The impact of a malfunctioning judicial system on critical aspects of the economy is of major concern. A market-based capitalist system can operate efficiently only if judicial processes ensure a fair, effective and speedy disposal of disputes and provide a robust basis for enforcing regulatory compliance and consumer protection. It must be evident to all that the Indian judicial system does not serve these goals.
With a pendency of 59,000 cases in the Supreme Court (SC), over four million in high courts (HC) and a mind-boggling 25 million in subordinate courts, the judicial system is virtually dysfunctional: In this state, it simply cannot serve the needs of modern India trying to integrate with the global economy. The enormous pendency engenders corruption and rent-seeking that, at times, even stain the highest levels. The Indian judiciary, if not soon reformed, will become a huge drag on our economic progress.
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In the above context, the new chief justice J.S. Khehar would do well to focus on three crucial aspects. One, reduce pendency by rapidly filling vacancies in the high courts. Two, make all judicial appointments, starting with HC judges, as transparent, objective and merit-based as possible. Three, improve the relationship with the executive because it is imperative that various branches work in tandem rather than at loggerheads if India has to progress.
The outgoing chief justice, T.S. Thakur, had made several public statements, some rather emotional, on existing vacancies in HCs and the SC; he implicitly held the government of India (GoI) responsible for this unacceptable situation. But these assertions perhaps do not reconcile with the facts on the ground. First, the number of judges in position has practically remained the same over the years with 648 judges in position in November 2016, as compared to the previous highest of 639 in January 2014 and 630 in January 2010. Second, if the new positions created over the last three years are discounted, the number of HC vacancies in 2016 are lower at 258 than 443 in the previous year — vacancies at present are in fact lower than in any year since 2008. Third, as many as 173 new positions of HC judges have been created between 2014 and 2016 — as compared to a mere 20 between 2009 to 2013.
Apparently, the Modi government, cognisant of the huge backlog, tried to reinforce the judiciary since it took office. Therefore, it can hardly be its objective to thwart appointments to fill existing vacancies. However, it is indeed a pity that positions remain unfilled — the reason seems to be that the GoI and the SC have been unable to reconcile their differences over the modalities of appointing new judges. This is a vexing issue that has seen the GoI having to back off in the face of trenchant opposition from the SC to any GoI attempt to dilute the autonomy of the SC collegium in making these appointments. However, it is unarguable that these appointments should be made in the most transparent manner and after an extensive search that seeks to identify the most meritorious candidates, ensuring that those finally selected have been cleared on all counts of integrity, national security and competence.
The fact that the present system is not working adequately is borne out by the experience of the Madhya Pradesh High Court, which considered 71 “so-called” eligible advocates for appointment as judges. After scrutiny, only eight were recommended by the HC collegium.
Of these eight, the SC collegium recommended only three; after required Intelligence Bureau (IB) inputs, only two names were recommended. Finally, only one was appointed. This massive waste of time and resources should be avoided.
In this context, I see merit in the GoI’s suggestion for appointing a Search Cum Evaluation Committee (SEC). A SEC would assist HC and SC collegiums in expanding the zone of consideration, undertaking due diligence and acquiring necessary clearances. The SEC will only recommend candidates in the ratio of 5:1 for the HC and SC collegiums to then select and forward to the GoI for required consultations. After due diligence, the rejection rate should come down dramatically. Being a subordinate body, the SEC will not in any sense restrict the supreme authority and autonomy of the SC collegium in the selection of judges. It will only institutionalise the search and selection process, making it objective, transparent and expeditious.
With its composition of former judges, academics and other experts, the SEC would effectively widen the zone of consideration, which, at present, is highly circumscribed. For example, the Allahabad, Telangana and Andhra Pradesh HCs have 72,860 and 4,903 practising advocates who have completed 10 years of practice and are eligible as judges — but without the SEC in place, it is impossible for existing collegiums to consider the entire set of candidates. The selection process thereby inevitably becomes subjective and opaque.
The SEC can have a three-year tenure, its membership to be decided by the CJI in consultation with the GoI. It will bring judicial appointments in line with the practice in vogue in the GoI now, where senior-most appointments in the bureaucracy and regulatory bodies go through search and selection committees before being recommended to the Appointments Committee of the Cabinet for final approval. Let us hope that the setting-up of the SEC will merit an urgent and positive consideration by the new CJI. He must surely realise that the present impasse
is only exacerbating the already acute problems facing India’s judiciary.