdrew his consent for appointment after having waited for a year for the government to decide. Eventually, the government took a decision, but bypassed the recommendation of the Supreme Court. Their’s not to reason why.

Also read: Chief Justice N.V. Ramana Must Finish What He Has Begun

The transparent mystery of Saurabh Kirpal’s appointment is too well known to be repeated. The Supreme Court has not been able to assert itself in these and many other recommendations and reiterations, thereby exploding the ‘judges appointing judges’ myth. Worse, the reins of appointment are now truly and fully in the hands of the government plucked from under the nose of the Supreme Court. Who cares?

The play of whims and fancies of the government in the matter of appointment to the Supreme Court is evident from some fairly recent cases. It’s great that some recommendations are processed within a couple of days, as has happened recently. But why did it take several months to process the appointment of Justice K.M. Joseph or that of Justice Indu Malhotra? Is some kind of subtle message being conveyed to the judiciary? I hope not.

Appointment of judges to the high courts and the Supreme Court are regulated by the Memorandum of Procedure. The government says that the memorandum is not yet final and of course nothing is binding on the government. Has any serious attempt been made to finalise it? Let me tell you, the objections of the government are frivolous to say the least and bizarre in one respect. A clause seems to suggest that the government may veto a recommendation if the person recommended is a national security risk. In other words, the high court and the Supreme Court collegium are capable of recommending (according to the government) a candidate for appointment as a judge who is a national security risk. Can you believe it? Is the government telling us that the high court collegium of three judges and the Supreme Court collegium of three judges are so naïve (or perhaps silly) that they will recommend a person for appointment to a constitutional position even though he or she is a threat to national security?

But in the meanwhile, contrary to the criteria laid down in the Memorandum of Procedure, the brother of a judge in the Supreme Court was appointed as a judge of a high court, indicating that some judges are more equal than others.

After a high court judge is appointed, he or she is liable to be transferred overnight for no rhyme or reason. The shallow mystery of Justice S. Muralidhar’s near midnight transfer is well known and bears no repetition. Justice Akil Kureshi was not allowed to join as chief justice of the Madhya Pradesh high court. Any reason? To make matters worse, the earlier practice of giving “joining time” to a transferee judge is dispensed with. So, on receiving a transfer order, a transferee judge is immediately incapacitated from performing judicial functions until he or she joins the court to which the transfer has taken place – some kind of a compulsory wait.

With instances of this nature occurring with considerable frequency, is it any wonder that the trend (anecdotally) is for meritorious candidates declining to accept an offer of appointment made by the chief justice of the high court? With the Supreme Court not asserting itself in a crucial matter of appointment of judges touching upon the independence of the judiciary, is it any wonder that orders passed by the courts are “not implemented by government for years together”? Who cares?

If this state of affairs continues (and it’s not likely to improve) the problem of judicial vacancies will continue to bedevil us or we will have ‘compromise candidates’ as judges, tending towards the lowest common denominator. That is frightening.

Pendency problem

The problem of plenty (of cases) is not necessarily linked to judicial vacancies. A former CJI boasted that he ensured there is no vacancy of judges in his parent high court. He was right, but did it have any impact on the pendency of cases? A casual study of the information available in the National Judicial Data Grid reveals that it made no positive difference to the pendency of cases in that high court.

I think we have enough judges already to achieve 100% clearance rate, even if existing vacancies are taken into account. But we will never be able to clear the backlog of 48 million cases, unless we have the equivalent of a Hercules cleaning the Augean stables. Determination to clear the backlog is required, but there does not seem to be any movement in that direction, except cosmetic changes and ad hoc courts being established. That is not the solution, but who cares?

Let me frighten you with some figures. The overall pendency of cases in the high courts and district courts has crossed 48 million, and the number is rising – five million plus in the high courts and 42 million plus in the district courts. My guess is that the total will cross 50 million before the end of the year. Of these, more than 30 million are criminal cases pending in the district courts, roughly 71%. No wonder our jails are overcrowded with 76% undertrial prisoners and forgotten convicts languishing beyond the maximum punishment. More than 3.5 million cases are pending for more than 10 years. What kind of speedy justice are we aiming for, and how?

The solution? Even though I agree that the justice delivery system is in a “hopeless situation” and beyond repair, a few steps might mitigate the problems of millions of litigants. First, every case filed by the Union of India or any state government should be accompanied with a demand draft of Rs 1 lakh to take care of litigation expenses of the citizen who is dragged to court. If the court declines to issue notice to the citizen, the amount should be kept in a reserve fund for future utilisation. The governments must pay, period. The governments must also pay Rs 1 lakh for every adjournment sought – after all, the litigant has to pay his or her lawyer an appearance fee even if the case is adjourned. Actually, even governments pay their lawyers a fee for every adjournment.

The CJI has said that governments are the biggest litigants, accounting for nearly 50% of pending cases. If courts are imposing heavy costs on individual litigants, why are governments or government departments treated with kid gloves? Governments must be held accountable for litigation. The sooner the courts realise it, the better.

Second, we need to efficiently utilise our existing resources and also put better systems in place. For example, to avoid overcrowding in prisons, how often have we sincerely applied the ‘bail not jail’ principle? For getting rid of petty cases, how often have we resorted to plea bargaining, a significant amendment to the Criminal Procedure Code? The provisions of the Probation of Offenders Act are hardly ever taken into account during the sentencing process. No progress has been made in case management despite pioneering efforts of Justice M. Jagannadha Rao as chair of the Law Commission of India. There is no discussion on time management and so the Union of India finds that several months is not enough time to respond to petitions challenging the sedition law or issues of marital rape.

Third, it is time to introduce accountability for executive action. The law enforcement agencies are tending to become hatchets for the government of the day. The Delhi high court passed a scathing judgment against the Uttar Pradesh police for picking up a person from Delhi and later fabricating documents to show that his arrest was in UP and lawful. The Supreme Court granted bail to Munawar Faruqui, arrested in Madhya Pradesh, because the guidelines in Arnesh Kumar were not followed. The Assam police picked up Jignesh Mevani from Gujarat to put him in jail for a tweet. On being granted bail, a bizarre allegation of molesting a policewoman was made up to re-arrest him. Punjab police come to Delhi and took away Tejinder Singh Bagga from right under the nose of Delhi police. Then the Haryana police joined the party and stopped the Punjab police from taking Bagga to Punjab (perhaps by detaining them) and the Delhi police somehow managed to bring Bagga back to Delhi. The Rana couple in Mumbai were arrested for sedition because they threatened (but later backed off) to recite Hanuman Chalisa. On the other hand, no action is taken against bigwigs who want bullets to be fired and give calls for genocide, if not some kind of ‘cleansing’. The police see no hate in this, but when Dr Kafeel Khan spoke of peace and harmony, he was detained under the National Security Act. Since when did talk of peace and harmony become a threat to national security? Please tell me, does anybody know what’s going on?

Yes KKV, the situation is hopeless. Let’s do something about it. I think it’s too late already, but am willing to join hands with you and give it a try.

Madan B. Lokur is a former judge of the Supreme Court of India.