For long, we have been pointing to the need for reform of the judiciary. There has been a huge pile up of cases at all three levels - district courts, High Courts, and the Supreme Court. An estimated four million cases are pending before the High Courts and 22.4 million cases before various other courts as of 12 August 2016. A three-judge bench headed by Chief Justice T S Thakur bitterly criticised the government for delaying the appointments of High Court judges. He pointed to 470 vacancies, 44.3 per cent of the total strength of judges. “The entire system has collapsed. By the time an appeal is heard, the accused would have already served a life sentence. This is unacceptable,” said the court.
The government has been sitting over this issue, stalling the transfer of judges and on the proposal of the Supreme Court Collegium on the appointment of 74 judges.
The sole power enjoyed by the Supreme Court for over two decades in the appointment and transfer of judges of the higher courts has not been to the liking of the executive. The government has been unhappy over the Apex Court striking down the National Judicial Appointments Commission Act in October last year. The NJAC sought to end the Supreme Court’s sole power to appoint judges. The NJAC suggested power for the executive to have an equal say with the potential to veto the recommendations of the Supreme Court.
Shortage of judges has been only a part of the malaise. Senior advocate C Ramakrishna points to the severe shortfalls in systems and procedures and the low productivity of the entire system. IE has also pointed to the lack of attention at the admission stage, the indiscriminate sanctioning of adjournments and total unconcern for completion of the whole process within a reasonable time frame.
The government has been responsible for a large number of cases. Tamil Nadu perhaps provides a striking example of this with the ruling party initiating libel suits against political opponents and journalists in different courts. Add to this the litigation propensity of corporates, and the government not agreeing with the verdicts of lower courts.
A significant number of grossly underemployed advocates are politically oriented and indulge in agitations and protests at the drop of the hat. Scores of days are lost at the Madras High Court through such agitations.
It used to be standard practice for advocates to take processions inside the court halls and shout at the courts including that of the Chief Justice. On 19 February 2009, one witnessed the most bizarre of agitations with lawyers throwing stones at the police and unruly elements setting fire to the police station inside the court premises.
The present Chief Justice of the Madras High Court, Sanjay Kishan Kaul, has been seriously attempting to bring order. A couple of his decisions resulted in the transfer of Justice C S Karnan, who had been refusing to work along with the Chief Justice and other colleagues.
A few months ago, Chief Justice Kaul brought about a significant change: worried about the limitations and inadequacy of the state police; he succeeded in handing over the security to the Central Industrial Security Force. The advocates obviously have not been happy about this change.
Some lawyers in Madurai defied the order of the Madras High Court making it mandatory for two-wheeler riders to wear helmets. Bus loads of advocates from Madurai marched through the court’s corridor shouting slogans.
Sadly, one witnesses a lack of concern for the rule of law and adherence to court orders. For several weeks now, advocates have been paralysing court work in protest of the rules framed to deal with unruly lawyers. Several upright judges of the High Court have been seeking transfer to other courts. Justice V Ramasubramaniam is one such. This erudite scholar known for several outstanding judgments requested such a transfer and recently shifted to Hyderabad.
Time was when leading advocates of Tamil Nadu were in demand for representing cases in Delhi, Mumbai and elsewhere. Today, one witnesses the sad spectacle of the absence of such brilliant lawyers in the corridors of Madras High Court. The government engages lawyers from the north or the west to represent its cases. The malaise seems to start from the law colleges, which have become breeding grounds for political confrontations.
In this light, the present confrontation between the highest judiciary and the executive at the Center is a matter of concern.