There is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice.
Charles de Montesquieu,
The Spirit of the Laws
Extraordinary! Rarely does the word arrive in public view with its full import. On Friday, four judges of the Supreme Court of India chose to step outside the hallowed precincts and bring matters to the people’s court. It was extraordinary because four of the senior-most judges, one of them in line to be the next Chief Justice of India, publicly critiqued the Chief Justice of India.
The interpreters of maladies raised two principal points in their missive to the Chief Justice of India — the issue of Memorandum of Procedure pending for months and the allocation of cases “selectively to the benches ‘of their preference’ without any rationale basis for such assignment.”
The consequence of their action weighed heavily as they pointed out “It is with no pleasure that we have been compelled to do this, administration of Supreme Court is not in order.” That they could not deploy reason to secure what they deemed right to deliver justice within the confines of the court is a statement in itself.
There is much lather about what the judges should not have done — propriety and conduct are shaped by circumstance and doctrines of the times, and silence thus far has not yielded results. More pertinently, it is not the method, or the alluded motivations, but the issues which deserve attention as the processes questioned impact the credibility of the judiciary.
As Thomas Hobbes (Eleventh Equity, Leviathan) said, “If a man be trusted to judge between man and man, it is a precept of the law of Nature that he deal equally between them, for without that, the controversies of men cannot be determined but by war.” The points raised demand attention and adjudication on the way forward.
Apparently, back channels are at work, a meeting between the judges may be scheduled over the weekend. As the ever sagacious Attorney General K K Venugopal observed: “the judges would now have to act in ‘statesmanship’ to ensure complete harmony”. Hopefully, the political class will eschew temptations to wade into the battle, and brinkmanship will be overwhelmed by statesmanship.
The Constitution of India promises to secure justice, liberty, equality and fraternity. The guarantees enshrined in the Constitution depend on due process and institutional framework, not individual action. The issues assume significance in the face of the fact that the highest court of the land is soon to adjudicate on a series of hot button issues ranging from the expansion of the Aadhaar programme to the appeal in Ayodhya case.
Philosophically, the tripod of democracy rests on the nuanced balance between executive, legislature and judiciary. This balance, which is an ongoing process, seems to have gone askew. As articulated by Montesquieu: “The political liberty, of the subject, (separation of powers), is a tranquility of mind arising from the opinion each person has of [their] safety. In order to have this liberty, it is requisite the government be so constituted, as one [person] need not to be afraid of another.”
At the operational level, the legislature enacts laws, the executive designs and implements policy and the judiciary is expected to uphold the rule of law. That balance is literally work in progress. Frequently, the judiciary apportions the power to dictate policy in the quest to right what it sees as wrong. The judicial “overreach” is mostly driven by systemic failures. The legislature, far too often, is caught up with the tactical or emotional triggers and is flailing to prioritise the strategic.
Unattended issues have led to inter and intra-institutional conflicts and aggravated poor delivery of justice. Consider the data map. As of December 2017, 54,719 cases were pending in the Supreme Court. Of these, an estimated 15,929 cases are pending since five years and over 1,550 cases since 10 years. Add over 25 lakh cases pending in the 24 High Courts.
Across India, as per the National Judicial Data Grid, over 26.2 million cases are pending in subordinate courts — 2.2 million for over 10 years and 4.2 million for over five years. Assuming two litigants at a minimum per case, there are over 52 million persons, roughly the population of South Africa, including 1.1 million senior citizens and 2.7 million women, awaiting deliverance of justice.
Pending cases are a reflection of the issue of capacity and pendency of structural reforms in the judiciary. Take the issue of capacity. Six of the 30 posts for judges in the Supreme Court are vacant. Nine of the 24 High Courts are functioning with acting chief justices. The 24 High Courts have a sanctioned strength of 1,079 judges, of which over a third or 398 posts are vacant. And in the district and subordinate courts, where the bulk of cases are, 5,984 posts for judges and judicial officers are vacant. Is this a sustainable situation and is the spectre justifiable?
The judges deserve plaudits for raising the issues that they did in the working of the highest court of the land. The need to review the state of affairs in the delivery of justice can hardly be overstated. The fracas in the fraternity calls for attention and repair of a critical element of governance.
Shankkar Aiyar
Author of Aadhaar: A Biometric History of India’s 12 Digit Revolution, and Accidental India
shankkar.aiyar@gmail.com