Retirement Age Raise: Panacea for Pendency ? (Part – II)

Although, “The average rate of disposal per Judge per year fixed at one of the Chief Justice’ Conference was 650” as per S.P. Gupta’s case (supra), Mr. RaghulSudheesh in the Bar and Bench news letterdated 10^th July 2013 published a detailed list of the number of judgments delivered by each of the Judges (both retired and in service) for a period of three and half years of time. The said two tables are reproduced below for easy reference with the permission of the author.

Table IV

Retired Judges (2008-2012)

Table V

 The above data can be compared with that of US as published by Mr. Anil Gidwani under the caption “Number of Judges per million people-is it important for India?” as follows:

“The courts often say that there are too few judges per citizen of India, which is why there are delays. The number is quoted at 150 per million people in the U.S, whereas the same number is 12 judges per million people in India. But is the number of judges per million people really important? The people of India, barely educated in law and struggling to live above subsistence levels, can hardly afford to litigate. The number of cases each Judge has to handle is quite low. Adv. K.T.S. Tulsi of the Supreme Court has pointed out there are 987 cases per judge in India against 3235 in the USA. The number of cases filed in India in India in 1999, with a billion population, had been just 13.6 million against 93.81 million cases in the USA with less than 25 percent of India’s population. Therefore, what is important in India is the number of cases per judge and not the number of judges per million people. This exposes how inefficient the Indian judiciary really is, despite a low number of cases per judge, the disposal of cases by Judges is far lower than that in the USA. We should remember to counter the favorite argument of the Indian Judiciary “There are not enough judges in India as compared to other countries” by pointing out “But there are not too many cases per judge in India as compared to other countries”.

Though the above being the real situation, in 1981 itself pendency of cases was a matter of serious concern as mentioned in S.P. Gupta’s case (supra), but in 1983, Supreme Court by its own judgment evolved the collegiums system of appointment of Judges, and it took 30 years time for the Government of India to introduce a bill replacing the collegium system of selection and appointment of Judges.   But in fact, the collegium, which was responsible for the selection and appointment of Judges of High Court and Supreme Court failed to fill the Judges vacancies in time and accordingly the present number of vacancies as published by the Department of Justice, Ministry of Law and Justice in its website is as follows:

Table VI

Vacancy Positions

Statement showing the Approved strength, Working Strength and Vacancies of Judges in the Supreme Court of India and the High Courts

 (As on 01.10.2013)

From the above table, it is very clear that 280 posts of High Court Judges are lying vacant out of a total approved strength of 906, i.e. 30.9% Judges posts are not filled. This is a dangerous proportion, considering the large number of pendency and the number of years required to dispose of the cases which ultimately increase the plight of an ordinary citizen of India to get justice.

It is worth to mention here three incidents in this regard, the first one Mumbai High Court which was established in 1862 and has also celebrated its 150^th anniversary, has got three Benches at Goa, Nagpur and Aurangabad. Bar Associations of Pune and Kolhapur already started demanding for High Court Benches and the process for the same is under consideration beforethe Mumbai High Court.

Whereas, the people of highly literate state of Kerala when demanded for a new High Court Bench at Trivandrum, the capital of the State (Kerala is the only State not having a High Court in its capital), the Kerala High Court Advocates Association (Ernakulam) passed a unanimous resolution opposing the move to establish a new Bench at Trivandrum and they succeeded in stalling the process for some years. Now, on a second time also,when the lawyers of Trivandrum moved the proposal came for a High Court Bench at Trivandrum, the Kerala High Court Advocates Association (Ernakulam) again passed a unanimous resolutionopposing the move to establish a new Bench at Trivandrum, but the matter is still under consideration before the Kerala High Court.

This will be incomplete if I did not mention about the third incident in this row. Law Commission in its 96^th Report in March 1984, recommended that the Supreme Court should have two Division, viz. (1) Constitutional Division and (2) Legal Division. Again, Law Commission in its 229^th report in August 2009 suggested creation of four regional Benches at Delhi, Chennai/Hyderabad,Kolkata and Mumbai and there was also demand from various corners for regional Benches of Supreme Court, but the then Chief Justice, K.G. Balakrishnan opposed the Law Commission’s recommendations by saying, “I am not in favour of disintegration of the Supreme Court. Personally I feel the Supreme Court cannot be in any other part of India. It is the final Court and we should maintain the integrity of the Supreme Court”(The Hindu 30^th Jan 2010).

From the above incidents, Judgment in S.P. Gupta case (supra), and also from the present Public Interest Litigation under comment as well as its order, one thing is very clear that ordinary man can only blame his fate as there is no scope for a hearing date in the near future, which founding fathers of our Constitution never desired to happen.

It is very pertinent to see the views emerged in the constituent assembly debates about the delay in the administration of justice and the need for speedy justice:-

