Empty benches, delayed justice

No fresh selections of judges are possible as the collegium system has been disbanded and the proposed NJAC is nowhere near reality.

All is not well with our judiciary. It is passing through a critical phase. One major problem it faces is the colossal pile of pending cases.  The number of such cases is a staggering 3.03 crore in various courts. The danger is that the whole judicial system might collapse under the heavy weight of huge backlog and jeopardise the whole state of an orderly society. Pending cases are simply piling up without any sign of getting resolved soon.

Overburdened law courts no longer inspire public confidence. Litigants get only date after date for next hearing.  Judgments, not justice, come after endless wait which hardly gives any sense of satisfaction or relief to stakeholders.  The oft-spoken maxim, “justice delayed is justice denied,” too is no more relevant to highlight the problem of chronic delay in disposal of cases.

However, the most worrisome cause at the moment is that there is no selection process in place for appointing judges to the Supreme Court (SC) and high courts (HCs). Over two-decade old collegium system, evolved by a nine-judge bench of the SC in 1993, has ceased to exist after the National Judicial Appointments Commission (NJAC) came into force. Its validity is under challenge now before a five judge bench of the SC, comprising Justices J S Kehar, J Chelameshwar, Madan B Lokur, Kurien Joseph and AK Goel, on several grounds and is reserved for orders.

While there is no stay as such on the NJAC’s notification, the government has kept its operation in abeyance following the refusal of the Chief Justice H L Dattu to be part of a three-member panel to pick up two eminent persons for the NJAC till the bench has decided the case. The panel’s other two members are the prime minister and the leader of the largest opposition party in parliament.

This is not all. The Centre has made its position clear to the Supreme Court that the collegium system of appointing judges cannot be revived even if the SC quashes the NJAC Act. In that event, parliament will enact fresh legislation, although such a course could set a stage for constitutional stalemate, warned the constitutional bench while hearing the matter.

We would rather have a constitutional vacuum than return to the earlier system, which gives the judiciary not only primacy but absolute exclusivity in judicial appointments, pointed out the Solicitor General Ranjit Kumar while arguing the case. He also cited several judgments to back his claim that the court can’t revive a system that has been rendered defunct with the coming into force of a new mechanism for selection of judges.

How should judges for the higher judiciary be selected when there is no selection process in existence? Already, we are having acute shortage of judges at all levels in our courts.   In proportion to its population, India has the lowest number of judges among the major democracies of the world – 13.10 judges per million people as against Australia 58, Canada 75, UK 100, USA 130, China 170 and Germany 250.

As per the Law Commission recommendation, India should have 75,000 judges considering its population growth and rising litigation rate.  Instead, it has only 19,726 sanctioned strength of judges against which only 15,438 are working. No fresh selections or transfers of judges in higher judiciary are possible since the collegium system has been disbanded and the proposed NJAC is nowhere near reality.

Only additional high court judges, whose tenure of two years was coming to an end, were allowed by the SC a three month extension as an interim measure. In the fitness of things, the government should have waited for the constitutional validity of the NJAC Act to be established by the apex court and allowed the collegium system to continue making judicial appointments as before till such time to avoid any vacancy syndrome.

Massive vacancies

As a result of the existent deadlock, law courts are not working with their full sanctioned strength. For instance, the SC has only 28 judges now including the CJI against the sanctioned strength of 31. The vacancy level in country’s 24 high courts, if put together, is about 37 per cent with 366 posts of judges, against the sanctioned strength of 1,017, lying vacant. There are about 4,000 vacancies in subordinate courts, though the sanctioned strength has gone up to 19,000.

While the stalemate over the creation of the NJAC drags on, as many as five major HCs (Punjab and Haryana, Gujarat, Gauhati, Hyderabad and Karnataka) are without regular chief justices. These are being administered only by acting incumbents. The HCs with the most number of vacancies are Allahabad (81/160), Punjab and Haryana (30/85), Bombay (29/94), Karnataka (29/62) and Gujarat (23/52).  Among district and subordinate courts, Assam, Gujarat, Delhi, Punjab and Uttrakhand have 30 per cent of vacant slots. The manpower crisis is likely to aggravate with the resignations and retirement of senior judges.

It goes without saying that acute manpower shortage in law courts at all levels ails our entire judicial system. It is the main factor behind the unconscionable delay and resultant backlog. Needless to say, nearly 61,081 cases are pending in the SC. While the situation is no better in the HCs where more than 44 lakh cases are awaiting disposal, the total number of such cases in the subordinate judiciary stands at 2.26 crore.

However, these figures do not include the cases pending in various tribunals and other quasi-judicial bodies which, if added to the grand total, would be far beyond the alarming figure of 3.03 crores. Hence, all hopes of getting justice on time are belied by the fact that cases being filed in courts now will not come till 2020 for even hearing, leave alone their disposal.

(The writer is advocate, Supreme Court and Delhi High Court)