By Dhurjati Mukherjee
The pandemic has induced both good and bad news in the country’s judiciary. On the one hand, the second catastrophic Covid wave has led the courts to play a pro-active role and make the Executive accountable and answerable. On the other, the judiciary finds itself overburdened and the number of pending cases have hit an all-time high.
The second wave of Covid-19 particularly has seen the Supreme Court as well as many High Courts take the initiative to direct governments to put their house in order, be it frightening shortage of oxygen or hospital beds or a distorted vaccination policy. Some have been harsh, to say the least calling the callousness as ‘criminal negligence’ or that “some people need to be charged with manslaughter. Undoubtedly, it’s the judiciary, which has given hope to people that skewed working and policies will get rectified under its watchful eye. Remember, it was the apex court and not the Centre which suggested the constitution of the 12-member National Task Force (NTF) to devise a scientific formula for rational and equitable allocation of oxygen to states, audit utilization and suggest means to augment production.
On the other side is the distressing picture, that of rising number of pending cases in courts as well the inability of people to get justice within a reasonable period of time. The pendency of cases have gone up over 4.4 crores across the country. In a recent study of judicial pendency, commissioned by the Department of Justice through the Administrative Staff College, revealed that the average waiting period for trial in lower courts is around 10 years and 2-5 years in High Courts.
Recently, Chief Justiceof India N V Ramana has unveiled an ambitious plan to set up a National Judicial Infrastructure Corporation (NJIC) to build “comprehensive, self-contained, all-inclusive and modern court complexes across the country to augment judicial infrastructure.” According to him this would aid overcome the poor infrastructure, which “was proving to be a major stumbling block in delivery of justice”. The proposal is timely but much will depend on what final shape it takes.
At the same time, his predecessor S.A. Bobdehad issued a slew of directions to the Centre for expediting appointment of judges besides exercising its extraordinary powers to permit appointment of retired judges as ad hoc judges of High Courts to clear the massive backlog of 57 lakh cases. This was while taking suo motu cognisance of 40 per cent vacancies pending in High Courts. Against the sanctioned strength of 1080 judges, there are only 664 judges thus 416 posts are lying vacant. As such, a dormant provision of the Constitution, Article 224A, for appointment of ad hoc judges to deal with the massive backlog has been taken.
The development came in the backdrop of frequent irritants between the Centre and the top court. While the Supreme Court collegium has often criticised the Centre for delaying appointments, the government had passed back the buck to it, saying recommendations were being made considerably late beyond the six month period as per the MoP (Memorandum of Procedure). The decision for ad hoc judges should have been taken long back so as not to allow the pendency of cases to increase considerably. However, induction of say retired judges may not necessarily bring about desired changes in the judicial system.
Early this month, the Supreme Court Bar Association (SCBA) wrote to CJI Ramana to consider lawyers practicing in the apex court for appointment as High Court judges. It justifies this on the grounds that these lawyers have “vast experience and best exposure in dealing with all kinds of issues relating to civil, criminal, constitutional, commercial law, etc.”It regretted that such lawyers are “rarely considered for elevation by the High Court collegium as they don’t regularly practice before the High Court” and that while professionally they are more meritorious than their High Court colleagues, they lose the opportunity for being considered.
Other than filling up vacancies, development of adequate infrastructure, which is woefully missing, begs attention. For example, some additional benches of High Courts need to be created and this has to be taken up by the States, though there are financial and inadequate manpower constraints. Lower courts in many States too need special attention too.
Besides, governments aren’t giving adequate attention to modernising these courts to ensure quick adjudication of cases, both criminal and civil cases. Lately, with courts going into virtual mode during the pandemic, large number of lawyers are finding it difficult to change mindsets and adapt to online system. Suggestions such as training of judges and lawyers, augmentation of video-conferencing systems in trial courts, especially in rural areas with links to litigants, mobile vans establishing connections between courts and rural populations, are some which have been thrown up.
Worse, the legal process is long-drawn and establishment of conciliation centres or more fast track courts is not on radar. It is no secret that justice to be deliveredtakes a decade if not more, by which it would be too late, the sheer objective getting lost. The lengthy process, also hurts the lower sections of the society as it impacts their livelihood— lawyer’s fee, innumerable trips to the courts and precious wastage of time, among others. Perhaps, the apex court could consider bringing about an order wherein all cases must be time-bound— settled say within a span of three years and, in special cases, an extension may be given by another year.
While the concept of fast track courts has been a welcome change, the numbers are inadequate in the backdrop of rising burden of cases, specially at the sub-divisional and district levels. More such courts need to be set up and State governments must ensure funds for these. Recall the first fast track court was set up in 2000. But not much headway has been made as the money released by Centre is inadequate and so also the State governments priorities to have regular staff.
The inordinate delay in settlement of cases is a significant hindrance to the judiciary’s rating in the global system. And CJI Ramana seeks to make requisite amends. In a two-day virtual conference with High Court judges, he stated: “I am of the firm belief that unless infrastructure is strengthened, it is unfair to expect courts, particularly lower courts, to do miracles and increase the pace of justice delivery. Both quality and quantity of justice delivery can be improved only when support systems are strong enough to meet the challenges.”
While the saying ‘justice delayed is justice denied’ is well-known and oft-quoted, the critical changes for an efficient and timely system as desired must be taken up on priority. The second wave of the pandemic has seen truth being spoken to powers. Whether it will last and yield results, needs to be keenly watched. — INFA