Gift-wrapped bunkum

Joginder Singh
Former Director-CBI

Having run out of ideas and with no success to show, the Government is now re-packaging and selling to the people what is already there in the Constitution.

Of late, the Union Government has exhibited a penchant for regurgitating Fundamental Rights already embodied in the Constitution in the form of New Rights, as if it was doing a favour to the people by providing them with newer and unprecedented entitlements. Take for example the National Employment Guarantee Act which promises wages that are so low that one is destined to starve and even that paltry sum of money is siphoned off, or the Right to Education which is meaningless given the inadequate number of schools, lack of proper class rooms and the absence of teachers. The proposed Right to Justice Bill is the latest addition to the list.

Without ensuring that there is adequate infrastructure to implement laws, if by simply promulgating them development could have been achieved, India would have been a heaven by now. Moreover, one cannot
expect any improvement only because a Bill has been passed unless there is the political will necessary to improve the system. Thus, the Right to Justice, however well-intentioned it may be, will remain only a dream as the Government is not serious about ensuring justice for the masses.

The President of India had observed on May 31, 2010: “Government agencies being one of the biggest litigants must exercise restraint from routinely instituting litigation and clogging the system…We must take stock of the challenges and structural weaknesses which beset our legal system, impeding equitable access to prompt and quality justice. Judicial reform should occupy a salient place in the Government’s agenda…There cannot be better governance without better laws and there cannot be better laws if antiquated ones remain.
Archaic laws and outdated administrative regulations must be scrutinised and if necessary scrapped or amended. Making the language of law simple can prevent unnecessary litigation.”

She had then gone on to add: “We must re-engineer and simplify court procedures, which otherwise tend to make litigation unduly slow and protracted. Frequent demands and liberal grant of adjournments, filing of multiple suits and similar tactics make judicial productivity sluggish. Timely pronouncement of judgements and quick execution of decrees would be beneficial… Congestion of court cases has been compounded by shortage of judicial manpower and low judge to population ratio. We must explore betterment of this ratio by
augmenting the strength of the judiciary without compromising on quality.”

The Government has admitted, more than once, that the state is the country’s biggest litigant. Seventy per cent of the over three crore cases that are pending in Indian courts involve the Government as either petitioner or respondent. To make matters worse, 90 per cent of those cases fail and should not have been filed in the first instance, as the Prime Minister has pointed out.

Last year, the Union Minister for Law Veerappa Moily also said that the Government was pursuing several frivolous cases, causing huge losses to the exchequer and burdening the judicial system. Giving an example, he said that matters relating to individual grievances such as pensions and retirement benefits should not be appealed against. “Such appeals should be avoided as litigation costs in them are much higher than the payoffs,” said Mr Moily. Sadly, all efforts by the Government to become a fair, just and responsible litigant have failed.

To make matters worse, the country’s judicial system is plagued by an inadequate number of justices who can hear cases. As of April 1, there were 288 vacancies across all High Courts which have a collective
backlog of 41.8 lakh cases. The Supreme Court too functions with only 29 out of the sanctioned 31 judges.

Three years ago, the then Chief Justice of India had said that India needs 77,000 judges to clear its judicial backlog and called for increasing the population-judge ratio from the existing 9.5 judges for every10 lakh people to 50 judges for every 10 lakh people.

Uttar Pradesh, India’s most populous State, rightly has the highest number of sanctioned high court judges at 160 but also the maximum number of vacancies at 95. With a population of 199 million — only one-third less than the population of the US, the third most populous country in the world — Uttar Pradesh has just 65 sitting judges. The Allahabad High Court, including its benches, is working with just 36 per cent of the sanctioned judges. Needless to say, this High Court also has the maximum number of pending cases at 9.6 lakh.

Maharashtra, India’s second most populous State with 112 million people is sanctioned 75 judges but here too some14 positions are vacant. The Bombay High Court and its benches have a collective backlog of 3.4 lakh cases. Other High Courts where there are a significant number of vacancies are Punjab and Haryana (26 out of the sanctioned 68), Rajasthan (19 out of the sanction 40) and Calcutta (16 out of the sanctioned 58). The Gujarat High Court too is working with exactly two-thirds of its sanctioned strength of 42 judges.
Additionally, the Punjab & Haryana High Court is short of 24 Additional Judges though its sanctioned strength is 29.

In August 2010, the Solicitor-General of India commented on these prevailing conditions. He took Uttar Pradesh as a test case and read out statistics that reflected poorly on the Allahabad High Court, which is administratively in charge of the subordinate judiciary in the State. According to him, 10,541 criminal trials were stayed by the Allahabad High Court. Of these, nine per cent were pending for more than 20 years and 21 per cent for over a decade.

In other words, stay of trial in 30 per cent of offences continued for more than 10 years. In a classic observation, he said: “It’s sad that administration of justice has come to such a pass. The High Courts stay the trial and forget all about it. This means, we are choking the administration of justice. No one should be denied a fair and speedy trial. Also, what about the victims? What about society which feels that a wrongdoer should be punished at the earliest? Though these stays, that is being denied.”

When the Solicitor-General said that the Chief Justices of High Courts should play an active role in clearing the mess arising out the decade-old stay orders on criminal trials, the Bench claimed: “The Chief Justices are helpless. They have a tenure ranging from one year to even two months. What can a Chief Justice do in such a brief tenure? They cannot deal with this problem as their brief tenures do not allow them to even understand the dynamics of a particular High Court.”

Taking a dig at the Government and its law officers, the Bench pointed out that, “Six months back, you and your colleagues had pioneered a programme for expeditious justice in the face of crores of cases pending in trial courts. But the entire system seems to have either crumbled or is crumbling. What else can be said when nine per cent of cases have been stayed for more than 20 years.”

Therefore, the bottom line is that unless basic steps are taken to first reform the entire criminal justice system, the promised ‘Right to Justice’ will not help anybody. If there are no judges to decide, how will any case be disposed of? The Government must remember that you can fool some of the people all of the time, and all of the people some of the time, but you cannot fool all the people, all of the time.