Issues with the Judiciary in India

WHY IN NEWS:

• The news of the Supreme Court collegium recommending Madras High Court Chief Justice Sanjib Banerjee’s transfer to Meghalaya High Court has met with controversy. Banerjee is being transferred from the Madras High Court, one of the biggest in the country, to Meghalaya High Court, one of the smallest. While all high courts in the country are equal in law, transfers from bigger courts to smaller ones are often seen as punitive.
• This is not the first time a transfer has turned contentious. Multiple transfers in the past year have raised concerns on how opaque the entire process of appointment and transfer of judges is.

ISSUES WITH JUDICIARY:

• Issues with the appointment:
  • Issues with Collegium System:
    • Invention by the judiciary:
      • It is argued that the system is outside the constitutional scope, as it is an invention of the judiciary. The constitution makers had no intention to give primacy to the CJI, which is why it was made necessary to only consult him than concur with him.
    • Undemocratic:
      • The collegium system is undemocratic as the people’s representatives have no say in it.
      • The whole power is monopolized in the hands of a few. In fact, India is the only country where judges appoint judges.
    • Opaque process:
      • Since 2017, the collegium has been voluntarily publishing its various decision, along with the reasons underpinning the collegium’s choices.
      • However, this was not followed in 2019 when it publishes appointment details without reasons.
      • This leaves many aspects, such as how the criteria like work, reputation, integrity and experience play in the selection process, beyond scrutiny.
    • Lack of accountability:
      • Most of the collegium functions are outside the ambit of RTI. There is no written manual for functioning or definite selection criteria. Also, the decisions already taken are often arbitrarily reversed.
      • It has even taken decisions against its own guidelines without proper explanations.
      • Ex: In January 2019, the court superseded 3 senior-most judges while recommending names for elevation to the Supreme Court, abandoning the guideline of respecting seniority in appointments.
    • ‘Kin syndrome’:
      • It is a term coined by Js. V.R Krishna Iyer to refer to the nepotism and personal patronage prevalent in the functioning of the Collegium System.
      • Various reports have supported this view, stating that the whole judiciary is run by just a few hundred privileged families.
  • Executive inaction on recommendations made by the Collegium for judicial appointments:
    • There is no time limit fixed for the government to take actions on the collegium recommendations. This is the reason that appointment of judges takes a long time.
    • For ex: 55 recommendations made by the Collegium for judicial appointments to various High Courts were delayed six months to one and half year in 2020-21
• Vacancies:
  • In High Court >> Vacancy level of 40% as of 2021
  • According to studies conducted by Daksh (an NGO that conducts studies on judiciary) >> vacancy level in vacancy level in subordinate courts since 2006 is 26% on an average.
• Pendency of cases:
  • As per economic survey 2018-19 >> 3.5 crores cases are pending in judicial system. Of that 69% are pending for more than 1 year and 85,000 have been pending for over 30 years.
  • Pendency is increased in Supreme Court from 40000 in 2006 to 54000 in 2017. In High Courts it is increased from 37 lakh in 2006 to 43 lakh in 2017
  • Backlogs due to COVID:
    • In pre COVID 19 years, the increase in the pendency of cases in all courts used to be about 5.7 lakh cases a year.
    • In 2020 alone, it increased to an astonishing 51 lakh. It appears that if a hybrid virtual hearing model is not adopted, the backlog of cases could cross 5 crore in 2022.
• Gender insensitive:
  • Lack of women representation:
    • In its 71-year history, of the total of 256 judges appointed to the SC, there have been only 11 women (constituting a mere 4.2%)
    • The average percentage of women judges in all high courts (HCs) is 11.8%, with Madras HC having the highest number of women judges, and five HCs not having a single woman judge.
  • Low number of women advocates in higher courts:
    • For ex: Of the 416 persons designated as senior advocates by the SC to date, only 18 are women (4.05%).
    • Bar Council of India does not have a single woman member in its committee or as its chairperson.
  • Lack of gender sensitivity in the court judgements; examples:
    • Bhanwari Devi case in 1995:
      • The acquittal order by the Rajasthan court gave absurd reasons such as a higher caste man cannot rape a lower caste woman for reasons of purity
    • Narendra vs K. Meena (2016):
