Judges must get judicious about time

If the government knows how to dig in its heels on certain issues, then the judiciary would be equally strong in its resolve to stick to its stand.
— Chief Justice of India at an Independence Day celebration

Getting frustrated by things that are not under one’s control can induce strong words without leading to good results. Legal delays in India are deplorable and need urgent remedies. Every other foreign lawyer we meet comments, “Your Prime Minister is very appealing when he invites foreigners to Make in India, but your judicial system is appalling; it is too sluggish.” Businessmen know that disputes may be unavoidable, howsoever straight forward the deal. But availability of efficient and honest machinery for speedy resolution of disputes is what the investors are looking for, which, unfortunately, we do not have in India. The CJI is aware of this fact more than anyone else; hence the frustration over delay in appointments by the executive. Who is at fault is a difficult question to answer, but this business of — you, not me — will make “we the people” suffer.

Delay in the appointment of judges, undoubtedly, aids backlog, but is it the only cause? As we await resolution of the deadlock between the judiciary and the executive, the Supreme Court may usefully stop to reflect on the question — Quo vadis (Where are you going?). It needs to ponder, are we on the right course or have we unwittingly mismanaged the scarce judicial time? For example, the CJI may call upon a few lawyers and administrators to examine objectively whether the Supreme Court got into a wrong lane when they took special interest in preserving forests? Has the forest bench that is in existence for the last decade and more, and spent literally 1,000+ hours of judicial time, done any service to the country? Has the court’s experience in the matter of cleaning of the holy rivers — Ganga and Yamuna — not yet convinced it that these are not the class of cases that the judiciary can manage? Dealing with Santa-Banta jokes, or with the condition of hens are neither the indices of our seriousness nor of our humour.

Is redesigning the Board of Control for Cricket in India the court’s job? And is it fair to load a good man that Justice Lodha, is with subjects like cricket and medical council simultaneously? Finally, is not the root cause of many of our problems the belief of the apex court that all problems can be solved only through the courts and retired judges? Are they qualified to undertake such complex responsibilities that they take upon themselves? Let us be modest, and let us be honest. Will the court’s directions to BCCI be fully implemented? I seriously doubt that. The seasoned businessmen who now run the BCCI show would know how to avoid. Justice Katju’s entry is ominous.

Should the court keep reconsidering decades-old settled precedents merely because one judge gets a brilliant idea? In dealing with the rights of gays and lesbians, where the world was watching, was it right to ask a bench of two judges to decide? These are a few many major instances relating to in-house management of scarce judicial time. Why should all cases be treated alike? Or, why should all cases be delayed equally? Politicians convicted for corruption and now under bail are roaming freely and even ruling different parts of our country. Failure to identify internationally important matters and their timely treatment has already exposed our country to huge loss — in the White Industries Australia Limited vs Coal India Limited case, a nine year delay to dispose of the matter, persuaded an arbitral tribunal to penalise India.

A computer or a court clerk cannot be left to decide priorities. The CJI has undoubted power to direct that such cases be heard expeditiously, on a time-bound basis. This will help the public to feel that there is a functioning judiciary. But, of course, not all problems relating to the judiciary can be solved internally — the Central government has a major role to play. The subordinate judiciary is the bedrock of our justice delivery system, but it remains neglected. State governments are not able to manage it. The problems relating to subordinate judiciary have not gone unnoticed. The first law commission headed by the legendary lawyer M.C. Setalvad and with stalwarts like Nanabhoy Palkhivala as members in its 14th report submitted in 1958 recommended that India must have an All-India Judicial Service to man the subordinate judiciary on the lines of the IAS and IPS.

The commission noted, “If we are to improve the personnel of the subordinate judiciary, we must first take measures to extend or widen our field of selection so that we can draw from it really capable persons. A radical measure suggested to us was to recruit the judicial service entirely by a competitive test or examination. It was suggested that the higher judiciary could be drawn from such competitive tests at the all-India level and the lower judiciary can be recruited by similar tests held at state level. Those eligible for these tests would be graduates who have taken a law degree and the requirement of practice at the bar should be done away with.”

“Such a scheme, it was urged, would result in bringing into the subordinate judiciary capable young men who now prefer to obtain immediate remunerative employment in the executive branch of government and in private commercial firms. The scheme, it was pointed out, would bring to the higher subordinate judiciary the best talent available in the country as a whole, whereas the lower subordinate judiciary would be drawn from the best talent available in the state.” However, ironically, it was only during the Emergency in 1975-76, imposed by the notorious 42nd Amendment, a provision permitting All-India Judicial Services was included in the Constitution.

Nothing was ever done thereafter, reportedly due to opposition from state governments on the grounds of financial burden and from high courts who presently have virtual control over the subordinate judiciary at the stage of recruitment as well as thereafter. One of the major problems with high courts is not having a chief justice with long enough tenure because within a few months of their appointment they are chosen to be judges of the Supreme Court. The chief justices are appointed on the basis of seniority, which I call the “conveyor belt syndrome”, where the baggage placed first on the belt reaches the other end the earliest, in India’s case, the Supreme Court.

The chief justices are keen to join the highest court for no better reason than they get three years more in office — retirement age for high courts is 62 while for the judges of the Supreme Court is 65. The sad result is that high courts do not have judges with tenure and the subordinate judiciaries miss needed guidance. Making the age of retirement of judges of high courts on par with that of the Supreme Court judges would ensure that no chief justice — not even a puisne judge — will be eager to shift to Delhi. But this small step, with a potential to achieve big results, needs amendment to the Constitution. Such an amendment was about to be made during the tenure of Veerappa Moily as Union law minister. But it wasn’t.