I have been asked my opinion by several people about the recent verdict of the Supreme Court quashing the NJAC Constitutional Amendment Act. The verdict only restores the Collegium system created by Judges themselves in the second and third Judges cases, which, apart from having no Constitutional basis whatsoever (there is no mention of any Collegium in Article 124 of the Constitution), has set up a mechanism by which Judges appoint Judges.
This is a system totally lacking in transparency, as Justice Chalameshwar, the sole dissenting Judge has pointed out in his judgment, and as had earlier been said by Lord Cooke in his article 'Where Angels Fear To Tread' in which he called it a 'sleight of hand'(see the book 'Supreme but not Infallible’). Also by Justice Krishna Iyer, Justice Ruma Pal (who said the Collegium decisions were often reached by 'trade-offs', i.e.' You agree to my man, and I will agree to yours') and which often resulted in undeserving persons being appointed.
In fact some of the undeserving persons who were appointed as Supreme Court Judges on recommendation of the Collegium, or were recommended by the Collegium but found in the nick of time having committed serious improprieties and so not appointed, were mentioned by name by some counsels during the arguments before the Supreme Court.
My own opinion is that it matters little whether we have the NJAC or the Collegium system or any other system, as the Indian judiciary is beyond redemption.
Consider the facts. In Allahabad High Court (my parent High Court) criminal appeals filed in the High Court in 1985 are coming up for hearing today, that is, after 30 years of being filed. The lawyer who filed it is usually dead, and the accused in the criminal case is also often dead or untraceable. The same is the position regarding civil appeals. Is this a judiciary or a joke?
I am informed by Allahabad High Court lawyers that if a case is adjourned after the first date (because the opposite party or government counsel wants to file a reply or for some other reason) the case will never be listed again unless huge bribes are given in the High Court Registry. Similar may be the position in many other High Courts.
The present Chief Justice of India, Justice (HL) Dattu, said soon after being appointed CJI last year that cases in the Supreme Court would ordinarily be disposed off in 2 years, and criminal trials in 5 years. Almost every CJI makes similar tall claims. Justice (RM) Lodha, a former CJI made the nonsensical remark that Judges will work 365 days in a year.
There are 33 million cases pending in the law courts of India, and by one estimate even if no new case is instituted it will take 360 years to clear the arrears. While many people talk of clearing the arrears, no one is really serious about it. Arrears, including arrears in the Supreme Court, have kept mounting.
When I was in the Supreme Court a bench of which I was a member heard a case in 2007, Moses Wilson vs. Kasturiba (see online) which had been instituted in 1947, that is after 60 years of its institution.
Another case, Rajendra Singh (Dead) thru. Lrs. & Ors. Vs. Prem Mai, which was decided by a Bench of the Supreme Court, of which I was a member, took 50 years to decide finally, since it was initiated in 1957 in the trial court, and was finally decided on appeal in 2007 by the Supreme Court.
This decision observed :
“We may quote a passage from the novel 'Bleak House' written in Charles Dickens' inimitable style:
Jarndyce vs.Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated, that no man alive knows what it means. The parties to it understand it least; but it has been observed that no two Chancery lawyers can talk about it for five minutes, without coming to a total disagreement as to all the premises.
Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce vs. Jarndyce, without knowing how or why; whole families have inherited legendry hatreds with the suit. The little plaintiff or defendant, who was promised a new rocking-horse when Jarndyce vs. Jarndyce should be settled, has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out; the legion of bills in the suit have been transformed into mere bills of mortality.
There are not three Jarndyces left upon the earth perhaps, since old Tom Jarndyce in despair blew his brains out at a coffee house in Chancery Lane ; but Jarndyce vs. Jarndyce still drags its dreary length before the court, perennially hopeless.
Is this not descriptive of the situation prevailing in India today?"
I am informed that in the Bombay High Court original suits have been pending for 25 years or more. The situation is like that in the case Jarndyce vs. Jarndyce depicted at the beginning of Charles Dickens' novel ' Bleak House '.
I doubt whether the lawyer community seriously wants any reform, and as for Supreme Court Judges they mostly have a term of only a few years to seriously attempt it (despite the tall talk of almost every CJI ).
A person who gets involved in litigation is usually weeping and crying after some time as date after date (tareekh par tareekh) is given by the Court but the case is not heard.
The Allahabad High Court had set a norm that no judge of the subordinate judiciary should have at one time more than 300 cases pending before him. When I was a Judge of the Allahabad High Court a judge of the U.P. subordinate judiciary (the CJM Kanpur Nagar) came to meet me, and I asked him how many cases were pending in his court alone. He said 30,000. Another subordinate judiciary judge (CJM Ghaziabad) told me he had 21,000. Yet another said 15,000. Now if a man can carry 100 pounds weight but an elephant is put on his head what will happen? He will collapse. And that is precisely what has happened to the Indian judiciary.
And this is apart from the massive corruption which has crept into the Indian judiciary.
When I started law practice in the Allahabad High Court in 1971 there was no corrupt judge in the High Court, and perhaps in no High Court in India nor in the Supreme Court (though corruption had started in the lower judiciary).
Today my estimate is that about 50% or more of the higher judiciary (High Court and Supreme Court) has become corrupt. Shanti Bhushan, a very senior lawyer of the Supreme Court, and former Union law Minister, had filed an affidavit in the Supreme Court several years back stating that half of the previous 16 Chief Justices of India were definitely corrupt (he named them in a sealed envelope which he gave to the Court), and he was uncertain about 2 more. Since then more Chief Justices of India who retired had serious allegations of corruption against them.
What difference then will it make whether we have the NJAC or Collegium? So far as the public is concerned, is it not a difference between Tweedledum and Tweedledee?
Justice Markandey Katju is a former Judge of the Supreme Court.