      • S.C held that under Hindu traditions, a wife on marriage is supposed to fully integrate herself with her husband’s family and that if she refuses to live with her in-laws, it would amount to cruelty and the husband would be entitled to divorce her under the Hindu Marriage Act
    • Tarun Tejpal case 2021
      • Scrutiny of survivor’s sexual history in rape trials >> still continues.
  • Gender insensitive infrastructure:
    • According to a report by Vidhi Centre for Legal Policy in 2019, about 15 per cent of courts in India do not have a women’s toilet.
• Low judge to population ratio:
  • The judge-population ratio in the country which stands at only 20 judges per million people is not very appreciable.
  • While for the other countries, the ratio is about 50-70 judges per million people.
• Inadequate representation from minorities and weaker sections:
  • The Supreme Court has only one Muslim judge and no Sikh, Buddhist, Jain or a person from tribal community as a judge.
• Undermining the doctrine of the separation of power:
  • The power vested in the Supreme Court through Article 142 of the Constitution is extraordinary.
  • Supreme Court resort to frequent use of this power >> to issue judicial decrees >> hence violation of the doctrine of the separation of power.
  • For ex: Supreme Court in 2016 >> directed the Union government to revise the Drought Management Manual in 2016 while responding to PIL filed by an NGO (Swaraj Abhiyan) on the issues associated drought declaration.
• Judicial Overreach:
  • Judicial Overreach refers to an extreme form of judicial activism where arbitrary and unreasonable interventions are made by the judiciary into the domain of the legislature or executive.
  • Examples of Judicial Overreach:
    • Court on judicial appointment:
      • Supreme Court through various judgments denied the executive any role in the appointment of judges by instituting collegiums (an extra-constitutional body).
      • Court also invalidated the National Judicial Accountability Commission Act, 2014 seeking to ensure transparency and accountability in higher judiciary
    • Reforming BCCI
    • Mandating National Anthem in Movie Theatres
    • State of Tamil Nadu vs K. Balu case 2016
      • Banning of liquor shops within the vicinity of 500 meters of National highways
    • Coal block allocation case
      • Coal blocks granted from year 1993 were cancelled in 2014.
    • On farm laws:
      • S.C  stayed implementation of three farm laws
      • SC also appointed a panel to report on farm laws
• Concern over Public Interest Litigation (PIL):
  • Introduction of the concept of PIL did away with the doctrine of ‘locus standi’ i.e no one except the affected person can approach a court for a legal remedy.
  • PIL permitted any member of the society to file a case for appropriate directions against any injustice >> Consequently, the expectations of the public went high.
  • This resulted in the demands for judicial intervention to improve the administration by giving appropriate directions for ensuring compliance with statutory and constitutional prescriptions.
• Asymmetry of power:
  • Supreme Court is the most powerful branch of governance.
  • It’s every judgment is binding on the other two branches (legislature and executive) and it can strike down their actions as well as their laws. 
• Slower disposal of cases:
  • More than 40% of cases are decided after three years in India, while in many other countries less than 1% of cases are decided after three years.
  • As per Economic Survey 2019 >> average disposal time in criminal cases is 6 fold higher in Indian Judiciary as compared to that of European Courts.
  • In 2016, it was estimated that judicial delays cost India around 0.5% of its GDP annually.
• Conflict of interest:
  • Example: In a case of sexual harassment allegations against the former Chief Justice of India (CJI) in 2019 >> the bench presided by CJI himself.
• CJI's power as the ‘Master of the Roster’ is unchecked:
  • CJI has exclusive discretion in the matter of constituting benches and allocating cases
  • It makes the CJI the sole point of defence of the Court against executive interference
  • CJI as the sole Master of the Roster >> a pliant Master of the Roster carries the danger of producing a pliant Court.
• Executive actions that threatened judicial independence:
  • Punitive transfers:
    • During the emergency period government used transfer of judges from one High Court to another as a political tool.
    • Controversial transfers takes place even today. For ex: Chief Justice of Madras High Court transferred to Meghalaya High Court after he passed various judgments that criticised the government for its handling of the Covid-19 pandemic.
  • Post-retirement jobs:
    • There is an attractive lure of post-retirement jobs for Judges.
