Why did the Chief Justice of India have a “breakdown” about the impossible burden facing the judiciary? Is the judiciary doing nothing about the massive backlog of pending cases at the courts? Are the courts really that slow in India? What is the problem, anyway? Will appointing new judges fix the problem? There are no simple, straightforward answers (or questions) when it comes to judicial pendency in India, but here is a video in which we have tried to make the issue much clearer.
Courts in India are faced with a huge backlog of cases, leaving parties embroiled in legal battles for years, often decades, at a stretch. Many factors contribute to this problem, including procedural inefficiencies, new laws passed without any litigation impact assessment, and poor court and case management systems.
One reason however, comes to mind before any of these other reasons – the apparent inadequacy of the present judicial workforce to handle the large numbers of pending cases. While we can use the available data on the backlog of cases to estimate the number of cases that each judge would have to handle if this backlog were to be cleared in the current year, (see the first figure below) it is crucial to highlight the limitations of the available data.
We don’t really know the magnitude of the problem
Without a uniform system for indexing and categorising cases, different states have devised their own methods for recording data. As the Law Commission of India observed in July this year, some states count each interlocutory application as a separate case while others do not. Similarly, while some states exclude data on traffic and motor challan cases, most others do not. There is therefore, doubt about the accuracy of pendency figures.
An incredible number of cases pending before each judge
Working within these limitations, we can see that the number of cases pending for each judge is staggeringly high. High court judges, whose potential workload is over three times that of their counterparts in the Supreme Court and at the subordinate courts, seem to be in the worst position.
Many posts lie vacant
These numbers are based on the number of judges who are actually working, and not the sanctioned strength, which is the number of judges that are, on paper, expected to be in office. These two figures often tend to vary significantly. For example, at the end of 2013, 29 per cent of the posts in the High Courts and 22 per cent of the posts in subordinate courts were lying vacant.
On the bright side, the numbers show a steady increase in the sanctioned strength of judges over the years, particularly in subordinate courts, where it has gone up by over 30 per cent in the last eight years.
Who is responsible for filling these vacancies?
Recent debate surrounding the National Judicial Appointments Commission (“NJAC”) has focused extensively on appointments to the higher judiciary, that is, the Supreme Court and the High Courts. At present, because of the Supreme Court’s interpretation of Articles 124 and 217 of the Constitution, it is the judiciary that plays a decisive role in such appointments.
The proposed constitutional amendment and NJAC law will change this, creating NJAC as a permanent body to recommend appointments to the President. There will also be a timeline within which the central government has to inform the NJAC of imminent vacancies, though there is no such timeline timeline for the NJAC to complete its selection and make recommendations to the President.
The Governor appoints judges and judicial officers for subordinate courts in consultation with the High Court. The State Public Service Commission also has to be consulted for judicial officers below the rank of district judges. Rules made by different states provide for the actual recruitment process – whether through promotion or competitive examination.
In 2006, the Supreme Court in Malik Mazhar Sultan identified unfilled vacancies as a key reason for the pendency problem and directed states and High Courts to evolve a fixed schedule to fill vacancies in subordinate courts. After that, the Supreme Court itself devised a detailed time schedule for the states. The High Courts were asked to oversee this process, which included timelines for the determination of vacancies, issuing advertisements, conducting examinations and interviews, declaring results, and issuing final appointment orders. Seven years on, the Supreme Court is still struggling to ensure compliance with those directions.
How many judges do we need?
In 1987, the Law Commission recommended that there should be at least 50 judges for every million Indians. For today’s population of 1200 million therefore, India would need about 60,000 judges, that is, triple the current number of sanctioned judges.
In July this year, the Law Commission changed its opinion about the judge-population ratio, observing that it was not based on any objective criteria and that it did not capture state-specific needs. Instead, it proposed calculating the additional number of judges required to deal with the backlog of cases by using the current rate at which judges dispose of cases. By any reasonable metric however, the current sanctioned strength is far less than what is required.
Any real solution to these problems requires effective cooperation between the judiciary and the central and state governments. The judiciary should urgently take the initiative in filling vacancies and the government should create additional courts and extend infrastructure support to them.
(Sumathi Chandrashekaran and Smriti Parsheera are lawyers working in the area of public policy.)
