The judiciary’s fabric is frayed, thanks primarily to the government . . .

The judiciary has the power to strike down a bad piece of legislation or a rotten executive order and is the final bulwark of any civilisation

On February 13, 2021, former Chief Justice of India Ranjan Gogoi called the state of the judiciary in India “ramshackled”. A former chief justice stating this assumes immense significance.

The 'skin-to-skin' shock

The tatters were in full view even earlier, when barely 10 days ago, the government decided to extend the tenure of the controversial Judge Pushpa Ganediwala.

Her recent judgments could have even diluted the POCSO Act, which was meant to severely punish anyone trying to sexually molest a child. Her judgment almost set the culprit scot-free – but for the SC staying it. She ruled that the accused had not really engaged in skin-to-skin contact, and that touching through a garment could not be called molestation.

This defied a universal understanding of what constituted molestation, especially that of a child. Effectively, she was stating that squeezing a child’s breast, or a pinch on the bottom could not be called molestation because it was not skinto-skin.

The resultant uproar and the absurd interpretation of laws should have called for her dismissal. The extension will haunt the judiciary – even society – for exceptionally long years.

Almost by coincidence, the Indian Democracy at Work organised a series of webinar discussions on The Rule of Law. The two disturbing events narrated above, and the conference, together provided the need for this article.

Not enough judges

The first problem that ails the judiciary is that there are not enough judges in the country. There is no shortage of talent. But there is unwillingness on the part of the government to fill the vacancies quickly.

On an average, almost all courts – from the subdivisional district magistrate’s court to the high courts and even the Supreme Court, have an average vacancy of around 30-40 per cent of the sanctioned seats. Worse, the sanctioned seats for each type of court are way below the requirement – India lags behind most countries on this score. Effectively, courts are today functioning at barely 10 per cent of their required strength.

Cases pile up

Fewer judges result in the backlog of cases. Some cases are more than 30 years old. But more on that later.

The numbers tell much of the story. According to the government’s admission before the Lok Sabha on February 3, 2021, the number of cases pending before the Supreme Court had swelled, from 57,346 in 2018 to 63,146 in 2020. The number of pending cases before high courts had similarly swelled, from 44,48,926 in 2018 to 56,42,567 in 2020.

Similarly, the government admitted that the number of pending cases had also gone up in district and subordinate courts, from 29,173,911 as on December 10, 2018, to 37,183,419 as on January 28, 2021.

Can you ever have an ‘Atmanirbhar Bharat’ when the very props on which justice should stand are missing, or have been stolen?

Judges need longer tenures

If that is not bad enough, the government (read the legislators and bureaucrats together) have conspired to shorten the tenure of judges.

This is ironic and iniquitous because bureaucrats generally serve out their entire career spanning 20-40 years, unless there is a serious case of moral or professional turpitude. A politician can complete his full term of five years (unless there is a mid-term election) and even stand for re-election. But many Supreme Court judges are not even given five years as their tenure.

Of the 30 judges listed on the Supreme Court website, at least 11 judges have tenures that are less than five years, some less than two years. Even the current Supreme Court Chief Justice will have a tenure of just one year and 85 days. Aren’t Supreme Court Judges meant to be on a par with legislators. Unless judges are given a minimum tenure of five years and the chief justice a tenure of 10 years, the situation in the judiciary will not improve. It takes a judge at least a year to understand the lay of the land. Then he begins planning in earnest. And before he can implement his plans, he is retired. There should be no retirement age for judges and chief justices till their tenure is over.

After all, the judiciary is the final bulwark of any civilisation. It has the power to strike down a bad piece of legislation or a rotten executive order. Without a strong judiciary, economic revival is impossible. The above numbers suggest that legislators and bureaucrats have been trying to make the judiciary ineffective and ineffectual.

This is a frightening thought. More a bit later.