September 2, 2016

The only way to break the executive-judiciary impasse is to make public future correspondence on the Memorandum of Procedure. This will be a precursor to infusing transparency in judicial appointments

The Chief Justice of India’s (CJI) high-octane laments about vacancies caused due to the stand-off between the judiciary and government in appointing judges has brought a renewed focus to delays in the judicial system. The CJI holds vacancies responsible for creating delays, bringing justice delivery to a grinding halt for several litigants. By all accounts, the judicial system is painfully slow — as of December 31, 2015, 51.2 per cent of all cases pending in the subordinate courts have been pending for more than two years and 7.5 per cent for more than 10 years; in the high courts the corresponding figures are 68 per cent and 19.22 per cent. This is unacceptable for any state that promises the rule of law to its citizens. At the same time, to view the stand-off on judicial appointments and the consequent vacancies that are created through the lens of judicial delays is to miss the wood for the trees.

Long-standing vacancies

First, it is essential to clarify the contours of this stand-off — the government and the collegium have been unable to agree on a Memorandum of Procedure for appointment of judges for the better part of this year. Second, the government has neither cleared nor returned the files sent by the collegium regarding several high court appointments and transfers, unlike Supreme Court appointments and some transfers which were cleared earlier this year.

According to the apex court’s own publication, as of May 2016, there were 2 vacancies in the Supreme Court (out of 31 sanctioned posts) and 432 vacancies in the high courts (out of 1,065 sanctioned posts). This constituted a vacancy rate of 6.45 per cent and 40.5 per cent, respectively.

However, looking at figures from December 2012, much before this stand-off, may provide some perspective. At that time, there were 4 vacancies in the Supreme Court (out of 31 sanctioned posts) and 281 vacancies in the high courts (out of 895 sanctioned posts). This constituted a vacancy rate of 12.9 per cent for the Supreme Court, higher than the present, and 31.3 per cent for high courts.

These figures point towards two fundamental propositions: first, high vacancies are not solely caused by the stand-off — they are endemic to the higher judiciary. Second, even if the current impasse between the executive and judiciary were to end, vacancies would not be even substantially filled, let alone delays being significantly reduced.

This is because vacancies are a product of a systemic lack of incentives for persons of high quality and integrity to take up judgeships. Judicial pay is poor, pensions are poorer. Further, the collegium which selects judges and elevates them to the Supreme Court is a closed brotherhood. As former Supreme Court judge Justice Ruma Pal has noted, “A chance remark, a rumour or even third-hand information may be sufficient to damn a judge’s prospects. Contrariwise a personal friendship or unspoken obligation may colour a recommendation.”

It is thus no surprise that several worthy candidates pass up the travails associated in the process of being appointed to and progressing as a judge.

Delays as a multifaceted problem

At the same time, vacancies are not the sole reason for debilitating judicial delays. Delay in the judiciary is a multifaceted problem which differs also from court to court, State to State. However amongst some common factors is the pressing concern that law, as laid down by the Supreme Court and high courts in a large number of areas, is unclear and inconsistent. This necessitates constant and overlapping appeals clogging the system. While disposing such cases, very rarely are timelines followed. In the recently enacted Commercial Courts Act, 2015, strict timelines as well as case management provisions have been carefully incorporated. Unfortunately, similar provisions in the Code of Civil Procedure have been held by the Supreme Court to not bind the inherent discretion of courts to extend time or grant repeated adjournments.

In the same vein, the potential for alternative dispute resolution (ADR) methods, such as arbitration, to reduce judicial delays has not been explored owing to the constant interference of courts. Constant interference has not been limited to ADR but is endemic. A recent study found that the Supreme Court admits 41 per cent of all cases filed before it for hearing, a staggering number for the highest constitutional court of a country. It is little surprise that litigants take a chance before the higher judiciary since securing an admission is often perceived as a game of roulette. This is especially so since the quality of justice, particularly in the lower judiciary, is often perceived as unsatisfactory. These factors are merely illustrative of the multifaceted nature of delays. They are however united by a common thread that, unlike filling of vacancies, they are all within the remit of the judiciary’s self-correction.

Power struggle over appointments

The complexity of causes responsible for judicial delays should make it amply clear that it is merely a by-product when it comes to the vexed question of judicial appointments. Talking about delays caused by the stand-off in appointments is an euphemism for the power struggle that has ensued between two organs of state over dictating the future course of judicial appointments. This is not unprecedented — appointments have similarly been stalled in the past, most recently during the Chief Justiceship of Justice M.M. Punchhi in 1998, when the government and the CJI disagreed on the proper procedure for appointment of judges. No appointments were consequently made for over six months.

Like in 1998, the current impasse too is primarily the product of an inadequately reasoned judgment that is less an expression of constitutional law and more an assertion of judicial self-belief. In an uncommon and unnecessarily strident majority view, the Supreme Court not only struck down the National Judicial Appointments Commission (NJAC) but also criticised the government and the political class as a whole. In the process, it missed a genuine opportunity of reforming a system that it itself recognised as flawed — neither did it institute safeguards into the NJAC that would have made it constitutionally valid nor did it substantively reform the collegium itself to satisfy concerns that were shared by some petitioners, the government and the Supreme Court itself.

Time to walk the talk

If one ignores the rhetorical images of lockdown associated with a stand-off and inquires into the real reasons for disagreement, the matter becomes curious. As per news reports, the government proposed a screening committee for all judges-elect comprising eminent persons and retired judges to ensure criteria-based selections; second, the government has asked for a national security veto. The collegium apparently has rejected both proposals.

The first suggestion appears unobjectionable. In the NJAC judgment, some judges advert to a similar committee; its importance in order to ensure accountability and citizen participation cannot be disregarded. The collegium’s objections to such a proposal, if true, are perplexing and should be made public. As far as a national security veto is concerned, the judges are rightly concerned about national security (or national interest) becoming a fig leaf for state unaccountability, a blunt instrument used to end all requirement for further explanation. Given this possibility, rather than national security being a ground for veto, a healthy convention should be adopted by the collegium that ordinarily a rejection by the government on these grounds will be heeded, provided they are subjectively satisfied.

But without entering into matters of detailed disagreement, the entire process of formulation of the Memorandum of Procedure is deeply discomforting. First, it appears that the role of the collegium is limited to accepting or rejecting reform suggestions given by the government. If true, this is disturbing — if the Supreme Court is serious about reform as it said it was in the NJAC judgment, it is now time to walk the talk and propose reforms itself.

Second, a combination of the secrecy of the process and the apparent hostility between the judiciary and government means that a document that was designed to ensure real reform has descended into a plaything of the powerful, with neither side showing any genuine desire for change. Substantive proposals such as transparently outlining a zone of consideration, setting up a process for nominating and interviewing candidates, outlining criteria for appointment, clarifying the importance of seniority, presenting an annual report of candidates considered, interviewed, appointed and rejected and many others, suggested by scores of civil society representatives, are gathering dust. The only way to break this impasse and ensure that a kernel of reform is salvaged from the interstices of a power struggle is to make all future correspondence on the Memorandum of Procedure public. This will transparently demonstrate how substantive reform is being effected or stalled and serve as a precursor to infusing a culture of transparency in judicial appointments. Otherwise, the country will suffer the consequences of a bitter power struggle where whoever wins, the cause of justice for the people of India loses.

Read more at: http://www.thehindu.com/opinion/lead/the-road-to-genuine-reform/article9061090.ece?homepage=true