(Images by Rachit Gupta.)
2014 promises to be a year of transformation for the Supreme Court of India. Far-reaching changes are expected on fundamental issues such as the appointment of judges and the reform of the procedure of the Court. The Gender Sensitisation and Internal Complaints Committee (“GSICC”) is also functional. How effective will it be in tackling sexual harassment at the highest court? Ten sitting judges will retire during the year. What impact will this have on lawyers and litigants?
These themes are expected to dominate discussion about the Supreme Court in 2014.
Appointment of judges
Political parties appear to be unanimous in their dissatisfaction with the current ‘collegium’ system, in which judges are appointed by senior judges of the Supreme Court. The proposed Judicial Appointments Commission (“JAC”) will take views from outside the judiciary into account. The outcome of the upcoming general elections is unlikely to affect the broad political support for the proposal.
In a welcome move, the Parliamentary Standing Committee recommended the inclusion the JAC’s composition in the Constitution through an amendment, instead of it being part of a legislation. This reduces the possibility of a parliamentary majority exercising excessive control over the composition of the judiciary. This recommendation has been accepted by the government.
Of course, the standards applied for the selection of judges will be critical in assessing whether the JAC performs better than the collegium. Currently, the only standard stipulated is the ambiguous requirement that the person recommended should be “of ability, integrity and standing in the legal profession”.
The E-committee of the Supreme Court, headed by Justice Madan Lokur, has initiated a number of steps to rationalise the process of filing and documentation at the Supreme Court. Highlights disclosed at a seminar at the Indian Law Institute late in 2013 include the electronic archiving of documents related to past and current litigation, a court-linked email address for each Advocate-on-Record for official communication with the Registry, and electronic filing of pleadings (‘curing defects’ may be done electronically – goodbye, white correction fluid!). Watch this space for updates on when these changes are formally notified.
Gender Sensitisation and Internal Complaints Committee
The GSICC was created last year, and has since been chaired by Justice Ranjana Prakash Desai. Part of its mandate is to address complaints of sexual harassment within the “Supreme Court of India precincts”. An internal sub-committee of three members has also been set up, comprising Ms. Indu Malhotra (Senior Advocate), Mr. L. Nageshwar Rao (Senior Advocate), and Ms. Bharti Ali (Co-director, HAQ: Centre for Child Rights).
According to the Annual Report of the GSICC, proceedings are underway in two complaints. Plans are also being made for sensitisation and publicity exercises. The next few months will provide a clearer indication of the GSICC’s efficacy, and whether the parent regulations need strengthening.
Retiring judges and new appointments
Ten (out of a maximum capacity of thirty-one) sitting judges are due to retire in 2014, and the office the Chief Justice of India will change hands twice during the year. The date of retirement acts as a kind of deadline for judges — they must deliver any pending judgments by that date. In view of the impending multiple retirements, it is possible that there will be a greater than usual output of judicial opinions in decided cases over the course of the year. New appointments will also be followed with interest, especially if the JAC starts functioning during the year.
And a tip of the hat
Delivering judgments is the most important function of the Supreme Court. No discussion today would be complete without a tip of the hat for the January 21, 2014 judgment in Shatrughan Chauhan and Another v. Union of India and Others, where unreasonable delay in the execution of a death sentence has been held to be in violation of Article 21, and a ground for commutation of the sentence. Apart from the direct impact the judgment has had on the cases of the fifteen writ petitioners before it and on death penalty jurisprudence in particular, the general observation of the Supreme Court that “retribution has no Constitutional value” in India deserves to be applauded wholeheartedly. “Punishment is not payback” should be a value that resonates throughout the criminal justice system.
P.S. Last week, review petitions were dismissed without an oral hearing against the December 11, 2013 judgement in Suresh Kumar Koushal and Another v. NAZ Foundation and Others (analysed previously on this blog here, here, and here). Will Parliament set this right?
(Aditya Verma practices as an Advocate at the Supreme Court of India. He is an alumnus of NLSIU, Bangalore, and is on the roll of solicitors in England and Wales.)
The Judicial Appointments Commission (“JAC”) that has been proposed for the appointment of judges to the Supreme Court and the High Courts (“judges”) including the Chief Justice of India does not guarantee better outcomes. The proposal contemplates a more transparent and broad-based process compared to the current “judicial collegium system”. However, it does not make merit the dominant criterion for appointment and so risks making the process subject to elaborate political bargaining.
