On October 16 this month, a five-member bench of the Supreme Court presided over by Justice Jagdish Singh Khehar, struck down the National Judicial Appointments Commission Act of 2014. By doing so, it restored the collegium system of appointing judges, and turned down the attempt to broad base the appointment process by including the Union law minister and two other “eminent” persons, with veto powers for any two NJAC members to block an appointment they opposed. It is true that the NJAC law was approved by Parliament unanimously, and was subsequently ratified by 20 state Assemblies. But it is also true that all laws are subject to judicial scrutiny, and the Supreme Court remains the highest court to examine if any law goes against the basic structure of the Constitution, and the separation of powers between the executive and the judiciary as guaranteed there under.
Finance minister Arun Jaitley has dubbed the powers conferred by the Constitution on the highest court of the land as “the tyranny of the unelected”. This is, to say the least, unwarranted. Does he believe that that the Supreme Court has legitimate powers to examine the constitutionality of laws only if the judges are elected? Or, is he trying to say that just because the Lok Sabha has directly elected members, a party with a majority can pass any law and expect the highest court to blindly endorse it? Mr Jaitley must understand that a majority in the Lok Sabha is not a licence to run amuck; the Constitution has prescribed certain checks and balances, and these must be respected.
However, while respecting the Supreme Court’s decision, it is essential to point out that the judicial system itself is in need of urgent reform. Reportedly, there are close to 65,000 cases pending disposal in the Supreme Court. Some 44 lakh cases are pending in our 24 high courts. And about 2.6 crore cases are pending in the lower judiciary. Shockingly, while this is the enormity of pending cases, 406 posts out of a total approved strength of 1,017 posts of judges of the high court are, as per reports, lying vacant. The maximum number of pending cases — over 10 lakh — are with the Allahabad high court. But in this very court, there are 85 posts vacant out of an approved strength of 160 judges! In the Mumbai high court, 33 of the 94 posts are vacant; in the Gujarat high court 24 out of 52 posts are vacant; in the Karnataka high court 31 out of 62 posts are vacant; and in the Punjab and Haryana high court 33 out of 64 posts are vacant.
Who suffers the most in this situation? The ordinary litigant who waits for years before his/her case finds final disposal. Quite clearly, therefore, even if the Supreme Court believes that the collegium system is the best instrument for the appointment of judges, it must also accept responsibility for ensuring that the posts of judges do not remain vacant and the disposal of cases is expedited. The date when the post of a judge is falling vacant is known. The highest court needs to do much more to put in place a transparent, fair and time-bound system to prevent vacancies from lingering. For instance, why can’t it be made incumbent on the registrars of the high courts in question to process vacancies at least six months in advance? And, why can’t the chief justices of high courts be held accountable for recommending names in time for such vacancies?
In addition, there must be a much higher degree of supervision and monitoring of the judicial system by the higher judiciary. Article 235 of the Constitution gives high courts control over the subordinate judiciary, and this is a responsibility which, given the manifestly tardy pace of judicial proceedings and the alarmingly high number of pending cases, the Supreme Court must ensure is taken seriously. The second Administrative Reforms Commission and the then Planning Commission’s approach paper on the 12th Five Year Plan makes useful suggestions in this regard, including the creation of a court audit and inspection team, the formulation of broad guidelines for the expeditious disposal of different kinds of cases, the preparation of a manual for summary trial proceedings, guidelines to prevent unwarranted adjournments, the amendment of the Criminal Procedure Code to fix a time-limit for various stages of trial, and better monitoring of the functioning of the court system. Further, all courts in the country must, in the national interest, make public, every six months, figures of the number of cases disposed off and the number pending.
India is the only country in the world where judges appoint judges. If our Supreme Court believes that this unique distinction needs to be preserved, then it must also accept the responsibility to ensure that it works in an effective and transparent manner. Whatever the constitutional issues involved, the real tyranny for the ordinary citizen is to have a system, meant ostensibly for his/her good, that does not function optimally. The Supreme Court must be aware that it is as important to ensure the independence of the judiciary as is the need to make an independent judiciary deliver, for justice delayed is justice denied.
Author-diplomat Pavan K. Varma is a Rajya Sabha member
