Judiciary v/s Executive: A never-ending tussle?

Recently, the series of cross allegations from judiciary and executive on each other regarding the dismal situation of justice in the country.So, here is a series of FAQs with answers simply put for you to understand.

  • What is the reason for this tussle?:
    • Judiciary claims that the executive is not letting it appoint the judges by withholding the names short-listed by it through the defined procedure involving “collegium” of judges.
    • Executive accuses judiciary of :
      • delay in appointments and
      • opaque procedure for appointment of judges.The executive wanted to bring a National Judicial Appointment Commission(NJAC) , a multistakeholder body ensuring wider views and transparency , over the monolithic and opaque “collegium”* system.
    • The judiciary has struck down the NJAC as unconstitutional. Also, the Memorandum of Procedure(MoP) for the appointment of judges to the High Court is being impeded by the judiciary.

 

Image result for judge pendency

Chief Justice, TS Thakur

 

  • What are some of the figures related to need and pendency of judicial appointments?
    • Pendency:
      • The Chief Justice of India(CJI) has recently claimed that there are around 500 vacancies of judges in the High Court.
      • A recent data by the Law Ministry has revealed that over the last five years, 43% of the vacancies in 24 High Court remain unfilled.
    • Need:
      • If we go by the ratio of 50 judges per million of the population , the overall requirement(including all the 3 levels of the judiciary) would be 60,476. 
      • Current strength is 16,119.
      • Around 41,000 more needed.

judge

  • What are the consequences of the delay in these appointments?
    • Imparting of Justice will be delayed and as it is famously said , “Justice delayed is Justice denied”.
    • The huge pendency of cases in the judiciary. Even now, around 30 million(3 crores) cases remain pending in the judiciary.
    • Human rights violation as there are many who are accused of something they have never committed. A number of times , they even complete a decade or more in jails due to delayed adjudication of their cases.
    • It violates the Fundamental Rights under Article 21(Right to Life which covers under its ambit Right to speedy trial). 
  • Who actually is at fault?:
    • You cannot clap with one hand. So, the faults are two-sided.
    • Judiciary:
      • Adamant at its position of appointing through the notorious system of collegium.
      • Though independence of judiciary is a basic feature of our constitution, but the judiciary is misusing it to a greater extent.
    • Executive:
      • It is continuously sitting on the recommendations of the judge short-listed by the collegium.
      • It is not giving due respect to the independence of judiciary, a cornerstone of any democracy.
  • What could be a few solutions to this long drawn impasse?:
    • 120th Law Commission recommended “rate of pendency” or “rate of litigation” as the basis to fix the number of judges rather than population.
    • The collegium system is quite a notorious one when it comes to transparency. The first step could be to rationalize the same. If the judiciary is not up to include executive in the appointment procedures, the improving the collegium must be the way forward. This could be done as follows:
      • Applicability of RTI on judiciary(as recommended by the Central Information Commission).
      • Making public the list of candidates who have applied for the position  of judge.This should be along with the details of the applicant including his experience , capacity etc.
      • Exams(if any) and Interview must be video-recorded.
      • Every detail of the complete procedure must be made available online.
      • These steps could inculcate transparency as well as accountability of the judiciary.
    • An All India Judicial Service on the lines of Indian Civil Services to directly appoint judges at the subordinate(district) level. This could be a fool-proof method of filling up vacancies at this level. In turn, these will be promoted to higher judiciary.
    • There should be a stipulated time limit, say 2 months , within which the executive must approve or negate the short-listed candidates by the collegium.

 

  • Increasing pendency of cases is directly related to the increased requirement of judges. What could be done to tackle the pendency of cases?
    • Fixed time limit for the judges to dispose of the cases.
    • Performance based pay to increase the efficiency of disposal. However, this must be complemented with a quality-check mechanism to ensure quality delivery of justice.
    • Alternate Dispute Resolution(ADR) mechanisms like Lok Adalats to dispose small civil and criminal cases.
    • Special courts , Fast-track courts ,and Tribunals for the cases which are increasing in number and magnitude to deal with them specifically.
    • Supreme Court should lay down an objective code for admitting and rejecting PILs(Public Interest Litigation). Over-cognizance of PIL leads to overburdening with cases.
    • Special Leave Petition(an extraordinary instrument which allows the SC to shift cases at any level to itself) must be for a few select cases. This should be properly defined.
    • Ad Hoc judges and Retired judges could be brought in for a temporary period to deal with increased number of cases.

 

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