CJI Should Introspect; Justice Isn’t Only About Appointing More Judges Faster

The Chief Justice of India (CJI) should be absolutely serious about justice. But it is doubtful that the voluble TS Thakur understands that fully, for he has been spending a lot of his time jousting with the government on how judges should be appointed rather than focusing on how the judiciary can deliver speedier justice.

On Independence Day, CJI Thakur was at it once again. He said:

“Today you heard our very popular PM’s speech for over an hour. I was hoping there will be some reference to the issue of justice, the reference to appointing judges. However, he did not. I request the government to pay attention to judiciary, especially appointment of judges.”

Surely, the CJI understands that “justice” and the appointment of more judges are not one and the same thing. You may need more judges for better justice, but what if the process of judicial appointments itself is the problem, vitiated by lack of transparency and opaque selection processes?

The Economic Times emphatically points out today (17 August) in an editorial that the judiciary is not blameless in the matter, having shot down a transparent process to appoint judges by rejecting the National Judicial Appointments Commission (NJAC). The editorial said:

“The judiciary has arrogated to itself powers that ought to be more evenly distributed among the organs of the state. Such usurpation of power violates the authority of the ultimate sovereign in a democracy, the people. Appointment by a self-propagating collegium is not the best way to choose judges.”

So, dear CJI, if there are delays in the appointment of judges, it is a self-serving judiciary that must carry a large part of the blame. Nowhere in the world does the judiciary appoint itself, but the CJI does not seem to have noticed.

A few months ago, the CJI said that India needed 70,000 more judges to clear the backlog of pending cases – reportedly about three crore.

More recently, the CJI warned the government that delays in clearing judicial appointments would bring the judiciary to a “grinding halt.” Hearing a petition on the high pendency of cases, he said that “most High Courts are working with only 40 percent of their sanctioned judicial strength and people are languishing in jails for 13 years without a hearing. Will you wait till they complete a life sentence?” (This statement was clearly aimed at prodding the Modi government to clear the recommendations made by the Supreme Court collegium).

Given the fact that the NJAC verdict came only last October, this is a bit rich. An undertrial languishing in jail for 13 years is hardly any more a victim of the government’s delays in judicial appointments than the judiciary’s own past and present dilatory processes.

Shailesh Gandhi, a former information commissioner, in a The Times of India article last May, punctured the CJI’s suggestion that we need 70,000 judges, pointing out that every year around two crore fresh cases were being launched, but the courts were also clearing two crore cases. The problem was the backlog :

“Though there are 462 vacancies in high courts currently, the judges’ collegium has only recommended 170 names. Neither the government nor the judiciary has paid attention to the simple fact that merely ensuring zero vacancy in judicial positions would lead to a reduction in backlog. Some argue that it is difficult to find good people to fill vacancies of judges. If India cannot find 21,542 judges (the current sanctioned strength), what purpose will be served by sanctioning 70,000 judges?”

In June, the CJI took on the government, claiming the judiciary stepped in only when governance failed. He said:

“The extent of judicial interference in governmental issues depends on how effectively and efficiently the government does its job. Which court would want to intervene if the government works efficiently and sincerely? The courts only fulfil their constitutional duty and need would not arise if the governments do their job.”

This statement is double-edged even for the CJI. It is, in a sense, an admission that the judiciary is doing some of the government’s work, thus proving judicial over-reach. On the other hand, it begs the question: if judiciary steps in when government fails, who steps in if the judiciary fails?

Clearly, the CJI should focus on his job rather than take pungas with the government for poor reasons. But there was no stopping him on Independence Day:

“I have reached the pinnacle of my career and I do not aspire for anything more. That is why I am frank and have no hesitation in speaking my mind.”

It doesn’t say much for free speech if one can say what one feels only when there is nothing more to achieve. But should judges be talking injudiciously just because they have the freedom to do so?