I had concluded Judicial
Perfidies-11 with a billion rupee question: will the reasons for the Mumbai
High Court reversing the judgment of the trial court and the reasons for the
dismissal of the next two appeals be investigated and the responsibility
fixed? Also, will those responsible for
the miscarriage of justice be punished, even if they are dead, for the sake of
record and acting as a deterrent for the future?
From the data provided
through tweets it is amply clear that Sopan Narsinga Gaikwad is a victim of a
fraud perpetrated by the seller of the property. The only extenuating
circumstance could be that the seller had informed Sopan of the mortgage and
Sopan had accepted that liability too. But it had to be on record. Also, with
the title deed of the mortgaged property being with the lending bank how was
the sale deed registered? So the only task before the trial court judge was to
verify these documents. Since he had given a verdict in favour of Sopan we
should presume that the judge had gone through the process of validating all
these. So that leaves the high court judges who reversed the verdict and
dismissed the appeals in the dock. Also in the dock should be the advocate
whose failure led to the last appeal being dismissed for delayed filing and
default in appearance.
I doubt if these failures
will ever be investigated.
Our judges have the means
to blame everybody from the petitioner, to the investigating officer (where
involved) and the prosecution to the witnesses, for the verdicts going awry.
But a simple look at the Right to Information Act case of Subhash Agarwal in
the matter of disclosure of judges’ assets will reveal that the judges can also
be at fault. (This shall be discussed in more detail subsequently.) And this is
in keeping with the truism in the quip
power corrupts and absolute power corrupts absolutely.
Palki Sharma in her report
quotes the Bhopal Gas tragedy too. In the tragedy that struck in 1984, 5 lakhs
people were affected, 15000 killed and only 7 were convicted with maximum 2
years punishment. Many of the victims are yet to get their full
compensation.
So, she rightly asks: Is
the legal logjam defeating the very purpose of the judiciary?
She has listed the
following data too.
Of the 44 million cases pending in
courts, 73000 in apex court itself. 8 lakhs are pending for more than a decade,
1 lakh for more than 20 years, 2000 cases for more than 50 years.
There are 23 new cases being filed every
minute.
76 pc of the prisoners are undertrials,
and as of 2020, 1271 are eligible for release having completed 50% of the
maximum period for which they could have been punished, if convicted.
While 0.08 pc of GDP is being spent on
the courts, the loss to economy due to judicial delays is 0.5 pc of GDP, ie
about Rs 50,000 cr per annum.
11 Finance Commission had recommended
1734 Fast Track Courts. But the performance of those established, leave much to
be desired. Delhi FTC takes 122 days for disposing a case against 133 days for
regular courts.
Of the 29000 cases resolved in 2019, 81
pc were on trial for at least 10 years. It was insulting human dignity.
A study by Vidhi Centre
for Legal Policy conducted in Delhi HC found that in 91 pc cases delayed over 2
years, adjournments were sought and granted. She calls it luxurious litigation.
However, when it comes to
solutions suggested, she has gone bookish. Fill vacancies and appoint more
judges, use technology to streamline process to end bench fixing, use virtual
courts, Alternate Disputes Redressal, central tribunals to be last resort et
all are nothing but armchair solutions as we shall see from the facts listed in
the following paragraphs.
The issue of judge to
population or docket ratio has been discussed in detail before. Filling
vacancies is a just need but then when the authorization itself keeps
increasing there are bound to be vacancies. But beyond authorization and
vacancies there is one factor that has never been considered or taken up for
discussion. That is the throughput of judges or in other words, the efficiency
of judges. While unwarranted holidays, short working hours etc continue to
limit the output, the illegal adjournments (yes, illegal, when they are beyond
the limits prescribed by the Civil and Criminal Procedure Codes) and consequent
delays should be attributed only to the incompetence of the judges.
When the pandemic struck
the Government of India announced a lock down but exempted all essential
services. So we had our electricity, water, newspapers, TV, grocery stores and
vegetables, without any or minimal disruption. The courts, as usual, were left
to decide for themselves. And what did they do? Locked down and worked with
emergency benches. Of course,
Using technology and
ending bench fixing though apparently independent are also inter-related.
