The problem of delivering timely justice in India is so gargantuan that it drove one Chief Justice, T S Thakur, to tear up at a public event attended by Prime Minister Narendra Modi in 2016 as he recounted the common man’s suffering on account of the backlog of cases. Three years on, Chief Justice Ranjan Gogoi has chosen a more prosaic way to draw the prime minister’s attention. In three letters, he has made three requests: Expanding the Supreme Court Bench; raising the retirement age for high court judges from 62 to 65 years; and making tenure appointments of high court and Supreme Court judges under the relevant constitutional provisions to clear the backlog. On the first issue, Justice Gogoi pointed out that the judge strength was increased from 26 in 1988 to 31 in 2009. With a pendency of more than 58,000 cases in the apex court, he has argued for another expansion. His proposal to raise the retirement age of high court judges would address the 37 per cent shortage of Bench strength in the country’s 24 high courts. Between 2015 and 2019, the number of outstanding cases at this level has risen 9.7 per cent to 375,402 cases. Justice Gogoi also informed the prime minister that 26 cases have been pending for 25 years, 100 cases for 20 years, 593 cases for 15 years and 4,977 cases for 10 years.
The question is whether Justice Gogoi’s suggestions, though sensible, are adequate, given the scale of the crisis. The indiscriminate admission of cases is one important element of the problem. The number of frivolous PIL (public interest litigation) petitions filed before the Supreme Court — from banning sardar jokes, the restitution of the Kohinoor and monitoring condom packaging (ironically, some of them were entertained by Justice Thakur) — suggests the need for a mechanism to reject non-serious cases at all levels. In lower courts, too, many cases concern hurting cultural, religious and personal sensibilities (such as a lawyer filing a case against Richard Gere kissing Shilpa Shetty at an AIDS awareness event, which went all the way to the Supreme Court). If the courts encouraged more Indians (politicians included) to be less thin-skinned and more tolerant, the judicial system would find the pipeline less clogged.
Justice Gogoi should also consider how the issues of court automation systems, digitisation and e-courts can be fast-tracked. It is time the judiciary as an institution opened itself up to the services of competent external agencies that can help them record, manage and analyse their data better, to build and sustain a healthy institution. There is also perhaps a strong case for looking at the proposal that the Supreme Court should be made a Constitutional Court that will hear and decide cases involving the interpretation of the Constitution and other cases of legal significance or national importance. A separate Court of Appeal could be set up between the high courts and the Supreme Court to hear appeals from judgments and orders of high courts. By some estimates, more than 70 per cent of cases before the Supreme Court do not involve the Constitution. If they are removed, a lot more time will be left for important cases. This of course would involve changes in the Constitution.