The people of our country apparently continue to have faith in our judges and the justice delivery system—and if they did not, there would be chaos. But unfortunately, the faith has been shaken by events of the last couple of years and unless we are rescued from the quicksand through very quick corrective measures, all of us will find ourselves in the sinkhole.
There is no controversy that the biggest problem facing the judiciary is the number of pending cases—over three crores. Before even trying to resolve this problem, the question to be asked is: How does one define a ‘pending case’? Is a case instituted yesterday (a traffic challan) as much a pending case as one instituted twenty years ago (gang rape and murder) both not yet decided? Every law defines the words used in the statute and the court adjudicates on the interpretation of those words. But, we have not yet decided on the definition of a ‘pending case’ and therefore all cases in the courts, including yesterday’s undecided challan is a pending case. If we take the trouble of defining all necessary terms we will be able to better appreciate the magnitude of the problem of arrears.
The arrears in tribunals and commissions are staggering too and most cases directly impact the common citizen in everyday life. So, even if our definitions are clear, if we add up the cases pending in the courts, tribunals and commissions, we will arrive at an unmanageable caseload that is breaking the back of our justice delivery system. This humungous caseload is the cause of delays, adjournments and frustration among the litigants who suffer the slings and arrows of outrageous misfortune. Remedial measures are absolutely necessary and without them, the frustration might turn into anger which will be followed by doomsday.
Signs of the strain are already felt in the criminal justice system with extra-judicial killings in Uttar Pradesh and Telangana, lynching in several states and threats and killing of victims of rape. I believe that these are unmistakable signs that our criminal justice system has collapsed or is definitely near collapse. Elimination of the accused and not prevention of the crime seems to be the flavour of the year and a society governed by the rule of law should not accept it at all.
The most controversial aspect of justice delivery is the appointment of judges, and has been so for many decades. Independent India started off with independent judges who took independent decisions. Many of these decisions were not to the liking of the establishment and plans were made to bring them to heel. But the judges stood like a rock, leading to the establishment theorising on a committed judiciary. To some extent, the establishment succeeded in making inroads into the independence of the judiciary, but the judiciary struck back and arrogated to itself the sole authority to recommend judges for appointment. This was an act of self-preservation and perhaps needed at the time.
What the judiciary forgot was the sage advice of Uncle Ben to Peter ‘Spider-Man’ Parker: With great power comes great responsibility. The occasionally unprincipled exercise of that power by the collegium of judges in the Supreme Court in the recent past led the establishment to strike back. The battle lines are drawn and I believe that for now the judiciary is on the losing side. The controversy regarding the appointment of judges has led to criticism of the so-called ‘judges appointing judges’ method.
Many question this process and some even describe it as incestuous. The criticism is totally misplaced. Judges merely recommend judges for appointment—the process of appointment is still carried out by the political executive with the President signing the warrant of appointment. Recent events have clearly demonstrated that the trump cards for appointment are with the political executive and sometimes it does not even include these cards in the pack. There is a sure and not so subtle form of arm-twisting being played out, jeopardising the independence of the judiciary. Even the critics do not suggest a better appointment process; they highlight the diminishing faith in the extant process, but they seem to have much lesser faith in the impartiality of the executive appointing judges—the committed judges theory (and perhaps worse) continues to haunt the legal fraternity. There is an unstated fear that the great power of appointment will be exercised with little or no responsibility.
Do judges really appoint judges? No. There is sufficient evidence that the government is stalling the appointment of judges emphasising that it is only the government that appoints judges. In response to a question raised in Parliament, it was stated on November 27, 2019 that as many as 239 recommendations made by the high courts are “under various stages of processing” with the government and the Supreme Court collegium. How many recommendations are pending with the government is not known, but it is more than likely that it is the majority. How long it will take for the government to finally process these names is anyone’s guess—it could take several months. The Supreme Court has no power to ensure that the process is expeditiously completed by the government and warrants of appointment signed by the President. It is a myth that judges appoint judges.
The government continues to stall the processing of recommendations, as noted by the Supreme Court. This is a display of misplaced power. It impacts on the seniority of a candidate recommended for appointment as a judge of the high court and we have witnessed, in the Supreme Court as well. We have seen the government stalling the appointment of a judge to the Supreme Court and also in the appointment of a chief justice of a high court. Transfer of judges is another weapon in the armoury of the government and is suggested by the government for reasons that would not stand scrutiny even in the court of a munsif, but the Supreme Court has been unable to stand its ground. Fortunately, there are still some voices that believe in the virtue of an independent judiciary as against a committed one, but we need to hear them loud and clear.
A dynamic society is bound to face controversies and the judiciary is no exception and cannot be insulated. The courts get embroiled in controversy when they are called upon to decide constitutional matters that impact on the sensitivities of large sections of society. The ‘political thicket’ doctrine has been evolved by the courts to stay away from issues that are purely of a political nature and raise no question of constitutional interpretation, and rightly so—judges are not politicians, but they are nevertheless concerned with matters of constitutional morality. This has led the Supreme Court to pass judgment on matters pertaining to the legislature, including powers of the governor of a state and installation of a government through a floor test. These decisions have certainly enhanced the prestige of the judiciary without, in any manner, denigrating the elected representatives and without impinging on the separation of powers doctrine.
