Our courts are not in good health

Increasingly, there is a tendency to decide hard questions by adjourning them

"We have very few judges for very many litigants, and our judges are overburdened. The infrastructure of our trial courts is inadequate, and the quality of trial judges is generally poor"

We are still very much a young democracy, where the big questions are still in flux. How much will the government interfere in a person’s private life? What makes a person a citizen? These questions are still being decided, and the lines are still being freshly laid down.

For a country which is so dependent on its courts, it pains me to say that our court system is not in good health. We have very few judges for very many litigants, and our judges are overburdened. The infrastructure of our trial courts is inadequate, and the quality of trial judges is generally poor. This results in a shameful amount of pendency, and overflowing dockets.

The average high court judge is looking at a list of more than fifty matters a day and it requires a superhuman effort for a judge to keep track of so many hundreds of matters a week, to remember the facts, to hear arguments and ultimately to write a well thought out, reasoned order which balances rights and does justice. What happens to the matters which are not heard that day? An adjournment is given for the matter to be heard on some future date.

Adjournments in our system can be crucial, so crucial as to make or destroy cases. Where one party needs urgent relief because their interest is in danger, for example, where a forest is being cut down, the clock is running against that party. When a court says that it will not hear the matter for the next three weeks, there is always the potential for the forest to be absolutely destroyed before the court even adjudicates the question.

Where the clock is ticking against a party, the court should be conscious and alert to the fact that those questions must absolutely be decided immediately, or some kind of interim protection must be given. Increasingly, there is a tendency to decide hard questions by adjourning them. Once the forest has been cut, no order will bring it back. This is the creation of a fait accompli, and both private and government parties use this tactic ruthlessly.

What disturbs me particularly is how ad hoc procedure has replaced so much of what is laid down in law. The dependence on PILs for the adjudication of large public questions has robbed the court of the guidance that is offered by procedure. This kind of rule-following is the time-tested wisdom of the law. It is in the certainty of knowing what will or will not happen that the stability of our legal system depends. This is how the historical system of precedent has evolved, and when we call these things ‘mere procedure’ and put them aside, we risk doing harm to the law.

"The average high court judge is looking at a list of more than fifty matters a day and it requires a superhuman effort for a judge to keep track of so many hundreds of matters a week, to remember the facts, to hear arguments and ultimately to write a well thought out, reasoned order which balances rights and does justice. What happens to the matters which are not heard that day?"

The court itself has expanded its powers to include consultative roles, to directing and supervising processes which have been challenged. For example, when the National Register of Citizens (NRC) process in Assam was challenged, the Supreme Court interfered to the extent of acting as the authority itself, laying down procedure. In doing so, it stepped into the realm of the executive.

Now the problem becomes when you want to challenge the process which has been laid down, who will you go to? The court will be put in the position of deciding whether its own actions were right.

I have talked about how important it is for the judiciary to keep the executive in check, and ensure the validity of the laws the legislature passes, in my recently published book. The executive has a hand in the appointment of judges if only (in principle) to an advisory extent. Although it has never been fully necessitated, the legislature can impeach and remove a judge. So far, on the few occasions that impeachment proceedings were started, the judge himself resigned.

The Supreme Court in the past few years, in matters where there are great stakes involved, has shown a reluctance to act against the government. There has always been in courts a tendency to give the government a very long leash, but when it truly matters, the Supreme Court has stepped in to check the government. Across a wide panoply of cases, that is not the case today. My fear is that the judiciary has lost some of its independence and the fearlessness that it needs to check the executive and the legislature.

Still, there are many parts to a functioning democracy, and issues do not stop with the action of the government or with the judgment of the court. A free and fearless press, and an active, interested citizenry, with an inquiring mind, are as important to a republic. Ultimately, the duty to scrutinise and uphold the functioning of democracy rests with the source of its legitimacy and power, which is, you, the people.

(DISCLAIMER: Views expressed above are the author’s own. The writer is a noted lawyer and aRajya Sabha MP. This column was originally published in the 27 February 2020 issue of The Times of India.)