India's courts: the long wait for justice

The situation in the Madras High Court highlights the truth that the Indian judiciary is distressingly understaffed and underfunded — therefore hard pressed to deliver justice.

N.L. Rajah

MANY COURT halls of the Madras High Court lie desolate and empty — like a large museum waiting for the paintings to arrive. The Court limps along with a little above 50 per cent of its sanctioned strength available to discharge judicial duties. To the aspirants for justice who throng the courts hopefully, the Court can do little but consolingly pat them on their back and say, "Let us collectively pray for deliverance."

The judiciary with constitutional sincerity of purpose has recommended names of persons to be appointed to the High Court and reliable information discloses that the Supreme Court collegium has cleared the names. Why then the delay? Frankly, nobody has any clear answers. The other High Courts in the country are admittedly much better off than the Madras High Court in terms of vacancies being filled, but we would be deluding ourselves by saying that nothing is rotten in the State of Denmark.

There are three main structural inadequacies that have contributed to the sad state of judicial administration in India: (1) a lack of coordination between the multi power centres in appointments to the higher judiciary, (2) a pathetically low population-to-judge ratio, and (3) abysmally low spending on the judiciary.

On the first issue, the current position is as follows. On July 23, 1998, President K.R. Narayanan made a reference to the Supreme Court after the Union of India returned recommendations sent by the former Chief Justice of India (CJI), M.M. Punchhi, with respect to certain appointments of Judges to the Supreme Court for reconsideration. It was at this juncture that the Government resorted to the Presidential reference to the Supreme Court. Importantly, the Union Government agreed to accept and treat as binding the Courts' answers to the nine questions set out in the reference.

The apex court, while answering the reference, held that "consultation with the Chief Justice of India" in Articles 217 (1) and 222(1) of the Constitution required consultation with the collegium of Judges in the Supreme Court. The Bench held that the collegium should consist of the CJI and the four senior-most puisne Judges. With specific reference to appointment of Judges to the High Court (with which we are currently concerned), it held that the Chief Justice of the High Court, in consultation with the two senior-most puisne Judges of the High Court, should recommend persons to be appointed to the High Court. On receipt of such recommendation, the Chief Justice of the Supreme Court would, in turn, consult the two senior-most puisne Judges of the Supreme Court while confirming the recommendation. Further, the CJI would consult and elicit the views of the senior-most Judge in the Supreme Court who has come from the Court to which a prospective candidate belonged.

The Supreme Court Bench sought to ensure transparency in the consultation process by insisting that the opinion of all members of the collegium in respect of each recommendation should be given in writing. The CJI must convey these opinions along with his recommendation to the Government. The answer to the nine questions posed in the Presidential Reference has set the broad framework within which appointment of Judges to the Supreme Court and the High Courts, and also the transfer of Judges should be effected.

While the above scheme appears comprehensively to cover issues relating to appointment of High Court Judges, one aspect that has contributed to delay in finalising appointments is the issue of prompt response by the Government to the names forwarded by the Supreme Court and the High Courts. It is expected that the Government, considering the nature of duty to be discharged, will act with speed and dispatch in such matters. But what happens if this expectation does not materialise? To eliminate unnecessary delays, it may be advisable to consider introducing a deeming provision that provides that if the Government does not respond within a fixed period, it will be deemed it has no objection to the names suggested by the Supreme Court.

Of course, if the Government is in the process of investigating any aspect of the proposed candidate's merits or credibility, then for such reason it may seek extension of time. However, for the system to be effective, it is important that all this should be done within stipulated time frames. In the current system, it is possible for the Government to take unlimited time to `verify' the credentials of the candidates. Such retention of files by the Government seriously undermines judicial independence.

The second issue is the inadequate population-to-judge ratio. Professor Wolfgang Koehling of the University of Bonn has done an interesting study of the Indian legal system and, based on this, published a paper titled "The Economic Consequences of a Weak Judiciary: Insights from India." In this, he tries to establish an empirical relationship between the quality of the Indian judiciary and the economic development of Indian States. On the basis of his studies, he points out that a judiciary that is weakly staffed and inadequately funded, as in India, will inevitably lead to (a) lower per capita income, (b) higher poverty rates, (c) lower private economic activity, (d) poorer public infrastructure, and (e) higher crime rates and more riots.

The 120th Law Commission report recommends a fivefold increase in judicial strength at all levels. It also compares India's population-to-judge ratio with the ratios of other countries to point out it is one of the lowest in the world. While the United States and the United Kingdom have about 100 to 150 judges per million population, India has a mere 10.5 Judges per million population. The report points out that while legislative representation and adequacy of staff in other civil services, in the police and so on are planned on the basis of population, the same norm is not applied while sanctioning judicial strength.

When it comes to appointing Judges, the Government wants to apply the number-of-cases-filed to number-of-Judges ratio. This, unfortunately, is not an equitable norm to apply. When an inadequately supported judiciary is cause for delay in disposal and makes the process of obtaining justice cumbersome, the consequence is that people tend to stomach injustice and there is, in fact, the death of outrage over injustice. To then say that sanctioning judicial posts will depend on the number of cases filed is most unfair. It is therefore imperative that the Law Commission's recommendation to increase the strength of judges in the country to at least 50 per million population should be implemented swiftly.

Now to the issue of expenditure. The country spends so little on the judiciary that it must be one of the few countries in the world where "the income from court fees is more than the expenditure on administration of justice," as the Supreme Court noted witheringly in the Judge's case. The Law Commission, in its 127th report, observes that "the State today spends precious little, or to say the least, practically nothing on the administration of justice."

The First National Judicial Pay Commission, chaired by K.J. Shetty, states in its report of November 11, 1999, that the expenditure on the judiciary in India is just 0.2 per cent of the gross national product. The National Commission to Review the Working of the Constitution laments: "There is no exclusive grant by the Centre for Court expenditure. All that we have is an insignificant centrally sponsored scheme for Courts prepared by the Planning Commission while allotting some monies for the State on population basis." While some steps have been taken in the past few years to increase spending on the judiciary and the Prime Minister has agreed to grant Rs.1,000 crore to improve infrastructure, we are yet to see any significant improvement in the system.

Given the bleak scenario the plaintive cry from the judiciary may well be: "You don't staff me properly, you don't fund me adequately, how do you expect me to deliver justice?"

(The writer is a lawyer practising at the Madras High Court.)

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