Reinventing courts
A simple but wide-ranging wishlist of reforms for India’s judiciary.
THIS IS A SIMPLE AND STRAIGHTFORWARD list of reforms for the judiciary. It is wide-ranging. It is simple in concept. It is capable of execution. Where there is a will, there is a way. The way of reform is there; is there a will is the question. I must add that this list is by no means exhaustive. It is, however, one that contains important elements.
THE LOWER JUDICIARY
Focus on judging: Visit a courtroom in the district court or sub-court. The best part of the day is spent in simply granting adjournments. Calling out a large number of cases on the list, checking whether the petitions and applications with documents have been served, and whether counter affidavits have been filed, takes up the best part of the day. That is when the judge’s mind is fresh. This is not judicial work; it is simply administrative work which can easily be done by a junior registrar, or better yet, somebody trained in some management skills of scheduling and grouping. A judicial officer must apply his mind in dealing with judicial cases right through the day, not come to the important part of his work after lunch.
Adjournment culture: Everybody bemoans it. And yet how simple it is to tackle. At the first hearing the judge should ask counsel to give a date they agree on. It should be made clear that no adjournments will be given. The judge should arrange his board such that the case can be
taken up on that day. If one side is not ready then it should be penalised with full costs, that is, costs incurred by the other side in engaging counsel, travel and so on as well as the cost incurred by the court. This should be a deterrent cost. If this is not paid, the case is to be foregone. Do this a few times and the message will sink in.
Large volume cases: Cases are clogging the courts. There are a few types of cases which are present in large numbers, such as cheque-bouncing cases and landlordtenant cases. In most of these, the defendant takes advantage of the delay in the courts. The remedy is to apply the simple law of economics in creating incentives and disincentives, principally the latter. Formulate the rule that if the defendant loses the cheque-bouncing case, he will have to pay the plaintiff interest at or above the bank rate for lending. And then see how quickly three-fourths of these cases vanish from the board.
Similarly, in cases where the tenant is resisting eviction, formulate a rule that if the tenant loses, he will have to pay the landlord market rent plus solatium of 10 per cent for having overstayed in unauthorised occupation. See how fast such cases diminish. Subject all largevolume types of cases to the prism of disincentives.
Working and living conditions: Take care of your lower judicial officers. They are hard-working and many do an exemplary job, and yet their working and living conditions do not measure up to the weighty responsibilities and nature of their work. The judiciary should not get fobbed off by the government in the matter of pay and service conditions; governments are notoriously parsimonious when it comes to funding the judiciary.
In the 1940s, the Chief Justice of the Madras High
Court handled this problem superbly. He had been writing to the government to improve the pay scales of the court staff and junior judges. The government did not comply. One fine day, he passed a rule to say that henceforth court fees would be paid in cash across the court counter, instead of with the stamp paper purchased from the government. He knew fully well that the court was a revenue spinner and that it would generate far more resources this way.
He wrote to the government to say that henceforth he would take care of the salaries and requirements of all judiciary staff. The government was, of course, sensible; by the end of the day the Chief Justice received a communication sanctioning the amounts he had asked for. After all, when the judiciary puts its foot down, it gets what it wants. It just requires the will and a bit of guts.
THE HIGH COURTS
Appointments: The appointment of judges to the High Court is done by the collegium system of the Supreme Court consisting of the Chief Justice and the four most senior judges. This is an oft-criticised system. It has no roots in the Constitution and owes its birth to a judgment of the Supreme Court in the 1990s.
Basically, the court, by sleight of hand and a judicial coup d’etat, took away from the President the power of appointment and handed it over to the Chief Justice of India. Nobody denies that many good judges have indeed been appointed after this. Equally, no one can deny that there have been a number of disastrous appointments or appointments that were not made. The problem with the collegium is that it is insular, closeddoor and productive of mutual backscratching as well
as heeding the Chief Justice in office.
