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BRP Bhaskar: Making justice affordable
November 01, 2016
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Exclusive to The Gulf Today

Jurists never tire of repeating the old maxim “Justice delayed is justice denied”. The saying has special relevance for India, which has a history of judicial delays that goes back to the early days of colonial rule.

Speaking in the context of the stand-off between the Supreme Court and the Central government which has slowed down judicial appointments, Chief Justice of India TS Thakur recently said executive inaction was decimating the judiciary.

Responding to his references to the issue in the courtroom and elsewhere, the Narendra Modi government last week leaked to the media some data to dispel the impression that there had been an abnormal increase in vacancies in the higher courts.

The standoff is the result of differences between the Executive and the Judiciary on their roles in the process of appointment of judges of the higher courts. The Supreme Court, through three judgments over the last few decades, had virtually reduced the Executive’s role to that of a postman delivering the Judiciary’s communications to the President, the appointing authority.

The Modi government enacted a law to put an end to the practice of a collegium comprising a few senior judges deciding on appointments and transfers and to entrust the task to a national judicial commission. The Supreme Court struck it down as unconstitutional.

Things have not been going smoothly since then. About 80 appointments have got stuck as the Centre is taking its own time to forward to the President the names finalised by the collegium.

Court delays are already a serious problem. Shortage of judges is bound to add to the delays.

At present more than 30 million cases are pending in various courts, mostly those at the lower levels. According to Justice Thakur, judges from the lowest to the highest courts dispose of, on an average, 2,600 cases in a year, as against only 80 handled by a Supreme Court judge in the USA. Going by this figure, close to 12,000 more judges will be needed to wipe out the arrears within a year and ensure that new backlogs do not arise.

The tussle between the Executive and the Judiciary relates to filling of vacancies in the Supreme Court and the High Courts. Lower court appointments are not involved in it.

More than 3.8 million cases are pending in the 24 high courts. Close to 1,500 judges will have to work for a year to dispose of them. Currently the high courts have a sanctioned strength of 1,079 judges, including 173 posts created last June. However, the effective strength is only 620. Justice Thakur is, therefore, justified in raising an alarm over shortage of judges.

However, the issue is not one of number of judges alone. Their quality is also a relevant factor. There is nothing to indicate that the collegium system has been able to produce better judges than the earlier one. If anything, there has been deterioration in quality. The courts’ inability to rein in unruly lawyers points to erosion of the moral authority of judges.

Since the quality of justice depends to a large extent on the quality of the judges, care must be taken to ensure that the courts get the right kind of people.

The Constitution has a provision which can help meet the current shortage of judges. It allows Chief Justices of high courts to appoint retired judicial officers as ad hoc judges. They must invoke this provision to clear the arrears

All the good work done by the Judiciary since the Constitution came into force 66 years ago cannot negate the fact that it has failed to make justice easy and affordable. The Supreme Court’s refusal to entertain the idea of regional benches has put it physically beyond the reach of vast sections of the population. The high cost of litigation in the higher courts effectively denies access to justice to the poor.

In the 1950s the Supreme Court’s eight judges had to handle only about 1,200 cases filed in a year. Now its 31 judges have to cope with more than 60,000 cases filed in a year.

The steep rise in the number of cases is not the result of population explosion alone. The cumbersome court procedures are also to blame. There is urgent need to reform the procedures to speed up delivery of justice.

All too often the higher courts allow themselves to be dragged into issues which can be settled at lower levels or left to other bodies, like those with expertise in the areas of mediation and arbitration.

____________________________________
The author is a political analyst of reckoning

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