- Steps to be taken to strengthen the Judicial Apparatus of the Country
- What should be the role of the Executive in addressing the problem of pending cases?
- Will the recent bill for increasing the number of judges address the problem of pendency of cases?
- IT’s Input
[RSTV The Big Picture] Strengthening Judicial Apparatus
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- Expressing concern over pendency of cases, Chief Justice of India said that more than two lakh cases are in the courts for more than 25 years while over 1000 cases were not disposed of, even after five decades.
- According to him, Judiciary is not entirely responsible for these delays as the executive also has some responsibility in the justice delivery mechanism.
- He hopefully expressed that the Centre will raise the retirement age of the High Court judges to 65 years from the current 62 years.
- Meanwhile, the Lok Sabha recently gave passes Supreme Court (Number of Judges) Amendment Bill to increase the strength of Supreme Court judges from the present 30 to 33. As of now, the Supreme Court has 31 judges including chief justice of India.
Steps to be taken to strengthen the Judicial Apparatus of the country
Improvement in the quality of judges
- By making the retirement age of High Court and Supreme Court Judges equal. The three-year gap between the retirement age of Supreme Court judges (65) and High court judges (62) often influence the administrative decisions.
- There is need to ban post-retirements appointments.
- Also, the Indian Judicial Academy (located in Bhopal, Madhya Pradesh) should conduct exams so that there will be some uniformity in the selection of judges and procedure as well.
- In the lower judiciary services, civil judges are normally selected by the Public Service Commission while higher judiciary judges are often selected by high court. Hence, the current work of selection of judges should be transferred to Union Public Service Commission or so.
- The quality of judiciary is also not up to the mark. Many a time, the judiciary is asked to decide the case in which they do not have the required knowledge or information.
Increasing the Number of Judges
- India has 20 judges per millions of populations (the lowest in the world). The highest being America which have 107 judges per 1 million populations.
- Hence, there is need to increase the number of judges.
Proper monitoring at District Level
- In small cities or at many of the district level courts, people face challenges like for example, judges not coming on time, advocates calling the judges themselves for the cases to be heard etc. These things downgrade the morale of people and put a bad image on the judiciary.
- Hence, there should be a proper monitoring at District and lower judiciary level.
What should be the role of the Executive in addressing the problem of pending cases?
- The Role of executive is very important as they have to make decisions regarding finances, infrastructure for the judiciary and laying down certain standards regarding appointments through Indian Judicial Services.
- The biggest litigant in India is the government itself as for very petty issues, the cases go to courts and lingers for 10 – 20 years.
- This should be changed and the government should find the other mechanism to resolve their issues. Similar to the separate consumer courts, there should be some forums/courts through which government can resolve their issues.
- However, in recent past, the executive has taken very serious steps regarding this issue. They have repealed almost 1000 archaic laws. Once the law is repealed, all the related cases would automatically vanish.
- Moreover, it was the executive (Law ministry) that wrote to the judiciary about the problem of vacancies of judges in the trial courts, after which the CJI converted it into a PIL.
Intervention of Supreme court
- In Trial courts, there are more than 5000 vacancies (out of 23,000) and around 2.6 crores cases are pending in the trial courts.
- Although, it is the job of high courts to appoint the judges of trail courts, the Supreme court is forced to look after the appointment of Trial court judges, that shows the pathetic situation of judiciary.
- There is a complete collapse of the collegium in the trial court which does not get attention in forums, discussions and public.
Need for Professional Court Managers
- There is a misplaced belief among judges and those who are managing the judiciary that they are able to handle everything.
- Therefore, there is a need for Professional Court Managers.
Issue of listing of cases
- In the high court, the issue of listing of cases arises due to the poor coordination between Chief Justice and other judges.
- There should be some kind of coordination and uniformity as far as administrative decisions are concerned. If that is decided uniformly, the problem of listing of cases will go away.
Use of Technology
- Though, there is usage of technology in courts to some extent such as usage of computers instead of typewriters, however, despite the declaration of CJI J.S. Khehar in 2017 to make Supreme court paperless, yet one can see huge bundles of papers being used.
- The judges are afraid to take the old case and consequently, they all get push behind the doors. Unfortunately, there are 1000 odd cases in courts which are 50 years old. Therefore, the administration needs to decide over it and before taking new cases, old cases must be addressed.
- For the old cases, there should be separate courts and the retired judges could be appointed for resolving those cases or some judges can be specifically assigned to handle old cases.
Increase in Number of Cases
- As per the report of National Court Management System released in 2012, in the next 3 decades, India will be seeing 15 crores pending cases which would require 75000 judges to resolve the issue.
