Sunday, August 20, 2006

CLEANING THE JUDICIARY
APPOINTMENT OF JUDGES AND DISPOSAL OF CASES

Gyan Pathak

The Public faith on Judiciary has increasingly been on the decline despite the activism through PIL (Public Interest Litigations) shown by the various High Courts and Supreme Court. Fingers are being raised from various quarters not only on the quality of judgments but also on the functioning of the courts resulting in a high level of pending cases and vacancies of judges in the various courts throughout India. Now a blame game has been started that should be put an end to for the larger interest of the nation.

The case in point is reflected even in the reports of the Standing Committees of the Parliament. High Courts and the Supreme Court had, more than once, pointed out even the passage of laws by the Legislature not to protect the just but the culprits.

In one of the recent reports the department (Law and Justice) related Standing Committee of the Parliament found faults in the Collegium of the Judges who failed to appoint the vacancies in various High Courts and the Supreme Court. It noted that the Committee on Home Affairs examined the subject in detail in its Eight-fifth Report on Laws Delay: Arrears in Courts. That Committee was, inter alia, of the view that the delays in judicial appointment was a matter of serious public concern and pointed out that the failure to fill up judicial vacancies promptly could not be shielded or defended in the name of judicial independence.

It may be mentioned here that the Supreme Court, in 1993, had evolved a new system of appointment of the Judges of High Courts and the Supreme Court through a Collegium. Earlier, the Union Government and the State governments were responsible for appointment of judges respectively. That system of appointment had been under attack for years especially on account of political influence on the appointed judges. When the new system came into existence, the governments or political establishments lost their say. However, the Collegium still depended on Ministries of Home Affairs for certain reports about the candidates in question before their appointment as a judge. It has already been reported several times that such reports are delayed leading to overall delay in the process of appointment of judges.

It was claimed in the report that the Committee held detailed deliberations on the procedure for filling up of vacant posts of judges in the Supreme Court and the various High Courts, as per the pre and post 1993 dispensations. However, by going through the report gives an impression that it did not properly examined the whole process especially the part that is played by the Executive.

The Committee observed that there had not been any perceptible improvement in the position of vacancies of Judges in Supreme Court and High Courts under the post 1993 arrangement. The Committee feels that time has come when the issue has not only to be deliberated at the highest level, but also to be debated in the public domain so that there could emerge an alternative system which could bring about an overall improvement in the situation.

The Committee called upon the Ministry to come forward with a concrete alternative, addressing the issue of appointment of Judges of the higher judiciary by evolving a suitable mechanism through the Executive decision with judicial scrutiny, instead of allowing the judiciary alone to choose the judges. This can avoid a vicious circle created in the judiciary so that the vacancies could be filled up on the date of their occurrence.

The report says that the government has been requesting the Chief Justices, Chief Ministers and Governors of the states to initiate proposals for filling up vacancies as well as the anticipated vacancies during the next six months. However, as against the sanctioned strength of 26 Judges, the Supreme Court of India has 23 Judges in position, leaving three vacancies to be filled up, as on 22 March 2006. In the High Courts, against the sanctioned strength of 675 Judges, 567 Judges are in position, leaving 108 vacancies to be filled up, as on 22 March 2006.

As per the latest information available (as on November/December, 2005) 33,635 cases were pending in the Supreme Court; 34,24,518 in different High Courts and 2.44 crore cases were pending in the Subordinate Judiciary. This is partially attributed to insufficient number of judges/magistrates.

Whatever has been done till date can be called at best symptomatic treatment of the disease. Grouping of cases involving common questions of law, constitution of specialized benches, Lok Adalats, or other alternative modes of disposal including mediation, negotiation and arbitration, special tribunals like Central Administrative Tribunal, State Administrative Tribunals, Income Tax Appellate Tribunals, Family Courts, Labour Courts, Consumer Courts etc. have been set up to expedite disposal of cases. Information technology is being used in generation of cause lists, providing information to the litigants/Advocates etc. for speedy disposal of cases. Even Fast Track Courts have been established. All these initiatives, however, fall short of the requirement to arrest the pendencies.

Year after year, particularly from 1999 onwards the pendency of cases has been continuously increasing except in the Supreme Court where it has been arrested up to some extent due to extensive computerisation and a host of other initiatives.

The Committee found that the specialised benches, Lok Adalats and Fast Track courts though created as an alternative mode of disposal of arrears of cases have been suffering due to infrastructural lacunae or financial constraints and thus are not able to meet the desired targets.

All these need a comprehensive review of the situation and subsequent action. The old fashioned ad-hocism will not do. The two proposals under consideration - One is to make the courts function in shifts, and the second is Gram Nyayalayas Bill 2006 - would not help much.#