While the jury is still out on whether the Chief Justice of India was in fact in tears, or merely nursing a cold, there was no doubt about his appeal to the prime minister – as Jerry Maguire would have said: “Help Me Help You”. Over a weekend when the chief justices of various high courts convened in New Delhi to address issues affecting the judicial system, the overarching issue continued to be how to tackle the nation’s ever burgeoning backlog. This is no easy task. Ask Arun Mohan, Delhi’s go-to name in civil litigation, who dedicated more than a decade towards penning his behemoth four-volume 5,000-page treatise on the problem and its remedies.
First, the undisputed facts:
Indian courts are bogged down by the sheer weight of pending cases – several crores
of them still lying around clogging the pipelines of the judicial edifice.
cost of litigation, the distances to be traversed to obtain justice and the
complicated nature of our laws permit only the reasonably well-heeled to even
advert to the courts as an option.
lack of budgetary allocation to the courts and the poverty of measures adopted
for modernising the judicial system reflect governmental apathy to a serious
Clearing the Backlog
Oddly, these are not new events. During the course of a seven-judge bench hearing in August 1977, Justice Krishna Iyer had alluded to the ‘explosive docket backlog’ that was plaguing the court. Thereafter, in November 1978, the Law Commission of India came out with a series of reports on the delays and arrears in our trial and high courts.
From time to time, apart from the court and the Law Commission, academics and practitioners have reverted to this canker, attempting to analyse its causes and prescribe solutions. As always, the system has turned towards the Supreme Court to take the lead, and usually, as the measures are administrative, that means one man (because there have been no women so far) – the CJI.
Shorn of financial resources, and very often with a limited tenure averaging a single year, the CJI has been in the unenviable position of initiating change that may not necessarily be carried on by his successor.
In fact, if the events of the last few years are any indication, there is almost a definite assurance that there will be no consistency in the manner in which cases are listed, heard and disposed off in the top court of the land. Some CJIs have preferred to reduce the quantum by taking large batch matters (taxation, property, negotiable instruments) and quickly pronouncing judgement on them.
Others, including Chief Justice Thakur have looked to resolve long-standing questions of law which are pending hearing before larger five-judge Constitution Benches, hoping that the consequent pronouncement would provide some definiteness to the various high courts to follow.
Clearing Judicial Cobwebs
- It’s just not the huge backlog in various courts, lack of budgetary allocation reflects
government apathy as well.
of financial resources, often with a limited tenure averaging a single year,
the Chief Justice is expected to work wonders.
like multiple Courts of Appeal between the High Courts and the Supreme Court
have been contemplated but not seen light of day.
of judicial appointments could not be streamlined due to the stalemate between
the judiciary and executive over NJAC.
duration of hearings in a case can be minimised when our judges begin to impose
high costs on erring practitioners.
Archaic Way of Functioning
Unfortunately, barring a single American researcher and a Bangalore-based think-tank, the empirical analysis of the problems of the justice system has been virtually nil. Occasional suggestions like multiple courts of appeal between the high courts and the Supreme Court have been contemplated but not seen the light of day.
On multiple occasions, the Supreme Court has rejected pleas to have its benches established in various parts of the country to ease access. Surprisingly, despite the wonderful lead taken by the Delhi High Court in having several paperless e-courts where judges navigate thousands of pages with the click of a mouse, the apex court remains stuck in the era of its birth.
To make matters worse, a fiercely aggressive governmental move to reverse 20 years of the judicial appointment process via the NJAC has led to an unseemly standoff between Bhagwan Das Marg and Sansad Marg. There seems to be mutual distrust about names being suggested for judgeship and their approval by the executive. Whenever cornered, the latter seems to have a magic hat from which the proverbial IB bunny is bandied about to block appointments. With this impasse, and with neither party likely to relent in the near future, the victim is the common man.
Seeking a Solution
It is of course moot whether additional judges will be the solution to the historical problem, but there can be no cavil with the fact that merely to stay afloat, the existing vacancies, particularly in the superior courts, need to be filled up at the earliest. The fact that the prime minister was not more enthusiastic in his response to the CJI leaves one in little doubt that the solution is not any nearer. It is only once the sanctioned strength is taken care of that the judiciary can move towards reform. In my view, that requires firmness and discipline – two traits our judges seem unwilling to impose.
Advocates take advantage of legal loopholes to drag out hearings and seek accommodation for the most flimsy reasons. When our judges begin to impose high costs on these errant practitioners and prescribe strict time-tables, only then will we see genuine improvement.
Until then, we can only weep.
(The writer is an advocate, Supreme Court of India)