At the cost of belaboring an obvious truth, it must be stated at the outset that the common man in our country has a lot of faith in the Indian judiciary. Even for the hardcore cynics who are exasperated with the meandering ways of the political system, bureaucracy and the media, which have lost much of their sheen and credibility since independence, partly on account of their inherent flaws exploited by corrupt politicians and inept bureaucrats and partly owing to the lackadaisical attitude of the people at large, judiciary is the last frontier of democracy that provides hope and faith in political and social fair play. However, when litigations drag on for years albeit for legitimate reasons, the common man’s faith in law courts is shaken and the glimmer of hope for justice wanes by the day.
Therefore, it is imperative to keep intact the pristine glory of our judicial system, both for the sake of sustaining the democratic system of governance of which judiciary is a pillar and for upholding the majesty of the law, especially in times of political turbulence. To this end, grey areas of our judicial system have to be identified and addressed well before a systemic failure brings huge discontent and consequential loss of faith in the Indian judicature among the citizens. This calls for an outreach of sweeping measures of reforms, cutting across various aspects and segments of the entire gamut of judiciary.
Currently, what ails the Indian judicial system? For starters, there are far too many cases to be handled by a far too few number of judges. There are only 12 judges per million people in the country. Former Chief Justice of India (CJI), R M Lodha, has been quoted as saying that judges are currently handling five to ten times more cases than they could. When judges are swamped by a flood of cases, the resultant situation leaves little scope for hope for the litigants. Alarm bells rang in 2014 when the CJI expressed concern over a backlog of more than three crore cases in courts across the country and asked the Chief Justices of all High Courts to ensure expeditious disposal of cases, which had been pending for five years or more.
This overall pendency of over three crore cases includes close to 70,000 pending in the Supreme Court, more than 40 lakh cases in the 24 High Courts and around 2.6 crore with the lower courts. Hence, it is imperative to reduce the staggering pendency of cases on a war footing. Despite the exhortation of the CJI for expeditious disposal of cases by setting up a special ‘Social Justice Bench’ to deal with the pendency of cases having social issues as well as criminal matters and other civil disputes through Lok Adalats as an alternative dispute resolution mechanism where decisions are arrived at amicably and cannot be appealed against, it has been noticed that the pendency of cases in the subordinate courts has remained the same, at least since 2012. As judges cannot be expected to handle an unlimited number of cases, it is important that the optimum number of cases that a judge could handle be fixed by the competent authority. The apex court has reportedly taken up the issue for consideration and is expected to follow up the decision with a judicial order.
Directly proportionate to the huge backlog of cases is the inadequate number of the judges, resulting from the enormous numbers of unfilled judicial vacancies. In terms of the Law Ministry data of January 2016, out of the approved strength of 1,044 judges in 24 high courts, there are 443 vacancies. With an approved strength of 31 judges, the Supreme Court has two vacancies. There are 30 vacancies in the Income Tax Appellate Tribunal. Similar is the case with other tribunals. Unless these vacancies are filled up expeditiously, speedy delivery of justice would be adversely affected, as recently pointed out by CJI Justice T S Thakur.
Adding to the woes of the judiciary is poor infrastructure. There are not enough buildings and attendant amenities for judges to conduct the proceedings. Several court buildings are well past the prime condition. Consequently, there have been instances of judges having to conduct cases in such unlikely premises as verandahs of the doddering old courthouses or even under a tree. Hardly the kind of environment where the judiciary is expected to discharge its onerous duties, let alone to its optimum efficiency.
Adjournments, Stays, and Quashing of FIRs
The atmosphere currently prevailing in the corridors of the Indian judiciary is further vitiated by the inordinate delays in deciding a case, whether it is civil, criminal or public interest litigation. Apart from the mountains of pending cases that cause inevitable delays in the taking up of a case by the court, the legal fraternity has its own ways of prolonging the number of hearings and the time taken between hearings, for augmenting the scope of their remuneration. The enormous time taken in completing the motions that the legal proceedings entail, result in strange and piquant situations wherein the total duration of the case spawns over a litigant’s lifetime and key witnesses die before they get an opportunity to depose.