A better system would be to have a body that has primacy for the judiciary but not exclusivity. There should be representation for the Bar because the Bar knows best about the quality of judges under consideration. And there should be a place for the government. An ideal body would consist of three judges, one Bar representative, and one representative of the Cabinet. While this should be the appointing body, there should also be a screening body to thoroughly vet all candidates.
Retirement: High Court judges retire at the age of 62. This was fixed long ago when lifespans and working ages were shorter. Today, it is different. Men and women work productively into their 60s. Given the huge backlog, there is no reason why we should lose judges of quality and experience when they turn 62. The retirement age should be made 65 or even 67.
Secondly, the retirement age should be the same for the Supreme Court and the High Court. Today, Supreme Court Judges retire at 65 and that is why High Court Judges want to go to the Supreme Court even if at the fag end of their careers, serving as junior judges of not much consequence. Once the age of retirement is the same, good judges will remain at the High Courts rather than move to Tilak Marg.
Jurisdiction: High Courts were at one time the powerhouses of the Indian legal system. No longer, thanks to the coming of tribunals and appellate authorities under specific enactments. Company disputes have been taken away and given to the Company Law Tribunal. Intellectual property disputes have gone to the Intellectual Property Board. Environmental disputes have gone to the Green Tribunal. There are several more such instances.
It is not just the High Courts that suffer. The litigant does too. There is a certain legal rigour in the way a court functions, with attachment to the law and guided by time-honoured traditions and procedure. Tribunals are staffed by a retired judge, aided or often handicapped by the presence of administration-origin members who know little about the law or proper functioning of a legal adjudicatory body. An observer just has to visit a court and then a Tribunal and see the difference for himself. One is a legal body and the other simply does not qualify. The ethos is different, the functioning is different, the atmosphere, staffing, judges are different. Those arguing the case are sometimes lawyers, sometimes not. Tribunals are not the forums to determine questions of law and legal application. The sooner they cease, the better. The High Courts can come back to life and glory.
Online justice: COVID-19 brought the world to a halt. But it opened up new vistas for the administration of justice. It showed us that we could work online and brought home the tremendous efficiency of online communication and a big screen. We discovered that cases could be conducted online, and this benefited litigants, lawyers, and the court.
But equally, there are cases that are best argued in court. One must make a sensible discrimination between the two. And junior members of the bar who cannot afford a computer should be provided one and training to use it. That is all it takes to get well into the 21st century. Regrettably, some courts have started to slide back into the old physical-only method. This is a mistake. Viruses can reappear. Even if they do not, there is no reason why we should lose this valuable mode of functioning.
Just imagine, if we harness online functioning and bring back those retired judges who are perfectly capable of functioning even from home: we will have unleashed a huge resource to dispose of cases. All the court has to do is employ simple management techniques of selection and allotment of cases. There is no need for huge budgetary allocations.
INTERMEDIATE COURT OF APPEAL
Appeals from the High Court now go to the Supreme Court. There are two methods: one, the High Court itself grants a certificate of fitness to appeal to the Supreme Court. Nobody follows that anymore. Instead, they use the second method, which is to file a petition for special leave to appeal to the Supreme Court under Article 136 of the Constitution. This is supposed to be for cases of general public importance. As the provision indicates, it is not to be used to admit all and sundry cases. But that is what it has become. Routinely and every day, the Supreme Court is the repository of hundreds of Special Leave Petitions (SLPS) challenging all kinds of orders from bails to interlocutory orders to final orders across the entire litigative range.
Judges of the Supreme Court hear SLPS on Mondays and Fridays. Each of them has a stack of about 75 cases. They read these cases before coming to court. Often, they
skim through the High Court order under appeal but sometimes they have to go through the stacks of documentation.
More than 90 per cent of these cases are rejected. This means that two out of five working days of a Supreme Court judge are spent in just deciding which cases to reject at the admission stage. Not to mention, the time taken the evening before in reading the 75 stacks. Any time-management expert will recoil in horror at this waste of judicial time, which is meant to deal with constitutional issues and cases of general public importance.
