Monday, April 09, 2007

The Indian media's obsession with 'clashes' between the Judiciary and the Executive/Legislature

The lead stories in today's online issue of the Indian Express and the Hindu would have readers believe that Prime Minister Manmohan Singh has fired a salvo at the judiciary, thereby raising the spectre of a clash between the executive/legislature and the judiciary, especially over the issue of OBC quotas.

Digging a bit deeper into the background context reveals that this may be yet another over-reaction on the part of the media, and a sign of its constant need to generate controversies and imagine mountains every time it sees molehills.

The Prime Minister's remarks were delivered on the occasion of the annual conference of the Chief Ministers and Chief Justices of High Courts, which is chaired by the sitting Chief Justice of India, and has become an important forum for discussing policy issues relating to the judiciary as a whole. The agenda for this year's Conference, as posted on the website of the Supreme Court of India, is available here. (click on the first topic, and a Word document containing the detailed agenda will open up). Reading this together with the full text of the Prime Minister's speech (which is now available at the website of the PMO), makes it clear that the Prime Minister was making fairly obvious and non-controversial points in reacting to the agenda for the conference. The issue of PIL, for instance, was already on the agenda of the meeting, and in making his comments about preventing abuse of PILs (a point which has been made by innumerable jurists including sitting judges), the Prime Minister was not saying anything radical or new. Indeed, as one reads the PM's speech together with the agenda for the conference, it is clear that his speech was almost a point-by-point enumeration of the issues listed on the agenda.

While the media is fully entitled to parse leaves, and read between the lines, I cannot help wondering if in this case, it may be sniffing up the wrong tree. The event, one must remember, must have been planned months ago, and the mere fact that it coincides with the unfolding controversy over OBC quotas doesn't necessarily mean that we are headed for the long-awaited 'clash of the titans'. (For a similar over-reaction to a speech delivered by President Kalam in Nov 2005, see this post from the archives of the blog).

Even reading the quoted statements as full sentences reveals the problem with the interpretation being accorded by the media to statements which seem obvious and non-controversial. I will reproduce the relevant parts of the speech, which read like good advice for the three wings of government to bear in mind at all times. This may also account for why Chief Justice Balakrishnan seemed unperturbed when asked for his reaction to the PM's statement by the media. Looked at as a whole, it is hard to take exception to the expressed words and sentiments.

Here are the quoted statements:

“I feel privileged to be once again at this very important conference of Chief Ministers and Chief Justices of our High Courts. These are important and useful opportunities for representatives of the executive, the legislature and the judiciary to interact, both formally and informally. Apart from discussing various issues on the agenda, I hope each one of you will use this opportunity to gain a better understanding and appreciation of the other’s concerns and preoccupations. In this way this conference would be an important asset in mutual comprehension. Unless the three wings of the State understand each other better, they will not be able to function effectively in the interests of our nation and our people at large. The three wings have well defined roles and functions under our Constitution. However, all the wings have a common goal – which is the fulfillment of the hopes of the founding fathers of our Republic and as spelt out so clearly in our magnificent Constitution. Therefore, conferences such as these give us an opportunity to discuss contemporary issues which have a bearing on the organs of the State, particularly those issues where the interface between the organs is large.

... ... ... There are a few issues, which have been flagged for this Conference [by the organisers]. The most important issue is that of “pendency” and the growing backlog of cases in courts. ... ...

I do sincerely believe that the judiciary, the executive and the legislature have an obligation both to our Constitution and to our people, to work in harmony. Each one of these organs of the State have an important and vital role to play in improving the welfare and well-being of our people. Each one of the organs have their Constitutionally assigned roles and responsibilities, and these must be discharged in all honesty. Each organ must respect the roles and functions of the other. Powers accorded to each organ must be exercised cautiously.

In the context of judicial reform, the primary obligation is to enforce the rule of law, uphold the Constitution and enforce the discharge of obligations by any authority of the State. This confers enormous powers on our judiciary, rightly so. But at the same time it also involves enormous responsibility - in the exercise of these powers. Courts have played a salutary and corrective role in innumerable instances. They are highly respected by our people for that. At the same time, the dividing line between judicial activism and judicial over-reach is a thin one. As an example, compelling action by authorities of the state through the power of mandamus is an inherent power vested in the judiciary. However, substituting mandamus with a takeover of the functions of another organ may, at times, become a case of over-reach. These are all delicate issues which need to be addressed cautiously. All organs, including the judiciary, must ensure that the dividing lines between them are not breached. This makes for a harmonious functioning.

