Judiciary At The Cross Road-Time For Serious Introspection

Public faith in the  institution of judiciary must be restored. The judiciary, though one of three wings of sovereignty, is considered the weakest by the public, though in the constitutional scheme it should be the strongest. But this downgrading unfortunately is brought about by self-inflicted wounds. The judiciary owes to itself to do a little more serious introspection, if for nothing else but to just maintain its esteem among the public at large.

A serious charge against the judiciary is the pendency of about 2.7 crore cases in the trial court, 45 lakh in the High Courts and over 55,000 in the Supreme Court. It is true that in this blame-game, the judiciary is the only recipient which is unfair, because one of the important reasons for delay is the paucity of judges. Against even a modest requirement of keeping a ratio of 107 judges per million population as recommended by the Law Commission (2000), we have a ratio of 10 or 15 per million population.

The delay in filling the vacancies is another indictment. The Supreme Court had four vacancies for months and even now two are still unfilled. The High Courts have about 260 vacancies (out of 895) and the lower courts about 2500 out of the sanctioned strength of 16721. The High Court of Allahabad alone has 77 vacancies out of the strength of about 160 judges for over a year and it will continue as the previous Chief Justice has been promoted to the Supreme Court. The blame lies in the continuing wrong policy of having Chief Justices from outside who are naturally not familiar with the local judiciary and the Bar.

I am afraid the arrears in the Supreme Court will further increase because of a recent reference by a two-judge Bench of the Supreme Court to the Chief Justice to refer the matter to a Constitutional Bench to decide which kind of cases should be entertained under Article 136 of the Constitution and for laying down broad guidelines in this connection.

With respect, this is an instance where expeditious disposal of arrears is the theme song, but the remedy is the opposite. Article 136 of the Constitution states that the Court may in its discretion, grant special leave to appeal against any judgment, sentence in any case or matter passed by any Court or Tribunal. In the instant case, at the instance of a defendant in a suit, the genuineness of the will being questioned, it was sent for expert opinion to the Forensic Science Laboratory. Not satisfied with the report from the laboratory, the petitioner wanted a second opinion — the same was refused by the trial court and the High Court. He then filed a Special Leave Petition before the Supreme Court.

Though the Court observed that it was “prima facie of the opinion that such Special Leave Petitions should not be entertained by this Court”, but it still chose to make a reference to a larger Bench to elaborate on the scope of Article 136 notwithstanding the settled law already. In (1950) by a Constitutional Bench of five Judges (noticed by the referring Bench) Fazal Ali J., speaking for the Bench, categorically laid down the scope of Article 136 thus, “On a careful examination of Art. 136 along with the preceding article, it seems clear that the wide discretionary power with which this court is invested under is to be exercised sparingly and in exceptional cases only.” Similar have been the principles laid down in a 2007 case noticed by the referring Bench itself.

In defence of the referring Judges, I am willing to admit that this kind of exercises do occur off and on. In 1978, the Government of India gave half serious thought whether, to meet the problem of the arrears in the Supreme Court, Article 136 should be abolished. I remember at a function called by the then Law Minister, Justice S. Murtaza Fazal Ali of the Supreme Court seemed prima facie to agree to the tentative suggestion of the Government. I half-jocularly told Murtaza, “If you read your respected fathers’ Judgment in Pritam Singh case you will find that fault is not with Article 136, but with Judges who refuse to heed the caution repeatedly given about the limited nature of Article 136.”

These questions of law are not capable of being answered with mathematical precision. It may be noted that about 25 years back Chief Justice E. S. Venkataramiah referred the question as to and under what circumstances, PIL (Public Interest Litigation ) cases should be entertained. After a period of over two decades, first a smaller Bench referred it to a Constitutional Bench and then the latter gave a “momentous decision” that it is not possible to lay down any firm rules as to how and when PIL cases are to be entertained by a Court or not, and came out with the lame observation that “it will depend on the facts of each case, and no guidelines can be laid down”. I see no reason as to how any larger Bench can give any other answer except in the language and content mentioned by the Supreme Court as referred to earlier.

Of course, the Chief Justice in the normal course has to refer it to a larger Bench unless on reconsideration, the referring Bench itself recalls it.

Another matter, the subject of adverse publicity, is the case of the cash-at-door scam of a Judge of the Punjab and Haryana High Court. A three-member panel of Judges of the High Court appointed by the Chief Justice of India found a prima facie case against the erring Judge. A CBI investigation found the same. The Union of India, relying on the ex-parte opinion given by the Attorney-General, refuses to proceed, especially when the Chief Justice of India declines sanction. Embarrassingly, the trial court refuses to allow the CBI to withdraw the case on being urged by lawyers of the Punjab and Haryana High Court.

An application under the Right to Information Act is rejected on the ground that the CJI’s office is not covered. But then the Law Ministry is covered under the Act — can it, in all fairness, withhold information from the public, especially when it has agreed to the transfer of the Judge to another High Court? I feel it is even unfair to the concerned Judge that reasons, which apparently hold her blameless, should not be disclosed to the public and taint be allowed to continue.

Am I being too harsh to my own fraternity of lawyers and Judges. If so, I plead in the words of Justice Holmes of the US Supreme Court, who said, “I trust that no one will understand me to be speaking with disrespect of the law because I criticise it so freely…. But one may criticise even what one reveres…. And I should show less than devotion, if I did not do what in me lies to improve it.”

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