The
Supreme Court of India is often termed as the most powerful court in the world,
because of the wide discretionary power wielded by it and its role in shaping
the country’s jurisprudence. In the current judicial cosmology the Supreme
Court of India is the apex court to decide the matter of constitutional importance,
acts as a court of appeal and has original jurisdiction to adjudicate between
states, centre and state(s). Therefore the layer of judiciary begins with, loosely
speaking, lower courts in each district which acts as the first point of
adjudication, generally, the High Courts in almost every state and thereafter
the Supreme Court.
However,
when we talk about the most powerful court, is it restricted to the power it envisages
or does it also include the wide access to justice to its citizens? When the
Supreme Court was formed, there was apprehension in the minds of the
Constitution makers regarding the access to justice to all. The Constituent
Assembly’s will and spirit for promoting wide access was clearly elucidated
through the words of Pandit Thakur Das Bhargava, who argued that there should
be liberalization of the jurisdiction, and that it should be seen in all fit
and proper cases that the ordinary man gets full justice. Dr B.R. Ambedkar,
often referred to as the father of the constitution, labelled Article 32 as the
heart and soul of the Constitution, as it provided the citizens the right to
directly approach the court, in case of violation of fundamental rights.
Without this article, the Constitution would be reduced to a nullity.[1]
But on the other hand, there were few who were
apprehensive about the wide discretionary power given to the court, to hear
appeals. Biswanath Das had argued that the Constitution’s provisions for
interminable appeals from court to court would only serve to profit lawyers. He
also raised the issue that if there is justice based on the truthfulness of facts
then it must be had in the preliminary court or in the subsequent appellate
court.[2] Contemplating the words of Dr B. R. Ambedkar, the prime purpose or goal of the Supreme
Court is to deal with cases involving substantial question of law or the
interpretation of the Constitution. But over a period of time, because of the
admissibility of the type of cases, it has reduced itself to a court of appeal.
In
the words of former Chief Justice of India, T.S. Thakur and Justice Deepak
Misra 98% of the estimated working time of the Supreme Court judges is
supposedly wasted in dismissing such cases of appeal.[3]
Also, through empirical data, it has been established that in 2011, of all the
appeals to the Supreme Court, 34.1% of the cases represented only 7.2% of the
total population in India.[4]
Thus, the vision of the Constitution makers to provide wide access to all stands on a futile ground.
Pending Vacancies and
Backlogs of cases
The
National Court Management Systems (NCMS) formulated in 2012 by the Supreme
Court predicted that the number of cases in Indian courts will increase to 15
crores by 2040, requiring the creation of 75,000 courts.[5]
This means the judiciary has worked almost at its 75% of strength if not full to
ensure access to justice to all. However, if India were to work with a full
capacity of judges today it would encounter chronic shortfall of at least 5000
courtrooms and Judicial Infrastructure.
The centre had set a target of completing the construction of 2,730 court halls
within the financial year 2018–19. Going into the next decade, India will still
be short by half of what it needs in the way of court rooms. The slow pace of
building new courtrooms will influence the pace of judge recruitment, and if
any state revises the sanctioned number of judges upwards and actually fills
the posts any time in the near future, the shortage of court halls will become
ever more acute[6]
There
has been acute reluctance by governments in budgetary allocation to the judiciary
and then spending it on the courts actually. In the year 2015-16, Only Delhi spent 1
% of its allocated budget while nationally the spending is at of 0.8%[7]
As
per India Justice Report 2019[8] at
all India level there is just one subordinate court judge for 50,000 people. It
includes almost 17-19 large-sized states which assimilate 90% of India’s
population.
Ex
CJIs J. S Kehar and Deepak Misra while highlighting
the apathy of non-appointment and mammoth number pending cases expressed
concern over that 98% of the estimated working time of the Supreme Court judges
is supposedly wasted in dismissing cases
of appeal and that India needed minimum of 70,000 Judges to clear existing
backlogs.
