Judiciary at the Crossroad—Some Posers

The judiciary, though one of the three wings of the sovereignty, is considered to be the weakest by the public even if 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 amongst the public at large.

A serious charge against the judiciary is the pendency of about 2.7 crore cases in trial courts, 45 lakhs 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.

Delay in filling up vacancies is another indictment. The Supreme Court had four vacancies for months and even now two are still unfilled. In the High Courts there are about 260 vacancies (out of 895) and in lower courts about 2500 (out of the 16,721 sanctioned strength). The High Court of Allahabad alone has 77 vacancies out of a strength of about 160 judges for over a year and this 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 that 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 due 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 from any judgment, sentence ……in any case or matter passed by any Court or Tribunal. In the instant case at the instance of the defendant in a suit, the genuineness of the will is 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. The petitioner 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†, it still chose to make a reference to a larger Bench to elaborate on the scope of Article 136 notwithstanding the already settled law. In 1950, a Constitutional Bench of five judges was set up by the referring Bench. Fazal Ali J., speaking for the five-judge Constitutional Bench, categorically laid down the scope of Article 136 thus: “On a careful examination of Article 136 along with the preceding Article, it seems clear that the wide discretionary power with which this Court is invested under it is to be exercised sparingly and in exceptional cases only.†Similar has been the principles laid down as recently as 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. I remember that in 1978, the Government of India gave a half-serious thought whether to meet the problem of 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 father’s judgment in the Pritam Singh case you will find that the fault is not with the Article 136, but with judges who refuse to heed the caution repeatedly given about the limited nature of Article 136.â€

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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 when 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 the Constitutional Bench and the latter gave a “momentous decision†that it is not possible to lay down any firm rule as to how and when PIL cases are to be entertained by the 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 referred to earlier.

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

Another matter which is the subject matter 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 CJI found a prima facie case against the erring judge. The CBI investigation found the same. The Union of India, relying on the exparte opinion given by an Attorney General, refuses to proceed especially when the CJI declines sanction. Embarrassgly the trial court refuses to allow the CBI to withdraw the case, on being urged by the lawyers of the Punjab and Haryana High Court.

Application under the Right to Information Act is rejected on the ground that the CJI office’s is not covered. But then Law Ministry is covered under the Act—can it in all fairness withhold information from public especially when it has agreed to the transfer of a 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.â€

The author, a retired Chief Justice of the Delhi High Court, is the Chairperson of the Prime Minister’s high-level Committee on the Status of Muslims and the UN Special Rapporteur on Housing. A former President of the People’s Union for Civil Liberties (PUCL), he is a tireless champion of human rights. He can be contacted at e-mail: rsachar1@vsnl.net / rsachar23@bol.net.in