Technology will certainly speed up the administrative aspects of the judicial
process. And by doing away with human intervention it can bring an end (?) to
bench fixing (or, uncle judge syndrome as it is known in legal circles) as well
as docket hunting (as was highlighted indirectly by the four senior most judges
of the apex court when they held a controversial press conference to cast
aspersions, without substantiating any, on the then Chief Justice of India) and
corruption too. As per a report in Hindustan Times of 03 May 2014 (https://www.hindustantimes.com/punjab/every-third-hc-judge-is-uncle/story-emvLdM8SlnlknyCQ4A7uLM.html) every third
high court judge is uncle.
Regarding virtual courts,
the demand has been quite old. I had read a report of a court in Mysore hearing
a witness, based abroad, through video conferencing more than a decade back.
But it took a pandemic to make it the primary means to process cases.
Alternate disputes
redressal is again not a new subject. There are a plethora of institutions from
ombudsmen (for local self governing bodies, banks, insurance) through
commissions like human rights, women’s, child rights, minorities, consumer
disputes and information (both at the state and national levels), police
complaints authorities at state and district levels and even Lokayuktas and
Lokpal. Anybody who has ever approached any of these quasi judicial authorities
can vouch for the totally wayward manner in which they function, merely
burdening the tax payer and mostly acting as rehabilitation centers for retired
public servants.
There was this report of a
Chairman of the Kerala State Human Rights Commission, a former judge of the
High Court, holding regular sittings on the 1st of every Malayalam
month at Guruvayur, a pilgrimage centre famous for the Lord Krishna
(Guruvayurappan) Temple in Thrissur, Kerala. It was as if that was the centre
for most of the human rights violations in the State. This was while most of
the district headquarters were totally out of the list of locations for camp sittings
of the Commission.
Since I shall be dealing
with the consumer fora/commissions and information commissions in detail later,
let me just cite the example of the Lokpal.
The Lokpal and Lokayuktas
Act became law in 2013. The Lokpal provides for a chairman, who has been a
judge of the Supreme Court, four judicial members who have been either judges
of the apex court or a chief justice of a high court and four non-judicial
members. The Lokpal was finally constituted in 2019 with full quorum and as of 07
Mar 2022, there are vacancies of two judicial members.
A report in The Print (‘Complaint
not in right format? No problem, Lokpal will scrutinise it to spot genuine
grievances’ dated 07 March 2022 at https://theprint.in/india/governance/complaint-not-in-right-format-no-problem-lokpal-will-scrutinise-it-to-spot-genuine-grievances/858567/) attracted attention for more than one reason. Firstly this format is a big thing in our
judicial scheme of things. A further reading of the report revealed showed a
table having the following data:
Year Total
Complaints received Complaints
in right format
2019-20 1427 45
2020-21 2355 110
2021-22 4244 128
Live
complaints as on 31 Jan 2022 - 36
Complaints
in which probe ordered - 03
So
what happened to the complaints not in the right format?
And
what of the rest of the complaints in the right format which are neither live
nor being probed?
Here is the data on the
disposal of complaints, as per the Annual Report for 2019-20:
The
following facts are noteworthy:
*Annual Report of 2020-21 was not available at their
website https://lokpal.gov.in/.
*Disclosures under Section 4(1)(b) of the RTI Act is
not available at their website
*The copies of the orders are not available at their
website and most importantly, the number of complaints which have been decided
in favour of complainants and the action taken against the defaulters, that is,
for example, cases being prosecuted in Special court(s), are not available even
in their Annual Report. (Is there any reason why all courts and quasi judicial
organizations should not use the same format as used by the Supreme Court for
its website? Not that the apex court website meets all the requirements of
transparency and accountability but still for the purpose of standardization
and user friendliness it is still a good idea to begin with.)
*Budget
allocation and Expenditure during 2019-20 has been as follows:
Budget Estimate Rs 101,29,00,000
Revised Estimate Rs 18,01,00,000
Actual Expenditure Rs 16,40,73,000
*Sanctioned
Strength- 144; In position- 84. A proposal for sanction of 447 posts has
already been sent to the Government.