So is the case with Public Interest Litigation. PILs have great utility in initiating corrective action. At the same time, PILs cannot become vehicles for settling political or other scores. We need standards and benchmarks for screening PILs so that only genuine PILs with a justiciable cause of action based on judicially manageable standards are taken up. This will also ensure consistency in judicial pronouncements. The Supreme Court could take the lead in framing rules in this regard.

Conferences like these can play a very important role in helping us understand each other better and work together in the discharge of our respective duties. I hope it is in this spirit that these proceedings will be conducted. I wish you all success in your endeavour. I thank you.”

Update: April 10, 4pm The full text of the speech delivered by Chief Justice Balakrishnan at the same event is now available at the Court's website. (This is a very welcome development, and one hopes that such alacrity will become a regular feature of other aspects of our judicial system). For me, reading the text of the speech resulted in a very different impression of the tone and substance of his remarks (to be contrasted with the impression conveyed by this newsitem in yesterday's IE). It seems to me that in the hullabaloo over the implications of the CJI's fairly innocuous opening remarks, the more significant contents of the speech, where he outlines the latest official figures about judicial delay in the Indian legal system, have gone unnoticed. Here are the parts of the speech where the actual figures are discussed:

"The real problem is that the institution of cases in the Courts far exceeds their disposal. Though there is a considerable increase in the disposal of cases in various courts, the institution has increased more rapidly.High Courts increased their annual disposal from 980474 cases in the year 1999 to 1450602 cases in the year 2006, the cumulative increase being 48% in seven years, without there beingcommensurate increase in the strength of judges. However, the institution increased from 1122430 cases in the year 1999 to1589979 cases in the year 2006 leading to increase in pendencyfrom 2757806 cases as on 31st December, 1999 to 3654853
cases as on
31st December, 2006.

Subordinate Courts disposed of 15842438 cases in the year 2006 as against 12394760 cases in the year 1999, thereby, increasingthe disposal by 28% in seven years without any substantial
increase in the strength of Judges. However, the institution increased from 12731275 cases in the year 1999 to 15642129 cases in the year 2006, resulting in the pendency getting increased from 20498400 cases as on
31st December, 1999 to 24872198 cases as on 31st December, 2006 The average disposal per Judge comes to 2374 cases in High Courts and 1346 cases in Subordinate Courts if calculated on the basis of disposal in the year 2006 and working strength of Judges as on 31st December, 2006. Applying this average, we require 1539 High Court Judges and 18479 Subordinate Judges to clearthe backlog in one year. The requirement would come down to 770 more High Court Judges and 9239 more Subordinate Judges if the arrears alone have to be cleared in the next two years. The existing strength being inadequate, even to dispose of the actual institution, the backlog cannot be wiped out without additional strength, particularly, when the institution is likely to increase and not come down in the coming years.

... ... ....On the recommendations of 11th Finance Commission Fast TrackCourts of Sessions Judges were set-up for disposal of long pending sessions and other cases. These courts have been quite successful in reducing the arrears. Most of the criminal cases in ubordinate Courts are pending at the level of Magistrates. 16677657 criminal cases were pending before Magisterial Courts as on 31st December, 2006. Keeping in view the performance of Fast Track Courts of Session Judges, Government of India should formulate a similar scheme for setting-up Fast Track Courts ofMagistrates in each State, as recommended by the previous Conference of Chief Ministers and Chief Justices held on 11th March, 2006.

The pendency of Civil cases in Subordinate Courts has increased from 6925913 cases as on 31st December, 2000 to 7237495 cases as on 31st December, 2006. It is common knowledge thata large number of pending civil cases are very old. Huge arrears of civil cases cannot be wiped out by regular courts. It is, therefore, necessary to set-up Fast Track Civil Courts and transfer part of the pending Civil cases to those Courts for disposal.

As many as 5201876 cases involving petty offences were pending in Magisterial courts as on 31st December, 2006. Since the pendency before regular magisterial courts is very high, we need to transfer such cases to courts of Special Magistrates to be manned by retired judicial officers/senior government servants, as decided in the last Conference of Chief Ministers and Chief Justices. State Governments should take immediate steps to appoint such Magistrates in adequate number and provide necessary infrastructure for them."

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