By P.N. Bhandari
Advocate, Rajasthan High Court

The major institutions in the country are increasingly falling in public esteem. Time and again, political parties hit the headlines for the wrong reasons. Of course in AAP, they are literally hitting each other. The ease with which the political parties stage an about turn on major policy issues astonishes no one. Any political party staunchly supporting a bill, while in the Government, would not mind vehemently opposing that very bill while in the opposition. Our law makers devote major time on issues other than law making. A study indicates that the largest number of bills have been passed, while shouting by the Hon’ble Members was at the maximum pitch.

Against the above back drop, the judiciary still enjoys abiding public faith. But we should not be unduly complacent. The proverbial delays in the Courts is a matter of deep public concern and growing disenchantment. No serious efforts beyond rhetorics have been made to tackle the staggering backlog of cases. The stock defence is that till the number of judges is increased, no visible improvement is possible. The cruel joke is that substantial number of vacancies continue even within the sanctioned strength. When path breaking judgments are delivered which have wide social impact, why can’t the stakeholders – the judiciary and the executive sit together and devise measures to ensure that at least the vacancies in the higher judiciary are filled up as soon as they fall vacant. After all even on the day a judge takes oath, his date of retirement is known.
Our judiciary has occasionally travelled in the realm of policy making, which at one time was considered to be the exclusive domain of the Government. This stretching of jurisdiction has also been generally welcomed because of its long term benefits.

Why can’t the judiciary introspect and take equally progressive measures for improving the justice delivery system. The judges are so much pre-occupied with the heavy cause list every day that they have hardly any time to pause or ponder about transforming the judicial system.

The Chief Justices should earmark one day every month for brain storming sessions with the members of the Bar and the other stakeholders. Such interaction can be very productive and they would receive immense feedback about the grass root level problems. Someone remarked that such interaction takes place only when the advocates launch any agitation.

The Government is the biggest litigant. In some of these interactive sessions, senior Government officials could also be invited to consider what positive steps can be taken for drastically reducing the thoughtless litigations. Through such interaction, concrete and far reaching results are bound to emerge. Presently the officers are generally summoned in the Court only for being reprimanded.
We often hear of the Supreme Court monitored Committees to tackle specific issues. I wish the Hon’ble Apex Court takes suo motu cognizance of this staggering problem and directs the Government of India to indicate is concrete road map for disposal of lacs of cases which are pending for more than five years. In the normal course the disposal of such cases would be impossible even if the strength of the judges is increased by 100%.

Most of the judges at the time of retirement are in perfect health. It is high time this valuable asset of retired judges is tapped and they are engaged, at least for a few years, for disposal of the old cases beyond five years. By engaging them on pay minus pension, the Government would get full time judges at half the emoluments.

Another thought which comes to my mind is that the Courts must dispel the general public perception that the system dispenses only paper justice. In the maze of hyper technicalities, lamentably justice recedes in the background. The orientation of the judges needs a change – lock, stock and barrel. The upper most consideration should be real justice. Fortunately law is not mathematics where two plus two would always make four. The judicial system provides enough elbow room while forming an opinion about a case.
Long back, I read an article by Justice P.N. Bhagwati, former Chief Just

ice of India. He indicated the names of the Judges of the Apex Court, where a murder accused will not be sentenced to death. He also indicated another list of Judges, where the accused was likely to face death sentence. This observation of Justice Bhagwati captures the wide flexibility enjoyed by the Judges while deciding the cases.

In a scenario of judge made law, through the mechanism of interpretation, the judges have enough flexibility. Therefore they should ensure that justice should not suffer due to hyper technicalities. If the judge is determined in imparting real justice, he would never be helpless, notwithstanding the cobwebs of law and procedure.

The endless delays in the functioning of the Civil Courts can be attributed to the cumbersome and dilatory operation of the Civil Procedure Code. In a large number of Acts enacted by the Parliament, it has been provided that the concerned authority will be guided by the principles of natural justice and would not be bound by the CPC. Example can be given of Administrative Tribunal’s Act, 1985, Railway Claims Tribunal Act, 1987, Arbitration Act, 1996, Competition Act, 2002, Electricity Act, 2003, National Green Tribunal Act, 2010 etc. The disposal of cases in Civil Courts would record a quantum jump if the CPC is scrapped and only a few selected provisions are retained through a new Act. If the problem is extraordinary, it cannot be solved by ordinary measures. When you have to cross a ditch, you have to take a big jump instead of moving step by step.
A high powered Commission should be appointed under the Chairmanship of Law Minister of India. Its members could be picked up from retired judges, jurists, retired and serving civil servants, social activists etc. It should organize interactive sessions with various stakeholders from time to time. Its mandate should be to suggest appropriate legal/administrative measures to make the judicial system move fast and with greater efficiency. Typically such Commissions/Committees come out with their elaborate reports after a year or two. We had enough of such academic exercises in the past but this Commission should function differently. Instead of merely making recommendations, it should simultaneously also monitor the actual implementation of its recommendations. Instead of releasing its full report, at the end of its term, it should periodically come out with its recommendations on each issue separately. This will ensure that the deliberations in the Commission and their implementation could be virtually done simultaneously.