Judges’ Appointments: Opportunities Underlying The Government-Judiciary Stalemate

If there is one issue that can improve Prime Minister Narendra Modi’s prospects as a visionary prime minister, it is reforming the ‘justice delivery system’. This involves both criminal and civil justice. Significantly, the Chief Justice of India (CJI) has been, for some time now, repeatedly raising the issue of appointment of judges, which is one of the ingredients of the recipe of judicial reform.

The government and the apex court have been disagreeing on the matter. The situation reached a climax in December last year after the Constitution Bench scrapped the National Judicial Appointments Commission law and asked the government to frame a new Memorandum of Procedure (MoP) for judicial appointments. There has been a strong disagreement between the government and the Supreme Court Collegium on certain clauses in the MoP. Since then, things have come to a virtual standstill, and the government has been silent on the names that it received from the Collegium. Press reports have quoted the anguished CJI as saying that the central government was trying to decimate the judiciary and lock justice out.

However, on deeper reflection, one can see a goldmine of hidden opportunities for the government to take several big-ticket measures to not only solve the issue at hand but to secure the means to improve the happiness and prosperity of the nation.

We may begin with an axiomatic truth that ‘justice’ is a basic need of human beings. Every civilised government has to provide justice; otherwise, people are exploited and harassed by anti-social elements. Unless two parties with grievances against each other are able to sort their differences out quickly and cost-effectively through the country’s established legal system, they lose their mental peace and either try to sort out the matter illegally or in a sub-optimal manner.

As a rough estimate, there are more than three crore law suits pending in various levels of courts. According to press reports, over twenty million cases are pending in the district courts, two-thirds of which are criminal cases, and one in every ten cases lingers on for over 10 years. At the current rates, some states including, inter alia, economically important ones like Maharashtra, Gujarat and Delhi, do not have a prospect of ever disposing all pending cases.

The picture is no less grim in high courts. The number of pending cases in various high courts are over 41.53 lakh (as on 31 December 2014), of which over 7.77 lakh cases have been pending for more than 10 years. In the apex court, pending cases number in excess of 59,000 (as on 19 February 2016), of which 1,216 have been going on for more than 10 years. Presuming two litigants in every case and an average of four family members for each litigant, it is roughly estimated that 24 crore people in the country have been affected, directly or indirectly, by these pending cases. Anyone with any experience in having to attend a court would vouch for how an ongoing court case can hamper the productivity of family members by causing agony and financial distress.

It may be contended that the resolution of this large number of cases, within a reasonable amount of time, can by its own raise the gross domestic product of the country by 2-3 per cent – by enabling its citizens to pursue productive activities instead of doing the rounds of a court.

But what is the way to achieve this? The answer is linked to the solution to another monster problem, i.e., unemployment. An innovative approach will be to make every court work in three shifts to save capital expenses of acquiring new space, increase the retirement age of all judges by a minimum of five years, give recently retired judges a choice to rejoin and serve till the extended time limit and digitise all court records to completely de-clog the court rooms and record spaces.

Obviously, all these measures cannot be done overnight. The roadmap has to be chalked out, and the sequence of steps determined. However, implementation can begin in earnest. Incidentally, a conference of chief justices of high courts and chief ministers had, in fact, in April 2016 adopted a resolution to invoke Article 224A to appoint retired judicial officers as ad hoc judges. The task at hand is, however, more daunting, and temporary solutions will not suffice.

Elaborating on employment prospects based on the suggestion given above, there will be a 200 per cent rise in the number of judges and, consequently, court staff, advocates and their support staff. The chain effect will also reach those institutions that impart legal education and training. The process will be greatly assisted if the government and the Bar Council of India take a pragmatic view about the qualification and eligibility norms to make it easy for competent citizens to join the legal profession rather than be obsessed with technicalities.

However, the largest scope for employment will come from the digitisation of all court records of several decades. This may provide jobs to tens of thousands of young people with basic computer knowledge as data entry operators, and also to others connected directly or indirectly to related hardware and software.

Even though the expenses to be incurred for the above may technically be seen as ‘unproductive’, these are essentially peanuts compared to the productivity gains that the economy can attain once the legal system is streamlined.

From the ongoing discord between the government and the judiciary on the method of appointment of judges for the higher courts, constitution of Collegium and the like, it is clear that this bigger picture with its manifold ramifications has not been examined adequately by either party. It is true that from the judiciary there have been some initiatives and a throw of ideas like ‘social justice bench’ (started in 2014 but failed to pick up) and an emphasis on ‘Lok Adalat’ and more for expediting the disposal of the huge body of pending cases. But these still fall short of India’s requirements, especially when the country has been striving to become a first-world economy.

The current government has revived a 1960 proposal of an All-India Judicial Service for appointment of district judges through a rigorous examination process to be conducted by the Union Public Service Commission. This can, however, only go so far in meeting the demand gap. In any case, whether it is this move or any other, a paradigm shift is called for.

Time has also come to take a fresh view of the role and status of the judiciary in the country. It should be one that is in line with the needs of a free, self-respecting nation unlike the imperial legacy of attributing a kind of ‘divine status’ to it or seeing judges as ‘incarnation of Dharma’ like during the British rule. Members of the judiciary are very much part of the society, and deeply interwoven. Like any other profession connected to governance, they exercise deep influence on the public and society as long as they are in the service. After retirement, they and their kin are equally affected, in good or bad ways, by the decisions of that institution. It is, therefore, in their own interest, as well as in that of the nation, that a more rational view is taken on this issue.

Instead of seeing the judiciary as an infallible incarnation of divinity, time has come to look at them as one of the various ‘service dispensers’ in society. They are expected to be versatile with their subjects and settle disputes between two or more parties using their expertise and without bias in an optimal and time-efficient manner. However, considering that the profession calls for high intellectual calibre, including superior reasoning, discrimination, analytical skill, self-restraint, articulation and impeccable integrity, and also keeping in view the importance and complexities of their tasks in as much as their judgements can impact the lives of human beings in a profound way that no other profession can do, members of the judiciary are entitled to a pay scale and perquisites that are at par with the best.

At the same time, like all other service providers, namely IAS, IPS, IFS, IRS or any other, they must be held accountable to society for their actions and performance. Even the political class is rewarded or punished by society based on their performance. Probably a system of auditing ‘court judgements’ periodically can be considered while the composition of that body can be decided upon by the government and the judiciary in consultation. This will be the prerequisite if India has to move forward and be a nation of peaceful and prosperous people.

A change in mindset along the lines described here can also facilitate the resolution of the ongoing tussle between the government and the apex court on the MoP and, thereby, the appointment of judges. After all, this is only one aspect of a much wider issue.