Collegium System & Reforms
By Dhurjati Mukherjee
The new Chief Justice of India, Justice D. Y. Chandrachud, stated that the Executive must show “constitutional statesmanship and avoid public grandstanding” even as he battled for a strong collegium system to ensure judicial independence and fairness in selection while conceding that the process needed more judicious transparency. Favouring the collegium system, the CJI categorically stated on assumption of office: that the system is “premised on consultation and recommendations are preceded by executive deliberations. The members of the collegium and the judges of the Supreme Court who are consulted bring their close knowledge of the functioning of judiciary to the decision-making process”.
Justice Chandrachud defended the collegium system of appointing judges while speaking a recent meeting. “No institution in a constitutional democracy is perfect. We work within the existing framework of the Constitution”, he stated. Regretting the present tendency of finding fault with others — in an indirect reference to the Union Law Minister’s criticism of the collegium system not being transparent — he urged the need to “resolve everything with social resolution and harmony”.
One may mention here that just before his retirement, the outgoing CJI, Justice N.V. Ramana had termed pendency of cases a “huge challenge” and expressed regret for not being able to pay much attention to issues of listing and posting of matters for hearing in the Supreme Court.
He emphasized the need to deploy modern technology tools and artificial intelligence to find a solution. “Even though we tried developing some modules, because of the compatibility and security issues, we could not make much progress,” Justice Ramana, who was heading the ceremonial bench, stated.
As is well known, the pendency of cases has been a subject of much concern. It is understood that more than four crore cases are pending in various courts in India. Shockingly, a few of these have been pending for more than ten years. This shows that our Indian judicial system is under tremendous pressure. As per the records of 2022, over 4.7 crore cases are pending in courts across different levels of the judiciary. Of them, 87.4% are pending in subordinate courts and 12.4% in High Courts.
Amid the rising litigation trend, more people and organisations are approaching courts. However, the number of judges available to hear these cases is obviously not enough as vacant posts are lying unfilled. The prime reason for the immense backlog of cases is the inadequate infrastructure. Moreover, as of 2021, India had 21.03 judges per million people compared with 51 judges in UK and 107 judges in the US per million. It also needs to be considered whether certain categories of cases such as dishonouring of cheques or landlord-tenant disputes are voluminous and could be settled out of court or through some other forum.
Additionally, is the need to stop vacation of judges that is just a colonial legacy as no Central government department or organisation has this facility. Justice Malimath who chaired a Committee on Reforms of Criminal Justice Systems way back in 2003 had stated that as most countries of the world do not have vacations, this system should be stopped immediately as it has no justification whatsoever, specially in a country where pendency of cases has been mounting. If necessary, the increase the retirement ages of judges, if they are found fit, by say another 2 or 3 years.
Coming to infrastructure, not long back, the Union Law Minister said the government was committed to improve judicial infrastructure and Rs 9000 crore has been sanctioned for the purpose. Former Chief Justice Ramana, had proposed a special purpose vehicle of Judicial Infrastructure Authority and requested the law minister to take this proposal to its logical conclusion as most government announcements take long to implement and the sum earmarked is spread for over 4-5 years. But nothing has been done so far.
It needs to be analysed whether the political establishment, which has been accused of curbing human rights, really wants to strengthen the judiciary and allow judicious decisions to be aired, thereby exposing the lacunae and inefficiency of the government. Judicial verdicts in recent times have mostly gone against the political establishment and both the Centre and the States have been rebuked in many cases. This perhaps may be a reason for the government’s indifference to the judiciary.
This apart, it has been seen that there have been several instances where the accused persons are completely unaware of the lawyer representing them. Effective legal representation is a constitutional right and prison authorities must coordinate with legal service authorities in the matter. Plus, there’s a delay in the availability of lower court records while dealing with criminal appeals. Though digitisation has started, it is expected that it would not persist, say after a year. Then there are delays due to counsels seeking more than the stipulated time. Unless judges can discipline errant advocates, pendency of criminal appeals will remain.
Thus, there’s need for a thorough examination of the causes for delay and come up with a scientifically designed listing and roster allocation practice. Currently, there is no such method either in appointment of judges or in listing procedures. Moreover, there must be a time limit within which criminal cases need to be settled.
While any right-thinking person would justify the need for prompt settlement of cases, there is no white paper how this can be accomplished, more so for a populous country like India where regulations and laws are frequently violated. If there is a judicious calculation of how pendency of cases can be brought down, say within five years or so, the necessary steps can be taken, not just in the various high courts but also in district courts. More buildings at the sub-divisional and district levels need to be constructed, records digitised at all levels promptly so that delays in settlements of cases could be minimised.
Finally, it needs to be said that reforms are an oft repeated word and, as regards the judicial system is concerned, there is a genuine need for a thorough overall of the whole system from high courts to the lowest tiers. It must be ensured that all, particularly the poor and the underprivileged get proper and free legal aid and their cases are heard and settled on a priority basis.
A lot depends on the dynamic of Justice Chandrachud, who has two years to bring about reforms and bring about necessary changes though he has already stated of his priority in hearing of criminal appeals, land acquisition matters and cases of compensation under the Motor Vehicles Act as these directly affected the fundamental rights of lakhs of citizens. Moreover, he has rightly pointed to the underlying injustices against the marginalised sections of our society —- women, Dalits and members belonging to tribes and segments staying in far-flung areas of the country. All judges across the courts in India, from district courts to the SC, must reflect on the constitutional vision of securing, justice, equality and liberty” to all sections of society”. — INFA