The Indian legal system as it is designed now is suited to favour the rich which makes the idea of access to justice a distant dream. Reforms at several levels are required for it to be made accessible in true sense.
THE idea of access to justice has undergone a significant transition. In the past, it essentially meant the statutory right of the aggrieved party to prosecute or defend a claim. But as jurisprudence developed, access to justice has taken on a much wider definition that now includes having access to an inexpensive, time-efficient and satisfactory resolution of the dispute. The numerous problems facing the Indian judiciary have hampered the ability of the legal system to operate and render decisions in a timely and efficient manner, thus obstructing the citizens’ access to justice. We argue that remedies at various decision-making levels are required in response to the crisis of prolonged delays that has sunk their roots deep into the Indian judicial system.
Justice delayed is justice denied
The cricketer-turned politician Navjot Singh Sidhu was sentenced to one-year’s rigorous imprisonment by the Supreme Court in a 34-year-old case. The case unfolded on December 27, 1988, when Sidhu and his friend were involved in a road rage with 65-year-old Gurnam Singh, who died from having been beaten. It took more than three decades and the firm determination of the victim’s family for justice to even get to the gravity of the offense.
This case is just one of many examples that provoke the question: is the Indian judiciary functioning efficiently? A subsequent question of greater importance is whether all victims of the justice system have the capacity to fight legal battles for decades? The May 2018 verdict of the Supreme Court in Sidhu’s case cited “the case is 30-year-old” as one of the reasons for imposing a meager fine – failing to acknowledge that the very judicial system caused this delay and particularly, the Supreme Court itself could not decide on Sidhu’s appeal from 2007 until 2018.
Justice K.T. Thomas in Anil Rai versus State of Bihar (2001) succinctly put, “It has been held time and again that justice should not only be done but should also appear to have been done. Similarly, whereas justice delayed is justice denied, justice withheld is even worse than that.” This judgment stated that the “inordinate, unexplained, and negligent” delay in rendering a seasoned judgment not only violated the law but also violated the right to personal liberty that is protected by Article 21 of the Constitution. Any process and procedure that did not guarantee a fair and prompt judgment should be deemed unjust and contrary to the maxim Actus Curiae Neminem Gravabit, that an act of the Court shall prejudice none.
Nevertheless, judicial backlog continues to be one of the major problems haunting the Indian courts. Be it criminal or civil cases, delay is a common factor. As of May 2022, there are more than 47 million cases pending across all Indian courts. Yet, high-profile cases and particularly cases that relate to pro-government individuals, are decided in days, that too, favourably. Liberty becomes the essence for notably pro-ruling party journalists Arnab Goswami and Amish Devgan, while it remains a distant dream for other undertrials.
Not so long ago, India witnessed a national-front battle between politicians Amit Shah and P. Chidambaram. Chidambaram remained in judicial custody for 106 days in a money laundering case. While Chidambaram was the Union Home Minister, Shah was arrested and even barred from entering Gujarat due to his alleged involvement in criminal S. Sohrabuddin’s fake encounter in 2005. Some might infer that Shah was settling scores with Chidambaram. Here arise two questions in support of this contention: if prosecution is right, do we elect criminals at our top offices? Or if the prosecution is malicious, why only Chidambaram was targeted if not but to settle scores?
How effective is the Collegium system?
One major reason for pendency of cases is judicial vacancy, which is a nightmare for the judiciary and continues to haunt it in the form of a politicized “collegium” system in appellate courts. Take for instance, that the Supreme Court collegium recommended Justice Akil Kureshi’s name for elevation to the Supreme Court; however, the government was not inclined to do so, since Kureshi had rendered “embarrassing” decisions against the Narendra Modi’s government in Gujarat.
Remedies at various decision-making levels are required in response to the crisis of prolonged delays that has sunk their roots deep into the Indian judicial system.
As Justice R.F. Nariman retired, one who insisted on Justice Kureshi’s elevation, nine judges were appointed, except for Justice Kureshi. The standoff over Justice Kureshi prevented any appointments for over 20 months – with then Chief Justice of India (‘CJI’) S.A. Bobde in his 17-month tenure being the only one to have demitted office without making a Supreme Court collegium recommendation. Moreover, as of April 2022, the 25 high courts in India have a total of 717 judges – against the sanctioned strength of 1104.
Similarly, the sexual orientation of advocate Saurabh Kirpal has prevented him from being elevated to the bench. The Delhi High Court collegium first approved Kirpal’s name for judgeship in October 2017, and Supreme Court recommended Kirpal’s name four times, appointment being deferred on all occasions. Most recently, the Supreme Court Collegium received a request from the Centre to “reconsider” Kirpal’s elevation, and thus, the appointment lies in limbo.
The transparency and accountability of the collegium system has been questioned and criticised in recent times and has been a hot topic of debate. Kiren Rijiju, the Union Law Minister, has made several statements claiming that the Collegium system is “alien” to the Constitution. This is not the first time the collegium system has been under the microscope for lack of transparency and accountability. The Supreme Court collegium raised a lot of controversy when it abruptly transferred Justice Vijaya Kamlesh Tahilramani, the Chief Justice of the Madras High Court, from the Madras High Court to the Meghalaya High Court on August 28, 2019.