Furthermore, Indian courts grant unlimited adjournments, stays, the quashing of FIRs and exemptions from personal appearances on the flimsiest grounds in the name of permitting fair justice. It is also observed that once stays are granted, it is hard to vacate them. There is an urgent need to look into these malpractices and ensure that adjournments, stays, the quashing of FIRs and exemptions from personal appearances are given only in very valid cases and not indiscriminately.
These delays further complicate the situation when in such cases the litigant becomes frustrated and disillusioned about the outcome. Such delays not only cause anguish and agony for those whose last step in their quest for redressal of grievances is the judiciary, but they also inflict insurmountable financial burden. Every day spent in the corridors of a court translates in real terms into no work done and, therefore, no income, for the poor litigants. In contrast, for the lawyers who are paid by the day or hour, more and more delays mean a lucrative supply line of assured remuneration disproportionate to the efforts put in by them to fight the case.
For the judges, postponement of cases could mean a welcome break by way of interim relief, albeit unintended, from the strain and stress they experience in the arduous discharge of their duties on a practically continuous basis. Lawyers tend to ask for an adjournment of hearings on the slightest of excuses such as they not being well and, therefore, not being available. In the case of litigations in which the State is a party, the government counsel may be seen not infrequently pleading that crucial documents are not forthcoming from the concerned government department and, therefore, a fresh date be granted for hearing.
Vacations and Holidays
Currently, civil courts and higher courts have the rather incongruous practice of going on long vacations while they are hard put to liquidate huge numbers of pending cases. As such, our courts are crippled because of lack of time and the high rate of pendency of cases because of which majority of the cases drag on for decades, which is the root cause for people taking law in their hands. If people could get an impartial ruling within a few months, once all supporting documents are available, a lot of crime can be easily prevented. To make it happen, there is an urgent need to curtail the vacations and the number of annual holidays enjoyed by the courts in India. If the Summer vacation and other holidays that are currently being availed by the Indian courts are considered, on an average the Supreme Court works only for about 190-195 days, High Courts for around 210 days and trial courts for 245 days a year. In other words, our courts function for less than nine months every year, despite there being a strong case for keeping them open 365 days in a year, just like the emergency services.
Live Streaming of the Court Proceedings
Another step that can help in curbing corruption is by bringing in transparency and accountability in the judiciary. To make it happen, live streaming of the court proceedings on televisions should be allowed. Obviously, there would be stringent opposition and resistance against this move of allowing television cameras into the courtroom from vested quarters across the judicial spectrum. But the government and top legal authorities should be determined to counter such opposition as it is good for the public and will help a wider audience to understand and see for themselves how the judges and lawyers conduct themselves and how the Indian courts work. Such telecasts and coverage would be live civics lesson as it would give the people unfettered access to the arguments of the lawyers and the verdicts delivered by the judges. This, in turn, would make it harder for journalists to add their own spin. Live coverage would also help everyone visualize what’s going on much more than words can, which in turn would boost public trust in the judiciary. Here it should be remembered that nothing builds trust like openness, and nothing builds openness more than transparency and access.
Contempt of Court Charges
One more disgusting thing that needs to be immediately abolished are the sweeping contempt powers granted to the Indian courts as it restricts free speech and immunizes the judiciary from any semblance of accountability by way of criticism or comments, thereby causing much resentment among citizens. Law of contempt is one of the legacies of the British Raj, and it has to be remembered that the administration of justice in the free Indian Republic cannot have the same connotation as in the days of the erstwhile British colonial rule, especially when our Constitution enshrines fundamental rights in respect of freedom of expression and speech. To ensure that the judiciary functions under the active vigilance of the people and public opinion, it should adjust itself to comments and criticisms without being overly sensitive. England, which was instrumental in formulating the contempt of court offence that India had incorporated into its law, had stopped prosecuting people for it since 1931 and has formally abolished it in 2013. Even the United States has rejected sweeping contempt powers as unconstitutional. As such, the abolition or reform of the law of contempt is long overdue.
