Sunny Dua
“When any government officer is dragged all the way from a subordinate court to the Supreme Court of India for petty promotion and the judgement in favour of same official keeps shuttling between Law and General Administration Departments (GAD), on the plea of seeking opinions for implementation, then the case in layman’s language is called ‘justice delayed’ which ultimately means ‘justice denied’. Hundreds of such cases that are languishing in state and UT courts of India which could have been settled at executives’ level are everyday adding to judiciary’s pendency”.
Something similar is what Chief Justice of India NV Ramana recently pointed out while addressing a joint conference of Chief Ministers and Chief Justices of High Courts inaugurated by Prime Minister, Narendra Modi. Though he spelled out multiple reasons of pendency in courts of the country, he primarily held one of the pillars of democracy – the executives as principal multipliers and also contributors of litigations that according to him accounted for more than fifty per cent thereby labelling government as “biggest litigants”.
This is something that needs not only deliberations but a swift action as to why and who multiplies cases in all subordinate courts, state high courts and even supreme courts. Usually it is seen that favoritism compels aggrieved to knock at the doors of courts, executives’ non-performance or a casual approach of passing the buck forces many to seek legal remedies and many a time Government advocates knowing well that certain cases won’t sustain in the court of law still ask their bosses to file suits or pursue the Service Writ Petitions (SWPs) even in Supreme Court that becomes reason of multiplication of litigations.
These all cases not only waste the precious times of courts but also hampers the government works merely because the one who’s supposed to execute important state or central schemes, after discouragement, spends his most of the time pursuing litigations while drawing hefty salaries that government pays to him/her for doing ‘no work’ during course of litigation. Strangely, in case the officer comes victorious, which usually happens, he or she gets all the benefits retrospectively without doing the work effectively thereby becoming a burden on the state exchequer.
The Chief Justice was also vocal about this “docket explosion” and attributed non-performance of executive and even legislatures towards it. He was of the view that had these pillars of democracy realised their full potential and performed to the best satisfaction, there would have been far less number of cases pending in the courts. Some figures of past few years were also quoted saying that pendency in district courts of country were about 4.11 crore and to relate it with Jammu and Kashmir, this figure of past few years was stated to be about 3 lakhs here which is alarming.
LIST OF LAPSES
The Chief Justice of India (CJI) was also vocal about a long list of lapses that lead to judicial pendency which according to him include hasty enactment of laws by legislatures, frivolous multiplication of litigations by government departments, inaction by officials to implement judgements, transferring the burden of decision-making to courts, slow process of judicial appointments and lag in up gradation of judicial infrastructure including filling up of vacant posts.
One of the major lapses was stated to be on the part of executives who for the fear of prosecution don’t take decisions and finds solace in pushing the cases to courts to decide to save their skins. A mechanism is needed to address this issue so that this fear amongst executives that hunts them is done away with and they are able to take firm yet right decisions thereby lessening their dependencies on courts.
Land disputes that account for 66% of pendency if are settled by governments, a complete transparency maintained in system of governance that reduces PILs or cases pertaining to liquor and marijuana consumption, dissent and teenage sexuality or interfaith marriages are settled by executives then courts can concentrate on much important cases to make the system function well.
REASONS THEREOF
While the CJI in the same conference gave many reasons for judicial pendency and also held executives responsible, certain discipline and reformative measures are also required on this side of the fence. There’s no denying the fact that some eminent sessions judges of Jammu and Kashmir Judiciary have concluded murder trials in record six to nine months. These judges without shifting the blame on anyone and merely with their stenos and clerks recorded evidences and statements in the cases of trials under section 302 IPC and delivered their judgements.
Contrarily, others continued to shift blame on executives or lack of infrastructure. On a visit to court rooms many a times one comes across lawyers murmuring indiscipline in the system of functioning wherein precious judicial time which can also be termed as national time is wasted merely because judges begin their working beyond prescribed time and even during lunch breaks return to court rooms late making litigants and lawyers wait. In addition, summer and winter holidays in courts that never are granted to executives also result in delayed justice by weeks rather months and speaks on British era mind set.
Another lapse that irks litigants or even hard-working lawyers is adjournments which must be an exception and not order of the day or a matter of right. The lawyer must know that adjournments are not easy to seek and they will have to read their files well in time and also prepare for arguments in the court rooms. They must have a fear of facing the proceedings and arguing for their clients and not seeking mere adjournments on one or the other pretext which too has become a practice.
Since the collegium headed by the CJI (Chief Justice of India) and four other senior most judges of the court appoint judges they must, irrespective of political affiliations of layers, pick up most competent ones from the Bar. The system should be so transparent that no one should ever dare to say, “Since he/she knew a politician, he/she became a judge”. The High Court collegium led by its Chief Justice must also follow same pattern and pick up able lawyers who have a track record of eminence with regards to their profession and not just the affiliations to any individual or political outfit.
At one given point of time, late union law minister and BJP leader Arun Jaitley had said that a ‘clamour’ for post-retirement jobs among judges was affecting the impartiality of the judiciary. He was of the view that during their service period the judges are influenced by a desire for a post retirement job, termed as rehabilitation, on which Jaitley wanted to have two years cooling off period before re-appointment failing which the governments could easily and directly or indirectly influence courts thereby compromising the independence of judiciary.
