Open Forum
New Delhi, 9 June
2021
Courts’ Prudence
GOVT MUST
HEED, FAST
By
Dhurjati Mukherjee
The pandemic has
induced both good and bad news in the country’s judiciary. On the one hand, the
second catastrophic Covid wave has led the courts to play a pro-active role and
make the Executive accountable and answerable. On the other, the judiciary
finds itself overburdened and the number of pending cases have hit an all-time
high.
The second wave of
Covid-19 particularly has seen the Supreme Court as well as many High Courts
take the initiative to direct governments to put their house in order, be it
frightening shortage of oxygen or hospital beds or a distorted vaccination
policy. Some have been harsh, to say the least calling the callousness as
‘criminal negligence’ or that “some people need to be charged with
manslaughter. Undoubtedly, it’s the judiciary, which has given hope to people
that skewed working and policies will get rectified under its watchful eye. Remember,
it was the apex court and not the Centre which suggested the constitution of
the 12-member National Task Force (NTF) to devise a scientific formula for
rational and equitable allocation of oxygen to states, audit utilization and
suggest means to augment production.
On the other side is
the distressing picture, that of rising number of pending cases in courts as well
the inability of people to get justice within a reasonable period of time. The
pendency of cases have gone up over 4.4 crores across the country. In a recent
study of judicial pendency, commissioned by the Department of Justice through
the Administrative Staff College, revealed that the average waiting period for
trial in lower courts is around 10 years and 2-5 years in High Courts.
Recently, Chief
Justiceof India N V Ramana has unveiled an ambitious plan to set up a
National Judicial Infrastructure Corporation (NJIC) to build “comprehensive,
self-contained, all-inclusive and modern court complexes across the country to
augment judicial infrastructure.” According to him this would aid overcome the poor
infrastructure, which “was proving to be a major stumbling block in delivery of
justice”. The proposal is timely but much will depend on what final shape it
takes.
At the same time, his
predecessor S.A. Bobdehad issued a slew of directions to the Centre for
expediting appointment of judges besides exercising its extraordinary powers to
permit appointment of retired judges as ad hoc judges of High Courts to clear
the massive backlog of 57 lakh cases. This was while taking suo motu cognisance
of 40 per cent vacancies pending in High Courts. Against the sanctioned
strength of 1080 judges, there are only 664 judges thus 416 posts are lying
vacant. As such, a dormant provision of the Constitution, Article 224A, for
appointment of ad hoc judges to deal with the massive backlog has been taken.
The development came in
the backdrop of frequent irritants between the Centre and the top court. While
the Supreme Court collegium has often criticised the Centre for delaying
appointments, the government had passed back the buck to it, saying
recommendations were being made considerably late beyond the six month period
as per the MoP (Memorandum of Procedure). The decision for ad hoc judges should
have been taken long back so as not to allow the pendency of cases to increase
considerably. However, induction of say retired judges may not necessarily
bring about desired changes in the judicial system.
Early this month, the
Supreme Court Bar Association (SCBA) wrote to CJI Ramana to consider lawyers
practicing in the apex court for appointment as High Court judges. It justifies
this on the grounds that these lawyers have “vast experience and best exposure
in dealing with all kinds of issues relating to civil, criminal,
constitutional, commercial law, etc.”It regretted that such lawyers are “rarely
considered for elevation by the High Court collegium as they don’t regularly
practice before the High Court” and that while professionally they are more
meritorious than their High Court colleagues, they lose the opportunity for
being considered.
Other than filling up
vacancies, development of adequate infrastructure, which is woefully missing,
begs attention. For example, some additional benches of High Courts need to be
created and this has to be taken up by the States, though there are financial
and inadequate manpower constraints. Lower courts in many States too need
special attention too.
Besides, governments
aren’t giving adequate attention to modernising these courts to ensure quick
adjudication of cases, both criminal and civil cases. Lately, with courts going
into virtual mode during the pandemic, large number of lawyers are finding it
difficult to change mindsets and adapt to online system. Suggestions such as training
of judges and lawyers, augmentation of video-conferencing systems in trial
courts, especially in rural areas with links to litigants, mobile vans
establishing connections between courts and rural populations, are some which
have been thrown up.
Worse, the legal process
is long-drawn and establishment of conciliation centres or more fast track courts
is not on radar. It is no secret that justice to be deliveredtakes a decade if
not more, by which it would be too late, the sheer objective getting lost. The
lengthy process, also hurts the lower sections of the society as it impacts
their livelihood-- lawyer’s fee, innumerable trips to the courts and precious
wastage of time, among others. Perhaps, the apex court could consider bringing
about an order wherein all cases must be time-bound-- settled say within a span
of three years and, in special cases, an extension may be given by another
year.
While the concept of fast
track courts has been a welcome change, the numbers are inadequate in the
backdrop of rising burden of cases, specially at the sub-divisional and
district levels. More such courts need to be set up and State governments must
ensure funds for these. Recall the first fast track court was set up in 2000.
But not much headway has been made as the money released by Centre is
inadequate and so also the State governments priorities to have regular staff.
The inordinate delay
in settlement of cases is a significant hindrance to the judiciary’s rating
in the global system. And CJI Ramana seeks to make requisite amends. In a
two-day virtual conference with High Court judges, he stated: “I am of the firm
belief that unless infrastructure is strengthened, it is unfair to expect courts,
particularly lower courts, to do miracles and increase the pace of justice
delivery. Both quality and quantity of justice delivery can be improved only
when support systems are strong enough to meet the challenges.”
While the saying
‘justice delayed is justice denied’ is well-known and oft-quoted, the critical
changes for an efficient and timely system as desired must be taken up on
priority. The second wave of the pandemic has seen truth being spoken to
powers. Whether it will last and yield results, needs to be keenly watched.---INFA
(Copyright, India
News & Feature Alliance)
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