CJI concerned about the government's disregard for courts orders
Justice N V Ramana spoke about the persistent challenges faced by the judiciary
The Chief Justice of India Justice N V Ramana is of the opinion that a popular majority is not a defence for arbitrary actions of the government.
He was speaking at the fifth late Sri Lavu Venkateswarlu endowment lecture on, 'Indian Judiciary - Challenges of the Future' at Vijayawada, Andhra Pradesh.
The CJI underscored, "Every action is mandatorily required to comply with the Constitution. If the judiciary does not have the power of judicial review, the functioning of the democracy in the country would be unthinkable."
He raised concerns about the "growing tendency to disregard, and even disrespect court orders by the executive." "Courts do not have the power of the purse or the sword. Court orders are only good when they get executed. The executive needs to assist and co-operate for the rule of the law to prevail in the nation," he said.
Justice Ramana stressed upon the importance of improving the service conditions of the judges to "attract the best talent." He also spoke about the "future" and the "persistent challenges" faced by the judiciary.
Excerpts from CJI's speech
Challenges before the judiciary
These can be categorized into two groups -
The first category relates to issues termed 'future challenges', though some of these already exist. These include the need for domain expertise; absence of the well-considered legislation; non-cooperative executive; dysfunctional criminal justice system; new threats to the judiciary; and the increasing judicial resilience.
The second category comprises 'persistent challenges', including, improving the judicial infrastructure, filing the judicial vacancies; and the ever-increasing caseloads.
Need for domain expertise
Due to the rapid development of science and technology, new problems and cases related to the Internet are coming up every day. The sale of illegal material on the dark web, identity theft, fraudulent online transactions, hacking, the spread of defamatory content and hate speech are the challenges that we must confront.
On the other hand are issues related to money laundering or crime funding through virtual currencies. At present, even the mechanisms underlying such an offence might be beyond the understanding of the judges and the investigators.
Apart from the changing dimensions of criminal law, there are also new and complicated civil law issues that have arisen due to the advancement in technologies. These are all transforming the legal landscape and require judges and other authorities to have vast technical knowledge. Our understanding and the laws cannot lag behind the changing technology.
An aspect that we need to contend with is the rise of specialized regulatory authorities like the Competition Commission, Securities Tribunal, the Electricity Regulatory Commissions and the Telecom Regulatory Authority of India. The complexities involved in adjudicating such cases necessitated the co-opting of the technical members in the tribunals. However, no such provision to co-opt experts is available to the judiciary, causing difficulties in deciding the appeals.
This issue becomes even more urgent when it comes to appeals or petitions relating to environmental pollution and climate crisis.
We not only need highly trained judges and lawyers well-versed in the fundamental legal principles, but also those with an understanding of the developments across domain expertise in various fields.
It is necessary to have continued judicial training from technical experts. Legal education needs to keep pace with the times and constantly update the curricula.
Absence of well-considered legislation
Usually, there is no impact assessment or basic scrutiny of constitutionality before passing the legislation. We expect that the legislature while drafting the laws, abides by the settled constitutional principles. They must also think of providing effective remedies for the issues, which may arise out of the law. These principles seemingly are being ignored.
A lack of foresight in legislating can directly result in the clogging of the courts. For instance, the introduction of the Bihar Prohibition Act, 2016 resulted in the High Court being clogged with bail applications. Because of this, a simple bail application takes one year to be disposed of.
An unrefined law leads to a mushrooming of litigation. A proposed law can be refined with the involvement of all stakeholders and a meaningful debate. The Parliament introduced a remarkable mechanism in the 1990s to enhance the scrutiny of bills of the standing committees. However, it appears that the legislature has not been able to make optimum use of the committee system.
Court orders are only good when they get executed. However, there appears to be a growing tendency to disregard, and even disrespect the court orders by the executive. Ensuring justice is not the responsibility of the judiciary alone. Unless sincere efforts are made to fill the judicial vacancies, appoint prosecutors, strengthen the infrastructure and make laws with a clear foresight and stakeholder's analysis, the judiciary alone cannot be held responsible.
The dysfunctional criminal justice system
There is a need to liberate the institution of public prosecutors. Total independence must be granted to them and to make them answerable only to the courts. Historically, prosecutors in India have been under the control of the governments. Hence, they do not prevent frivolous and non-deserving cases from reaching the courts. Public prosecutors automatically oppose bail applications, without independently applying their minds. They attempt to suppress evidence during the trial, which could benefit the accused.
A holistic re-work needs to be undertaken. In order to insulate the public prosecutors, an independent selection committee may be constituted for their appointment. Best practices should be adopted after a comparative analysis of other jurisdictions.
The responsibility of a public prosecutor is immense. They act as the gatekeepers and ensure that the rights of the citizens are not sacrificed and that they are not harassed through malicious prosecutions.
Another facet of the criminal justice system that needs to be changed relates to investigators. There is absolutely no system of accountability in place for faulty and inordinately delayed investigations. A person wrongfully incarcerated due to false implication loses his right to liberty and property and suffers enormously. There is no compensation for him even after an acquittal.
New threats to the judiciary
There have been increasing attacks on the judges and also concerted campaigns in print and social media against them if parties do not get a favourable order. These attacks appear to be sponsored and synchronized.