Role of Parliament: After the 120th Constitution Amendment Bill (“the Amendment”) is enacted and brought in force, the President will appoint judges on the recommendation of the JAC. According to the Amendment, the Parliament can make law to provide for the composition, functions, and procedure of the JAC, as well as the manner of selection of persons for their appointment as judges. As a consequence, Parliament will also enact and bring in force the Judicial Appointments Commission Bill, 2013 (“the JAC Bill”).
Generally speaking, an amendment to the provisions of the Constitution relating to the appointment of judges requires a two-thirds majority in Parliament, as well as ratification by at least one-half of the legislatures of the States. An ordinary law requires only an ordinary majority in Parliament.
Therefore, after the Amendment and after the JAC Bill becomes the JAC Act, Parliament will only require an ordinary majority to repeal or amend the new law. Theoretically, if a single party were to achieve an absolute majority in Parliament, it could amend the composition of the JAC to suit its own ends, even to the extent of excluding the judiciary from the process completely.
Composition of the JAC: According to the JAC Bill, the JAC will be composed of six persons:
– The Chief Justice of India (the CJI) as Chairperson;
– Two other judges of the Supreme Court next to the CJI in seniority;
– The Union Minister in charge of Law and Justice; and
– Two eminent persons (to be appointed by the “collegium” consisting of the Prime Minister, the Chief Justice of India, and the Leader of the Opposition in the Lok Sabha).
Views of members of the Bar are not explicitly a part of the appointment process, though the two “eminent persons” on the JAC may well turn out to be legal professionals. For the appointment of judges to the High Courts, the views of the respective Governor, Chief Minister, and Chief Justice of that High Court will also be elicited.
Regulations of the JAC: Crucially, Parliament will delegate to the JAC the power to make regulations specifying its own procedure for inviting recommendations, short-listing candidates, and discharging its functions. These regulations must be laid before Parliament, which will have the power to modify or annul them.
While the Amendment and the JAC Bill reveal who will be responsible for appointing judges and that there will be a procedure specified for appointment, they do not tell us what the procedure will be. That will be specified in the regulations.
Who can be a judge?
According to the JAC Bill, the JAC will have a duty to ensure that the person recommended by it is of “ability, integrity and standing in the legal profession”. This is in addition to the constitutional requirements of prior judicial or advocacy experience that currently apply (ignoring the “distinguished jurists” provision for the moment).
In a pure merit-based system, relevant factors would only be those that have regard to a person’s suitability for judgeship. Judges’ appointments would not be means to any other ends. While it is significant that the JAC Bill provides a merit-based statutory standard for the appointment of judges, an equally relevant question arises about those who may not be appointed despite fulfilling that standard. Unless the regulations of the JAC go on to specify that “ability, integrity and standing in the legal profession” (or a more sophisticated merit-based standard consistent with it) will be the only or dominant criterion, it appears that it would be open to the JAC to consider other factors in appointing judges, provided that the statutory standard is satisfied. (Compare this with a relatively open merit-based selection process for an appointment to the Supreme Court of the United Kingdom).
The challenge faced the JAC: The history of appointment of judges in India is marked by a tussle for control between the executive and the judiciary. Many perceive the JAC to be another salvo in this exchange. This perception can be changed if the JAC will emphasise and give primacy to merit-based factors in its regulations and functioning. Whether it is the collegium system or the JAC, the standards on the basis of which judges are appointed should be more important than the persons who appoint them, bearing in mind that those who appoint must have the necessary information and tools to make that qualitative assessment.
As with the collegium, the success of the JAC, assessed from the perspective of judicial independence and impartiality, will depend on how it will frame its own regulations for inviting recommendations and short-listing candidates, and which factors it will consider while discharging its functions. Without stating standards for selection, there is no inherent reason why influence over appointments of judges by one institution would be preferable over the other.
Read more about the constitutional ping pong that is the history of the debate on judicial appointments in India here.
(Aditya Verma practices as an Advocate at the Supreme Court of India. He is an alumnus of NLSIU, Bangalore, and is admitted as a solicitor in England and Wales.)