    • There have been numerous instances of judges becoming part of the legislative and executive and vice versa.
    • For ex:  Former CJI P. Sathasivam was appointed the Governor of Kerala, CJI Hidayatullah became the Vice President of India, former CJI Ranjan Gogoi was nominated to Rajya Sabha, less than 6 months after retirement.
• Poor design and the absence of an integrated digital platform for the criminal justice system:
  • Criminal justice system is still beset with archaic procedures and paper-based processes
  • Lack of coordination and communication between institutions such as the police, prosecutors, legal services authorities and forensic labs. 
  • A critical factor holding back implementation is that these institutions have already created their own information systems that work in silos and are not interoperable
• Lack of transparency in 'in-house inquiry':
  • Judiciary is too defensive in dealing with cases against judges
  • Examples:
    • In 2003 judgment apex court held that >> “any inquiry under this procedure is meant only for ‘the information and satisfaction’ of the CJI, and is not meant for the public.”
    • In a case of sexual allegation against Justice Swatanter Kumar in 2014 >> SC decided not to entertain allegations against retired judges of SC saying they were not covered by courts administrative jurisdiction.
    • S.C declined to disclose the findings of an in-house inquiry regarding allegations against CJI-designate Justice N.V. Ramana.
• Poor funding on lower courts:
  • Criticism that money is spent on the infrastructure of higher courts while the subordinate judiciary continues to function from stuffy, ill-lit and dingy courtrooms without basic facilities for litigants, court staffers and judicial officers.
• Sub-standard legal educational institutions:
  • There are over 1,500 law colleges  in the country>> but there is a problem of quality suffering over quantity >> large number of sub-standard legal educational institutions in the country
• Inaccessibility:
  • Geographical constraints:
    • Constitution empowered the Chief Justice to hold sittings of the Supreme Court through Circuit Benches in places other than Delhi as well.
    • However, despite an increasing caseload, successive Chief Justices have refused to invoke this constitutional power
    • According to a report by the Centre for Policy Research >> a disproportionately high number of cases filed in the Supreme Court originated in High Courts closer to Delhi
    • States like West Bengal, Bihar and Andhra Pradesh, which collectively account for around a fifth of India’s total population, contribute to less than 10% of the court’s docket
    • 18% of all cases in the Supreme Court originate from Punjab and Haryana, with less than 5% of the total population share.
    • This also gives few lawyers in and around Delhi >> undue advantage >> translates into steep and often prohibitive monetary costs for litigants
  • Higher costs:
    • Citizens have to bear huge costs in the form of advocate fees etc. to conduct case in Indian courts
• Administrative inefficiencies:
  • Lack of digitisation
    • Implementation of E-Courts Mission Mode Project is in snail speed.
  • Higher number of holidays
    • Court works only for less than 200 days
  • Lack of financial autonomy:
    • Planning and budgetary exercises undertaken without consulting judiciary
  • Transparency
    • RTI are largely not entertained in court proceedings and appointment of judges
• Limited power in delivering Justice
  • Judiciary's capacity to deliver socio-economic rights is limited.
• Limited expertise
  • Lack the expertise and resources to decide social rights issues.
• Threat to judicial federalism:
  • For ex: SC unilaterally taken up all cases pending in HC related to pandemic >> under Article 139A of the Constitution.
• Under trials:
  • 70% of the 4 lakh prisoners in India are under-trials and are mostly poor citizens.
• Corruption:
  • Like the other pillars of democracy, the executive and the legislative, the judiciary too has been found to engage in corruption.
  • Ex: In 2011, Soumitra Sen, a former judge at the Calcutta High Court became the first judge in the India to be impeached by the Rajya Sabha alleged for misappropriation of funds.
• Lack of research:
  • There is a conspicuous lack of experimental work in the field of legal research in India
• Poor budgeting:
  • According to recently released India Justice Report >> India's justice system has been affected by poor budgeting.
  • The average national spending on the judiciary during the period 2012-2020 was 0.08% of the gross domestic product (GDP).
  • Inadequate allocations, poor planning and underutilisation of funds - all these have impacted the ability of the justice system to address its capacity constraints and improve its functioning.

