Will the govt, executive and the judiciary blink?
Strife between government and judiciary is several decades old. It has resulted in millions of people waiting for justice at court gates for years and many in crowded jails expecting trial to start. There are at least four major areas of conflict. Unless resolved, the judicial system will sink further, as several chief justices have warned.
First, the debilitating struggle for supremacy over appointment and transfer of judges of the Supreme Court (SC) and high courts. The SC had set aside the National Judicial Appointments Commission Act in 2015 and wanted to continue the 22year-old collegium system, with some transparency mechanisms. It proposed a 'memorandum of procedure' to be agreed upon by the court and the government. In these three years, they have not been able to meet eye to eye on this.
This has deep implications. In the SC, there are six vacancies and the new year will see the retirement of seven more judges. The total sanctioned strength being 31, nearly half the posts will be vacant unless filled urgently. Impasse over the memorandum of procedure is slowing appointments at all levels. In the case of 24 HCs, the vacancies have been over 400 at all times, while the sanctioned strength is 1,079. Several HCs have no chief justices and make do with acting ones. The state of subordinate courts is no better.
In the case of tribunals, the situation is worse. It is difficult to find one with full quorum. Retired bureaucrats and those with political backing struggle at the gate of entry, resulting in many tribunals limping with half or less the full strength. Annual reports of these tribunals also point to neglect of the central and state governments in releasing sufficient funds to spend on infrastructure and staff.
Budgeting for the judiciary has been another sore point for long. Judges have pointed out several times that the average of 0.2 per cent allotment to judiciary in the Union Budget is too measly. The nonperforming assets (NPAs) of some companies are several times more. The budgets of state government have been equally miserly.
The government is passing laws by the dozens but the consequent cost and burden on the judiciary is not estimated. For instance, trial courts are groaning with bounced cheque cases after it was made a criminal offence. The government, the largest litigant, has been criticised by the courts for dragging on cases, either due to inefficiency or as deliberate strategy.
The governments and law-makers have been assailing the judiciary for interfering in their territories through public interest litigation. The judges maintain they take action because they are duty-bound to do so if citizens complain of violation of their fundamental rights like life and liberty, freedom of expression and sustainable development. The government's reaction is to often prevaricate or not implement orders at all. One clear example is the 10-year-old Prakash Singh judgment on police reforms.
There is friction on the periphery, too. The premier investigative agency, Central Bureau of Investigation (CBI), has been suborned by the rulers. This has led to the collapse of many scam trials like Jain Hawala and Bofors, the latest example being the crash of 2G spectrum charges. Political powers are seen to turn investigations to their advantage and confound trials. As a result, it is media trial which dominates the field and there the government has a clear advantage. Courts don't leak; judges can't speak out.
The question is whether the three arms of the state will blink and pull the judicial system out of the mire. The current focus of the government appears to be on corporates, with the setting up of the National Company Law Tribunal and commercial courts, which are moving faster. It is the queue of commoners which is stalled. Their fatalistic patience in awaiting reforms recalls those faces at the banks during demonetisation.
The govt is passing laws by the dozens but the consequent cost and burden on the judiciary is not estimated