|
Revamping The Judicial System
by Mr. Justice K.N. Goyal (Retd.) *
Cite as : (1989) 3 SCC (Jour) 12
That our judicial system is passing through an unprecedented crisis is a well-worn clich‚ and yet one can't help repeating it. I am, however, not one with those prophets of doom who would have us believe that the system has already collapsed or is on the verge of collapse or that it is beyond redemption. It is true that there are millions of cases pending in different courts from the lowest to the highest. That the cases take scandalously long to decide. That the cost of litigation has risen to new heights. That there is an enormous proliferation of advocates. That there is a constant backlog of unfilled vacancies on the Bench. That the standards are going down, both in the Bar and on the Bench. And so on — the list is endless. However, I find myself unable to recall a time when such complaints were not heard or even when any one of them was totally absent. The Civil Justice Committee over fifty years ago took cognizance of similar complaints and the Setalvad Law Commission about thirty years ago grappled valiantly with them. A few years later the Shah Committee was on the same task. Of course the problems have accentuated over the years. I do not, therefore, plead for complacency or for an ostrich-like approach to them. Yet I see no reason for spreading undue despondency either. Crying wolf once too often may be dangerous. It may give ideas to others who are not kindly disposed towards the system — whatever political hue they may belong to. We must of course realise the gravity of the situation. We must take stock and try to find out what has gone wrong and where, and how best the things could be set right.
The mountains of judicial arrears are not a sudden eruption. The arrears, like poverty, have always been there, we can never do away with them completely. We can only bring them within limits. That the arrears have now piled up to the extent that the statistics are mind-boggling is not because judges or advocates are shirking work. Even the worst critics would concede that barring exceptions judges today are working harder and under greater pressure than ever before. The Federal Court created under the Government of India Act of 1935 used to work only for a few weeks in a year. The House of Lords in Britain and the U.S. Supreme Court even today work for a fraction of the working days that our Supreme Court puts in. And the advocates as well as the judges here often have only a busman's holiday in the weekends.
The real reason why the arrears have piled up as never before has to be sought in the radically changed scenario after Independence. The founding fathers in the first flush of freedom decided — though later to repent — to entrust the higher courts with jurisdiction of unanticipated amplitude. Not only the Bar and the judges, but even the press and the general public would not now tolerate the whittling down of these powers and jurisdiction of courts to the slightest extent. On the contrary they are wont to welcome every judicial foray into new fields, and to decry even a guarded attempt at withdrawal. Protagonists of extension of jurisdiction of courts are quick to point their fingers at ever-increasing encroachment by the State into the affairs of the citizen, the insensitivity of the minions of the State to the rights and sufferings of the common man, the growing arbitrariness of the administrator. The Bhagalpur blindings, the unfulfilled promises of freeing bonded labour, the shocking conditions in prisons, women's rescue homes and police lock-ups, the continued incarceration of many without proper warrants or till long after the expiry of their terms of imprisonment — and you could go on with the catalogue — could be cited in justification of public interest litigation (P.I.L., for short). Its critics on the other hand would accuse the superior courts of playing to the gallery, of pampering journalists, of entering the political arena, of encroaching into the domains of the legislature and the executive. Or that the courts are insensitive to the difficulties of the administration. That they are obstructing clearance of roads and pavements. That they are encouraging indiscipline and recalcitrance in public servants and labour — of late even in defence personnel. And so on. On balance perhaps it is now too late in the day to wish away either P.I.L. or the extended powers of courts. But it is for judges and advocates to ponder over the legitimate extent and the uses to which the same could be put. Indiscriminate use or extension of jurisdiction can make the courts, and the system itself, vulnerable, and that danger has to be guarded against. Indeed the country is so vast — and its problems are even vaster — that it will be an idle attempt on the part of the judiciary to take on the burden of setting everything right on its own. And in the process it may not only burn its fingers; also it will be left with no time to attend to its primary function — the settlement of disputes between citizen and citizen, between citizen and the State, the punishment of offenders and the absolution of the innocent.
Now that the increased jurisdiction of courts is a fact of life we have no option but to plan to make the system work accordingly. We must increase the number of judges. But that alone cannot suffice. And there are limits beyond which it may not be practicable to go in this direction. We must also lay greater emphasis on the quality of judges to be appointed. Recently in the U.S.A. two nominees of President Reagan, successively, were obliged to drop out on their way to the Supreme Court. It is for consideration whether some such mechanism could be developed here too for the screening of judicial appointments.
Although the present system involves at least four high functionaries the selection in actual practice is more subjective than objective. It is the more so in case of candidates from the Bar where the field of choice is very large and there is neither any mechanism for inviting applications and holding a competitive test nor any character rolls to go by. Income tax returns are hardly a safe guide.
Proper selection of judges is of the utmost importance for, in the words of the great jurist Ehrlich, "there is no guarantee of justice except the personality of the Judge". Of course, the quality of judges cannot be expected to be uniformly excellent. Quantitative expansion in any field is bound to tell on quality, whether it be the number of colleges and Universities, the number of law graduates, the number of advocates, the number of trial Judges, or the number of High Court or Supreme Court judges. But it should not be beyond human ingenuity to devise steps to ensure that reasonably competent persons of proven integrity alone are selected for the superior courts.