SUGGESTIONS:

• A separate 'Court of appeal’:
  • A National Court of Appeal will help clear the backlog of cases and maintain the Supreme Court’s position as the apex court of the land.
  • This court can be entrusted with appeal cases, hence the Supreme Court could focus on matters that are of constitutional importance or set new legal precedent – like England, Wales and the US.
  • In 2016 >> the Supreme Court itself issued a notice to the central government to establish a national court of appeal with benches in Kolkata, Chennai and Mumbai.
• Ensure wider representation through affirmative action:
  • Reservation for women in judiciary:
    • Bring legislation to ensure 50% reservation for women in all levels of judiciary.
    • This should be in line with recent remark by Chief Justice of India ‘that he would prefer at least 50% representation of women in the judiciary at all levels’.
  • Reservation to other weaker sections such as SCs/STs/minorities etc.
• Recommendation made by 245^th Law Commission report:
  • Creation of All-India Judicial Service
  • Periodic need assessment of High court
  • Special Courts for traffic/police challan case as it constitutes 37% of cases in sub-ordinate courts
  • Increasing age of retirement of Subordinate Judges
  • Encouragement of alternative dispute redressal mechanisms
  • Uniform methodology to collect judicial data and integrating of judicial procedure of all courts through ICT platform
  • For calculating adequate judge strength >> we need to follow ‘rate of disposal method’ instead of existing ‘judge to population ratio’.
  • Audio-visual recording of proceedings in all courts.
• Measures need to check executive influence on judges through post-retirement jobs:
  • Completely barring post retirement appointments:
    • Law can be brought forth, either by way of a constitutional amendment or a parliamentary enactment, barring such appointments.
    • Also, the age of retirement for judges can be increased by a year or two. Judges can be compensated by being given their last drawn salary as pension.
  • Provide for mandatory cooling off period:
    • A mandatory cooling off period of over 5 years can ensure that the government will not be able to influence judgements through plush post-retirement postings.
  • Adopt British model:
    • In Britain, every judge of the Supreme Court has the right to sit in the House of Lords for the rest of their life.
    • If nomination is made automatic upon retirement and the tenure 10 years, there is no scope for doubting the independence of such members in the Rajya Sabha.
• Check concentration of power:
  • Power of Master of the Roster needs to be diversified beyond the CJI’s exclusive discretion.
• Removing geographical barriers:
  • Set up circuit benches of the Supreme Court:
    • Multiple Law Commission and Parliamentary Committee have recommended Circuit Benches of the Supreme Court to be set up around the country.
  • Supreme Court bench in south India
    • As Bar Councils of the five southern States recommended >> a Supreme Court bench in south India
• Increasing capacity:
  • Increasing strength of judges in all courts
  • Filling vacancy:
    • Reduce the pendency of cases by ?lling sanctioned judicial positions
  • Need to establish a National Judicial Infrastructure Corporation
    • To drastically improve judicial infrastructure across the country.
    • Corporation could bring the much-needed “uniformity and standardisation” which could “revolutionise” judicial infrastructure.
  • On appointment of ad hoc judges in High Courts:
    • Judiciary should ensure that only retired judges with experience and expertise are offered the temporary positions, and there is no hint of favouritism.
• Need for Judicial federalism:
  • Need for a uniform judicial order across India is warranted only when it is unavoidable
  • Otherwise, autonomy, not uniformity, is the rule. Decentralisation, not centrism, should be the principle.
• Adopting recommendations of eCommittee of the Supreme Court:
  • Use computer algorithms on listing cases:
    • Computer algorithms should decide on case listing, case allocation and adjournments with only a 5% override given to judges
  • Courts should focus on e-?ling:
    • The e-Committee made detailed SOPs on how petitions and a?davits can be ?led and payment of fees can be done electronically without lawyers or litigants having to travel to the courts or use paper.
• Hybrid virtual mode:
  • All the courts in the country must switch to a hybrid virtual mode immediately
  • This will make access to justice easier for litigants, reduce costs, and also give a fair opportunity to young lawyers from small towns
• Improve legal framework:
  • Government must remove archaic and dysfunctional laws and reduce vagueness.
  • As Malimath Committee noted >> amendments to the Code of Criminal Procedure, the Indian Penal Code or the Indian Evidence Act are necessary to bring them in tune with the demands of time and the aspirations of the people
  • The committee recommended for classification of offenses in to four codes:
    • (1) The Social Welfare Offence Code
    • (2) The Correctional Offence Code
    • (3) The Criminal Offences Code
    • (4) The Economic and other Offences Code.
• Institutional reforms in criminal justice system
  • Ensure interoperability in Criminal Justice System
  • Police reforms for its effective functioning
• Transparency:
  • Dissemination of Information:
    • Provides transparent, real-time access to criminal justice information to all stakeholders, including accused persons.
  • Permanent mechanism to deal with sexual harassment complaints against Judges
  • Bring Supreme Court under RTI
  • Transparency in functioning of Collegium system
• Legal awareness:
  • Focus on increasing legal education of people to ensure better access to justice.

BEST PRACTICE:

• Judicial federalism in United States:
  • American system of judicial federalism has largely succeeded in promoting national uniformity and subnational diversity in the administration of justice
  • U.S. Supreme Court reviews “only a relative handful of cases from state courts”>> which ensures autonomy of State courts.
• Women representation in judiciary
  • Spanish model – ‘Plan of equality in the Judicial career’:
    • The Spanish general council of the judicial power approved the Plan of equality in the Judicial career in 2013, which aims to eliminate any form of gender discrimination in accessing and advancing within the judicial career, ensure professional development of women etc.

PRACTICE QUESTION:

Q. Examine the causes of high pendency rate in Indian courts. Also analyse its impact on Indian democratic system?