Judicial Challenges
By Dhurjati Mukherjee
The second edition of India Justice Report (IJR), 2020, that judges States on the delivery of justice to people, has found Maharashtra to occupy the top position among 18 large and medium-sized States – each with a population of over one crore. This was followed by Tamil Nadu, which improved its ranking from its previous third position in 2019.
The IJR, an initiative of Tata Trusts in collaboration with Centre for Social Justice, Common Cause, Commonwealth Human Rights Initiative, DAKSH, TISS–Prayas, Vidhi Centre for Legal Policy and How India Lives, found that in the list of seven Small States (population less than one crore each) Tripura topped followed by Sikkim and Goa.
What is significant about the report, which is aimed at portraying a comprehensive picture of the progress States have made in capacitating their justice delivery structures to effectively deliver services to all, is that “two-thirds of the country’s prisoners are yet to be convicted” or acquitted in the past 25 years, since 1996. Besides, “only 1.5 crore people have received legal aid though 80 per cent of the country’s population is entitled to it.” Such a high number of under trials highlight the crying need for expanding the judicial process, which translates into more courts, more judges and more benches.
This leads to the obvious oft-repeated necessity of the expansion of the judiciary being an imperative need with the explosion of human population and with newer complicacies emerging in society. Thus, it’s quite inevitable that there is a quantum jump in number of cases. However, there has not been a commensurate expansion in the judicial system for the last few years, thereby leading to cases piling up in High Courts as also District Courts. Unfortunately, the recent Union Budget has not come out with any proposal for expansion of the judiciary by setting up more Benches and more sector specific courts.
Importantly, the Supreme Court recently criticised the government for chronic delay in processing names sent by High Courts and forwarding these to the SSC collegiums for recommending suitable ones for appointment of judges as HCs, which are functioning with an alarming 40 per cent vacancy and huge pendency of cases. The apex court pointed out instances of the government not taking action on names suggested by the SC collegiums for around one-and-a-half years!
As per recent data available from the Lok Sabha, Allahabad High Court tops the list with 64 vacancies against a sanctioned strength of 160 judges followed by Calcutta High Court with the number of vacant judge’s posts numbering 40 vacancies. The High Courts of Delhi and Bombay follow suit with 31 and 30 vacancies respectively against their sanctioned capacities. Moreover, what is further disappointing is that in the past three years since 2018, around 194 proposals from various High Court collegiums are still under various stages of processing with the government.
In this connection, it may be mentioned that recently 22 out of 25 High Courts in the country have operationalised designated fast track courts to adjudicate disputes related to infrastructure project contracts. The special courts of Madhya Pradesh and Allahabad, Karnataka and Calcutta within the jurisdiction of the respective HCs, have dedicated special days every week to enable exclusive handling of relief matters, pertaining to infrastructure contracts. The Union Law Ministry has been entrusted with the task of improving India’s ranking on the “enforcing contract” aspect of the case of doing business ranking and been in regular touch with each of the High Courts to ensure that separate commercial benches of the HCs and district courts under them are set up to expedite resolution of commercial disputes.
According to the IJR, women comprise only 29% of judges in India. This is a telling remark on Gender Equality, which governments have sought to bring about. It will be worthwhile that the Ministry of Women and Child Development take up the issue of ‘discrimination’ with the Union Law Ministry and prepare a roadmap, wherein the government is acts and not make hollow promises on empowerment of women.
Another aspect of the judicial challenge is the brewing controversy regarding its independence. Earlier the judiciary has always been a separate pillar but, in recent times, the political influence has turned out to be a talking point. Recall, two years ago, four Supreme Court judges had complained to the Chief Justice of India against allotting important cases to benches that would not by convention have been given. There were allegations that the CJI flouted clear guidelines regarding the strength and composition of benches for particular sorts of cases.
The importance of the judiciary in a parliamentary democracy cannot be overemphasised and, as such, if there is erosion in this sector, it speaks poorly for the Indian polity. Added to this is the mounting number of cases in the High Courts and District Courts and this is a stumbling block for socio-economic progress.
The question that needs to be addressed is the criticism against the judiciary for being ‘partial’ and, in many cases, trying to ‘shield’ the government. There are accusations of ‘judicial barbarism’ for taking decisions which have not gone on well with the general public. Much like in politics, the leading exponents of extreme speech when it comes to judicial commentary are not crazies at the margins but prominent members of the Bar and the public.
Recall there has been questions raised about the urgent hearing of Arnab Goswami’s case and that the court came to his aid with even ministers raising a hue and cry on Maharashtra police action. A political controversy, wherein the channel, owned and managed by Goswami, is viewed as blatantly echoing government policies and programmes. On the other hand, scores of poor and destitute under trials without heavyweight lawyers or influential supporters continue to languish in prison.
As per available data, there are 77 examples of cases listed urgently in the apex court daring the lockdown. Moreover, there are 4098 bail applications pending in the Bombay High Court and 37,245 such applications in eight major High Courts combined (as on June end, 2019). The institutional problem remains unaddressed but delays in the case of political prisoners are only its most visible symptoms. The question that arises is obviously the need to provide equal justice to all quickly and fairly.
This is the basic reform needed for the judiciary and thus additional judges need to be appointed, at least in the different High Courts and District Courts. It goes without saying that keeping the country’s judicial heritage in mind, the personal liberty of the wrongly incarcerated needs to be given uppermost importance.
The foremost focus of the Indian judiciary has to be helping the downtrodden and the marginalised in getting justice. There is need for evolving some policy to ensure that the weaker sections are assured of free legal aid at the sub-divisional and district courts. Unless the justice delivery system is expanded, true democratic functioning in the country cannot become a reality. The government must remember the adage: Justice delayed is justice denied. — INFA