Long delays in the criminal justice system are increasingly leading to horrific instances of society taking the law into its own hands. The recent killing in an “encounter” of all the four accused in the rape and murder of a 25-year-old veterinarian in Hyderabad is the latest example of this and has divided the nation on the question of justice. What made it more unpalatable was the kind of voices raised in favour of the killing, now under investigation.
Rajya Sabha MP Jaya Bachchan demanded lynching of the accused in Parliament and added: “Der aaye, durust aye (better late than never).” Former Uttar Pradesh CM Mayawati praised the Hyderabad police while badminton champions PV Sindhu and Saina Nehwal tweeted about justice being served. Those who cautioned against vigilante justice were drowned out. The reactions raised serious questions about faith in the judiciary.
Chief Justice SA Bobde went to the heart of the issue when he said: “Justice can never be instant. I believe justice loses its character as justice if it becomes revenge.” He added: “Recent events in the country have sparked off the old debate with new vigour. There is no doubt that the criminal justice system must reconsider its position, must reconsider its attitudes, towards time, towards laxity, and towards the eventual time it takes to dispose of a criminal matter.”
Former Supreme Court justice Madan Lokur, in a hard-hitting column in a national newspaper, wrote: “Can we be brutally frank and admit that the criminal justice system (not the entire judicial system) has collapsed, or is it still on the precipice?” adding: “Delays are endemic and go to such an extent that in a criminal case, the trial court granted a staggering 94 adjournments!”
He also asked readers not to forget that “our society is governed by the rule of law and a progressive Constitution where everyone is presumed innocent till proven guilty through a fair trial”.
A glaring example of justice delayed and denied is the infamous Nirbhaya case. It has been seven years since that brutal incident and her parents are still fighting for justice. Is it any wonder then that her mother, Asha Devi, said after the Hyderabad encounter: “I am extremely happy with this punishment…I demand that no action should be taken against the police personnel.” Her angst is understandable.
According to the National Judicial Data Grid, there are over 3.53 crore pending cases in our courts. District and subordinate courts account for 87.54 percent of these. In High Courts, there are 49 lakh pending cases.
This huge backlog is primarily due to shortage of judicial personnel.
According to the India Justice Report: “At an all-India level, in 27 states and UTs there is just one subordinate court judge for over 50,000 people. This includes 17 of the 18 large and mid-sized states, where 90 percent of the country’s population resides. But in five of these states, the ratio exceeds one judge per lakh population at the subordinate court level.”
The report states that not a single high court or subordinate court is working at its full capacity. Under Articles 233 and 235 of the Constitution, high courts have absolute control over district and subordinate courts’ administration and are vested with powers to appoint judges. According to All India Judges Association vs Union of India (2010) which came up before the apex court, 10 percent of all posts are filled by competitive examinations, 25 percent through direct recruitments from the Bar Council of India and 65 percent through promotion from the cadre of civil judges. None of the three are working efficiently and the recruitment process is often marred by corruption cases and other malpractices.
In 2013, the UP Public Service Commission (UPPSC) asked 15 factually incorrect questions in the Provincial Civil Service-Judicial exam. In the last six years, the UPPSC has postponed, cancelled or reviewed 16 examinations. Recently, the examination controller at the UPPSC was arrested for conniving with the printing press and leaking papers. In Haryana, the recruitment process has not been done for the last three years. In 2017, the Haryana High Court had to scrap the preliminary exam due to a paper leak. In 2018, the High Court again came out with an advertisement for vacancies but only nine candidates qualified in the mains examination for 107 posts. These delays have led to the piling up of vacancies and cases. There is also no uniformity across states in their recruitment process. Age, qualifications, syllabus and exam patterns differ in every state. In Rajasthan, a 21-year-old who never represented a client has become a judge. In Punjab, the minimum age to become a judge is 23 years, while in Karnataka it is 25 years. The process of recruitment too varies. While in Kerala a written exam is followed by an interview, in UP there is a preliminary exam, a mains exam and an interview. This results in the varying quality of judges in the states.
Another hurdle in attracting young talent to high courts is the age barrier for appearing in exams. Currently, an advocate who has practised for a minimum of seven years is eligible to appear for the examination for the post of district judge. Former CJI PB Gajendragadkar had observed that mostly unsuccessful lawyers opt to try for the post of a district judge. A lawyer with a successful practice of seven to 10 years won’t find the idea of being a subordinate judge and getting transferred from time to time attractive, he said. Justice Jasti Chelameswar, while giving his dissenting statement in the five-judge bench Supreme Court judgment that struck down the NJAC Bill, argued: “This provision, could have acted ‘as a check on unwholesome trade-offs within the collegiums and incestuous accommodations between Judicial and Executive branches’.” He went on to quote Ruma Pal, a former Supreme Court judge: “Consensus within the collegiums is sometimes resolved through a trade-off resulting in dubious appointments with disastrous consequences for the litigants and the credibility of the judicial system. Besides, institutional independence has also been compromised by growing sycophancy and ‘lobbying’ within the system.”
The idea of an All India Judicial Services (AIJS) has been discussed frequently in India yet no concrete action has been taken. A centralised recruitment process is seen as a threat to the independence of high courts and the federal structure of the country. But is the AIJS really such a big threat? Justice Chelameswar, in the same NJAC judgment, had said: “We the members of the judiciary exult and frolic in our emancipation from the other two organs of the State. But have we developed an alternate constitutional morality to emancipate us from the theory of checks and balances, robust enough to keep us in control from abusing such independence? Have we acquired independence greater than our intelligence, maturity and nature could digest?”
His observations raise serious concerns. In the name of independence of the judiciary, can we allow inefficiency to plague the rule of law? Keeping the quasi-federal structure of our Constitution in mind, the 116th Law Commission report explains that a centralised recruitment system won’t affect the control of high courts in the administration of subordinate judiciary. It adds that an AIJS would not only help to conduct the selection process in a fair and transparent manner but also unburden the already overworked high courts. Malpractices, inefficiency, lack of transparency and, above all, inordinate delays in concluding a case, corrode confidence in the judiciary. Rule of law as a deterrent to crime loses its credibility if the delivery of justice takes so long. The Hyderabad encounter will serve as a constant reminder of that truism.
By Nupur Dogra
Lead picture: Litigants waiting at a district court