There is another factor here. It is not as though there is no error of law in these 90 per cent of cases. There often is, but they get rejected because the judges are conscious of not adding to the backlog of the Supreme Court. This means that, unhappily, a wrong decision stands uncorrected.
We therefore need an intermediate court of appeal, in four or five parts of the country, between the High Courts and the Supreme Court. Errors of law and judgment are often visible in the orders of the High Court, and one needs a forum where these can be traced and addressed in order to provide as complete a justice as we can. The Supreme Court should be reserved for constitutional cases and cases of general public importance sitting in larger Benches, not functioning as a combination of an appellate and constitutional court with truncated benches as it is now.
THE SUPREME COURT
Firstly, end the collegium. The reasons are given in the section dealing with High Courts. Everyone wants it to end—the Parliament and State Assemblies, lawyers, academics, commentators, and plenty of judges, including several who wrote the judgment birthing the collegium. The collegium’s supporters seem to be those who are either in it or will be in it. It is high time we did away with a system that has no validity in law and has consistently underperformed.
With the exit of the collegium, one can put in place a better system for selection of judges to the High Court and Supreme Court. Special care must be taken with regard to those judges being elevated to the Supreme Court who will, in time, become either Chief Justice of India or a senior long-time judge. Precious little attention is now paid to these; many of them just slide under the radar.
A little more attention and exposure can throw up disturbing questions. It is no secret that many people jockey to place their favourite person in the powerful office of Chief Justice of India; this includes politicians and judges themselves. With the appointment method locked in servitude to seniority, the propitious factors of date of birth, date of appointment, and inter se seniority with other judges on date of appointment rule all. We have seen mediocrity take precedence over brilliance because of these factors.
Post-retirement jobs is another troubling factor, especially when these are at the pleasure of the executive and the current CJI. There is no dearth of comment that pre-retirement judgments are given with an eye on postretirement expectations. Whatever the truth of this, a judge must function without fear or favour, and a sinecure in old age is certainly a favour, especially when it comes with a Lutyens bungalow.
We ought also to pay attention to how expensive justice has become. This is not the fault of judges; it is the fault of top-notch lawyers who charge exorbitant fees for multiple appearances per day. Some pride themselves on crossing five or ten appearances, charging seven figures for each. A professional is service-minded, so we need to find other terms for these gentlemen.
Judges, however, are also to blame because they tend to favour senior lawyers over junior lawyers. They tend to admit their cases without troubling senior lawyers with any questions. If they would reverse these two aspects, senior lawyers will be hard put to take up more than a case or two a day, junior lawyers would feel more confident, and justice would be better served.
Lastly, mediation, a subject close to my heart. It has blazed forth in the Indian landscape over the last 15 years. It has the capacity to deal with a wide range of disputes— personal, commercial, civil, property, and so on. It can hugely reduce the backlog of cases, but its benefits are not just that. It saves costs and time, brings forth better solutions, mends broken relationships, and is a humane process. Best of all, it ends conflict which, as we all know, the adversarial method exacerbates. Judges would do well to promote mediation; lawyers would do well to become mediators and represent parties in mediation, doing both professionally; and litigants would be sensible to try mediation before litigation or arbitration.
Let me point out here that the success rate is well above the median. We would do well to think of an Indian Mediation Service with both permanent and short-service employment. Mahatma Gandhi would be pleased by this—i have always had my doubts as to how pleased he is by being placed opposite the court of the Chief Justice of India, the pinnacle of the adversarial system. The Mahatma, if we care to remember, said: “I realised that the true function of a lawyer was to unite parties driven asunder.” m Sriram Panchu is a senior advocate of the
Madras High Court.
Mediation hugely reduces the backlog of cases; saves costs and time, brings forth better solutions, mends broken relationships, and is a humane process.