Justice Linked to Purchasing Power
Furthermore, Indian Judiciary has an uneven and inconsistent track record in addressing social inequity and safeguarding the constitutional guarantees given to common people as legal representation and justice is directly linked to their purchasing power. The rich and powerful can afford to hire the best-rated and hot-shot lawyers, whereas because of their high fees they remain inaccessible to the poor people. As such, since the outcome of a case substantially depends on the caliber of the lawyer, it is an accepted fact that the Indian legal system serves only those who have money and power. Not just the poor, but even the middle and the upper middle class who don’t have deep pockets, face major financial limitations when hiring a senior lawyer in higher courts, whereas justice comes easily for those with unaccountable income. Though the Indian constitution talks about equality before justice and also asserts that it is the state’s responsibility to ensure free legal aid to those who cannot afford it, the reality is that the free legal aid services offered by the state either don’t reach majority of the poor litigants and under trials or the quality of such legal aid is very poor. As such, the competent authorities jointly with the Union and state governments should explore ways and means and address this lacuna in our legal system.
Procedure and Mode of Appointment of Judges
There is also an urgent need to bring in massive improvements in the procedure and mode of selection as well as in the appointment and promotion of judges. Generally a Judicial Officer who joins as a Civil Judge (Junior Division) gets promoted up to the post of District Judge. In exceptional cases, some of them may get a chance to reach the High Court. But none of them have any scope of becoming a Supreme Court Judge. Lack of adequate promotional opportunities is alleged to be one of the significant factors for corruption seen in the Indian Judiciary. Every officer seeks reasonable career progression because it fetches him a higher salary and also gives him a chance to occupy a higher position of power and responsibility. If that is not forthcoming, then he gets demoralized and the chances of his becoming corrupt increases. To avoid such long-term stagnation, the system should evolve a proper selection and promotion policy taking into account the seniority-cum-merit criteria so that every judicial officer has the opportunity to reach the highest cadre in Judicial Service before retirement.
Under the present scheme of things, the system of promotion and appointment of judges to the High Courts and Supreme Court is handled by the collegium system headed by the Chief Justice of India. Under this system, which was introduced in 1993 following an order by the Supreme Court, a panel of senior judges are entrusted the entire selection process. Although it was supposed to ensure a selection process that would be free from interference by the legislature or the establishment, in actual practice, there have been complaints of political meddling. Justice Markandey Katju, a former judge in the Supreme Court, had some time ago made disturbing statements regarding the alleged elevation of a district judge in Tamil Nadu facing corruption charges to the Madras High Court during the UPA rule. There has also been widespread dissatisfaction with the actual working of the collegium system as the appointment process adopted by it is completely opaque and plagued with problems of unaccountability.
Moreover, there have been serious allegations that unsuitable candidates who are the sons, daughters, relatives and juniors of former judges and Chief Justices get selected based on favoritism and without reference to their merit. The Punjab and Haryana High Court Bar Association had even passed a resolution supported by over 1,000 lawyers alleging that nepotism and favoritism are writ large in the appointments made by the collegium system. To eliminate the culture of secrecy and nepotism that envelopes the selection and appointment of judges by the collegium, the Union Government on April 13, 2015 notified the National Judicial Appointments Commission Act, which provided for the constitution of a National Judicial Commission (NJC) to replace the present collegium system. However, this new law that sought to overturn the collegium system was struck down by the Supreme Court on October 16, 2015 and the old collegium system of appointing judges to the apex court and the 24 High Courts once again made a comeback.
However, appointments of around 100 High Court judges recommended by the collegium headed by the CJI are currently held up and the matter is lying in abeyance because of difference of opinion between the collegium and the Union government over a debatable clause in the Memorandum of Procedure (MoP) for selection of judges. To avert such situations in future, it is suggested that whenever the Union government rejects the recommendations made by the collegium, the relevant reasons for such rejections should invariably be recorded in writing. Furthermore, if any recommendation for appointment is made and then reiterated unanimously by all the member judges of the collegium, it should be binding on the Union government to accept it.
