The article analysis the issue of delayed justice and present deadlock between judiciary and executive over judicial appointments.
- The CJI holds vacancies responsible for creating delays, bringing justice delivery to a grinding halt for several litigants. This is unacceptable for any state that promises the rule of law to its citizens.
- By all accounts, the judicial system is painfully slow — as of December 31, 2015, 51.2 per cent of all cases pending in the subordinate courts have been pending for more than two years and 7.5 per cent for more than 10 years; in the high courts the corresponding figures are 68 per cent and 19.22 per cent.
- The government and the collegium have been unable to agree on a Memorandum of Procedure for appointment of judges for the better part of this year.
- The government has neither cleared nor returned the files sent by the collegium regarding several high court appointments and transfers, unlike Supreme Court appointments and some transfers which were cleared earlier this year.
- According to the apex court’s own publication, as of May 2016, there were 2 vacancies in the Supreme Court (out of 31 sanctioned posts) and 432 vacancies in the high courts (out of 1,065 sanctioned posts). This constituted a vacancy rate of 6.45 per cent and 40.5 per cent, respectively.
- However, looking at figures from December 2012, much before this stand-off, may provide some perspective. At that time, there were 4 vacancies in the Supreme Court (out of 31 sanctioned posts) and 281 vacancies in the high courts (out of 895 sanctioned posts). This constituted a vacancy rate of 12.9 per cent for the Supreme Court, higher than the present, and 31.3 per cent for high courts.
These figures point towards two fundamental propositions:
- First, high vacancies are not solely caused by the stand-off — they are endemic to the higher judiciary.
- Second, even if the current impasse between the executive and judiciary were to end, vacancies would not be even substantially filled, let alone delays being significantly reduced.
- This is because vacancies are a product of a systemic lack of incentives for persons of high quality and integrity to take up judgeships. Judicial pay is poor, pensions are poorer.
- Further, the collegium which selects judges and elevates them to the Supreme Court is a closed brotherhood.
Delays as a multifaceted problem
- Vacancies are not the sole reason for debilitating judicial delays. Delay in the judiciary is a multifaceted problem which differs also from court to court, State to State.
- However amongst some common factors is the pressing concern that law, as laid down by the Supreme Court and high courts in a large number of areas, is unclear and inconsistent. This necessitates constant and overlapping appeals clogging the system.
- The potential for alternative dispute resolution (ADR) methods, such as arbitration, to reduce judicial delays has not been explored owing to the constant interference of courts. Constant interference has not been limited to ADR but is endemic.
- It is little surprise that litigants take a chance before the higher judiciary since securing an admission is often perceived as a game of roulette. This is especially so since the quality of justice, particularly in the lower judiciary, is often perceived as unsatisfactory.
- These factors are merely illustrative of the multifaceted nature of delays. They are however united by a common thread that, unlike filling of vacancies, they are all within the remit of the judiciary’s self-correction.
Power struggle over appointments
- The complexity of causes responsible for judicial delays should make it amply clear that it is merely a by-product when it comes to the vexed question of judicial appointments.
- The current stand-off is a power struggle between the government and the judiciary over judicial appointments, which is not unprecedented.
- In 1998, the current impasse too is primarily the product of an inadequately reasoned judgment that is less an expression of constitutional law and more an assertion of judicial self-belief.
- In an uncommon and unnecessarily strident majority view, the Supreme Court not only struck down the National Judicial Appointments Commission (NJAC) but also criticised the government and the political class as a whole.
- In the process, it missed a genuine opportunity of reforming a system that it itself recognised as flawed — neither did it institute safeguards into the NJAC that would have made it constitutionally valid nor did it substantively reform the collegium itself to satisfy concerns that were shared by some petitioners, the government and the Supreme Court itself.
Time to walk the talk
- As per news reports, the government proposed a screening committee for all judges-elect comprising eminent persons and retired judges to ensure criteria-based selections; second, the government has asked for a national security veto. The collegium apparently has rejected both proposals.
- The first suggestion appears unobjectionable. In the NJAC judgment, some judges advert to a similar committee; its importance in order to ensure accountability and citizen participation cannot be disregarded. The collegium’s objections to such a proposal, if true, are perplexing and should be made public.
- As far as a national security veto is concerned, the judges are rightly concerned about national security (or national interest) becoming a fig leaf for state unaccountability. Given this possibility, rather than national security being a ground for veto, a healthy convention should be adopted by the collegium that ordinarily a rejection by the government on these grounds will be heeded, provided they are subjectively satisfied.
- But without entering into matters of detailed disagreement, the entire process of formulation of the Memorandum of Procedure is deeply discomforting.
- First, it appears that the role of the collegium is limited to accepting or rejecting reform suggestions given by the government. If true, this is disturbing.
- Second, a combination of the secrecy of the process and the apparent hostility between the judiciary and government means the reform agenda is lagging behind. There is a need to make all further correspondence public in order to bring transparency.
Vacancies are not the sole reason for debilitating judicial delays. Delay in the judiciary is a multifaceted problem which differs also from court to court, State to State. Discuss. Also suggest measures to eliminate these problems.
- Multiple reasons of delays in judicial processes.
- How it is creating problems for society (in brief).
- Suggested measures.