Source: financialexpress.com<\/p>\n\n\n\n
Recently, Ranjan Gogoi, the Chief Justice of India, made three \nrequests to the Prime Minister to help clear the backlog of cases: \nExpand the Supreme Court (SC) Bench; raise the retirement age of high \ncourt judges from 62 to 65 years; and making tenure appointments of high\n court and SC judges under the relevant constitutional provisions to \nclear the backlog. The CJI needs to be commended for making these \nsuggestions public.<\/p>\n\n\n\n
By way of background, pending matters in the \nSC, as on June 1, 2019, stood at 58,669. According to the eCourts \nServices database, there are 4.38 million cases pending in high courts \nas on June 30, 2019. On the number of high court judges, Vivek Kaul \nwrote in Mint newspaper that the sanctioned strength of high court \njudges in May 2014 was 906, increased to 1,079 by December 2018. \nHowever, the current working strength of judges is just 679, or 63%.<\/p>\n\n\n\n
The\n Law Commission has expressed a concern that increasing the number of \njudges without adequate infrastructure may not reduce delay.<\/p>\n\n\n\n
India\u2019s\n judicial system is crying for reforms. First is some food for thought, \nand then ideas. Any move by people or the Executive to question the SC, \nhold it accountable or affect change is resisted, under the garb that \nindependence of judiciary is under attack. Arghya Sengupta of Vidhi \nCentre for Legal Policy wrote in the Economies Times that \u201cParliament is\n not only constitutionally empowered but is also responsive to the needs\n of the public.\u201d<\/p>\n\n\n\n
According to a Mint editorial, \u201cBarring \nexceptions, unless unwarranted expectations of non-judicial staff are \nfulfilled, they tend to aggravate the woes of justice-seekers by \ndelaying the registration of cases, misplacing case records, and \navoiding timely issuance of court notices\/orders.\u201d Conversely, \u201cOne \nfinds groups of lawyers forcing strikes for days, weeks or months even \nat high courts against reformative steps being attempted by well-meaning\n judges.\u201d<\/p>\n\n\n\n
A bigger problem is that the \u201cIndian court \nadministration has not adequately engaged the right professional talent \nnecessary to improve court functioning through technology solutions. \nInstead, most court automation committees usually comprise judges, \nlawyers and registrars.\u201d (NIPFP working paper: How to Modernise the \nWorking of Courts and Tribunals in India.)<\/p>\n\n\n\n
The performance of any \norganisation where perpetual delays in meeting consumer needs do not \nresult in termination of service means performance falls. From 1950 to \nNovember 2015, only six women became SC judges, of a total 229 judges \nappointed. According to an April 2019 article in Livelaw.in, \u201cCurrently,\n there are 17 women senior counsel designates in the Supreme Court as \nopposed to 403 men.\u201d Is there a gender bias in the legal profession and \njudiciary, as judge Indu Malhotra recently said.<\/p>\n\n\n\n
In 2018, the SC \nwas closed for five working days each during Holi, Dussehra and Diwali, \nand 11 working days during Christmas and New Year. Summer break, a \nlegacy of the British Raj, was from May 20 to July 1. Are such \nschoolchildren-like holidays warranted in the 21st century?<\/p>\n\n\n\n
Did \nthe founding fathers of the Constitution visualise the SC running a \ncooperative society, i.e. BCCI, devote time to liquor ban, dance bars, \nuse of pellet guns, Rohingyas, selection process of the national kabaddi\n team, dahi handi, etc. Not to forget the frivolous PILs like banning of\n sardar jokes.<\/p>\n\n\n\n
To be fair, judges have to deal with activist \nlawyers. According to a Times of India article, if CJI\u2019s orders to their\n PILs, good and tainted, are favourable, he is crowned independent; if \nnot, is berated.<\/p>\n\n\n\n
A petition was filed to ban sale of crackers in \nthe NCR. For reasons unknown, the ban was extended nationwide. Under \nArticle 142, SC orders have to be implemented, yet the order was \nviolated, especially in Delhi. Recently, two Kerala temples got SC\u2019s \nokay to burn crackers. Does such centralisation of matters not undermine\n lower courts and take up valuable court time?<\/p>\n\n\n\n
