Challenges ahead for the judiciary
To free up the clogged arteries of the system, we need an alternative dispute-resolution mechanism
The cusp of a New Year is best to look back critically on the past while dreaming for the future of our judiciary. Demant said that dreaming permits every one of us to be safely insane every night of our lives. For a country like India, it is a bigger crime not to dream than to dare to dream.
Andrew Jackson spoke of the core, saying all rights “are worth nothing, and a mere bubble” unless “guaranteed by an independent and virtuous judiciary”. American federal judges, though political appointees, exhibit fierce independence, mainly because of their lifetime appointment. In the absence of that, our judicial system must strain that extra sinew to alter the changing perception about that organ over the last few years. A few aberrations are enough to create that perception which, especially in judicial matters, is more important than reality. Each time a former chief justice defects to the political arena or a sitting judge showers fulsome praise on the prime minister, (whether in 1986 or in 2019), that core value and perception are a casualty.
Each time the executive plays favorites qua lists of prospective judicial appointees, exercising its powers of delay — examples of Justices Kurian Joseph and Akhil Kureshi being only two out of many — judicial independence is compromised. Whenever the collegiums fail to immediately and within days reiterate its original recommendations, it allows the executive to go scot-free and emboldens future aberrations, apart from causing irreversible prejudice to the victim and sends a clear negative message to others exercising independence. The judiciary’s unassailable weapon that a reiterated recommendation has to be implemented, without executive discretion, should never be forgotten. A single contempt notice to the law secretary (alas never exercised) for the many motivated delays in clearing a reiterated recommendation would magically change perceptions.
Similarly, judicial transfers are meant not for the individuals concerned, but to send a larger message to the fraternity: Keep in line or we have the power of transfer. It also underlines the failure of the collegiums in protecting their flock with speed and ferocity.
Secondly, beating the backlog and winning the war against arrears has to be the legitimate wish list of that judicial organ, which globally has the most penetrative powers of judicial review. It has to keep moving aggressively towards the interlinked A, B, C,
D of judicial reform where A stands for access, B for backlog, C for cost and D for delay. Nani Palkivala famously said: “While it is true that justice should be blind, in our country it is also lame. It barely manages to hobble along. The law may or may not be an ass but in India, it is a snail: it moves at a pace which would be regarded as unduly slow in a community of snails.”
The tragedy of numbers is matched only by the simplicity of solutions. In September 2019, out of the approved judicial strength of all the 24 high courts put together (1,079), there were 40% vacancies (414). The district and lower judiciary similarly (December 2018) had about 20% vacancies (5,135 vacancies against a sanctioned strength of 22,677). India, with 1.3 billion-plus people, has an abysmal judges-per-million-of-populationratio: From 10.5 judges per million in 1987, it has crawled to a miserly 19.13 judges per million currently.
Collegiums, having monopolised appointments and transfers, are dutybound to devise a simple flow/time chart to ensure that movement of files at each level is monitored by a designated judge in each court and does not exceed the stipulated time period for each rung of the ladder. Unfortunately, having identified suitable names, we start a dangerous cocktail of local bar politics, judicial politics, personal rivalry and petty egos. We, as a people, must also change.
Why we have hardly used the constitutional power to have a large additional number of ad hoc judges under Article 224A of the Constitution till the backlog is cleared, defies logic. It provides a readymade pool of known and reliable judicial talent, tried and tested. Indeed, Article 224A permits even retired judges from one high court to be appointed to another high court. It is a forgotten constitutional power, rarely used in the apex court and never used in high courts.
Thirdly, there is a silent alternative dispute resolution (ADR) revolution taking place across the country, which must be accelerated exponentially. The immediate enactment of a state-of-the-art, futuristic mediation framework, languishing in Parliament, will ignite this revolution, which, despite expanding court annexed and ad hoc mediation, is pitiably inadequate without statutorily created insignias of excellence. A report I was privileged to co-author led to Section 89 in the Civil Code in 2002, providing a menu of ADR options. We need legislative reforms, including respectable remunerations to expert, accredited mediators. Their step-motherly treatment compared to the swashbuckling litigator or the blue-eyed corporate lawyer, must stop. The clogged arteries of our legal system can only be declogged by an efficacious ADR bypass. My wish list is interminable, but the discipline of space circumscribes even positive dreams for the New Year.