In view of the shortcomings of the collegium system, in the long run there is a dire need to replace it with an appropriate selection process that will ensure transparency and openness in the appointment and promotion of High Court and Supreme Court judges while also establishing judicial accountability, upholding the independence and impartiality of the judiciary as well as checking corruption in our judicial system. It should simultaneously dilute the lingering bad faith and tug-of-war between the government and the judiciary by ensuring total freedom from political interference and political domination. Furthermore, it should address concerns with regard to the nomination of retired judges as the heads of various Tribunals and Commissions and also ensure that only eminent, honest, impartial and incorruptible judges with an impeccable track record are selected for appointments to top positions in the Indian judiciary.
On another level, the court serves as the watchdog of the fundamental rights of the individual citizens, the bulwark against corruption especially at high places, the ultimate interpreting authority of the Constitution and the touchstone of the Constitutional propriety of the laws adopted by the government and the implementation of legislation by the establishment. In short, we can say that the judiciary is the conscience keeper of the people, society, and the nation.
The revocation of 122 telecom licenses issued in 2008 to eight companies under the corruption-tainted 2G Spectrum sale and the scrapping of allocations of 214 coal blocks under the Coalgate scam were just two instances when the Supreme Court came down heavily on corruption at no less a level than the Union government in the recent past. In the 2G spectrum case, the apex court declared the licenses illegal and quashed, and stated that the process of awarding the licenses “was wholly arbitrary, capricious and contrary to public interest apart from being violative of the doctrine of equality.” The ruling was hailed as historic, and it was also lauded for trying to break the corrupt nexus between business and politics and for being one step closer to transparency in policy making.
Apart from Norway’s Telenor, which threatened to quit the Indian market, carriers whose licenses were ordered revoked, included Russia’s Sistema as well as of a local joint venture of Abu Dhabi’s Etisalat. Furthermore, the apex court’s ruling sent almost 80 million customers; banks which lent Rs 30,000 crore to five firms; companies which shared infrastructure; and foreign investors into a tizzy. What was more, this was not a solitary incident that led to an environment wherein stakeholders were caught in a sudden cloudburst of uncertainty over investments and lost trust in the Indian market.
While it was argued by some that the verdict was good news for the established incumbent operators and that it could also build confidence in the role of the judiciary and broader efforts to crack down on corruption, it could not be denied that the court ruling dented India’s image as an investor-friendly destination. Foreign investors expressed dismay at being heavily penalized for no breach of law on their part. They claimed that their role in the entire deal was limited to partnering with Indian companies, investing lots of money and following the process of the time. They made no secret of their frustration over being given perceived short shrift in the bargain.
Impact on the Economy
There could, however, be no argument about the judiciary’s upholding the majesty of the law. The upshot of the scenario was that the prospects of further speedy growth of the country’s economy and industrial development were caught between a rock and a hard place. The situation was summed up in the words of Justice A K Ganguly, who stated in the verdict, “I am only doing my job,” while being acutely aware of the kind of portentous impact that the judgment would likely have on the Indian corporate sector.
The law is impervious to pecuniary losses and hardships caused in the course of doing business and incidental setbacks and inconveniences suffered by the stakeholders. But how the whole scenario pans out at the end of the day in consequence of the blow dealt by the judiciary to business security, albeit in the course of rooting out corrupt practices, impinges on the country’s economy. This is a case in point for serious consideration by the legal luminaries and champions of industry.
In the case of the Coalgate scam, while scrapping licenses for 214 coal blocks allocated since 1993, the Supreme Court stated in its landmark verdict that the licenses had been granted in an illegal and arbitrary manner without following a transparent process for their bid. The court upbraided the Screening Committee, on whose recommendations licenses had been issued, for not being consistent or transparent and failing to exercise proper application of mind.
