Business Today recently carried an article based on the podcast interview of Sanjeev Sanyal, a Member of the Prime Minister's Economic Advisory Council, wherein he made some remarks about the judiciary. He said judges work only for a few hours a day, take long vacations, and if the judiciary does not modernise it will be the biggest obstacle to the country’s economic, social, and national progress. He also came down heavily on the collegium method of appointing judges. This is a response to Mr Sanyal from the other side of the Bar, from a Senior Advocate with 47 years of practice, the last 30 also spent in bringing mediation into the country's legal system.
To say that judges work only for a few hours is as much a misrepresentation as the one attributed to the same council about the rate of growth of the Muslim population. Judges sit in court usually from 10.30 am till 4.30 pm, often beyond. Save a lunch break, they sit through the day, hearing case after case without stretching their legs, taking a coffee break, or dropping into a colleague’s room for a chat. Let the critics try it for a week, and see how it feels. Judges read case papers before coming to court, they dictate orders and correct them after court hours. And weekends just mean work in the home office. I have visited courts worldwide and interacted with lawyers and judges, and it is safe to say that Indian judges are amongst the hardest working anywhere, and their caseloads are far heavier than anywhere else. Do you know that each Supreme Court judge has mountainous case papers for about 70 cases as his or her weekend reading, and another load midweek, and they come ready on Monday and Friday, week after week, to hear arguments on admission of these cases? And apart from these is the court's normal workload of being the final constitutional and appellate court, to hear arguments at length and write judgments that become the law of the land. High Court judges are no less hardworking, as are judges down the line.
Court vacations are a common jibe. But one needs to understand that the system can work only if lawyers, judges, and court staff take their vacations at the same time. And it's a misperception to think that everyone is just having a good time. The courts function during vacations with several Benches to handle urgent matters; most judges have to spend a couple of weeks during vacation sitting in Court and hearing these cases. It's also the time to catch up on needed reading and write pending judgments.
The burden of the enormous backlog is often thrown at the judiciary, but here again, some finessed thought is required. Recourse to court in India comes at a cost fractional to what it is abroad. Our courts’ doors are in that sense open to all, and if you can’t afford a lawyer the court will assign you one, and judges do go the extra mile in listening to a litigant’s woes. It is because of this available legal recourse that we don’t have fighting in the streets and resort to goon mafia. In other jurisdictions, it is the fear of court costs that deter litigation and often forces people to settle for less. We have consciously avoided that here, but the price we have to pay is a huge influx of cases.
It would help if the government came through with sufficient funding to enable the judiciary to handle this load. But no, we are the most underfunded branch of government. India's Law Commission in 1987 had recommended 50 judges for 10 lakhs of population. As per the India Justice Report, 2022 India has 19 judges per 10 lakhs. As for salaries, a moderately successful lawyer earns more than a judge of the highest court, so please imagine the sacrifice the judiciary's members make in accepting this high office. And much needs to be done to provide adequate official and personal infrastructure to district judges and below.
On crushing caseloads, a word, Mr Sanyal. Close to 50% of this country’s litigation involves the government. Our courts are choked with cases of administrative misgovernance, where citizens do not get their due, or some others get what is not due. This involves entitlements, licences, pensions, employment and contracts, and many more. The writ jurisdiction of the High Courts is the most extensively used one now, more than the civil and criminal load. If only the government would perform better, judges could get to other cases faster. But let us remember that it is because of the courts and their functioning, keeping the executive under check by the exercise of judicial review, that India continues to be responsive to the fundamental freedoms of its citizens. The importance of environmental protection has largely proceeded from us. When economic measures are tainted by corruption or are in support of monopolies or cronies against the common weal, we intervene. We are the last resort when all else fails; if we don’t perform then the apocalypse awaits. Progress on the right lines is not in spite of us, to a significant extent it is because of us.
I mentioned mediation in the beginning. Your Council is a high-level body, can you please get the government to mediate its cases with its citizens? Many, many cases can be disposed of through mediation where parties agree to a solution in which neither is the loser. Creative solutions are also possible, as is satisfying the long-term interest of each side. But, no, government and public sector entities will simply not mediate. Not because cases cannot be settled in mediation, but because the officers fear later retribution at the hands of the dreaded Cs - CBI, CVC, CAG. If you would only create a method to enable officers to negotiate, bring the proposed settlement to a high-level body for approval, and give immunity for settlements so approved, you will bring down government litigation dramatically. You are perhaps not aware that India’s judiciary runs the world’s largest court-annexed mediation scheme, where thousands of mediators resolve a large number of cases. Now a new Mediation Act has brought in the concept of professional mediation, and that will truly spur growth in this consensual method of dispute resolution that ticks off all the boxes - time, cost, preserving party autonomy, reaching practical solutions which both sides accept, saving relationships, no issue about enforcement. Do use your Council, Sir, to enthuse business to mediate. Some groundwork in mediation for government and business disputes will be a game changer for all. Ball in your Court.
And lastly, the collegium. You are not alone in being critical about it. Plenty of us in the profession are - for its lack of transparency, for its insularity, and for not having even one independent person who can ask the crucial questions WHY and WHY NOT. For example, why Justice Akil Kureshi, one of this country’s most respected judges and the senior-most High Court Chief Justice, was not elevated to the Supreme Court? It must also be said that many appointments are of deserving candidates, but that does not excuse the bringing in of those who are not, or excluding those who are. Many leading voices clamour for change and improvement, but they are also clear that while judges should not have exclusivity in the selection process, they must have primacy. No one wants to go back to the Emergency days of a committed judiciary, meaning by which a judiciary is committed to the government. But we can pool thoughts together and come up with a good efficient system that enables different voices including the government’s, to be involved. On the point that we must choose the best, there can be no disagreement. Let us end on a happy note.
(Sriram Panchu is a Senior Advocate of 46 years standing at the Bar. He is at the forefront of the mediation movement in India, and is an internationally recognized Indian mediator.)
The views expressed are those of the author and do not reflect the positions of Business Today