A two-pronged attack on the problem is necessary for this purpose. One is the building in of some more effective safeguards in the mechanism of selection. The other is qualitative improvement in the sources — both the Bar and the subordinate judiciary — from which selections are to be made.
So far as the Bar is concerned there is an imperative need drastically to control fresh influx at the very threshold, namely, at the stage of admission to the law degree course. This could be on the lines of admissions to the engineering and medical courses. The legal profession, after all, cannot be allowed to be the refuge of the left-overs. The efforts of the Bar Council of India in this direction are yet to bear fruit. Secondly the old system of one year's training under a senior should be revived. Sir Tej Bahadur Sapru in his presidential address to the first U.P. Lawyers' Conference fifty years ago had suggested that over and above this one year's training experience in the district courts at least two years should be required before an advocate could come to practise in the High Court. This suggestion was made on the ground that experience of original trial work is necessary even for practising in an appellate court.
As for the subordinate judiciary, an All-India Judicial Service comprising not only District Judges And Additional District Judges but also Civil Judges and Munsifs (who could be re-designated as deputy and assistant District Judges respectively), should be constituted at the earliest. Only then can the best talent be attracted. And there should be adequate training of the officers at different levels, including refresher courses for District Judges. Promotions to the posts of district judge and above should not be almost automatic with the mere passage of years in service but should be highly selective. Outstanding officers of the judicial service should be considered for elevation to the High Court even out of turn so that they could reach there by the age of fifty or so.
The available court hours should be put to optimum use. We have to adopt latest management techniques while arranging and disposing of court work. Specialisation among judges is one thing, classification and proper listing of cases, aided by computer, is another. Management experts could also be consulted for improvement in these matters. The types of litigation that we see today were unheard of fifty years ago but we are still continuing mainly with the 19th century procedures.
Statute law and precedents have to be streamlined and computerised.U.S. Supreme Court judges are given the assistance of law clerks drawn mainly from amongst toppers of the best law schools. Whether it is feasible here is another question.
There have of late been increasing instances of Bar-Bench conflict. This is a most unfortunate development. The two just cannot afford to adopt an attitude of confrontation. The conduct of individual errants on the Bench has, until some more satisfactory mechanism is devised, to be controlled by their peers, or in the case of subordinate judiciary, by the High Court. Likewise the conduct of black sheep among the Bar has to be controlled by the Bar Associations and the Bar Councils. But it ill behoves them to resort to unhealthy agitation against each other, as a body, on the basis of 'Us' and 'Them'.
There is also the problem of loss of man-days through strikes. The Bar bodies have been resorting to strike far too often, and of late even judicial officers have joined the fray. Advocates are notionally officers of courts, but they are nobody's employees. So against whom do they go on strike? Their strike does not harm the Judges who get an unearned holiday. It is only the poor litigant who is hit. And what are the issues that usually provoke such "direct action"? Often it is, as has recently been observed by a leading member of the Bar, the "parochial pecuniary interest of the bar" of a particular place: The apprehended creation of a new Bench. Or Government inaction on the demand for a Bench. Or the transfer of original jurisdiction from the High Court to the district courts. Sometimes a boycott is announced in protest against the non-closure of courts on a festival or an occasion of mourning. Or against the arrest of an individual lawyer on some criminal charge. And so on and so forth. It is a matter to be pondered whether it is justified to cause so much dislocation of work and suffering to the layman and loss of valuable time on such issues. The comment of Chief Justice Burger of the U.S. Supreme Court (now retired) on "hordes of lawyers and brigades of judges in numbers never before contemplated" could well have been made with reference to prevailing conditions in our country. Now, neither a Bar association nor a judicial officers' association is in the position of guaranteeing the good behaviour of each individual member of their ever-expanding fraternity. How then can they decide to give him collective backing without investigating into the merits of the case? There may, no doubt, be sometimes occasions for genuine grievances. But, surely, more dignified forms of protest could be thought of than minatory posturing towards each other on the slightest provocation. After all, every institution — the Bar and the Bench not excepted — is accountable in the ultimate analysis to the people. May I venture to suggest that even assuming that in the peculiar conditions of our country strikes cannot be totally ruled out it may be made a mandatory clause in the constitution of each Bar association and of each judicial service association that a special majority will be required for a resolution in favour of strike or a resolution directed against a member of the other fraternity. The standard formula could be an absolute majority of the total membership coupled with two-thirds majority of the number present and voting.
The Bar has hitherto only been reacting to proposals and innovations made or sought to be made by others, i.e. by the Government or by the Superior Courts and their Chief Justices. It is high time that the Bar itself took the initiative to advance concrete and constructive proposals aimed at revamping the judicial system — a legal 'perestroika' for speeding up decisions. It has been well said that every man is a debtor to his profession, and in order to discharge this debt is under an obligation to strive to strengthen the roots and foundations of the system. What is required is solid sustained homework so that concrete workable proposals may emerge: maybe hard solutions but widely acceptable they should be. It will be worthwhile to consider the setting up of a standing expert body on which not only advocates and judges but even administrators and management and computer experts are represented. Alternatively, the administrators and management and computer experts could be associated with, or be called for discussions by, such a body consisting only of judges and advocates.
| 
