With the retirement of Justice NV Ramana, Chief Justice of India, scheduled on 26 August 2022, the judiciary will lose one of its most eloquent champions. One may not subscribe to Justice Ramana’s views, in fact, his detractors far outnumber his supporters, but he must be thanked for highlighting the problems facing the judiciary. Generally, politicians try to evade their own accountability by holding judges responsible for all types of malaise ranging from falling moral standards to increasing crime. By tradition, judges do not engage in public debate, so such statements often went unchallenged. But, probably aided by his training as a journalist, Justice Ramana gave it back as good as he got. Mincing no words, he pointed out that the most important reasons for the huge pendency of cases were shortage of judicial officers and the ramshackle infrastructure of most courts.

Addressing the Joint Conference of Chief Ministers and Chief Justices, which was inaugurated and addressed by the Prime Minister, the CJI pointed out that non-performance of the various wings of the executive and ambiguously worded statutes were at the heart of the increasing caseload of the judiciary; had the executive been performing their functions in accordance with law, people would have had no occasion to approach the Court. On his part, the Prime Minister suggested writing of laws in simpler language, use of local languages in Courts, increased use of technology in judicial processes, encouraging mediation as a panacea for the ills of the judiciary. However, despite the pious intentions expressed by both sides, nothing has changed on the ground. Rather, waters have been further muddied by sustained campaigns against judges in social and electronic media, brought about by some recent decisions of the Supreme Court.

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Speaking at the National University of Study and Research in Law, the CJI observed: “Of late, we see the media running kangaroo courts, at times on issues even experienced judges find difficult to decide. Ill-informed and agenda driven debates on issues involving justice delivery are proving to be detrimental to the health of democracy. Biased views being propagated by the media are affecting the people, weakening democracy, and harming the system. In this process, justice delivery gets adversely affected.” Divergent interests of the various stakeholders in the judicial delivery system have led to a chaotic situation where cases multiply but justice is seldom done.

The common man, who would like all organs of the State to work in harmony, watches in dismay as the Government and Judiciary slug it out in the open. To sum-up: a) The common man wants cheap and quick justice; b) The judiciary wants to preserve its entrenched prestige and privileges with the assurance that occasional transgressions by its members would be papered over; c) The Government wants support from the judiciary in furthering its agenda. Seldom expressed in so many words, the ‘committed judiciary’ that Smt Indira Gandhi wanted, has been the desire of all governing parties, and d) Lawyers, who are the link between litigants and judges, want many disparate things, the bottom line being the continuation of the present process-heavy system which discourages quick justice and ensures that no litigant can pursue his case without a lawyer.

That all stakeholders have vastly different ethos makes the search for a common meeting point even more difficult. To elucidate, most higher court judges are from the English speaking elite, and more often than not, from judicial families, while the political executive abhors both elitism and dynastism. On the other hand, judges consider the average politician corrupt, crass, and uncouth. The public view the judiciary with distrust probably because the judiciary can be approached only through lawyers, who have their own axes to grind. Lawyers are the proverbial X factor, a handful rendering yeoman service both to litigants and the Court, but a significant briefless mass disrupting judicial proceedings at the drop of a hat and maligning the fair name of their profession by their unruly behaviour. The net result is a highly deficient judicial system. Justice Ranjan Gogoi, a former Chief Justice of India, stated in an interview: “If you have to go to court, you will only be washing dirty linen in court and you will not get a verdict. I have no hesitation to say so. You regret it if you go to court.”

There is no magic wand to cure the ills of the judiciary. Ersatz solutions like recruitment of more judges at the District Court level suggested by the Economic Survey 2018-19 are not likely to work. In his address to the Joint Conference of Chief Justices and Chief Ministers the CJI pointed out (though in another context) that the sanctioned strength of judicial officers had increased from 20,811 in 2016 to 24,112 in 2022 (an increase of 16 per cent) but during the same period pendency of cases in district courts had gone up from 2.65 crores to 4.11 crores (an increase of 54.64 per cent). In any case, an increase in sanctioned strength has to be accompanied by recruitment of judges and their supporting staff, creation of infrastructure, like additional court rooms, allotment of jurisdiction, etc. ~ all of which are time-consuming processes. Only genuine co-operation between the three branches of Government ~ the Executive, the Legislature and the Judiciary ~can rid Courts of the accumulated mountain of cases and prevent accretion of new ones. As pointed out by the CJI, the Executive could help by sticking to rules and avoiding actions that test the borders of legality and the Legislature could frame laws in a better fashion.

Laws circumscribing personal choice in matters of food, drink, marriage and religion, enacted by some state legislatures recently, prescribing long prison sentences for alcohol consumption, cow slaughter and consumption of beef have brought millions of cases in their wake. The Chief Justice of Patna High Court had to write to the Chief Minister to point out that stringent prohibition laws had led to a flood of litigation in lower courts that left little time to judges for deciding more important cases. An earlier CJI had remarked that an amendment in the Negotiable Instruments Act had led to a pendency of 60 lakh cases. Probably, following the Pre-Legislative Consultation Policy (PLCP) before introducing legislation and assessing the effect of the legislation after a pre-determined period would help in curbing the enactment of contentious laws (Legislation Reimagined, 14 December 2021). Finally, the judiciary needs to set its own house in order.

Lower courts have their own momentum; they are often guided more by convenience and local circumstances rather than by jurisprudence, probably because judges of lower courts, who are a demoralised lot with uncertain career prospects, have to satisfy both public sentiments and stand up to the powerful Executive. Consequently, most judges rely on technicalities, rather than facts to decide cases and often leave contentious cases undecided. The Civil Procedure Code and the Criminal Procedure Code have a number of provisions like plea bargaining, compromise, trial by summary procedure etc. to aid quick disposal, which are seldom applied by courts. Similarly, the timelines laid down in both Codes for disposal of cases are seldom observed. To dispense justice quickly and boldly, more than anything else, District Court judges require moral support and reassurance, rather than constant criticism from higher courts.

Higher courts have failed to lead by example; the reluctance of higher courts, particularly the Supreme Court, in deciding cases with political connotations have sent a wrong message to the subordinate judiciary. For example, a number of cases of disqualification of elected representatives, as well as challenges to controversial Acts like the Citizenship Amendment Act (CAA) are kept pending for long. Perhaps, it would be better if the Supreme Court sheds its coyness and decides contentious cases quickly, if only to show the right path to lower courts. According to a 2018 strategy paper of Niti Aayog (New India @75), at the present rate of disposal, it would take 324 years to clear the backlog of pending cases, so an ordinary litigant cannot expect to get justice in his lifetime. Madan B Lokur, a retired judge of the Supreme Court was constrained to observe: “The Chief Justice of India has two options before him: (1) Take revolutionary steps with revolutionary fervour to remedy the malaise afflicting our justice delivery system, or (2) Be ready to light its funeral pyre.” Hopefully, Justice Ramana’s successor would not have to resort to the second option.