Incompetence, not vacancies

AT THE ROOT OF PENDENCY : Adjournment is the biggest bane of the Indian legal system. Lawyers seek repeated adjournments, and they are granted.

The joint conference of chief ministers and chief justices of states held on February 24 would have passed off like a ritual but for the emotional outburst of Chief Justice of India T S Thakur, regarding the large number of vacancies in the judiciary which, according to him, was responsible for the huge pendency.

Concerns are being raised about the excruciatingly slow pace of justice at different fora and in public discussions for a long time, but there does not seem to be any serious effort on the part of either judiciary or the government to solve the problem. The problem of vacancies is not as old as the problem of pendency, and so the CJI’s outburst needs to be taken with a pinch of salt.

It is inscrutable why the CJI should break down before the prime minister and appeal to him to fill up vacancies in the interest of not only the common man, but also to attract investment from abroad and shore up the country’s economy, when the apex court is itself empowered to give directions to the government. Articles 141, 142 and 144 of the Constitution make the Supreme Court the most powerful institution of the country.

Under Article 141, any decision given by it is the law of the land and binding on all; Article 142 bequeaths it the unbounded power to give any order or judgment to do ‘complete justice’ in any matter or cause pending before it; and under Article 144, all authorities, civil and judicial, are to work in the aid of the Supreme Court.

The malaise is deep and the diagnosis is simplistic. Referring to the low judge-population ratio ad nauseam means taking the wind out of sail. India is notorious for protracted litigation. A court case has a lifespan longer than that of a human being. Civil cases continue for several generations.

The country holds the record for the longest contested lawsuit according to Guinness Book Of World Records. In Pune, on 28 April 1966, Balasaheb Patloji Thorat received a favourable judgment on a suit filed by his ancestor, Maloji Thorat, 761 years earlier in
1205 CE.

In 1976, the Supreme Court itself expressed dismay at the inordinate delay in L Babu Ram v Raghunathji Maharaj: “At long last, the unfortunate and the heroic saga of this litigation is coming to an end. It has witnessed a silver jubilee...The Indian people are very patient, but despite their infinite patience, they cannot afford to wait for twenty-five years to get justice. There is a limit of tolerance beyond which it would be disastrous to push our people.” The problem has only worsened. It is not only civil cases that drag on for decades; even criminal cases do so.

On the issue of judge-population ratio, it will be pertinent to recall what former US President Nixon said on March 11, 1971, expressing his concern on the administration of the criminal justice system: “But if we limit ourselves for more judges, more police, more lawyers operating in the same system, we will produce more backlog, more delays, more litigation, more jails and more criminals...More of the same is not the answer, what is needed now is genuine reform – the kind of change that requires imagination and daring and demands a focus on ultimate goals.”

Justice V R Krishna Iyer echoes a similar sentiment: “The truth is: more courts, more arrears, more lazy judges, more examples of Parkinson’s Law and Peter Principle. The real cause of the escalating arrears is the absence of accountability and transparency... For more disposals and inexpensive justice, the purposeful therapy is not the arithmetical illusion of judicial numbers but intelligent selection of robed brethren, of result-oriented technology, and summary procedure.”

Unfortunately, Justice Thakur was also creating an arithmetical illusion by asking a hackneyed question: if 5 labourers make a road in 10 days, how many are required to make it in one day? And he gave the answer: 50. The working of a judge cannot be compared with that of a labourer.

Busting the myth

A myth has been created that judges are overworked and that the judicial system is crumbling under the load of work. One can compare the disposal of a competent court with that of a not-so-competent court and everyone can see the difference.

A visit to subordinate and superior courts is sufficient to explode this myth. Judges seldom come to the court before noon and get up by 1 pm or latest 1.30 pm for lunch. In the second half, they sit for the same duration. Consumer courts hardly sit after the noon.

Incompetence and lack of commitment are the main causes of delay. This incompetence is reflected in the new trend of keeping judgements reserved for a long time.

The SC expressed annoyance over it in Anil Rai v State of Bihar: “Delay in disposal of an appeal on account of inadequate number of judges, insufficiency of infrastructure, strike of lawyers and circumstances attributable to the State is understandable but once the entire process of participation of the justice delivery system is over and the only thing to be done is the pronouncement of judgement, no excuse can be found to further delay for adjudication of the rights of the parties.”

Adjournment is the biggest bane of the Indian legal system. Lawyers seek repeated adjournments. What is more amazing is that the adjournments are granted. This is because several judges do not come to the court prepared. One of the parties is invariably interested in prolonging the trial and lawyers adopt dilatory and other reprehensible tactics. It creates uncertainty as nobody knows when the case will be heard and decided.