ARTICLES FROM THE SUNDAY GUARDIAN
Copyright. All rights reserved. Ram Jethmalani. 2017.
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I apologise again for returning to this subject after a week, but I am sure my readers agree that last week's return of the prodigal was a subject that required immediate comment.
Coming back to the judiciary, let me begin by referring to what the Supreme Court had to say about itself on 12 January 2012. It admitted that the people's faith in the judiciary was decreasing at an alarming rate, posing a grave threat to constitutional and democratic governance of the country. It acknowledged some of the serious problems confronting it, such as, a large number of vacancies in trial courts, unwillingness of lawyers to become judges, and failure of the apex judiciary in filling vacant HC judges' posts. The Vision Document of UPA 2, which had promised to appoint 5,000 ad-hoc judges to wipe out a pendency of 2.77 crore cases in the trial courts, came to nought.
Yes, it is indeed a notorious fact that the ratio of judges to population is 1 to 10 million, whereas actually it should be five times larger. The calculations of the National Court Management System (NCMS) set up by the Supreme Court, in its report of 2 May 2012, informs the nation that the number of judges must be increased almost six-fold, from our present sanctioned strength of 16,000 judges, with an additional 80,000. Our courts have arrears of about 15 crore cases, although it is somewhat comforting that 74% of these cases are less than five years old. We must now create a system in which no court can be allowed to have a single case pending for more than five years.
Just by way of example, let me give my readers a sense of how long it took for a high profile murder case to reach conviction stage. The late Railway Minister L.N Mishra's murder took place on 2 January 1975 at Samastipur railway station. This trial concluded only on 8 December 2014, after 39 years. Shocking and unacceptable are the only words I can use to describe it.
Even before the NCMS report, several Law Commission Reports have advised the creation of five times the number of courts which we currently have. This requires considerable expenditure, particularly on infrastructure, both movable and immovable. The required funds must be a preferential charge on our fiscal resources, and it is regrettable that the government (in substance, the ruling politicians) is not willing to invest in additional infrastructure and staff on this absolutely essential measure, even though it has enough resources, including about Rs 90 lakh crore stashed in foreign banks.
Agreed, providing court buildings and infrastructure may take some time, but internal judicial streamlining need not keep waiting for court construction to complete. Until then, some innovative solutions can be put in place. Perhaps one court house can be used for additional sessions during different parts of the day, with different independent staff. This would provide speedier justice to the common man and clear the backlog of cases, which are so embarrassing to our national judicial statistics.
The cutting edge and primary face of our judicial system for the common man is the lowest judge in the judicial hierarchy, both on the civil and criminal side. It is the holders of these offices for whom the highest qualifications and training must be insisted upon. Their salary and perks of office must closely approximate to what is provided for the highest judges, with just a nominal difference. So too, the age of retirement of all classes of judges should be uniform. This, and the equality of perks, will reduce irrational longing for upward mobility and undignified attempts to secure it.
It is also necessary to place greater emphasis on judicial academies in all states of the country, where all levels of judges should be exposed to up to date case law, judicial knowledge and trends, participate in experience sharing, and hear fair criticism so as to positively improve the quality of delivery of justice.
One practical way for the Supreme Court to relieve itself from the enormous pressure of numbers upon it, could be to set up benches outside Delhi — in the north, south, east and west of India, something contemplated in Article 130 of the Constitution. It is difficult to understand a former Chief Justice of India's assertion that this will fracture the integrity of the court. Surely, integrity has nothing to do with geographical location.
The judiciary must also recognise that there are certain cases which must be tried and disposed of much faster than others. For example, the trial of rape cases must receive highest priority in the matter of speedy disposal. Under no circumstances, does this amount to violation of the right to equality. Equal treatment of unequals is the highest form of inequality.
To overcome dislocation in the justice system caused by shortages of judges at all levels, we could also consider the British system of appointing temporary judges to preside in courts. I believe it should be the duty of senior and known practicing lawyers of high repute and acumen to undertake this responsibility periodically, not only to provide swift and proper justice, but also to provide training and skills to junior lawyers.
