Spotlight
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)
|