The court gave the companies, which had been allotted licenses, six months’ time to wind up and allowed the auction of all the cancelled blocks by the government at the end of six months in March 2015. Moreover, the court also decreed that the companies which ran the blocks pay Rs 295 per tonne of coal they extracted during the next six months; furthermore, the companies had to pay the same amount per tonne for the coal they had already extracted from the blocks.
Shock waves and Trepidation
The court’s ruling was received in the industry circles with trepidation. It was felt that the court’s decision had created uncertainty and would likely impact key sectors including power, steel, and mining. The power sector being the largest consumer of coal in the country, this development was likely to aggravate the shortage of fuel for the power sector. Another sector that was expected to be impacted by the ruling was the financial sector as the exposure of public sector banks to the power and steel sectors was considerable, with banks accounting for over 60% of the overall investments in these blocks.
The verdicts of the Supreme Court in the 2G scam and Coalgate have amply demonstrated that the effect of the apex court’s rulings in such cases on the nation’s economy could be both portentous and egregious. Apart from sending shock waves among foreign investors, the very question of the government’s credibility in implementing scam-free decisions of vast financial import and ability to stand by its decisions without having to undergo the uncertainties of the hassles of court proceedings came under the scanner. This is hardly the kind of congenial atmosphere in which any nation can look forward to having a propitious industrial growth and robust economy.
Apart from coming down with an iron fist on the fountainhead of corruption in the country and sending the corrupt elements to the jail, no matter how high and mighty they are, the judiciary would be doing yeoman’s service to the nation’s economy if it went the extra mile to consider providing some kind of insulation to its rulings for drastically reducing the monetary loss of the stakeholders and softening of any unintended blow to the interests of foreign investors, unlike in the 2G scam and Coalgate. Such ingenuity and out-of-the-box thinking on the part of the judiciary would help promote a climate of business security that is a sine qua non for making Prime Minister Narendra Modi’s ‘Make in India’ scheme a success.
No matter how much the overseas fund providers are receptive to and enamored by the positive signals emitted by the National Democratic Alliance (NDA) government at the Centre, they would settle down at the end of the day for nothing less than shockproof ground realities before sinking in vast sums in business ventures in the country, no matter how lucrative. For this purpose, the judiciary and legislature could put their heads together and strive to come up with an appropriate mechanism that would generate the much-needed business security.
For instance, a threshold limit could be decided for setting up high ticket business ventures involving the government and private stockholders, with a judicial supervisory board at its head to ensure a scam-free project. The supervisory board could have as members, representatives from the legislature and the judiciary, and be tasked with preparing a due diligence report for high-end projects. A judicial authority could supervise the whole operation at the end of which international investors should be free from hassles and harassment.
For the sake of advising domestic and foreign investors and resolving their grievances as well as making good, the loss incurred by them in the case of unforeseen legal proceedings, an Investor Education and Protection Fund could be set up. And it can be funded by the compulsory CSR (Corporate Social Responsibility) aid. In any case, whatever be the final shape of the mechanism to be devised and its mandate, the court would be doing the right thing by keeping in its view the twin aims of ensuring that decisions taken by the government after due diligence are unalterable and foreign investors who are not guilty of procedural or legal transgressions are adequately compensated and not penalized or harassed.
Out-of-the-box Thinking and Sweeping Reform Measures
The flaws and inadequacies in our judicial system, which have remained on the back burner since long, brook no further delay and call for redressal on a war footing. A comprehensive review of suggestions made above for timely intervention by the judiciary for the robust growth of the country’s economy along the lines of Prime Minister Narendra Modi’s ambitious program would help bolster the efficacy of the system.
The reform measures proposed above are sure to bring in a breath of fresh air to the Indian judicial system, in the face of an overgrown body of responsibilities of the system in tune with the changing times. Unfortunately, its arteries are currently clogged with cobwebs of an archaic system. Hence, only such sweeping changes are capable of cleansing the system, which is not a mean task given the resource crunch staring the government in the face, and rejuvenating the common man’s faith in the judiciary as an article of faith and not a mere fig leaf.