June 13, 2006
Lingering HC Vacancies Impel House Call For Public Debate
By Mukesh Jhangiani
United News of India
New Delhi (UNI) – With more than 100 vacancies plaguing higher echelons of a judiciary already weighed down by 30 million case arrears, a parliamentary panel has called for a public debate to find a way to appoint judges instead of letting ”judiciary alone” pick them.
”Time has come when the issue has… to be debated in the public domain,” the Parliamentary Standing Committee on Personnel, Public Grievances and Law and Justice has stressed.
The suggestion by the Committee headed by EM Sudarsana Natchiappan came in its latest Report on the Law and Justice Ministry’s 2006-07 Demands for Grants.
Experts underscore the importance of integrity and merit in judicial appointment and say transparency and accountability need not be overlooked in the name of judicial independence.
The function of appointing Judges was taken over by the judiciary through a Supreme Court judgement of October 1993, read with its advisory opinion issued five years later.
From time to time, the Law and Justice Ministry has reminded High Court Chief Justices and State Chief Ministers and Governors to initiate proposals to fill vacancies– without much avail.
Among priorities Law and Justice Minister Hans Raj Bhardwaj listed when the Left-backed United Progressive Alliance government took office in May 2004 was filling such vacancies.
Almost two years later, on March 22, a count showed that three of India’s 26 Supreme Court Judgeships were vacant as were 108 of 675 Judgeships in 21 High Courts, the Committee said.
”There has not been any perceptible improvement in the position of vacancies of Judges in Supreme Court and High Courts under the post 1993 arrangement,” the Committee asserted.
Officials say India’s senior and subordinate judiciaries between them have less than 15,000 officers ranging from Munsifs to the Chief Justice.
Indian authorities got a wake-up call 19 years ago from the Law Commission which cited population-judge ratio in leading Western democracies and advised hiring at least 50,000 judges.
But let alone raising their strength, even posts already sanctioned remain vacant, which is surprising as authorities know from day one when judges retire and can plan ahead.
The Law Commission’s advice is practically ignored while authorities try lok adalats, fast track courts, tribunals, computerisation, laptops, electronic devices and alternatives such as conciliation and arbitration to ease pressure– again without avail.
The pendency of cases has galloped, placed now at 30 million– up from 21 million just a decade ago.
In Allahabad High Court, for instance, almost one fourth of 800,000 cases awaiting disposal have been pending for more than ten years, Home Ministry officials say.
India’s Home Affairs Committee reported four years ago that ”the slowest layer of litigation in this country is the High Courts. Ten years ago, there were 19 lakh pending cases. Today it has crossed the 34 lakh mark.”
Symptoms are hard to miss. A shrinking judicial attention span manifests itself in a shrinking quantum of justice. Cases often go on and on, virtually into oblivion.
— Allegations concocted by political opponents and frontpaged by Indian dailies 17 years ago linked a forged St Kitts bank account to an opposition leader who went on to become India’s Prime Minister. Trial by a special Judge ended two years ago without a single conviction for want of evidence while the most elementary question never appeared to have been pursued: how the story made news columns.
— An Indian society of international law accused by its Treasurer of throwing domestic norms to winds was sued in a District court in May 2005 as it tried to eject the accuser. Umpteen adjournments later, fresh elections took care of the ejection while alleged violations involving law specialists remain unaccounted. The hearing is again next month.
— The sacking of 362 employees by a newspaper in this land of ”strong” labour laws and unions is adjudicated by the Delhi High Court for 19 months before it turns out that the matter may need to be taken up before a labour tribunal. One sacked employee broke down on the stage during Delhi Legal Services Authority’s May Day celebration, pleading for help in getting relief, as Indian employees do not have much of a social security system to fall back on.
Those are just a few examples.
At a 2002 meet on criminal justice reform, then Law and Justice Minister Arun Jaitley shared that the conviction rate in heinous crimes– murder, rape, treason, ransom kidnapping, dacoity, drug-smuggling, terrorism– was 6.5 per cent.
The message to would-be offenders: they may break the law with a 93.5 per cent chance of getting away– without punishment.
All of which, experts say, underscores the urgency for steps to rectify the situation– one of which is to fill the existing vacancies.
”That the delays in judicial appointments is a matter of serious public concern” has long been acknowledged by such authorities as the Home Affairs Committee.
It examined the issue in detail and held ”that the failure to fill up judicial vacancies promptly could not be shielded or defended in the name of judicial independence.”
According to the Natchiappan Committee, ”time has come when the issue has not only to be deliberated at the highest level, but also to be debated in the public domain so that there could emerge an alternative system which could bring about an overall improvement in the situation.”
The Committee has asked the government ”to come forward with a concrete alternative, addressing the issue of appointment of Judges of the higher judiciary by evolving a suitable mechanism through the Executive decision with judicial scrutiny, instead of allowing the judiciary alone to choose the judges.
”This can avoid a vicious circle created in the judiciary so that the vacancies could be filled up on the date of their occurrence,” it said.
UNI MJ RP PM1028
- Govt mulling new system for selection of judges (thehindu.com)
- A Judicious Judiciary (texthelaw.wordpress.com)
- UPA Govt Seized Of Law Commission’s 25-Year-Old Idea ! – By Mukesh Jhangiani (mukeshjhangiani.wordpress.com)
- ‘Activists keep arguing that it takes too long to prove a man guilty. But is that fair grounds to reject the rule of law in favour of kangaroo trials? (indialawyers.wordpress.com)
- SC split on picking judges sans parliamentary hearing (thehimalayantimes.com)