- The literacy level and awareness are increasing among people in India. At the same time, the economic conditions also improving. Therefore, there is a high chance that people will move to courts for resolving issues and hence, there is a need to improve the entire judiciary.
- Moreover, every new law is going to create new cases as the people will file cases against these laws and approach Indian courts.
- Given the current scenario, Indian judiciary is completely unprepared to handle this situation.
Responsibilities of Executive
- There are a lot of pending cases which are because of executive acts. The majority of the cases in High Courts or lower courts deals about ordering the executive to take a decision on their part and the executive somehow leave ‘decision making’ to courts.
- The orders of executive should include how they gave the opportunity to another side, the source of their power and the remedy available. Many a times they purposely don’t do it so that a litigant may go and get a stay order from the high court. Hence, this proves that if an executive does a good administration, lots of cases can be saved.
Will the recent bill for increasing the number of judges address the problem of pendency of cases?
- The Lok Sabha recently gave its node to a bill to increase the strength of the Supreme Court (SC) judges from present 30 to 33. Currently, the total strength of the SC is 30 + 1 (CJI) which makes the total to 31.
- This the 6th time that the number of judges has been increased.
- In the Supreme court, the pending cases (60,000 cases) are not huge in comparison to lower judiciary.
- These cases are important as the verdict of Supreme Court in one case can actually help the trial court or lower judiciary to pass the judgement on many cases and ease the burden lying upon them. OR it could make the cases totally collapse, for example, all cases on section 377 of IPC (unnatural offences related to LGBT community) collapsed because the Supreme Court declared it unconstitutional.
- There should be a time limit for the resolution of cases. Despite the changes in Civil Procedure court, there is not much change in the functioning of the courts.
- Despite of having a proper mechanism in which top leaders of executive and judiciaries meet to resolve mutual issues and make appropriate resolutions, many of those resolutions are not acted upon.
- A proper white paper on the judiciary of India should be prepared and the government should bring in the Academia, Media, State Governments, Supreme Court, High Court and Law Commission to have a proper discussion about the Indian Judiciary.
- The population has increased many folds, challenges have changed and the new developments have come but the lower judiciary is not well equipped. Till now no one has taken the holistic view and the realistic view of the situation prevailing in the courts of India.
Evolution of Number of Judges in SC
- The Supreme Court (Number of Judges) Act, 1956 originally provided for a maximum of 10 judges (excluding the CJI). This number was increased to 13 by the Supreme Court (Number of Judges) Amendment Act, 1960 to 17 in 1977.
- The working strength of the Supreme court was, however, restricted to 15 judges by the Cabinet (excluding the chief Justice of India) till the end of 1979. But the restriction was withdrawn at the request of the Chief Justice of India.
- In 1986, the strength of the SC was increased to 25, excluding the CJI.
- It was last amended in 2009 to increase the judges’ strength from 25 to 30 (excluding the CJI).
The procedure of an appointment of CJI
- The Chief Justice of India (CJI) and the other judges of the highest judiciary are appointed by the President of India under the Article 124 (2) of the Constitution.
Eligibility to become a Supreme Court judge
- Should be an Indian citizen.
- Should not exceed 65 years of age
- Should serve as a judge of one high court or more (continuously), for at least five years or the person should be an advocate in the High court or the Supreme court for at least 10 years or a distinguished jurist.
Selection procedure of Chief Justice of India
- The senior-most judge of the Supreme court is generally considered for holding the office of the Chief Justice of India.
- When the incumbent CJI is about to retire, the Ministry of Law, Justice and Company affairs use to seek the recommendation of the CJI to appoint the next CJI.
- After receiving the recommendation of the CJI, the Ministry of Law, Justice and Company affairs forward the issue to the Prime Minister who will further move the proposal to the President of India for the final approval.
What is the Collegium System?
- It is the system of appointment of judges made by the higher courts of India i.e. High Courts and Supreme Courts. The judges of SC are appointed by the President in consultation with the members of judiciary itself. This provision curtailed the absolute discretion of executives and kept the matter out of the political purview.
- The word “Collegium” is nowhere mentioned in the Constitution.
- This system of appointments emerged out of three rulings of the SC of India collectively passed and known as the Three Judges Case.
- In The First Judges Case (1982), the Court held that consultation does not mean concurrence.
- In the Second Judges Case (1993), the Court changed the meaning of consultation to concurrence.
- In the Third Judges Case (1998), the court said that the consultation process adopted by the Chief Justice of India (CJI) requires ‘consultation of plurality judges’. He should consult a collegium of four seniormost judges of the SC.
- The collegium sends its final recommendation to the President of India for approval.
- The President can either accept it or reject it. In the case it is rejected, the recommendation comes back to the collegium. If the collegium reiterates its recommendation to the President, then he/she is bound by that recommendation.