The debate about who should appoint judges to the higher judiciary is back on the table. The independence of the judiciary is a key question in our democracy and I think it was the Union Minister of Law and Justice, Kapil Sibal, who put it back there. The Hindu quotes him arguing for a voice for the executive in the appointment of judges.
This elicited some response from the Bar. Anil Divan, the President of the Bar Association of India, criticised the secrecy surrounding the Judicial Appointments Commission Bill and argued that Mr. Sibal’s proposal sought to recapture the executive’s primacy in judicial appointments.
The Bar Council of India also wanted in.
“… the BCI as well as state bar councils are also feeling that in the matter of appointments of High Court and SC judges, the bars should also have a say and the concerned bar should also be taken into confidence before the recommendations of names for the appointments.”
So it is not the best piece of drafting, but it is quite clear that the Bar Council of India was angling for representation on the proposed National Judicial Commission.
National Judicial Commission?
We’ll get there soon.
Okay, what’s the “collegium system”?
All appointments to the higher judiciary are made by the President of India. The President and the Union executive that the President’s office represents however, have almost no say in these appointments. The choice is made by a collegium of the most senior judges headed by the Chief Justice of India. If the appointment has to be made to a particular High Court, then senior judges of that High Court are also represented in the collegium.
Once this collegium recommends a name to the President of India, the appointment has to be made. The only influence that the executive of the Union or any of the states can bring to bear on the appointments process is by forwarding material relevant to the choice of a potential judge to the collegium. The collegium however, need not pay heed to the executive.
Woah! That sounds an awful lot like judges appointing judges. How did that happen?
During the last two decades of the previous century, the Indian judiciary appropriated for itself the right to appoint judges to the higher judiciary.
See the following extract from Article 124 of the Constitution of India.
“Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years:
Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted:”
On a plain reading of this provision, the power to appoint judges to the Supreme Court of India is clearly vested in the President of India. After the third judgment in 1998 however, this provision and Article 217, which deals with the appointment of judges to the High Courts, had been interpreted by the Supreme Court of India to mean the collegium system.
Read the three judges cases on Indiankanoon:
While it was the culmination of the judiciary’s assertion of independence after some of the excesses of Indira Gandhi’s regime, the use of the collegium system to appoint judges has coincided with a period of increased focus on corruption and the lack of transparency in the judiciary. Mr. Diwan’s column provides more historical context to the current debate.
Leaving aside questions about exceeding the judicial brief, what is the alternative to the “collegium system”?
The National Commission for Review of the Working of the Constitution (“NCRWC“), which submitted its report in 2002, had recommended the establishment of a National Judicial Commission to make appointments to the higher judiciary.
You can watch Mumbai-based Senior Advocate Iqbal Chagla endorse the National Judicial Commission proposal in this video. His argument is that the collegium system places too much faith in the individuals at the top of the judiciary. Justice Krishna Iyer calls the system “outrageous” here because of the scope it allows for favouritsm and its lack of emphasis on a thorough investigation into the antecedents and social philosophy of a judge. The former Chief Justice of India, P.N. Bhagwati, says here, that he is opposed to the collegium system because it often leads to bargaining.
According to the NCRWC, the National Judicial Commission would have the Chief Justice of India as its Chairman and two of the senior most judges of the Supreme Court, the Union Minister for Law and Justice, and an eminent person appointed by the President after consulting with the Chief Justice of India, as its Members.
Are there other opinions about the constitution of the National Judicial Commission?
In the video linked above, Mr. Chagla acknowledged the “vexed” nature of the question about what the constitution of the National Judicial Commission should be, but suggested that it should comprise the Chief Justice of India, the Chief Justice of any other court, eminent lawyers, the Leader of the House, and the Leader of the Opposition. The latest missives from Mr. Sibal and the Bar Council of India argue for representation from the Union executive and the relevant Bar in the National Judicial Commission.
There is another opinion though, and Mr. Chagla refers to it later in the video — that the question of who will be part of the National Judicial Commission is not as important as accepting the principle of it. I think Sriram Panchu expressed it best.
“But the important thing is not the composition of the Commission. As important as it is, it is also the processes being followed. Today, I put my faith more in processes than in people.”
(Aju John is part of the faculty on myLaw.net.)