Since the collegium system doesn’t have any system of testing the candidates, can’t completely check credentials of candidates and is not accountable to any administrative body it might a candidate while ignoring meritorious one. This practice might also hamper the process of judiciary to a larger extent. These appointees don’t possess much time and by the time they learn, their retirement nears end. Their limited time affects system and there are already many cases pending in the Court which ultimately burdens Judiciary.
ALARMING PROPORTIONS:
The huge pendency of cases in courts is also attributed to vacancies of judges in courts. Despite an increase in the sanctioned strength of judges, ratio of which when worked out in proportion to population still comes out to be 20 judges per 10 lakh people. Today we have about 25 thousand judicial officers, a figure after increased strength but simultaneously the proportion of pendency to has increased manifold which means that either the sanctioned strength of judges is still less or the ever-multiplying litigations are still swelling at an alarming rate and no one is bothered to tame the same.
As per the figures revealed by CJI, as on today, out of 1,104 sanctioned posts of high court judges, there were 388 vacancies. He also said that out of 180 recommendations for appointments in various high courts made during the last year, 126 appointments were made which to a larger extent helped courts take up matters immediately. Another alarming proportion of litigation is with regards to public interest litigations which many times, according to CJI turn into personal interest litigations.
WAY OUT
Nothing less than ‘Good Governance’ is stated to be first remedial measure to get rid of judicial pendency and the responsibility of this wrest with executives who constitute of a major chunk of decision taking authority – the bureaucrats. In the words of CJI Ramana, the government was required to clean up its act. He actually meant that bounteous litigations which are multiplied by officers posted at Panchayats, civic bodies, revenue departments, police stations and even in civil secretariats need to act judiciously, dispose of cases amicably after through studies and deliberations instead of involve people in litigations unnecessarily.
Usually postings, transfer industry which has taken the shape of an enormous monster, promotions, violations of reservation rosters, land disputes, disputes because of illegal constructions, violations of building bylaws which can easily be checked at executive levels alone, minor scuffles, matrimonial disputes that earlier used to be settled at family levels alone, property disputes and registrations, besides financial matters are the ones that land up in courts but a careful examination of these issues by concerned can settle them at the onset hereby reducing cases in the courts but that’s not happening, now.
Though, in Jammu and Kashmir, after the abrogation of article 370, Central Administrative Tribunal (CAT) benches were established here and the government shifted transfer of powers of registration of land documents from the judiciary to the executives under registration act, yet pendency in courts refused to die down. This means bureaucrats’ diligence can cut needless litigations, which was also observed by the Punjab and Haryana high court in a recent promotion case of an official which was overlooked by administrative head of the department.
The case was so simple, had the administrative head checked facts ably, there would have been no litigation. While issuing promotion orders of an executive engineer to superintendent engineer, additional chief secretary (ACS) of the department of urban local bodies didn’t check the fact that the petitioner, an eligible candidate, had also acquired degree in the same year. The ACS in his reply in the court passed the buck and said that he was ill informed and this all led to litigation.
Justice Anupinder Singh Grewal of the HC while hearing the case summoned ACS and observed, “The officers cannot pass on the buck to their subordinates by stating that proper facts were not brought to their notice. The needless litigation could have been avoided if they discharged their duty diligently, as the dockets of the court are already clogged”. A simple erroneous promotion order in favour of one and denying the same right to another qualifying candidate made the case reach before the HC which if checked property could have avoided litigation.
Several cases of similar nature continue to linger on in courts wherein state counsels could be seen admitting errors passed while issuing orders and then made to rectify same. In several other cases state counsels could be observed coming to courts unprepared or seeking time for preparing replies or preparing half-baked replies and even coming without facts. Such delaying tactics waste court timings, waste money and also waste a life that could have been put to some productive use.
Hence, the executives need not adopt a “casual approach” while clearing files while the administrative heads of the departments are required to apply their minds after ascertaining the factual matrix of individual cases. In several cases it has also been observed that a bureaucrat while sets rolling the process of disposal of a case and in his transfer finds his successor halting the entire process terming it as illegal and uncalled for. In such cases, not only the litigants suffer but the credentials of bureaucracy also come under scanner. Since, in such typical cases there’s no provision of holding anyone guilty, such practices continue wherein one official says “Yes” to a case and another denies with a big “No”.
CONCLUSION:
Now that about 1500 obsolete laws stand abolished, there still are alarming proportions of more such laws that are redundant and need to be abolished in days to come. The laws that breed corruption must also be abolished and simultaneously focus should be laid on good governance which ultimately will lessen burden on judiciary. Contempt cases too burden judiciary and need to be checked. Finally, what CJI concluded was that litigation is primarily triggered by one – non-performance by executives and second – legislature not realising its full potential. However, data available and prevailing system speaks of the fact that onus lies not on one but both sides of the fence that need reforms to have a ‘vibrant democracy’ while maintaining the independence of judiciary holistically.
(The writer is senior journalist)
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