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Collapse O Judicial System: COMMON CITIZENS’ WORRY, By Dr S Saraswathi, 12 Sept, 2016 Print E-mail

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New Delhi, 12 Sept, 2016

Collapse O Judicial System

COMMON CITIZENS’ WORRY

By Dr S Saraswathi

(Former Director, ICSSR, New Delhi)

 

The procedure for appointment of judges has become a contentious issue between the Government and the judiciary forcing the Prime Minister to come out with a conciliatory statement that there is no scope for any confrontation or tension with any constitutional institution.  Acknowledging that there must be as much warmth with judiciary as needed for constitutional decorum, he has stated that he would try his best to maintain that decorum. 

 

This soft statement is significant as the issue of delay in the execution of the recommendations of the judicial collegium for appointment of judges for over eight months is coming up for hearing in the Supreme Court shortly. It stands in marked contrast to the stern message of the Supreme Court a few days back which sounds that the stage of decorum is already over. It  conveyed the court’s concern over the degeneration of the justice delivery  system described in  a strong term as  “collapsing”  that it “won’t tolerate logjam in judges’ appointment which is stifling judicial work”.

 

CJI Thakur is reported to have told the Attorney General that “the Centre is attempting to bring the judiciary to a grinding halt by not appointing high court judges”.    

 

The issue now includes fixing accountability for the delay in the appointment of judges.  India is having less than 11 judges per one million population which is one of the lowest in the world.   Lack of adequate number of judges being the main cause for judicial delay, the on-going clash between the Executive and the Judiciary over judges’ appointment cannot be watched passively by citizens who want speedy justice. Incidentally, time factor in deciding court cases is an indicator for assessment of proficiency of justice delivery system in a country.

 

The tussle between the Judiciary and the Executive over the collegium system for appointment of judges is going on ever since the system was introduced.  It is further complicated by reported differences within the present collegiums leading to weakening of popular trust in the judicial system as a friend in need.

 

A senior sitting judge of the Supreme Court, Justice Chelameshwar, who is a member of the present collegium, has expressed dissatisfaction over the process for appointment of judges, particularly lack of transparency.  His strong statement indicting the collegium  system as “absolutely opaque and inaccessible both to public and history,  barring occasional leaks”  shows split within the judiciary as in political parties.   It is reported   that he also refrained  from attending the collegium meeting.

 

It was an important meeting convened to decide on the draft Memorandum of Procedure (MoP) regarding appointment of judges prepared  by the union government  in response to  the Supreme Court order  in  2015.  Its verdict   then struck down the National Judicial Accountability Act (NJAC Act) passed by the government to replace the collegium system.  The Act provided for a 6-member panel comprising CJI, two Supreme Court judges, Union Law Minister, and two eminent persons to appoint judges.

 

Relevant is the fact that the dissenting member of the collegium today was the lone dissenter in the 5-judge Constitution Bench which upheld the 20 years old Collegium System in 2015 in which the   government was given no role in appointing judges. Above all, he expressed a strong view that keeping the government away from the appointment process was “illogical and inconsistent with foundations of theory of democracy”.

 

Lack of unity among judges on this issue seems to be widening with more and more judges voicing their individual opinions for and against the collegium system.  A retired judge of the Supreme Court, obviously on the basis of his experience, is reported to have  described that the system has degenerated into a “give and take” policy and the members had not proved themselves to be “detached”.   The citizens can only hope that this is exaggeration and pray that judiciary can get over this crisis without delay.

 

The issue involves a very important task of maintaining the independence of the judiciary and safeguarding   the balance of power among the three principal organs of governance.  Prolonged delay in resolving it will only add to the woes of litigants looking for justice.

 

People must be sick of hearing the oft quoted saying of the British PM, Gladstone (1809-98) that “justice delayed is justice denied”.  Nobody but the litigants and the affected people seem to be anxious for speedy settlement of disputes and for speedy trials.  Statistics on pendency of cases in courts are but numbers for others – be they concerned authorities or official and non-official service providers of various categories at various levels.

 

It is reported that total pendency in various courts is over 2.24 crore and about 475 judicial posts are vacant out of about 1100. The National Judicial Data Grid shows that fresh cases filed in courts outnumber those disposed of in the same period.  In August,    7.28 lakh cases were disposed of, but 7.70 lakh fresh cases were registered, which indicates the trend of increase in backlog. Consequently, courts may be tempted to shorten hearing and come to hasty conclusions.

 

In India, people generally knock at the doors of the police or the judiciary when there is no other option and the matter is vitally important for them. One of the main causes for continuance and popularity of out-of-court settlements, caste panchayats, katta  panchayats,  and informal arbitration by village elders   is the inordinate delay in deciding cases in  law  courts.  Traditional forms of resolution of disputes may be a healthy sign of community power and harmony.   But, there is no guarantee that they will adhere to the law of   the land without influenced by traditional prejudices.

 

One way of tackling the problem of backlog is to establish separate divisions for some important matters.  The Law Commission Report of 2015 favoured establishment of commercial courts, an idea that already had the approval of the cabinet in 2009.  A bill then introduced has undergone revisions and finally the Commercial Courts, Commercial Division and Appellate Division of High Courts Bill was introduced in the Rajya Sabha in April 2015.

 

This bill provides for creation of commercial divisions in high courts and at district courts to handle disputes relating to financial transactions.  However, mere creation of such courts cannot solve the problem unless required number of judges and other staff to man the offices are created without delay.

 

Apart from delay in appointments, there are other problems also contributing to people’s distrust in getting justice through the judiciary. Legal professionals are adept in prolonging cases for several years. Automatic filing of appeals in the Supreme Court,   taking adjournments on false and frivolous grounds, enormous number of court holidays, and in recent years frequent strike by lawyers are forms of exploitation of litigants by legal professionals. The sufferers are clients and only clients.

 

Prolonged dispute over the power of appointment will create suspicion over the independence of the judges in upholding law and justice.   Selection of judges may be left to a panel comprising members from both the executive and the judiciary.  At the same time, all contributory factors for judicial delay must be addressed before outsiders push us to introduce legal reforms.--INFA

 

(Copyright, India News and Feature Alliance)

 

  

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