This transfer of one of the senior-most justices from a large High Court to a smaller and one of the newest high court was viewed as a demotion due to which Justice Tahilramani resigned. Bar organization members from all around Tamil Nadu denounced this action by organizing “a one-day court boycott.” In response, the collegium stated that they had “cogent reasons” for the transfer and would disclose them if necessary.
As of May 2022, there are more than 47 million cases pending across all Indian courts. Yet, high-profile cases and particularly cases that relate to pro-government individuals, are decided in days, that too, favourably.
The lack of explicit criteria for recommendation, the absence of transparency, and an organized mechanism to look into potential conflicts of interest for judges who have been recommended by the collegium have all been pointed out as problematic aspects of the system by detractors. Additionally, the collegium’s recommendations have an inadequate representation. It is not surprising that the collegium system prefers to appoint and promote practicing lawyers who are typically second or third generation lawyers from a certain privileged social background, rather than judges from the subordinate judiciary, which frequently includes a more diverse representation.
How independent is the judiciary?
Independent judiciary is one of the foundational factors of the rule of law – one of the concepts which the Constitution is based upon. However, the case of former CJI Ranjan Gogoi is a classic instance which reflects on the worksheet of the judiciary-politics alliance. At first, Gogoi along with four sitting SC judges made headlines when they protested the then Chief Justice Dipak Misra’s favors to the government. Later, Gogoi became the Chief Justice of India and bluntly favored the government in several politically charged matters. After retirement, he was nominated to Rajya Sabha, which he claimed would “bridge the gap” between the legislature and the judiciary. Notably, Gogoi had earlier supported the view that post retirement appointment of judges in tribunals is a “scar” on the independence of judiciary. Hypocrisy!
An analysis of the Supreme Court judges who retired since 1999 revealed that “the first post-retirement assignment of at least 60 per cent (62 out of 103) of the judges involved direct appointment by the government, or the government having a say in appointments.” With such appointments, the incentive to follow the government’s commandments overcomes that to uphold “justice.” In 2013, then Leader of Opposition in the Rajya Sabha, the late Arun Jaitley stated, “The desire of a post-retirement job influences pre-retirement judgments. It is a threat to the independence of the Judiciary and once it influences pre-retirement judgments, it adversely impacts on the functioning of our Judiciary.”
Recently, the Delhi High Court Chief Justice in his farewellspeech said that some judges are pro-government while some are against it, but there is nothing wrong in it. Here is the wrong: the State is the major litigant, and if a pro-government judge adjudicates the dispute, it would not only violate the principle of natural justice but also cheat on his very morals and the Constitutional promise of free and impartial decision making.
The issues discussed above have long plagued the Indian judiciary and have hindered the access to justice for the citizens. The issue of backlogs especially needs to be dealt with in a swift and effective fashion to remove the encumbrances on delivering justice. It is urgent to address the appointment of judges to vacant positions in various courts. Case listing might be improved to become more methodical and scientific in order to speed up case movement. Old matters must be resolved in a timely manner, and it must be assured that no frivolous excuses are used to grant adjournments.
It is urgent to address the appointment of judges to vacant positions in various courts. Case listing might be improved to become more methodical and scientific in order to speed up case movement. Old matters must be resolved in a timely manner, and it must be assured that no frivolous excuses are used to grant adjournments.
The court process can be streamlined by using information and communication technology (ICTs), such as video conferencing. During the pandemic, virtual hearings have proved to be helpful for the courts, but a proper virtual system for hearings needs to be set up. While addressing a gathering on Constitution Day, the incumbent CJI Dr. D.Y. Chandrachud also emphasized the same and said, “We have to make sure the justice delivery system is accessible to everyone…We have been adopting technology to do the same.”
The artificial intelligence portal SUPACE was introduced in April 2021 to improve the efficiency of the legal researchers and judges, extract pertinent information, read case files, and draft case documents. The courts need to ensure that the use of the same is properly implemented to increase efficiency.
Although fast track courts have been established, their operation needs to be thoroughly assessed to avoid additional delays. The central Government recently proposed to set up almost 400 new fast track courts for pending POCSO cases. While this is a welcome move, it would prove futile without the appointment of more judges. Further the various tribunals need to be strengthened to avoid the additional load of appeals on the judiciary.
The Law Commission’s 230th Report recommended strict guidelines for adjournment requests and shorter oral arguments unless there was a particularly complex legal issue at stake. They also suggested limiting vacation time for judges in higher positions.
The creation of a judicial performance index (‘JPI’) was recommended by the NITI Aayog to prevent delays in case resolution in the lower judiciary. The JPI would assist the high courts and its chief justices in monitoring performance and procedure improvement at district courts and lower levels for cutting down on delays. The NITI Aayog advocated creating a separate administrative cadre inside the court system as a further measure to lessen the administrative burden on judges.
The Indian legal system as it is designed now is suited to favour the rich which makes the idea of access to justice a distant dream. Reforms at several levels are required for it to be made accessible in true sense. The several problems highlighted in this piece should be the breaking point for the reforms to take place.