1. “Shri. Krishna Chandra Sharma,emphasized the need for speedy justice and prevention of crime for which he opined, “I beg to submit that we need not go any further than the High Court and the High Court should be the final forum in criminal cases”. By quoting from a book on American Constitution by Prof. Zink, he said, “so if in America where the judiciary dominates, there is a provision that the power of the Supreme Court would be conditioned or subject to the Law of Parliament, I see no reason why we should go further than the American Constitution. So, Sir, in our country where conditions prevail which require speedy justice and prevention of crime”.
2. “Shri Raj Bahadurclearly stated, “Viewed from the side of the complainant, from the side of the family which has been deprived of one of its near and dear ones by the foul hand of a murderer, is it not simply shocking that under the garb of an appeal, an accused person is provided with an opportunity to postpone or procrastinate the hand of Justice?”. He also opined that ‘ right of appeal also constitute the right to delay justice’, we know that the system of administration of justice that we have inherited from the British and although much can be said in favour or against it, it cannot be denied that it suffers essentially from three fundamental defects, viz., it is very expensive, it involves a lot of delay and at the same time it gives scope for perjury and fabrication of evidence”, and  he added “ obviously also if every criminal case is allowed to go in appeal to the Supreme Court, it is bound to result in a considerable amount of delay in the disposal of cases. This would not inspire much confidence in the system of administration of justice and we must see that there are no inordinate delays in the disposal of cases and in the administration of justice in our country”.
3. Dr. BakshiTek Chand, “Life and Liberty is certainly more important than property but an unrestricted right of appeal either in civil or criminal matters will do incalculable harm to society. For example, in a murder case, the Session Judge convict the accused for death, an appeal is allowed to High Court as a matter of right, even otherwise also the sentence has to be confirmed by the High Court. In either case, the High Court goes through the whole evidence, there are concurrent findings on facts. In such a case, it will be undesirable to allow a second appeal to the Supreme Court. It is not permitted in any country in the world. After all, there must be some limit to appeals and further appeals. It would be wrong in cases where the High Court has agreed with the trial court on question of fact and the situation of death to allow further appeal as of right to Supreme Court. The number of such cases in India will certainly exceed one thousand a year and it would be dangerous to allow unrestricted appeals in every such case. It will be remembered that in civil cases the Privy Council has made it a rule of practice not to disturb concurrent findings on facts. If the same rule is applied to criminal cases, in most cases it will be sheer waste of time and money to allow further appeals. Appeals should be allowed in exceptional cases only and that is what the amendment of Dr. Ambedkar contemplates”.

But contrary to all these views and ideas of founding fathers of our Constitution, recent days we could see Supreme Court of India entertained a number of petitions even against the orders passed by the President of India, who is the highest constitutional authority in India.

It is pertinent to mention here the US provisions in this regard. The Sixth Amendment to the US Constitution guarantees all persons accused of criminal wrongdoing the right to a speedy trial. Although this right is derived from the federal Constitution, it has been made applicable to State criminal proceedings through the US Supreme Court’s interpretation of the Due Process and Equal Protection clauses of the Fourteenth Amendment. The right to speedy trial is an ancient liberty, in 1215 the Magna Charta prohibited the King from delaying justice to any person in the realm. A delay of one year in bringing a defendant to trial following arrest will trigger a presumption that the Sixth Amendment has been violated. In 1974, Speedy Trial Act was enacted which has been held to apply for citizens and non-citizens alike. Speedy Trial Act establishes specific time limit between various stages of Federal Criminal proceedings. The Act requires federal authorities to file information within 30 days of arrest, and if he has taken a plea of not guilty, the trial must commence within 70 days from information or his appearance in Court, whichever is later, the only exception is terrorists after Sept 11 attacks in 2001. Attorney General can certify a person as terrorist and thus the Federal Government can detain that person for six months or longer. As per the 2004 data, there are 60 habeas corpus cases filed in the US Supreme Courts Original jurisdiction each year. Whereas, a total of 5,500 new cases registered before the Supreme Court of India during the month of October 2013 and new cases registered during September 2013 were 6,860.

In the present scenario for the litigants from the length and breadth of the country, the lawyer whether Advocate on Record or others are quite inaccessible to them,  the upshot being client- counsel meeting, briefing, interaction etc. are infrequent especially the clients being poor. It is beyond their reach and they cannot traverse to the counsel’s chambers at Supreme Court when the wherewithal does not afford them to do so. It is true that most of the clients from the far flung areas have never seen their lawyers who  appear for them in the Supreme Court. Several cases, viz. Tahil Ram Issardas Sadarangani and Others v.  Ramchand Issardas Sadarangani and Another; Lt.Col.S.J.Choudhary v. State(Delhi Admin);In Re: Sanjiv Datta, Dy.Secy, Ministry of Information and Broadcasting, etc. says about lawyers simply lending their names and not appearing for their clients before the Court. Recently Supreme Court In Re: Rameshwar Prasad Goyal, advocate’s case pointed out that ‘the said Advocate on Record has filed extremely large number of cases before the Supreme Court but never appears in the Court, i.e. he entered appearance in 1678 cases in 2010, 1423 cases in 2011, 1489 cases in 2012 and upto 19.7.2013 has entered appearance in 922 cases. The number of cases filed by him is too big’. The only way out appears to be regional benches of Supreme Court as envisaged in the Law Commission Report which enables the litigants interaction with their counsel affordable.

Therefore, creating more special courts and appointing more judges especially specialized in particular branches of law viz. Criminal, Civil, Labour, Tax etc. is the need of the hour. Those who are practicing in a particular branch of law, say for eg. Criminal law if appointed to a special court for Criminal Cases/ Criminal Appeals, etc. they can dispose of more cases than other Judges who are hearing all type of matters, as they need more time to study the same to decide the matter. Whereas in the case of specialized Judges, he can decide quickly as they are familiar with the law and precedents of that particular branch of Law.

Therefore reducing the number of appeals as desired by the Constituent Assembly, appointing more specialized Judges in High Courts and Supreme Court to deal with specialized subjects and also establishing more benches of Supreme Court as well as High Courts can alone reduce the pendency of cases which is highly indispensable but on the contrary increasing the retirement age of Judges will do too little in this regard as it is only a wishful thinking of the public spirited petitioner-advocate.

Part I can be read here.

Dr. Mariamma.A.K is the Principal of Balaji Law College, Pune