But there have been instances when the legislature has refused to exercise its powers as for example in the decriminalisation of homosexuality. There are instances when statesmanship has been absent in the political executive, as for example on the entry of women to religious places. There are also several instances when the executive failed to implement social justice laws and welfare schemes and which came to be pointed out by the Social Justice Bench of the Supreme Court. The decision in many such cases resulted in unwarranted criticism by the political executive and diversionary tactics to side-track governance issues. The political executive accused the judiciary of crossing the Lakshman rekha in terms of separation of powers and also of judicial hyper-activism by taking over some functions of the executive.
Sure, in some instances the judiciary might have overstepped its jurisdiction at the instance of the citizen but the question always left unanswered amidst the criticism by the political executive is: What is a citizen (and the judiciary) to do if the political executive does not perform its constitutional and statutory obligations? Should gay rights be forgotten? What about protecting and supporting women’s rights and children’s rights? What about issues of child pornography? What about trafficking of women and children? What about the safety of women? What about environmental issues? The list can go on and on and on. To expect the judiciary to remain a mute spectator in an ivory tower is a failure to recognise the contribution of the judiciary in social engineering.
On his 90th birthday, Justice Oliver Wendell Holmes Jr of the US Supreme Court said to a journalist, “Young man, the secret of my success is that at an early age I discovered that I was not god.” It would have been wonderful if some of our chief justices had made a similar discovery. Judges are often told that they perform a divine function—it might be true when they decide the fate of the litigants before them. But certainly, no judge performs any divine function when taking administrative decisions and the Chief Justice of India is no exception. Sometimes the headiness of importance and the accompanying power coupled with the title of Master of the Roster makes a mortal succumb to flights of fancy.
Lawyers and judges depend on circumstantial evidence when no eye witness account is available. Circumstances taken as a whole sometimes point to only one inescapable conclusion. A few events led four so-called ‘rebel’ judges (including a then knight in shining armour and myself) to believe that something was administratively terribly amiss in the Supreme Court. The prestige, stature and independence of the judiciary are dependent on public trust and confidence, and it is also dependent on the trust and confidence that the Master enjoys amongst colleagues. That collegial trust and confidence in matters of judicial administration was badly dented, leading to what is euphemistically called a press conference in January 2018, intended to bring back some sanity in the administration of the Supreme Court. The event perplexed many and caused widespread concern and criticism in some quarters but it definitely had a positive impact, particularly in the management of the Supreme Court collegium and gave back to the judiciary some of its lost strength and vigour as well as earthy goodness. Soon, however, all was lost.
This year has been an annus horribilis. A resolution of the collegium taken last year was superseded without much ado; a complaint of sexual harassment was made by a staffer in the Supreme Court against the then Chief Justice of India who held a surprise sitting on a non-working day, slammed the staffer, protested his innocence (The chief doth protest too much, methinks) and yet the records of the Supreme Court do not show his presence in court that day! The credibility of the Supreme Court hit rock bottom on that day and it continued to scrape the gravel with the emergence of a sealed cover procedure completely unknown to our jurisprudence, whereby law officers of the government handed over ‘secret’ documents to the court in a sealed cover without claiming privilege under the Evidence Act. (This practice is continuing even today, much to the chagrin of lawyers). The armour of the knight was no longer shining.
Personal liberties have been given short shrift by the Supreme Court and traditional and extremely important remedies like a writ of habeas corpus, anticipatory bail and indeed bail have given way to detention in detention centres, preventive detention and denial of bail. It does seem to be an abdication of responsibility or as Pratap Bhanu Mehta recently wrote: “The Supreme Court has badly let us down in recent times, through a combination of avoidance, mendacity and a lack of zeal on behalf of political liberty.” Is it any wonder that today the infamous ADM Jabalpur case of the Emergency period is being mentioned in hushed tones—hushed for the fear of being slapped with charges of sedition or worse, an order of preventive detention. Taking full advantage, the screws have been turned and the lions under the throne have been caged. The gains of the ‘press conference’ have been lost in more ways than one.
But, all is not lost—the criminal justice system has collapsed or is definitely teetering, but the civil justice system is alive and meandering along from one generation to another. Human rights of children and women are intact but only as good discussion points and nothing else. Who cares? A strong will can still take our judiciary out of the morass. Rip Van Winkleism has left a big question mark on the faith and public trust in the functioning and independence of the judiciary, but the situation is not wholly beyond repair. It takes one man and a few moments to destroy an institution—remember Samson and the temple of Dagon, but it takes several people several years to build an institution. Will they work together to rebuild the Supreme Court or restore the public confidence and trust enjoyed by the judiciary – the last bastion – or …?
(The author is a former judge of the Supreme Court)