Is it appropriate \nfor the judiciary to sit in judgment on cases involving disproportionate\n assets of politicians when it is not mandatory for its judges to make a\n public declaration of assets? Can the SC ask the government to be \ntransparent in its appointments of, say, the Chief Information \nCommissioner when it refuses to be transparent itself by making records \nof its collegium meetings public?<\/p>\n\n\n\n
The manner in which promoters of\n a steel company have used courts to prevent losing control under the \nInsolvency and Bankruptcy Code have made a mockery of IBC and the \njudicial system.<\/p>\n\n\n\n
There is a perception that on matters that might \nadversely affect the Muslims, the SC takes time! For example, in \nDecember 2018, the SC ordered status quo on a November 2017 Allahabad HC\n order directing removal of a mosque in court premises.<\/p>\n\n\n\n
Now, the ideas to improve court working<\/strong> One, \u201cThe productivity of judges needs to be increased. \nFor this, it is important to separate the administrative functions of \ncourts from their judicial functions and hive these administrative \nfunctions into a separate agency.\u201d<\/p>\n\n\n\n Administration involves, \u201cTo \nensure that processes are followed, documents are submitted and stored, \nfacilities are maintained, and human resources are managed.\u201d<\/p>\n\n\n\n Two, \n\u201cThis agency should also be given the task of re-engineering court \nprocesses to achieve greater efficiencies. A key element in the process \nre-engineering will be the use of information technology.\u201d<\/p>\n\n\n\n Three, \nset up an \u201cIndian Courts and Tribunals Services (ICTS), an entity that \nprovides high quality administrative support services to a court or \ntribunal.\u201d<\/p>\n\n\n\n Some more suggestions. Two, courts should focus on interpreting \nlaw and administering justice. The SC must publish guidelines on who can\n file PIL and under what circumstances. No organisation that has \nreceived foreign funding should be permitted to file PIL.<\/p>\n\n\n\n Three, \nthe SC holiday calendar needs reworking by which courts work through the\n year. Judges, like government servants, must have gazetted holidays and\n entitled to, say, 30 days of annual leave.<\/p>\n\n\n\n Four, the government \nmust increase the financial value of cases, i.e. the basis on which \njurisdiction of courts is decided. This shall reduce workload.<\/p>\n\n\n\n Five,\n make it mandatory for all SC and high court judges to periodically \nshare their Statement of Assets on respective court sites.<\/p>\n\n\n\n Six, \nappealing cases up to the highest court on one pretext or the other is \noften used to prolong the case. Can appeals be restricted to, say, two \nhigher levels and all courts follow CJI Gogoi\u2019s No Adjournment Plan?<\/p>\n\n\n\n Seven,\n can the collegium give a roadmap on increasing the number of women \njudges to, say, 20% in SC and all high courts. Also, ensure promotions \nare gender-neutral, be champions of gender diversity, and foster an \ninclusive and respectful culture.<\/p>\n\n\n\n Eight, on Article 142, KK \nVenugopal wrote in The Hindu, \u201cI would therefore propose that all cases \ninvoking Article 142 should be referred to a Constitution Bench of at \nleast five judges so that this exercise of discretion may be the outcome\n of five independent judicial minds operating on matters having such \nfar-reaching impact on the lives of people.\u201d<\/p>\n\n\n\n Courts must remember \nwhat former President Pranab Mukherjee told the fourth retreat of SC \njudges in April 2016. \u201cEach organ of our democracy must function within \nits own sphere and must not take over what is assigned to others. The \nbalance of power between the three organs of the state is enshrined in \nour Constitution. The exercise of powers by the executive and \nlegislature is subject to judicial review. However, the only check \npossible in the exercise of powers by the judiciary is self-imposed \ndiscipline and self-restraint by the judiciary.\u201d<\/p>\n
Courts\n need administrative functioning to be streamlined. The paper \u2018How to \nModernise the Working of Courts and Tribunals in India\u2019 has ideas. \nExcerpts:<\/p>\n\n\n\n
One, can the SC and \ngovernment work together to suggest reforms to our civil and criminal \nlaws, having twin objectives of making them simpler and towards \ntime-bound adjudication?<\/p>\n\n\n\n