In a surprisingly frank article, this former judge says the backlog of cases can be tackled not just by increasing the number of judges but having efficient ones who don’t take too many holidays
By Justice K Chandru
The emotional appeal made by Chief Justice of India TS Thakur regarding the appointment of new judges took everyone by surprise. Recently, he asserted that the present backlog of cases requires a cleaning job by over 70,000 judges. Even earlier, conservative estimates indicated that with the present rate of disposal, without adding anything new, it may take around 125 years to clear the backlog in courts.
Mere geometric expansion will not solve the problem. It may only result in “diminishing marginal returns”. Any prudent entrepreneur will first conduct a manpower study before agreeing to deploy more hands. So far, there has been no worthwhile study either on the rate of disposal of cases by judges in higher courts or on the capability and competency of people appointed to such posts. How will you explain this: Some judges of higher courts are not even disposing a few hundred cases in a decade of tenure? Or that there are judges who never even attend courts due to ill-health for several years? A Delhi magazine, attempting to list the Top 10 judges of Delhi High Court, was visited with a contempt notice. Unless the accountability question is answered, we will be driving towards a mirage.
MISSING THE POINT
In the last few years, we heard judges exhorting to litigants the benefits of Alternative Disputes Resolution such as Mediation, Conciliation and Arbitration. Some highlighted the magic effect of Lok Adalats disposing of millions of cases. But they have hardly answered why there is so much pendency of old cases. The demand that the ratio of judges be increased in proportion to the population is to miss the wood for the trees.
Subordinate courts have some minimum norms fixed for disposal of cases, whereas for the higher judiciary, there is no such burden. The first and foremost question is whether the current working hours and the number of days the courts work reflect the existing state of backlog.
A holiday for an industrial worker comes after arduous work. But ironically, judges work in between two holidays. Though high courts are supposed to have 210 working days with five hours and 45 minutes of court hours, in practice, such work schedules are hardly kept. Apart from 30 to 40 days of annual court boycott by lawyers, judges also have many excuses such as attending to committee meetings, full court meetings and court functions. All these functions take place during precious court hours.
SCRAP VACATIONS
There are many who only list a minimum number of cases in the daily cause list for disposal. After grant of liberal adjournments, they retire to their chambers. Apart from this, there is an unethical enjoyment of summer vacation for five weeks and Christmas and Dasara vacations for another three weeks. During colonial days, unable to bear the heat, British judges had conceived of these long and periodical vacations. The first attempt towards accountability to the people of this country who only bear the burden of bearing the expense of a costly judiciary is to scrap vacations.
A court which is to keep vigil of the rights of people guaranteed by the constitution cannot be closed down periodically in the name of holidays and vacations. Judges who claim parity with the salary and perks of ministers and secretaries should also work round-the-year.
On the issue of cutting vacations, judges draw support from wealthy and prosperous senior lawyers who cry against it. They say that overworked lawyers need some breaks just like machines are shut down for overhauling. This problem can be solved by lawyers taking rotational offs. Similarly, judges can also enjoy a break on a rotational basis, but on no account should there be a vacation for courts. If necessary, courts with the existing infrastructure and with addition of some more judges can work in two shifts.
OLD TECHNOLOGY
The advancement of technology and science has had little influence on court proceedings. Records are yet to be digitized. We still use thousands of tons of precious paper, thereby contributing to the fast depletion of forest cover in the country. There are one or two paperless courts in the country, but it may take over a century for all courts to switch over to complete e-governance. Judges are also not provided sufficient and able paralegal help and efficient court staff to aid in the management of court work. There are also some judges who appease the Bar by their liberal admission of cases. Unless the inflow is under check, there can never be an increased outflow, thereby making a dent in the backlog.
The competency and capacity of those appointed is again a question to be pondered. While there are cries for social justice in the matter of appointments, there is hardly any voice raised that the criteria of efficiency should not be sacrificed.
The mode of selection by the collegium resembles that of an Old Boys Club. A quick support to this nomenclature can be seen from the fact that the most efficient chief justices of the Madras High Court have never made it to the Supreme Court. The collegium system, far from making a proper selection in the matter of appointments, only contributed to the increasing deterioration of the standards and capacity of judges.
It has been more than two decades since the present system of selection has been in vogue but we are yet to see a Krishna Iyer or a PN Bhagwati in the making. It is alright to argue that the independency of the judiciary has to be assured. But you cannot pack the judiciary with mere numbers and attempt to solve the mind-boggling backlog. The judiciary is practically sitting on a volcano and any refusal to solve the problem of these cases will result in an automatic negation of the rule of law and denigration of the judiciary.
Instead of seeking an increase in numbers, the CJI should ponder over what has gone wrong so far and where to begin reforms. Unless judges adopt the motto prescribed by retired Chief Justice of India SH Kapadia that “judges must work like a horse and live like a hermit”, the target will be far off.
—The writer is a retired judge of Madras High Court
Lead picture: Litigants at the Tis Hazari court in Delhi. Photo: Anil Shakya