There
is also this blog on ‘How the Indian judiciary can get out of the
tareekh-pe-tareekh mode’ by popular author Chetan Bhagat at http://www.chetanbhagat.com/columns/how-the-indian-judiciary-can-get-out-of-the-tareekh-pe-tareekh-mode/. He writes:
‘…there is one huge bottleneck that
prevents India’s economy from thrusting full steam ahead. This is our justice
system and hence the need for judicial reforms.’ He is unduly optimistic when he asserts ‘If we could vaccinate a billion people, surely,
we can also make our courts faster?’ His suggestions unfortunately are,
again, bookish- more budgetary allocation, more court buildings and virtual
courts, hiring more people, a separate paperwork and administrative assistance
entity, and re-imagine the paperwork filing and hearing system.
My comments were:
More
budgetary allocation, more court buildings, hiring more people etc are facile
requirements, more in line with the judge to population ratio touted by judges
and their apologists when what matters is the judge to docket ratio. In a
presentation on ‘Justice delayed in India’, made by Adv K T S Tulsi on 24
August 2004 at the Supreme Court Bar Association, here are the statistics he
had presented:
Cases
filed in One Year (1999):
India
13.6 Million, USA 93.81 Million (689%
more cases with less than 25% population)
Docket’s
per Judge:
India 987
USA 3235 (327% more compared to
Indian judges)
He has also asserted in no
uncertain terms that the primary causes of delay are:
Not the law
Not the procedure
Not the paucity of judges
Sheer question of (mis)management
I would declare anybody
touting the judge to population ratio unfit to be a judicial officer on account
of lack of reasoning ability, a primary requirement towards logical deductions
and fair judgments.
Ok,
there is shortage of infrastructure at the lower court level, but what about
the high courts and the apex court? Why are cases pending there?
Hiring more people? I had,
on many occasions, after the Right to Information Act came into force, looked
up the apex court website to check their compliance with the basic information
all public authorities are required to disclose suo moto. These are listed
under Section 4(1)(b) of the Act. Sub sections 4(1)(b)(ix) and (x) pertain to a
directory of its officers and employees and the monthly remuneration received
by each of its officers and employees, including the system of compensation as
provided in its regulations respectively. I use this as a barometer for the
transparency in the public authority itself.
At the apex court website
I could find the directory of 2053 officers/employees from the Secretary
General to the Canteen Attendant. The judges were not in this list, though
there are 32, including the Chief Justice, as per the details available
elsewhere. That makes it 64 officers/employees per judge.
The remuneration of these
employees have been provided in terms of pay scale of their grades/classes.
Again, the judges were missing from this table too.
The more interesting
revelation from the directory, accessed on 25 Feb 2022 with data updated on 19
Jan 2022, is the classes of employees and their distribution. The major
clusters are:
Registrars
(all grades) - 109; Branch Officer/Court Masters- 140
Court
Assistants - 843; Personal Assistants - 122
Court
Attendants - 484; Chamber Attendants - 117
Usherers - 46; Chauffeurs - 88,
Jamadars
(Farash/Safaiwala) - 30; Restorers - 68
I leave it to the readers
to guesstimate which are the categories of officers/employees that are needed
to be increased further, to enhance the disposal rate of cases pending with the
apex court.
As had been brought out
earlier, the issue with throughput is not related to budgetary allocation. It
is related to optimizing use of available resources and efficiency of the
judges. Judges need to know thoroughly the laws they are dealing with and the
facts presented, either by the party in person or his representative. And that
is all that is required to decide a case on its merits.
This series began with the
case of a retired high court judge, demanding and getting enhanced pension, due
to a pension on attaining the age of 80 years, when he had only attained 79
years of age (80th birth day or 79th birth anniversary). The
court failed to ask the pertinent question: how can a man who attained 62 years
of age on the eve of his 63nd birthday while retiring, attain 80
years of age on his 80th birthday to claim enhanced pension?
A
doyen among judges, V R Krishna Iyer had stated that for more disposals…and inexpensive justice, the purposeful therapy is
not judicial numbers but intelligent selection, result oriented technology and
summary procedure. One capable judge with sound philosophy is a better
instrument of justice than a dozen mediocre, indolent ignoramuses who will
merely add to the adipose of the system. He had also suggested a powerful
Performance Commission to investigate the delinquencies of judges.
P M
Ravindran/raviforjustice@gmail.com/100322
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