Rampant delay in justice delivery / Lack of transparency in judicial appointments

Interview with Justice Hasanth Suresh

Bijo Francis

(Ed. note: Hasanth Suresh is a former judge of the Bombay High Court)

AHRC: As a former judge what do you think about the delays in court procedures in India? Are there any steps taken to address it?

SURESH: Delay is the thorn in the Indian judiciary. Delay in justice delivery is rampant and no region, and no court in India is immune from it. Simple statistics will explain the magnitude of the problem.

Back in 1987, the Law Commission of India recommended that the Government of India immediately fill the vacancies in the judiciary and constitute new courts wherever it was necessary. The primary reason for the Commission to make such a recommendation was that the ratio of judges to the general population was 10.5 judges to 1 million people. The Commission also recommended to the government that the ratio be raised to at least 130 judges per million people by 1990.

In the year 2000, the Law Commission conducted another study and found that the ratio had increased since its last recommendation; and again recommended that the government increase the ratio, this time to 200 judges per 1 million people. Six years on the ratio is a dismal 13.14 judges for every million people. The number of judges must be increased to at least five times of what was recommended in 2000. If there is no judge, there is no court. Thus for millions of Indians, India is a court-less country.

AHRC: Enormous delays must be causing problems for the functioning of the court itself—for example case management. How does the judge manage with all these cases especially with so many of them pending before courts?

SURESH: This results in overworked judges and overwhelmed courts. The direct consequence is that the judges resort to deciding cases by granting mere adjournments. If they take up one case from the thousands pending, the judge will lag behind even in simple administrative matters. Adding to this, particularly in trial courts, there will be daily issues to deal with such as bail applications and other tasks and duties that could consume a judge’s time. So, year after year, the number of pending cases increases.

Additionally, there is a complete abstention by the higher judiciary to be a model or to give any guidance to the lower judiciary. The higher judiciary is only worried about how many cases a judge at the lower court will dispose of by the end of a month. If the disposal rate goes down, the lower court judge attracts the wrath of the higher judiciary. The easy way out for many judges at the lower court is to resort to dismissal. Most judgments might not have any reasoning at all.

AHRC: In addition to delays what are the other important issues that affect the judiciary in India?

SURESH: Yet another task that needs to be accomplished is to bring in complete transparency to the process of appointing judges. People have a right to know why a person is appointed to be a judge; what that person’s merit is. This is quite lacking. In some states the lower judiciary is appointed by the same process by which other civil servants are appointed. In some states it is directly under the supervision of the High Court. Regarding appointment to the High Courts and the Supreme Court, there is no transparency at all. This has resulted in politics and other factors playing a big role in the appointment to the higher judiciary in the country. Consequently, there has been a considerable erosion of values within the higher judiciary itself.

One such example is the absence of advocacy for the poor in the higher judiciary as compared to the higher judiciary of the 1970s to early 1990s when more consideration was shown towards the poor. That is directly reflected in the judgments of the courts. Today, Indian courts say that merely because a person is poor that person does not have any right to occupy government land, and the person must be kicked out and forced to return to the villages.

India houses some of the largest slums in the world. No one lives in a slum by choice. A person is forced to stay in a slum because that is all the person or his family can afford, or he may have to live there because of his place of work, or various other factors. If the government is given complete approval to demolish those slums without making any alternative arrangements for those living in the slums, where will all those people go? It may seem like an easy solution to ask those displaced to return to the villages. But what would they do there if their jobs are in the city?

In the city of Mumbai, even police officers live in slums since there is no housing provided by the police department. And with their salary, policemen cannot afford to rent a house. So, a person can be forced to stay in a slum. If that is the state of affairs for a policeman, one could only imagine the situation of others who try to survive doing menial jobs.

Even the judges are not immune to this. In one town where I met a local judge, he told me that he was living with the sub-inspector of the local police. The judge was transferred to that particular station and there was no place for him to live. The judge had to compromise with what was available, and so he lived in a part of a house with the sub-inspector. One could only imagine how this judicial officer may be influenced when deciding cases brought before him by his landlord or co-tenant, the police officer.

AHRC: It is true that judges need better conditions of employment, but are they really delivering equitable justice—for the poor and the rich equally?

SURESH: The salaries of judges and other conveniences afforded to them by way of allowances are much better now than previously. I do not think any judicial officer could complain that his or her pay is less when compared with professions. Of course there is room for improvement. Today, people become judges to garner authority and use that for their own personal gratification, and not necessarily to deliver justice.

As I mentioned earlier, there exists a considerable erosion of values within the higher judiciary in India. The same court [Supreme Court] which delivered judgments saying a dismissed employee in the public sector has priority for another job at a similar public sector enterprise, today pronounces that once dismissed, he or she is dismissed forever. The TMA Pai [a series of cases decided by the Supreme Court on the right of private managements to run educational institutions with huge fee] right to education case for instance, resulted in judgments where education was portrayed as a prerogative of the rich. A Chief Justice of India once said that allowing a poor person to stay on government land is like paying premium to a pickpocket. The Chief Justice was criticized for making that comment then, but it seems people with similar ideals have returned to the court.

Yet another example is the Narmada construction project. When thousands approached the court seeking compensation, the court made arrangements for their recompense. But, the order was not implemented for even one percent of the people. Then, when the height of the dam was sought to be increased, the same people approached the Supreme Court alleging that the order made in their favour is yet to be implemented and that a height increase of the dam before proper implementation of the first order would result in massive property loss. The court simply adjourned the case without staying the construction process, further putting off the settlement and dispute issues with the people seeking compensation. If the Supreme Court is of that nature, what should one expect from a lower court?

As of today, not only the poor, but also those with substantial wealth do not consider litigation because of the significant time expenditure and exorbitant costs. One could only imagine the plight of a Dalit or a poor man whose rights have been violated. As of today, one also doesn’t have a right to protest due to another judgment of the Supreme Court. Now, this country is all geared up to take care of human rights concerns of other countries in the world. India is a country where large-scale human rights violations occur. For an Indian there is no guarantee that a human rights violation could be locally resolved through India’s existing mechanisms. If this is how the government treats an Indian face in India, what right does it have to talk about human rights in other countries?