In democracies, elected governments often view a strong and independent judiciary with suspicion. Pieces of legislation with a significantly populist colouring, but often not quite legal, are guillotined by the scales of justice. Politicians, regardless of ideology, desire a weak and submissive judiciary which will not come in the way of fulfilling the promises made before elections. Often, the judiciary is threatened. In the 1930s, US President F.D. Roosevelt threatened to pack the country’s Supreme Court with judges who conformed to his ideology. It worked. The US Supreme Court stopped striking down socially benevolent legislations as ultra vires the Constitution. But even without resorting to such violent methods, the executive, at all times, tries to keep the judiciary in check. One such way is to keep the judiciary’s budgetary allocation to a bare minimum.
For 2017-18, the Union budget allocated a meagre Rs 1,744 crore to the judiciary — about 0.4 per cent of the total budget. To put this in perspective, each of the 12 companies with the highest non-performing assets (NPA) have debts at least eight to 10 times more than the judiciary’s budget. The net worth of Monnet Ispat is Rs -1,602 crore, with a gross debt of Rs 10,333 crore as of March 31, 2017.
It is primarily on account of a parsimonious government that many cases are pending in courts. Poor manpower and crumbling infrastructure, coupled with a boom in litigation, made the judiciary underperform. As a result, courts were buried under cases. New laws were enacted by Parliament without a commensurate increase in judicial officers or courts. For example, dishonour of cheques was made a criminal offence in 1988. There are an existimated 38 lakh such cases pending before magistrates across India. This took away manpower from other cases, with a cascading effect on pendency. There are reportedly about 3.4 crore cases pending across all courts.
Politicians often use statistics to criticise the judiciary; they say it is not doing its work properly and should improve its efficiency. But what is conveniently omitted are other statistics: As of April 2017, there were 430 posts of judges and additional judges lying vacant in high courts, and 5,000 posts vacant at the district level and lower. When suggestions to fill vacancies are made by the chief justice, the government’s response is the same: They do not have the money for it. By what miracle does the executive hope to reduce the pendency of cases without filling vacancies? It probably doesn’t, since that is the only stick it has to beat an independent judiciary with.
For anyone criticising the judiciary, they have to see only two things: Crumbling infrastructure and the number of cases dealt with by judges. In the Supreme Court (SC), each judge is tasked with reading more than 60 cases on a Monday and Friday, that is, at least 120 on two days. On other days, judges may perhaps have to read fewer cases but hear longer arguments. Unlike a bureaucrat or politician, whose work is primarily to sanction or implement government policy through an army of officers, judicial decision-making is a complex, time-consuming process. It directly affects the rights and livelihoods of persons, which in turn requires hearings on facts, legal precedent and the arguments of lawyers of both parties.
For 1.7 billion people in India, there are 31 judges in the SC and 1,079 in high courts. Of the latter, there are never more than 600 judges appointed at any point. Even if the government does not want to increase the numbers (which it should, and drastically), it ought to fill the vacancies over which it squabbles with the SC. It should also cut down the number of cases it files in courts, as the Government of India and state governments file the maximum number of cases. A policy should be put in place, and officers made accountable for filing of frivolous cases.
It would also be wise for the government to consider that whenever legislation (primarily economic and criminal) which would result in new kinds of disputes arising is proposed, for example, the Prevention of Money Laundering Act, additional amounts be provided for setting up of new courts and appointing officers to deal with such cases. Constituting tribunals headed by retired judges is not enough, since cases eventually travel to a criminal court, and then to a high court or the Supreme Court. The government ought to estimate such jumps in the number of cases and increase the judiciary’s budget proportionally.
There was a reason why courts were constructed on a grand scale. Grand buildings inspire awe, making people respectful of the place they have come to for justice. Today, the lower courts (except in Delhi) are worse than bus stands. Even high courts are bursting on account of the lack of infrastructure. The salary offered to judges at any level is paltry. Yet, judges work assiduously, without favour or reward, in trying conditions, more than any other branch of the government. It is time the government loosened its purse strings and gave the judiciary a substantial hike.