Saturday, December 3, 2022

The Age-old Question

With ever increasing caseload, will increasing the retirement age of judges at all levels of the judiciary help? The issue was discussed in great detail by a distinguished panel of legal luminaries on the India Legal show on APN channel. The programme was hosted by the channel’s Editor-in-Chief, Rajshri Rai.

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By Sanjay Raman Sinha  

It is classic case of David vs Goliath. A handful of judges trying to work their way through a mountain of cases! The success depends not only on the arithmetic, but also on commitment and motivation. The number of judges in India is abysmally less as a ratio to its population. The judge-population ratio in India, as of today, is 20 judges per 10 lakh people which is the lowest in the world. In its 120th report of 1987, the Law Commission had stated that for every 10 lakh of population, 50 judges are required. It held that this will help reduce pendency. So, if the retirement age of judges is increased will it help solve the problem?

Justice Sudhir Aggarwal, former judge, Allahabad High Court, held that there is no one-to-one relationship between case disposal rates and the number of judges. He said:

“According to the National Judicial Data Grid figures, 4 crore 10 lakh cases are pending in district courts of the country. More than one crore cases are pending in the Uttar Pradesh district courts itself. In the High Courts, 59 lakh cases are pending. The Allahabad High Court alone has 10 lakh 32 thousand cases which are yet to be cleared. By only increasing the judges’ retirement age, pendency can’t be reduced as there are other factors as well. If the retirement age is increased then after a certain period, with delayed appointments, the situation will be back to square one. Every year, a white paper is needed and competent judges are required.”

Justice MN Venkatachaliah, former chief justice of India, has also made his mark by managing the pendency problem. During his term of seven years at the Supreme Court, he wrote about 90 judgments and was a part of 482 benches. Throughout his tenure, he was committed to reducing the

pendency of cases. He is credited for bring­ing down the pendency to 19,000 in his tenure.

Speaking to India Legal, he recounted:

“The problem in judiciary is the lack of speed in the disposal of cases. We concentrated on the problem during my tenure. My team of judges did enormous work. They worked half an hour more daily. The result is for all to see. From 1991 to 1998, in eight years, the backlog of cases fell from four and a half lakhs to 19,000. People said that it is the most commendable work of any post-Independence institution. That was the collective work of all the judges. There were great judges in our time. I am not in touch with the system now, but I can say that those years were very productive.”

With a weak judge-to-population ratio, the judges are naturally overburdened. Judges have to read, on an average, more than 80 files per day, hear these cases and write judgments over the weekend.

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Justice Aggarwal is well known for his landmark judgment in the Ramjanmaboomi Babri Masjid case delivered on September 30, 2010. He is also known for his hard work, and during his tenure as a High Court judge, he decided upon and delivered judgment in more than 1 lakh 40 thousand cases in almost every jurisdiction. He asserted: “Commitment, passion and knowledge should be the selection criteria of judges. Today, these are at a premium. I have worked as an advocate for 25 years. Then for about 15 years, I worked as a High Court judge. I used to work 15 to 18 hours per day. At a time when the Ayodhya case was being heard, I had worked for 16 to 20 hours per day for two years. I am not advocating relinquishment of family life for profession, but hard work and keen sense of duty is required.”

Pendency is a major problem facing India’s judicial system which is badly understaffed in terms of judges. Now, with the advent of Artificial Intelligence (AI) and other high-end technologies, will the judiciary embrace it to solve pendency?

Justice Venkatachaliah explained his viewpoint to India Legal. He said: “Pendency is a serious problem plaguing our judicial system. There are 22,764 subordinate courts in the country. Each court lists around 60 cases per day. Around one case per day is decided. There are 250 footfalls on either side of the advocates and clients. Multiply 22,764 by 300 footfalls everyday and then multiply that by 290 days of work. Then you will know the enormity in terms of loss of productivity and man hours. If you calculate it at the rate of Rs 300 per head, per day, it may amount to a lakh and fifty thousand crore rupees per year. This is the notional loss in addition to the actual expense involved in it. Talking about Artificial Intelligence (AI), the scanner can read some four-lakh pages in about three to four minutes. But the language platform must be compatible with the material available in courts. Only then the advantage of AI solutions will accrue. AI has some limits but it can be done.” In fact, Justice Venkatachaliah had recommended in the 2002 Venkatachaliah Report that the retirement age of High Court judges should be raised to 65 years and that of Supreme Court judges to 68 years.

The retirement age of judges has always been a point of concern not only for the judiciary but for the central government as well. The previous UPA government had introduced a bill in 2010 in which there was a proposal to increase the retirement age of High Court judges from 62 years to 65 years, but the bill lapsed after the dissolution of the 15th Lok Sabha in 2014. The bill was introduced in the Lok Sabha but was never discussed. Recently, Attorney General KK Venugopal had argued that when lawyers at 70-75 years argue cases, why should the Supreme Court judges retire at 65?