There is also criticism that cumbersome and lengthy court procedures add to delays in the administration of justice, skewing it in favour of the more powerful party. My considered opinion on this is that it is not legal procedures that cause the delay, but an improper understanding or application of them. Intelligent and enlightened use of procedures can only ensure proper justice to the common man, and prevent unnecessary delay in administering it to her/him.
Now let me turn to the responsibilities and duties of the bar. Lawyers, during the course of their pre-enrolment education and actual practice, must imbibe that their avocation is a profession of public service, and not a business, the dominant object of which is making money. Under no circumstances should they foment avoidable litigation. Settlement of compoundable disputes, which include all civil disputes by negotiations or arbitrations, should be a highly desirable qualification of every practicing lawyer.
Lawyers appearing as public prosecutors in criminal cases and all lawyers appearing for the prosecution in criminal cases must never seek the conviction of any person known to be innocent. Nor should they conceal from the accused facing trial any material or evidence in their possession, which may help to establish innocence of the accused, secure bail or otherwise destroy in whole or in part the prosecution case.
Now, coming to our national scourge, the issue of corruption, the judiciary is certainly not immune to it, but perhaps corruption persists at a lesser scale in the judiciary than in other organs of government. Let me give you some views on this subject from within the judiciary itself.
In June 2011, a universally respected former Chief Justice of India, J.S. Verma, stated that "certain individuals with doubtful integrity were elevated within the higher judiciary". He cited the case of Justice M.M. Punchhi, whose impeachment had been sought by the "Campaign for Judicial Accountability". Justice Verma said he was willing to permit the allegations to be probed, because they were serious, and therefore required to be investigated, so that one could know whether they were true or not. But the political executive refused to allow this, and Justice Punchhi was later elevated to CJI despite facing serious allegations". Justice Verma also talked about another former Chief Justice of India, K.G. Balakrishnan's continuance as chairman, National Human Rights Commission, saying that, "he should have demitted long back and if he doesn't do it voluntarily, the government should persuade him to do that, otherwise, proceed to do whatever can be done to see that he demits office".
In November 2011, speaking at the V.M. Tarkunde Memorial Lecture, a former Supreme Court Justice, Ruma Pal, computed seven sins of the higher judiciary, namely, a) turning a blind eye to the injudicious conduct of a colleague; b) hypocrisy — the complete distortion of the norm of judicial independence; c) secrecy — the fact that no aspect of judicial conduct including the appointment of judges to the High and Supreme Courts is transparent; d) plagiarism and prolixity — meaning that very often SC judges lift whole passages from earlier decisions by their predecessors and do not acknowledge this — and use long-winded, verbose language; e) self arrogance — wherein the higher judiciary has claimed crass superiority and independence to mask their own indiscipline and transgression of norms and procedures; f) professional arrogance — whereby judges do not do their homework and arrive at decisions of grave importance ignoring precedent or judicial principle; and g) nepotism — wherein favours are sought and dispensed by some judges for gratification of varying manner.
Let us also not forget that in 2011, Soumitra Sen, former judge at the Kolkata High Court became the first judge in India to be impeached by the Rajya Sabha for misappropriation of funds.
Ridding the judiciary of corruption can only be achieved if women and men of proven moral calibre in addition to judicial excellence are selected to serve as judges. I have described in detail my views on the appointment of Supreme Court judges in my piece of 8 February 2015 (Curb executive control of judiciary). The Constitution has laid down certain qualifications for the appointment of judges, but they do not appear to be sufficient to find men and women of suitable ability and unimpeachable character. The system of appointment through the collegium is an improvement upon the previous system, where appointments were almost completely political in nature. However, these touch upon only structural and systemic changes. Sadly, we must admit that no law or legislation can create character, and the best of laws and legislations can be manipulated for illegal and immoral purposes. As in the case of any other institutional reform, the first requirement is enlightened, dynamic leadership, judicial will and commitment from within. Reform will automatically follow.