Judicial Tears of Despair and the Failure of Institutions

Published: 08th May 2016 04:00 AM  |   Last Updated: 08th May 2016 09:48 AM   |  A+A-

Judicial Tears

The Chief Justice’s tears at a judicial conference was a lament on the alarming increase in pendency of cases leading to a veritable breakdown in the justice dispensation system. The plea seeking the government’s cooperation for improvement of the judicial infrastructure and increase in judicial strength was well taken. It is indeed shocking that allocation for the judiciary in a state’s budget is hardly 1.5 per cent with many states allocating less.

While blaming the executive and legislature for their failures, the legal and judicial fraternity is also responsible for the huge backlog of cases. The tendency of lawyers to adjourn cases and allow them to linger on as also their inclination to long-winded and repetitious arguments, matched with the patience of judges, adds to this. The legislature’s attempt to speeden the process by laying down timeline restrictions for disposal of cases has been blunted by a benevolent judicial interpretation that these are only discretionary and not mandatory.

The executive also contributes to this pendency, for while the legislature sets up specialised tribunals to decide disputes in various fields, the executive itself is never satisfied by the decisions handed down if they are against it and immediately appeals.The government is the most prolific litigant, accounting for over 50 per cent of pending litigations. It is inexplicable as to why the executive sets up tribunals of its choosing, manned by people to its satisfaction, but refuses to accept their decision unless in its favour.

But the problem could lie with the judiciary itself. The anxiety of the higher judiciary to involve itself in every walk of human life depletes much of the court’s time in resolving disputes of litigants who are waiting their turn. The broad head of supposed Public Interest Litigation (PIL) has brought a flood of litigations many of which are on issues which the judiciary ought never to consider. PILs with regard to the 2G or coal scams or the aftermath of the Godhra massacre would well fall within the purview of the judiciary’s functions, but an investigation into the size of health warnings on a cigarette packet or how a condom should be packaged or whether Santa Banta jokes should be permitted, hardly deserve the valuable time of the apex court. Time, which is diverted from the cause of thousands of people languishing in jails, landlords awaiting an order of eviction of a recalcitrant tenant for over 20 years, disputes taking years to adjudicate, by which time the parties are often dead or the property wasted. And in the meantime, months of court’s time is spent determining how cricket should be administered in India or whether the cover of a condom is violative of the Indian sense of decency or whether the continuance of Sindh in the National Anthem is justified—not to mention whether jokes on Santa and Banta would offend any community’s sensibilities. Surely Triarchy of powers recognized by the Constitution leave these issues to be addressed by the other wings of the State.

The judiciary’s response is that this is due to the failure of those charged with the responsibility. And it is this response that scares me! If the involvement of the judiciary in all these non-judicial functions reflects a failure of the authorities charged therewith, does it mean that in India, the only effectively functioning body is the judiciary and all other institutions have failed?

Police and investigative bodies have failed since court-monitored SITs are the order of the day. The Ministry of Environment and Forests has failed since the court-monitored CEC carries out most environmental functions. The Pollution Control Boards are incapable of carrying out their duties and, therefore, managing Delhi’s pollution is the court’s function. The health ministry has failed and, therefore, cigarette and condom packaging come within the purview of the court’s examination. Administrators of cricket are incapable of doing their job and hence a court-appointed panel has to administer the sport; the Medical Council of India has failed and hence a panel presided by an eminent retired CJ will oversee its functions. Does this never-ending list reflect a complete failure of the executive? Again, judicial legislation is the order of the day, on the basis that legislation is absent in areas the judiciary feels it is necessary. Should a National Court of Appeal be introduced, muses the judiciary when we all know this can only be done legislatively through constitutional amendment.

The implication of judicial involvement in so many legislative, executive, social and administrative functions extending from cleaning Delhi to cleaning up one’s health and morals would necessarily imply the failure of the institutions required to deal with these matter. So instead of shedding a tear for the judiciary, let us instead shed a tear for all these fallen institutions.

Sundaram is a senior advocate in the Supreme Court

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