The Constitution of India is considered as the most important document and has the highest status among all the documents of the Indian Union. It has officially given equal status to the three branches of the government - Legislature, Executive and Judiciary. These three branches are supposed to balance each other and make the state machinery move swiftly. They are also to curb into the actions and act as counterweight when any of the branch crosses its domain.
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Today, it is this act of counter balancing which seem to have become a bone of contention between the Judiciary and the other two branches, with both sides showing no intention to bulge from their position. In the meantime it is the citizen of the country who are affected due to the present state of judicial system in the country. The latest report of spar between The Chief Justice Of India (CJI) T. S. Thakur and the Union Minister of Law and Justice Ravi Shankar Prasad at an event highlights the situation.
The reason for this ongoing tug of war is the procedure of appointment of judges in the Supreme Court and High Courts. In 1998, the Supreme court evolved a Collegium system for appointment of the judges after the judgements in the Three Judge Cases. It is said to be a system where judges appoint judges. The Collegium committee consists of senior most five judges of the Supreme Court and is headed by the CJI. Though the selection of judges and their transfers are done with due diligence, the credibility of the collegium system has been questioned not only by the government but also by the Supreme Court Bar Association.
The question arises on the collegium system because it’s not a process that has been mentioned in the constitution and is a system that has been developed by the judiciary with time. The concern among the other branches in the government is that there are no checks and balances in this process. The decision taken by the collegium is final.
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To replace the Collegium system, National Judicial Appointments Commission (NJAC) was proposed, it was established under 99th Constitutional Amendment Act, 2014. Both the houses cleared the bill in the monsoon session of year 2014-15. Along with it National Judicial Appointments Act, 2014 was also passed to regulate the functions of NJAC. Both these bills were ratified by 16 states and got President’s assent in the December of 2014. It came into force on 13th April, 2015. But a constitutional bench of the Supreme Court consisting of 5 judges on 16th October, 2015. struck down the NJAC Act and the 99th Constitutional Amendment by a majority of 4:1.
The proposed NJAC would have been a body of 6 members, consisting of Chief Justice of India (ex officio chairperson), 2 senior most judges of the supreme court, The Union Minister of Law and Justice and 2 eminent persons. These 2 eminent persons were to be nominated for a term of 3 years and they could not be re-nominated. Of the two, one individual had to be nominated from Scheduled Caste (SC), Scheduled Tribe (ST), Other Backward Classes (OBC), minority community or had to be a women. The committee which chose these 2 eminent persons consisted of 3 members, The CJI, The Prime Minister and The leader of opposition/single largest party in opposition.
While there is no question about the intention of the Judiciary or the Government to serve the people better, this tug of war has not helped in improving the judicial system in the country and will only increase the misery of the common citizen who is already getting blows from the slow pace of the judicial system. In the present CJI T. S. Thakur’s own words, “While we (judiciary) remain keen to ensure that judges’ appointments are made quickly, the machinery involved with the appointment of judges continues to grind very slowly. The confidence of people on the judiciary has, over the years, multiplied. Over three crore cases are pending in various courts across the country”.
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According to a report by The Law Commission of India in 1987, a need of 44,000 judges was reported to move the judicial machinery smoothly then. According to reports published in May this year by The Indian Express newspaper, the present demand have been raised to 77,000 judges. But there are only 18,000 judges presently serving to move this gigantic judicial machinery which is resulting to delay of the proceedings of the cases. In an another report in August this year the newspaper stated that at present, there are 18 judges serving 10 lakh people while the required demand is of 50 judges per 10 lakh people. These are figures of the lower courts.
According to a report published by Livemint in 2013, while the number of judges per 10 lakh (1 million) people was 15 in India, it was 109 in France, 108 in US, 40 in Australia, 35 in the UK and 33 in Canada. It also reported about the alarming rates of pending cases in the courts of different state in India. With West Bengal leading with 96.4 per cent, followed by Odisha at 93.2 per cent, Gujarat at 92.3 per cent and Maharashtra at 91.1 per cent of their total cases.
The Hindu news paper reported in September, 2015 that there were more than 2 crore cases pending in lower courts throughout the country. Of these 66.9 lakhs were civil cases and 1.34 crore were criminal cases. It can be estimated on an average depending upon the case it takes around 5-7 years for a case get a legal closure.
A recent reports state that, nearly 500 posts of judges in High Court lay vacant due to inability of the Judiciary and the Government to get out of this logjam of appointments of Judges in higher courts (Supreme court and High Courts). The appointments in lower courts are done by respective state Governors under consultation of the respective State High Courts, this lack of judges in High Courts is also affecting the appointments of judges in the lower courts.
While both the Judiciary and the government knows the enormity of the issue more clearly than anyone else, but this tug of war is not helping the people on ground. While we expect the government to address the judiciary’s fear of dilution of it’s authority and independence. The judiciary should also address the Government's concern of transparency of the appointments. Both the government and the judiciary should not make it an issue of credibility, if they are. Because in the end it is the people whom they have to serve and the present situation is not helping the people.
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