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Aruneshwar Gupta, senior advocate at the Supreme Court, said:

“Earlier, the retirement age of judges in the lower judiciary was 58 years, in the High Courts it was 62 years and for judges of the Supreme Court it was 65 years. Later, the retirement age of judges in subordinate courts was increased to 60 years. It is seen that most of the judges work for 10 to 15 years in High Courts, so if their retirement age is increased, it may help in dealing with case disposal and curbing pendency.”

Justice Narendra P Chapalgaonkar, former judge of the Bombay High Court, concurred. He said: “If some retired judges are willing, capable and efficient then the chief justices of High Courts should recommend their appointments as ad hoc judges.’’

The retirement age in major Supreme Courts abroad is above 65 years. In the Supreme Court of Australia, it is 70, in the Supreme Court of Canada, it is 75, in Israel, it is 70, in the Supreme Court of New Zealand it is 68, and in the UK Supreme Court, it is 75 years. There is no retirement age for judges in America. But, the Indian situation is quite unique.

Justice Aggarwal recounted from his experience. He said: “The judges don’t take decisions on cases. When judges become senior, they have their eyes for promotion to the Supreme Court. I have seen in the Allahabad High Court that after hearing cases for more than two years, senior judges have reserved orders in more than 100 cases and retired. They don’t want to take responsibilities. I was appointed chairman of arrear committee by the Supreme Court in High Court. I had proper data on cases.

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“Today, the retirement age of judges of district courts is 60 years. If we increase the retirement age at district level, but don’t simultaneously increase the High Court judges’ retirement age then the whole cycle will be disturbed. It will affect the morale of judges as well. When we take such decisions, we have to consider the full chain. To tackle the issue a comprehensive plan needs to be developed. If we take care of infrastructure, accountability and transparency, much of the issues can be resolved. Till four years ago, in Uttar Pradesh, there were 2,500 subordinate courts. I will give you an example of ad hocism. In 2014, the government had announced that 720 additional lower courts have been created. But this announcement was only on paper. I retired in 2020 and till then these ‘paper courts’ were not functional. Hence, it didn’t make any dent in pendency. That’s the way the system functions.”

Empirical research on the workload of the Supreme Court of India remains restricted by data sources. Existing approaches which adopt the count of cases as their primary measure miss the fact that the capacity of the Court is largely time driven. Stating that a court has a certain number of cases pending is insufficient to make inferences about the court’s congestion, capacity or efficiency.

Said Gupta: “There is no system to gauge the quantity or quality of work of judges. In the Supreme Court, we have either a two-judge bench or more. In the benches, either the judge is signatory or he has written the judgment. Now if we look at the judgment-signatory ratio, it signifies the quantity of work of the bench or a particular judge. If there is a three-judge bench then every judge has to have at least 33% disposal rate. If there is a two-judge bench then every judge has to have 50% disposal rate. This will take care of quantity.

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If we talk of quality then we have to look at the number of judgments which has gone to the Supreme Court and has been upheld or reversed. This can form the basis of qualitative judgement analysis.”

Under the current system, the judges of the Supreme Court are appointed from the ranks of the chief justices of the High Courts or from among the seniormost judges of the High Courts because of which he/she does not have sufficient time to absorb the work ethos of the Supreme Court effectively.

Justice Aggarwal said: “Judges are shuffled like a pack of cards. Nobody cares about the specialization of judges. Judges who are expert in criminal matters are assigned civil cases and vice versa. Hence, case disposal suffers. At this age, judges can’t be taught, they need to be assigned cases as per their area of expertise. This is not taken care of. Our judicial problems have no match with the judiciary of any other country. In terms of the number of cases, the judges strength and the number of courts, we have a distinct challenge. In district courts of Uttar Pradesh per year 30 to 40 lakh cases are filed. This is the enormity of the situation of which we can’t find a parallel in any other country.

“Even if we increase the age of judges what is the guarantee that all of them will prove productive? Every year, three lakh cases are filed in the Allahabad High Court. There are about 100 judges in the High Court. About 1,200 to 1,400 cases are filed daily and only about 1,000 to 1,200 cases are disposed per day. The disposal rate is less than the filing rate and cases accumulate.”

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Justice Aggarwal goes on to buttress his point. He said:

“We should certainly make a system wherein we can decide the quantity and quality of a judge’s work. That is why we need an appraisal system. Merely increasing the age of retirement of judges won’t work.”

Parliament has the power to increase the retirement age of judges but for this, it will have to amend Article 217 of the Constitution. At the same time, if the strength of the court or the number of judges has to be increased, Article 124 of the Constitution needs to be amended, which defines the power of the court. Clearly, Parliament has adequate powers to bring about normative changes, but at the ground level, it is the human endeavour which has to triumph over the pendency overload.

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