As
per National Judicial Data[9]
grid up till 2019 June across India’s subordinate courts --- the first
port-of-call for most cases --- more than a third of the 31 million cases have
been pending for more than three years. In the High Courts, the pendency is
even higher: half of all the 8 million cases in the High Courts have been
pending for more than three years.[10]
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The
State of Odisha which has highest clearance rate of pending cases (106%) still
has its 38% of its cases lingering in the subordinate courts for at least five
years. Hence as per the India Justice Report, the pendency of cases is at ever
increase at a subordinate level which on an average has a minimum 5 year time as
average clearance per case
Recently
the number of judges was increased from 31 to 34 when in 18 years for the
first time it was working in its full strength but remaining of the courts are
chronically understaffed. The sanctioned strength of India’s High Courts is
1,049 but currently, there are only 680 judges in office (a vacancy rate of
37%). Similarly, in the lower courts, the vacancy rates for judges is at 25%.[11]
At
lower judiciary level there has been the vacancy on the rise but since there is no
normative time period stipulated the appointment sometimes varies from one to
two years. Even with increase of vacancies and appointment, India is effectively
operating with half of its strength. These are all issues therefore linked with
each other in a circle where less judge’s results more pendency and pendency
calls for the appointment of more judges. Over the years, various commissions have
laid out several recommendations to tackle the issue comprehensively. For
instance, the 11th Finance commission in 2005 had recommended the formation of
fast-track courts to expedite cases. More recently in 2014, the 245th Law
Commission recommended setting up special courts adjudicated by recent law
graduates to hear more trivial cases (such as traffic offences) and raising the
retirement age of judges in lower courts. Last year, the Law Minister, Ravi
Shankar Prasad had suggested implementing a centralized recruitment system for
lower courts along the lines of the Union Public Services Commission
Unpopularly
there has been a view of the division of Supreme Court into a separate
constitutional court and the court of appeals was conceptualized and recommended
multiple in 95th and 229th law commission reports and
Parliamentary Standing Committee Reports times to the government with the intent of
having dedicated and the specialised constitutional court which would interpret
only the matters pertaining to the constitution and a different court of an appeal, which would be the highest court of
appeal after respective high court thus have a greater degree of independence and
sanctity of the supreme court and providing wide access to justice.
Another
facet of Judiciary which is constitutionally mandated is for ensuring its
independence from the executive and upholding quintessential constitutional values.
The Judiciary hence is not the only guardian of the constitution but also a torch
bearer of democratic spirit and not letting it succumb to Majoritanriaism. It
is what we may say anti-thesis to the non-democratic regime but over the years it
has seen a dilution in the idea. There are various reasons for Judiciary’s
inability to be as effective which was originally conceived of, pending
vacancies, backlog in cases and the trust deficit is haunting and plaguing the
Judiciary and this calls for a time for the institution itself to reform and
redeem itself in order not only to provide justice but let it be seen when
done.
5.
[1] Statement by Dr.
Ambedkar, Constituent Assembly Debates, 953 (Dec. 9, 1948). Dr. Ambedkar,
however did not seem to imagine that the Supreme Court would fully hear cases
involving fundamental rights under its original jurisdiction, but rather that
it could grant interim relief in appropriate cases
[2] Statement by
Biswanath Das, Constituent Assembly Debates, (June 6, 1949).
[3] All you need to know
about National Court of Appeal, The Hindu, (April 28, 2016),
http://www.thehindu.com/news/national/national-court-ofappeal-the-hindu-explains/article8532094.ece.
[4] Nick Robinson, A
Quantitative Analysis of The Indian Supreme Court’s Workload,
http://www.cprindia.org/sites/default/files/articles/SSRNid2189181.pdf
[5] J Ranjan Gogoi in an
address to District Court new Delhi,
2013
[6]
https://www.barandbench.com/news/india-justice-report-on-the-judiciary-average-case-pendency-in-subordinate-courts-is-5-years
[7]
http://www.cbgaindia.org/wp-content/uploads/2019/01/Memorandum-on-Budgeting-for-Judiciary-in-India.pdf
[8]
https://www.barandbench.com/news/india-justice-report-on-the-judiciary-average-case-pendency-in-subordinate-courts-is-5-years
[9] National Judicial
Data Grid , https://njdg.ecourts.gov.in/njdgnew/?p=main/pend_dashboard
[10]Vishnu Padmanabhan ,
India’s next generation reforms must begin in courts , live mint ,
https://www.livemint.com/news/india/india-s-next-generation-reforms-must-begin-in-courts-1560838699823.html
[11] Supreme Court of
India, https://main.sci.gov.in/
