Judging the Judiciary
“Indian judiciary in not facing the heat of “dysfunctional judiciary,” contends Prashant Bhushan and vows for a public movement against dysfunctional judiciary. He, however, expresses serious reservation and protests against even a slightest interference of the Executives in the Judiciary.
What are the contemporary issues plaguing the Indian judiciary that must be addressed without any further delay to ensure it is accessible to common people so their lives could better?
<g data-gr-id="158">Indian</g> judicial system is so difficult that most people cannot access it. It makes lawyers a compulsory part of the system while common people in the country have little means to afford the lawyers. We need to simplify the technicalities and formalities to the extent that anybody can approach the court directly without their help.
The second most important area to take an urgent call is reducing pending cases by setting up more courts. There should be para-judicial services in which empanelled lawyers should assist the poor litigants access the court.
What are the obstacles to opening up more courts?
Several commissions have recommended the government to open more <g data-gr-id="169">courts</g> but <g data-gr-id="168">government</g> never showed the sincerity to implement it. The Judiciary can also direct the government to open more <g data-gr-id="166">courts</g> but the response of the judiciary has been not been encouraging enough. We have been filing public interest litigations (PILs) on judicial reforms but all the efforts have been fruitless.
Judiciary has been very aggressive for pushing reforms in the Executive and even credited for implementation of its orders like CNG in Delhi. Why is it not as aggressive for reforms within?
The Indian Judiciary is not facing the heat of “dysfunctional judiciary”. Behind this “dysfunctional judiciary” flourishes a huge “arbitration business” which benefits retired judges of High Courts and Supreme Court. I think there is a deliberate attempt by the Judiciary and the Executive both to make the Judiciary dysfunctional. The government and politicians also push for <g data-gr-id="161">pendency</g> of cases.
The cases in Indian courts are dragged for several years, like in the Salman Khan “hit and run” case it took 13 years to prosecute. Even lower courts in India take years to decide minor property disputes, brawls, or traffic issues.
What reforms should be brought to minimise the duration of cases in courts?
Firstly, there should be more courts and efficient judges. <g data-gr-id="152">Everyday</g> around 70-100 or more cases are listed before a judge for hearing but he hardly takes up around one dozen cases and <g data-gr-id="150">rest</g> are bound to go in pendency.
...But beside the shortage of courts, there are several tricks played by lawyers to delay the cases and postpone for next date. The delays are also due to corruption to some extent apart from the defence counsels’ misuse of provisions to deliberately delay cases. How to overcome this menace?
Simplification of the procedure, more judges, and efficient judges are the only solution to all these problems. Besides, the accountability of the judges should also be defined. There should also be independent Judicial Lokpal or Judicial Accountability Commission to investigate <g data-gr-id="146">complaint</g> against judges and take action. This body should also have powers to investigate corruption cases against judges and act on complaints of non-performance.
Do you favour performance audit for judges? What should be the module?
Presently, there is a system of performance audit which is done by High Court judges. But it is not effective and is just a formality. Since there is no performance audit of the judges of High Courts and nobody can take action against them, they take their jobs very casually. These judges dishonestly judge the performance of subordinate judges. Since there is no authority to which you can complain against them, they never bother and work as per their whims and fancies. There should also be a separate and independent authority to look into complaints against High Court and Supreme Court judges. There is a great need for reform at every level from appointment to performance audit to <g data-gr-id="239">punishment</g> of the judges but all by independent permanent Constitutional bodies.
The Parliament has recently passed National Judicial Appointment Commission (NJAC) for <g data-gr-id="132">appointment</g> of judges of High Courts and Supreme Court. How do you see this initiative?
I am against this commission and hope the Supreme Court will strike it down. The biggest flaw with NJAC is that it includes the Law Minister which is a clear scope of interference of the Executive in matters of the Judiciary. It will compromise the independence of judiciary and further worsen the situation. The government can give inputs to the <g data-gr-id="147">commission</g> but there should not be any direct involvement of government in the appointments of the judges.
Do you support the “collegium system”?
I do not support collegium system per se but yes it is better than NJAC. There should be an independent <g data-gr-id="179">full time</g> permanent Appointment Commission for Judges along the pattern of the Election Commission of India (ECI) or the Comptroller and <g data-gr-id="172">Auditor General</g> of India (CAG). In the new commission neither sitting judges nor the <g data-gr-id="178">Law</g> Minister should be members. The commission should have powers to select judges of High Courts, Supreme Court, and lower courts as well. The government should have <g data-gr-id="176">role</g> in appointing the members and chairperson of the commission but after their appointment they must be <g data-gr-id="177">independent from</g> the government’s control. The selection of judges in lower judiciary is often done by High Courts which is plagued with corruption. Indian Judicial Service (IJS) could be a good option to appoint judges of lower courts throughout the country.
How has the use of technology facilitated delivery of justice?
The High Courts and Supreme Court are using technicalities, however, there is enough scope for further use of technologies in <g data-gr-id="137">quick</g> delivery of justice and <g data-gr-id="140">court related</g> information. These technicalities should also be used in lower courts.
It is said that Indian courts give lengthy judgements? What is your take on this?
If you have competent judges they will write better to point the judgements. Presently, you cannot even understand the judgement given by some judges. It is due to their personal inefficiency which can be solved only with a better system of appointment.
How hopeful are you about the present leadership in judicial reforms?
They are not sincere in judicial reforms but are trying to influence the Judiciary and force it to compromise <g data-gr-id="256">with </g>its independence. Whenever the Executive or the Legislature tries to make any reform, the Judiciary strikes it down citing independence but it is also true people are suffering due to <g data-gr-id="258">long</g> pendency of cases.
What is the solution?
There is a need for public movement against the Judiciary. Only when targeted pressure comes from people will the Judiciary be forced to reform. The government doesn’t see any benefit in judicial reforms and the Judiciary finds it very favourable to make it dysfunctional. The business of arbitration will go on only when judiciary is dysfunctional. People go to arbitration only when judiciary becomes dysfunctional. There are several retired judges of High Courts and Supreme Court engaged in arbitration business.