By Sushil Kumar Jain
Hills are beautiful from a distance is an ancient adage which can also aptly describe the peaks and mounts of the Indian Judiciary. From a distance, the Judiciary looks stunning as the guardian and protector of rights, laws and constitutional principles.
A relative analysis with the legislature and executive provides the pedestal of saviour of democracy and justice to the judicial organ. A superficial gaze at the higher judiciary earns for it the credit of striking down arbitrary action, upholder of justice and purveyor of transparent and clean governance. But take a closer look and you will find that the Judiciary is almost dysfunctional. Apart from erratic showers of activism, equally unpredictable like the South-West monsoons, the system of judicial administration has derailed. The Judiciary would demand and enforce citizens’ charters from executive, fix timelines for redress of grievances for all authorities but never even attempts to open a discussion on these issues for itself.
There is no denial of the fact that the Judiciary has brought qualitative changes in society and public administration through progressive judgements. It is equally undeniable that the Legislature and Executive wings have also done exemplary work to take forward the constitutional mandate. Though these organs are subjected to criticism from all quarters, the Judiciary is largely looked at with admiration and reverence. Its independence and power to invoke contempt proceedings has provided unquestionable shelter and veil of secrecy.
The quantitative performance balance sheet of the Indian Judiciary is dismal. A backlog of 55,000 cases in the Supreme Court, 4.1 million in High courts and 26.8 million in lower courts which includes 19 million criminal matters is a legalised crime and injustice perpetrated by these mountains of justice. This is coupled with almost the same amount of disputes pending with quasi-judicial authorities of all shades. For the common man, the judiciary is as irresponsive and unaccountable as the executive. The statistics speaks clearly and squarely. Four states, i.e. Uttar Pradesh, Maharashtra, West Bengal, and Gujarat account for 54 per cent of the arrears at the level of subordinate judiciary.
For any party who is on the wrong side of the law, taking recourse to Courts is the safe, soft and easy option. These groups know that their interests will be well-guarded by the Judiciary since no outcome would be forthcoming for over a decade. For the parties on the side of the law, it is frustration, agony, costs and denial of justice. In fact, knocking the doors of the Courts is remunerative for the forces on the wrong side of the law. The system, the judges and the legal profession insures this.
Let us attempt a cost-benefit analysis of litigation. The direct monetary cost is the fee of the lawyers. There are no standards in fee-fixation. They are totally unregulated. They are unaffordable except to corporates and the affluent. At the higher judiciary level, the fees are almost on par with what is charged for angiography and angioplasty. The other direct cost which is otherwise measurable is the cost of delayed decisions and final disposal of cases. The costs could be measured by imputing value to opportunities lost due to the criminal and lawless delay. The non-monetary cost of litigation is the losing faith and confidence of the people in the judiciary due to delay. This factor accounts for the growth of extra-legal machinery in settling disputes and grievances. Informal channels and authorities of dispute settlement are considered as practical and viable modes despite high fees. Such fees are nothing but commissions, but such modes are accepted because the costs are acceptable being lower than the cost of delay in the formal system. As the backlog of litigation rises up to the proportions as in India, sane citizens will deliberately move away from the constitutional mechanism to private modes. There is a leaf to learn for the formal system from extra-legal authorities involved in redress of disputes.
The benefits to the litigant are in terms of settlement of grievances and establishment of rights. There is also a negative benefit which encourages avoidable and frivolous litigation. This benefit is due to the certainty of delay in final disposal of matters. The litigant benefits because the returns due to delayed disposal are more than the monetary cost of litigation.
If corruption in the Indian bureaucracy and political executive is misty and cloudy, it is totally opaque in the higher judiciary and visible in the lower judiciary. The charges of corruption, nepotism and acquisition of assets disproportionate to known sources of income are equally popular at all levels and in both the constitutional organs. The insistence on judicial qualification and experience as purely essential, not only for the panels of Lok Pal at Centre and Lok Ayuktas in states but also for all public inquiries, commissions, recruitment boards, state level quasi-judicial bodies, etc will result in a famine of officers of honesty and integrity.
The easiest answer provided to tackle the problem of arrears with a view to restore the public confidence in the Judiciary is filling up of vacancies. The challenge is of getting the exploding numbers of judicial officers for expansion at the lower judiciary level. The real scarcity is of qualified, interested and worthy candidates to take up the seats on the Bench. First of all, it may take us a decade to fill all the vacancies to handle the backlog. Secondly, there is no guarantee that the monster of arrears would be handled even if the recruitments are completed. The answer to the backlog may lie in alternative models of dispute handling and criminal jurisprudence at the lower judiciary level. Solutions should be found out by the higher judiciary in every state for the subordinate wing and by the SC for all the high courts and for itself. An analysis of the working of the lower judiciary wherein adjournments is the rule, announcing fresh dates is the right of the Bench and the Bar, mismanagement of time on trivial issues is judicial application and arriving at a finding or decision is an exercise caught up in intellectual verbosity (more in the higher judiciary), may unravel lessons to prune backlog even in the existing framework.
Whether for handling of the backlog of cases or for transparency and accountability, the lead needs to be taken by the Judiciary itself. Even a gentle and mild offensive by the executive could be construed as an implied attack on judicial independence. In the interests of keeping the confidence and faith of the people in the judiciary, the present and former officers of the higher judiciary including the public spirited members on the Bar should initiate and push reforms. INAV