The law enforcement agencies, particularly the specialized ones, need to deal with such malicious attacks. It is unfortunate that unless the court interferes and passes the orders, the authorities generally do not proceed with the investigation. The governments are duty-bound to create a secure environment so that the judges and the judicial officers can function fearlessly.
Another aspect affecting the fair functioning and independence of the judiciary is the media trial. New media tools have an enormous amplifying ability, but they appear to be incapable of distinguishing between the right and the wrong, the good and the bad and the real and the fake.
Increasing judicial resilience
The necessity to co-opt technology in the judicial process was brought into sharp focus with the Covid-19 pandemic. Virtual hearings allowed the court proceedings to take place at the peak of the pandemic. It proved to be an essential tool for enhancing access to the justice system. Still, many issues with virtual hearing need to be tackled.
The main challenge is to turn it into an effective system. The courts, the litigants and the advocates must be equipped with adequate infrastructure across the country. There is a wide gap to be bridged among the advocates and the litigants, especially the latter coming from rural areas, smaller towns or who are economically weaker.
Virtual hearings are just one method to increase the resilience of the system. However, this endeavor still needs much introspection and we need to develop tailor-made platforms to meet the specialized needs of the judiciary.
The current state of the judicial infrastructure does not meet the requirements of the existing judicial officers. To meet the present and the future needs, a major influx of funds and a systematic plan is imperative.
The setting up of the national and the state judicial infrastructure authorities is long overdue and I expect the government to do so soon.
Filling the vacancies
The appointment of the judges is a continuous process. After being elevated as the Chief Justice of India, I have focused on increasing judicial appointments. I appreciate the government's efforts in appointing several judges recently. However, some recommendations made by the high courts are yet to be transmitted to the Supreme Court by the law ministry.
The high courts must also accelerate the process of making recommendations to fill the vacancies. I am constantly persuading chief justices of various high courts to take up this issue.
Another issue is the alarming number of vacancies in various tribunals. Now a days, it is fashionable to reiterate phrases such as, "the judges are themselves appointing judges." I consider this as one of the widely propagated myths. The fact is the judiciary is merely one of the many players involved in the process.
In fact, several authorities are involved including the law ministry, the state governments, the governor, high court collegium, the Intelligence Bureau, and the topmost executive are designated to examine the suitability of a candidate.
An important aspect worth highlighting relates to improving the service conditions of the judges to attract the best talent and fill vacancies. On average, judges of the constitutional courts hear about 40 cases daily. The holidays are devoted to completing the pending judicial work. But even after 2-3 decades of service, on retirement, the judges are not provided the basic security, housing or healthcare. These must be deliberated upon.
This is the most complicated and misunderstood topic. The pendency relates to the cases, which have not yet been disposed of, without any reference to the period it has spent in the system. The delay relates to cases, which have been in the system for a period longer than what is generally required. Every delay is not an arrear. Some delays might be due to valid reasons. The unwarranted delays are arrears.
The backlog refers to a situation where the number of cases instituted in a period is more than the number of the cases that were disposed of. Tackling the judicial delay refers to the reduction of arrears and backlogs.
Recent statistics indicate that 4 crores 60 lakh cases are pending before the Indian courts. This number is not a very useful indicator. Further, the population of India, which is nearly 1.4 billion, and the judge-to-population ratio of 21 judges per million must be kept in mind.
An additional fact requiring consideration is the type of cases clogging the system. A 2017 study by the Department of Justice indicated that government litigations constitute 46 percent of the total litigations. Actions or inaction of the authorities leads to a lot of litigations in the country, especially related to land acquisition. The government needs to make settlements through Alternative Dispute Resolution (ADR) mechanisms.
When the other state organs fall short of constitutional expectations, people decide to approach the judiciary. After all, considering the monetary and psychological impact of the litigation, no individual wants to approach the court without a serious grievance.
Therefore, attributing this issue only to the judiciary is only viewing one side of the coin. To resolve this challenge, we need to view the larger picture. Pendency is a complex issue. It can only be resolved through a multi-pronged approach. Increased use of ADR, clear legislation, executive actions within legally prescribed limits, cooperation of advocates and litigants, prompt implementation of orders and respecting the rule of law, are part of the solution.
Another aspect is effective case management. The judges should identify the approach to dispose of a case expeditiously. Timelines should be adhered to. Judges should be strict with adjournments. Additionally, technology should be effectively utilized for case management purposes. I would encourage all judicial officers to keep themselves updated on the status of the cases pending before them through the National Judicial Data Grid.
And some more….
It is essential for the judiciary to be quick to adapt and be flexible to resolve any challenge that comes its way. As a Greek philosopher once said, "The only constant in life is change." So, the moment any institution stagnates, it is bound to erode and collapse.
The Constitution, the basis of our democracy, creates ample space for change as we move forward. It is incumbent upon us to evolve mechanisms and principles that enable our continued growth. Only by resolving the issues and challenges in a manner satisfactory to the polity, we can maintain the credibility and legitimacy of the institution.
When we fail to meet new challenges, we betray the constitutional trust imposed on us by the people that we are meant to serve. I quote the first President of India, Dr. Rajendra Prasad, "If the people who are elected are capable, and men of character and integrity, they would be able to make the best even of a defective Constitution."