When the Chief Justice of India T S Thakur let tears roll down his cheeks while Prime Minister Narendra Modi watched him address the conference of Chief Justices and Chief Ministers in New Delhi on Sunday, he reflected the pent up feeling among judiciary of the rising stress of cases.
As the CJI pointed out, there are just 18,000 judges to deal with around three crore cases pending in Indian courts.
"It is not only in the name of a litigant or people languishing in jails but also in the name of development of the country, its progress, that I beseech you to rise to the occasion and realise that it is not enough to criticise. You cannot shift the entire burden on the judiciary,” CJI Thakur said, wiping his moist eyes.
Quite an emotional moment it was. It was also an unprecedented scene that brought into focus the increasing backlog of cases, paucity of funds for providing even basic infrastructure to set up courts so that justice could be administered.
Modi's prompt but conditional offer to redress the grievances being faced by judiciary at every level of system was surprising. Modi, an advocate of transparency and accountability, felt “a closed-door meeting with the judiciary” would sort out the problem.
Modi’s reply indicated that all would be well after "closed-door" deliberations which could throw up an amicable solution to the judicial crisis that has persisted for decades.
There has been a series of conferences and seminars besides deliberations by high-level committees for resolving the crisis. Many meetings have focussed on the paucity of resources which could only be procured from the political executive. But the situation has worsened with whopping arrears of cases, acute shortage of judges and vacancies at different levels.
India's current strength of the judiciary is just half of the requirement to deal with pending cases and the ever-rising flow of new litigations — civil, criminal and taxation. Former judge B D Ahmed feels that the current criminal justice system is on the verge of collapse. He says jails are overflowing with under-trial prisoners because of delays. "The acquittal rate in India is about 60 per cent. This means as many accused persons have to virtually languish in jails despite being innocent."
It is believed that over 40 lakh cases are pending in 24 High Courts, about 2.63 crore in subordinate courts and about 60,000 in the Supreme Court. No wonder than that in 2010, Justice VV Rao of the Andhra Pradesh High Court had said it would “take 320 years to clear the backlog 31.28 million cases pending in various courts’.
There’s been a palpable wedge between judiciary and political executive for many years, particularly after the Supreme Court stripped the executive off its power to select, appoint and transfer judges by creating the mechanism of ‘judges select judges’ or the collegiums at the Supreme Court and High Courts.
While the collegium system did away with ‘know the law minister than law to adorn a bench' practice, it also created the phenomena of “uncle judges”, as a parliamentary committee pointed out.
It may be pointed out that there’s been tremendous heartburn in political executive, in particular, over the collegium system and judiciary alone has been held responsible for its plight and fate of litigants.
The differences between the two prominent organs of the State was evident during the lengthy debate on Parliament on the National Judicial Appointments Commission Act and its scrapping by a constitution bench of the SC amidst serious allegations by country’s top law officer, Attorney General Mukul Rohatgi.
"The collegium did not follow the principle of meritocracy in appointing judges and, hence, many undeserving persons got appointed as judges," Rohatgi had sought to discredit the collegiums system and the need for NJAC. His categorical statement had drawn the line between the rival claims on the necessity for an independent commission under the government’s control to select and appoint judges.
When the NJAC law was declared unconstitutional by the apex court, Finance Minister Arun Jaitley, an eminent lawyer himself, had termed the judgment as “tyranny of the unelected”.
No wonder then the Union government is sitting over at least 170 recommendations sent by the apex court collegium two months ago for appointment of High Court judges despite knowing that many High Courts are working below 50 percent of their strength.
"If you have 170 names sent to you (for appointment of HC judges) for two months, I don't understand why they are held up, where are those proposals stuck, we should know," CJI Thakur told Modi on Sunday as he took strong umbrage at the government’s stance blaming the judiciary of all the ills in quick disposal of cases.
"Why should the Intelligence Bureau take months to send its report (on judges' appointment)? Why can't the Prime Minister's Office ask the IB to send its report within 15 days? Why should the IB sit over these reports?" the CJI had sought many explanations from the government.
Seeing the lackadaisical approach of the government, Thakur has now decided to appoint retired judges as ad-hoc judges so that pendency of cases could be lessened. But, his move unmasks the real intent of the executive.
This was not the first time that a CJI had spoken about the government’s inaction in improving the condition of ailing dispensation system. It has been stated that the government spends less than 0.5% of its budget on the judiciary.
According to a 2012 National Court Management Systems report, although the number of judges increased six-fold in the last three decades, the number of cases shot up 12-fold. It says the number of cases reaching courts will touch 15 crore requiring at least 75,000 judges in the next three decades.
A Chief Justice of India soon after his retirement had said that justice system suffers from chronic ailments like frequent adjournments, stay and bail; lengthy judgments, insufficient knowledge of law by new incumbents and , most important, lack of political will to improve the system.
Unfortunately, expenditure on health care and incapacitated justice system doesn’t attract votes, which is the key incentive for attracting the attention of the political executive.