Will the problems of backlog of cases and vacancies of judges be resolved in 2017?
On April 25, at a meeting of chief justices of high courts and chief ministers in New Delhi, the outgoing Chief Justice of India, Justice TS Thakur, had made an impassioned plea that the deadlock that the judiciary finds itself in due to a huge backlog of cases and an acute shortfall of manpower, especially judges, needs to be addressed urgently. What made the plea unusual was that the CJI broke down and was seen wiping away tears.
He had good reason to get so emotional. As India Legal’s lead story in September 15 issue, Travesty of justice’, revealed, there are presently over 2.18 crore cases pending which will take over 300 years at the present rate of disposal. More than 22.5 lakh cases are over 10 years old. Much of this is attributed to shortage of judges. A Lok Sabha discussion in March showed that pending appointments of judges were at an astonishing 44 percent in high courts, 25 percent in subordinate courts and 19 percent in the Supreme Court.
While Prime Minister Narendra Modi, who was present at the chief justices conference, promised to look into the issue, not much has changed. As we usher in 2017, and as Justice Thakur makes way for Justice JS Khehar on January 4, is there hope for solution to the problems that are hobbling the Judiciary? The fundamental right to justice means that the public still has high expectations from the judiciary.
The year-end India Legal Show on APN news focused on this crucial question—can these issues be resolved in 2017? A panel of top legal experts looked at possible solutions. It included Pradeep Rai, senior advocate of the Supreme Court; Justice RB Mishra, former acting chief justice of Himachal Pradesh; Inderjit Badhwar, editor in chief, India legal; Justice K Sreedhar Rao, acting chief justice, Gauhati High Court; Justice Ajay Prakash Misra, former judge, Supreme Court and Justice Vijender Jain, former chief justice of Haryana High Court and Chairman of the Haryana Human Rights Commission.
Talking about the pendency issue, Justice Ajay Prakash Misra pointed to the stark differences in manpower in India and other countries. He cited a 1987 statistics of the Law Commission of India— in Australia there were 41.6 judges per million, in the US, the figure was 107, while in India there are 10.5 judges per million (12 per million now) per million population.
Talking about the pendency issue, Justice Ajay Prakash Misra pointed to the stark differences in manpower in India and other countries. He cited a 1987 statistics of the Law Commission of India— in Australia there were 41.6 judges per million, in the US, the figure was 107, while in India there are 10.5 judges per million (12 per million now) per million population. Justice Vijender Jain sought to remind the panel that a large number of cases are cleared each year in Indian courts without due credit being given. The problem is that the number of cases filed far exceeds the number of cases dealt with. Senior advocate Pradeep Rai added that it was more important to fill vacancies in lower and high courts where a majority of cases are settled. Very few people, he pointed out, have the wherewithal to approach the Supreme Court.
Justice RB Mishra brought attention to quality of manpower. “What we need is timely appointments and good judges. I always say that it’s the nursery which decides what shoots you will get. Therefore proper training is important.” He also suggested that legal literacy of the public should be enhanced. For this, alternative dispute resolution mechanisms should be encouraged. To bridge the shortfall of quality judges, he suggested that the services of retired judges can be utilised, as they have the caliber and knowledge that comes with experience.
A recording of a speech of Manan Mishra, chairman of the Bar Council of India, was played in the India Legal Show. He narrated an incident wherein a young lawyer approached him in the Patna High Court, expressing interest in joining the State Bar Council. Mishra gave him the form and asked him to fill it. When he returned after a few hours, he found that the young lawyer hadn’t filled it. When he asked what the matter was, the youth replied: “Dikkat ba (I have difficulty doing that).” Mishra asked him to fill the form in Hindi. He replied in Bhojpuri that even that was difficult. And when Mishra asked him to just sign the form, the youth replied: “Usme bhi dikkat ba. (even that is difficult).” The strange thing was that after about a year, when Mishra went to Siwan in connection with some work, he found that the young lawyer had set up a fairly successful practice, with 11 people employed under him.
The past few years have also seen an increasing tussle between the government and the judiciary. Inderjit Badhwar, editor-in-chief of India Legal, said it’s only natural, especially in a situation where the executive is misusing its power, like, for example, in the case of demonetisation. “Political parties will always test endurance limits of its subjects—it’s human nature. The judiciary has to play an active role to curb this.”
He added: “On demonetisation, there is no reason why the Supreme Court should not intervene. It’s both its right and duty, when people’s right to their own money has been violated,” he said. “When the pendulum of mis-governance swings to one extreme, judiciary steps in to restore balance, though in some cases taking the pendulum to other extreme.”
An important issue that was raised by senior advocate Pradeep Rai was that of different principles being followed for one set of issues. He argued that one principle should be followed in passing verdicts. If that can be ensured, then quite a lot of delays would be eliminated and judgments would be passed swiftly.
An important issue that was raised by Rai was that of different principles being followed for one set of issues. He argued that one principle should be followed in passing verdicts. If that can be ensured, then quite a lot of delays would be eliminated and judgments would be passed swiftly. He gave an example of an anti-defection judgment involving some senior politicians who had defected from their party. However, the concerned judge said that those politicians were entitled to leave the party, and that the principle would apply only to that particular case, and not to any other.
A major challenge that the panel discussed was the role of government. In India, the government is the single biggest litigant, including many false or weak cases. If it loses, it keeps filing appeals which only increases the judiciary’s workload. Rai said what judges have to look at is facts of the case, not who is involved. Cases are decided on merit of facts. Vijender Jain agreed that every judge has to decide a case on the touchstone of legality. In fact, the panel agreed that if multiple stages of litigation have to be avoided, a lot depends on how convincing the judges are in lower courts, and their professional conduct.
In that context, the panel looked at 2017 and expectations from the new Chief Justice. Justice Sreedhar Rao felt that there are limitations to the office of CJI, as he has no control over High Courts and the Supreme Court can deal with High Courts only as appellate courts. He can, however, hold regular conferences with HC judges to sort out pending matters. The panel was unanimous in expressing full faith in his caliber. There are quite a few emotive issues on which the judiciary under Justice Khehar will have to pass final judgments. These include triple talaq and the Cauvery water dispute. Already, as was the case of an interim order of the Supreme Court asking Karnataka to release water to Tamil Nadu, there has been open defiance of the judiciary’s order. Rai concluded that while the judiciary will definitely perform the role that’s expected of it, the elected governments, pass the buck and avoids responsibility for the fear of losing votes on such emotive issues.
—Compiled by Meha Mathur
Lead picture: Panelists discussing problems of backlog of cases and vacancies of judges on India Legal Show