The law and delays

Print edition : March 02, 2002

The judiciary and parliamentarians blame each other for the inordinate delays in the justice delivery system.

IF a phenomenal increase in litigation is a sign of an extraordinary growth of awareness among the citizens about their rights, an unreasonable delay in the administration of justice will certainly be seen as constituting an unconscionable denial of justice. In a remarkable display of candour, Chief Justice of India S.P. Bharucha and parliamentarians who constitute the Standing Committee on Home Affairs have sought to identify the roots of judicial delays. However, they revealed divergent perceptions on the issue.

The Chief Justice of India, S.P. Bharucha. While he has made a convincing plea for an across-the-board increase in the number of judges, he seems to have no explanation to offer on why the vacancies are not being filled.-MOHD. YUSUF

In its 85th report on 'Law's delays: Arrears in courts', to be laid in Parliament during the Budget session, the Standing Committee, chaired by senior Congress(I) leader and member of the Rajya Sabha Pranab Mukherjee and consisting of more than 40 members drawn from the Lok Sabha and the Rajya Sabha, has estimated that a staggering 2.4 crore cases are pending in the country's courts. As on October 31, 2001, 2,03,25,756 cases were pending in the district and subordinate courts, 35,57,637 in the High Courts and 21,995 in the Supreme Court.

The Committee has found that a large number of vacancies of Judges and a low judge-population ratio have caused a formidable accumulation of cases and inordinate delays in the dispensing of justice. It feels the Indian judiciary, in spite of the many outstanding achievements it has made on behalf of democracy and the rule of law, is faced with challenges that can only be met with constructive cooperation among the three branches of the state (the executive, the legislature and the judiciary), the fourth estate, and the people at large.

But cooperation between the three branches of the state on this issue, however, seems to be elusive given the divergent perceptions as revealed by the Committee members. The views on the judge-population ratio offer an example.

Justice Bharucha, in his Law Day address delivered in the Supreme Court on November 26, 2001, laid the blame for the arrears squarely where he thought it belonged. He agreed with the suggestions in Law Commission's 127th Report, made as far back as 1988. The Law Commission had recommended that the state should improve the Judge-population ratio, which at that time was 10.5 Judges per million population, to at least 50 judges within the following five years. The Commission had further recommended that by the year 2000 India should command at least 107 Judges per million of population. Justice Bharucha said the current ratio was 12 or 13 Judges per million, whereas 12 years ago it was about 41 in Australia, 75 in Canada, 51 in the United Kingdom and 107 in the United States. In his inaugural address at the State Lawyers Conference in Pune on February 9, Justice Bharucha commented that the Law Commission's report would appear to have been shelved to moulder.

Justice Bharucha's analysis of why India could not better its judge-population ratio is incisive. "The States are, quite simply, not interested in doing anything about it. They have no money to spend on the judiciary. That it is the obligation of the state to secure justice for its citizens does not bother the States: litigants are not a vote bank they need to cater to. That the obligation of the state to secure justice to its citizens is honoured in the breach every day is evident from the fact that the jails in the country are chock-a-block and a very large proportion of those who are within are not convicted criminals but accused awaiting trial."

The Supreme Court of India. As on October 31, 2001, 21,995 cases were pending in the apex court alone.-M. LAKSHMAN

Justice Bharucha estimated that the expenditure on the judiciary in terms of gross national product (GNP) was only 0.2 per cent, and that half of it was recovered by the States through court fees and fines. He pointed out that the Judge strength needed to be substantially increased across the board. The greatest and most urgent need, however, was to increase the strength of the subordinate judiciary, he said. "It is only when we have far more trial courts functioning that we shall be able to dispose of more cases than are being filed and thus cut down on arrears," he said.

The Standing Committee's report reveals that the government did not accept the Law Commission's recommendation with regard to the judge-population ration. The government argued that it would be a moot question whether to raise the number of judges simply on the basis of population size. The government was also of the view that it would perhaps be appropriate if the strength was increased on the basis of the pendency of cases and the average rate of disposal.

The Committee, however, has expressed its disagreement with the government. The reasons cited by the government for the mounting arrears of cases include, among others, industrial development in the country and increased trade and commerce and pursuit of socio-economic measures. The increase in the population could be added to these factors, the committee has suggested. The Law Commission's recommendation was based on a rough-and-ready computation; it should be accepted as a starting point with sufficient scope for variation on the basis of pendency and disposal, the committee reasons. It has recommended that the Centre take the initiative to provide funds to the States and create mechanisms to monitor their utilisation.

While both the Committee and the Chief Justice agreed on the need to increase the judge-population ration, they differ on the question of filling the vacancies of judges. Even though Bharucha has made a convincing plea for an across-th-board increase in the number of Judges, he seems to have no explanation why the existing vacancies have not been filled. The blame for this, he must admit, belonged to the higher judiciary.

After the judgment of the Supreme Court in Advocates-on-Record Association vs. Union of India and others on October 6, 1993, a proposal for the appointment of a Judge cannot be initiated by the government. According to the judgment, read with the Supreme Court's advisory opinion of October 28, 1998, a proposal for the appointment of a Judge in the Supreme Court must be initiated by the Chief Justice of India, and in the case of a High Court by its Chief Justice. For the transfer of a Judge or the Chief Justice of a High Court to another High Court, the proposal has to be initiated by the CJI.

The Committee observed in its report: "The judiciary in whom the power and the responsibility now vest has failed to fill up the vacancies in judicial posts promptly and punctually and those vacancies of Judges in all courts contribute to the huge pendency in a big way." It adds that the modes of collegiate consultation among Judges (before initiating a proposal) might have led to a "politics of the judiciary".

Members of the collegium, the Standing Committee has alleged, may bring in candidates of their choice. "The give-and-take in the collegiate consultation has the potential of undermining merit. It is also fraught with the potential of undermining the office of the Chief Justice and his primacy. On the other hand, the executive is unable to secure due consideration of its own inputs in respect of the personal and professional standing of the candidate. More often than not a transferred Chief Justice in a High Court is unfamiliar with the situation. As a result, there are unacceptable delays without the benefit of a higher quality in the intake," the committee has explained.

According to the norms the process of filling up a vacancy should start six months before the actual date of retirement of a Judge. Law Minister Arun Jaitley conceded in the Rajya Sabha on December 3, 2001 that he had not come across a single case where the process had been initiated six months earlier than the date of retirement. There are 170 vacancies in the High Courts at present, but the process of filling up vacancies has started only in 64 cases. The process had not yet been initiated for the remaining 106 vacancies, Jaitley said.

Similar factors appear to account for the delay in filling the 1,500 vacancies in the subordinate courts. The High Courts, in consultation with the State governments, choose the Judges in the subordinate courts. The principle of collegiate consultation among senior judges of the Supreme Court, including the CJI, before initiating a proposal for filling up a vacancy in the Supreme Court and the High Courts, introduced by the 1993 judgment and the 1998 advisory opinion, no doubt, is a safeguard against arbitrary use of primacy by an incumbent CJI in the selection process. However, as the Committee has pointed out, this has meant that lack of agreement within the collegium of seniormost Judges on the choice of new Judges would delay the process.

The Committee observes: "The Union Law Minister is accountable to Parliament for the delay in filling up of the vacancies of Judges, but he has functionally no contribution to make. The Supreme Court read into the Constitution a power to appoint Judges that was not conferred upon it by the text of the context." The Committee makes it clear, recalling a recent demand made in the Rajya Sabha for a fresh review of the Supreme Court's 1993 judgment, that failure to fill judicial vacancies promptly and punctually cannot be defended in the name of judicial independence."

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