I was astonished to see Chief Justice TS Thakur shed tears, which later were sought to be disguised as a case of seasonal sniffles at the now well-publicised meeting with the Prime Minister and some chief ministers. Astonished, that if they were indeed tears, that he wasn’t bawling or wailing about the state of the rot pertaining to pendency and delays in the administration of justice in India.
Many moons ago, I was a judicial clerk to the then Chief Justice of India and would like to think I contributed, in howsoever minuscule a way, to the research behind his judgments, orders and public speeches. With that background, when I heard the televised address of Chief Justice Thakur on the wartime measures needed to clear the shards of judicial arrears debris embedded on the body of the republic, it brought back memories of my time spent in the chambers and courtroom of Chief Justice VN Khare.
Chief Justice Thakur made the correlation between delivery of effective and timely judicial remedies to the growth of foreign investment in India. That cannot be controverted. He said that 250-300 judicial appointments which had been cleared by the Supreme Court need to be sanctioned by the government to deal with the time-bomb of judicial delays. Unfortunately, while well-intentioned and passionately pleaded, that will only offer a short-term palliative to the judicial time-bomb which has burst. Much like the reworked way of calculating national GDP, the euphoria will be short lived, when people realise that mere statistical reduction of arrears and delays (which an additional 300-judge contingent will any way do very little to dent substantially) has done little to deliver qualitative justice efficiently and quickly.
Merely reducing the number of days of pendency of a particular case and reducing the total number pending cases is no guarantee of substantive justice. If that can be taken as the starting point and there is bipartisan agreement on it, it can be a more effective solution which could reverse the apathy with the judicial system and deliver quick qualitative justice. On that basis, increase in numbers alone, whilst important, will not achieve anything even close to the avowed objective.
So, if there is such a system that entices, sustains and encourages if not the most talented individuals but somewhere in the top echelons of talent to the path of judicial service, a start could be made. A lot is said about the demographic dividend that India is well poised to harness, but minus slogans like Start-up India, Digital India and their clones, it could turn into a demographic disaster. I am not sure if people are paying attention to recent government figures on net new employment generation. If we give it a quick look, a demographic disaster is already working its way through the system.
The judicial time-bomb is not ticking but has imploded and the demographic disaster is unfolding. I am not a big fan of mega initiatives, because stopping short of rewarding website designers and advertising professionals, they do very little for the actual constituencies looking to be served. So, let us deal with law colleges and universities churning out graduates into the demographic pool seeking remunerable employment. This number has seen a major rise, with one study claiming the Bar Council of India (BCI) provided accreditation to 92 new colleges in 2014 alone. A large proportion of these graduates end up serving the supply side of individual or institutional demand-led legal services. Where such practitioners who are part of the demand-supply matrix for provision of legal services interact with the judiciary, again the supply of quality judicial officers is found to be short.
Clearly, there is something that is wrong when the demand-supply matrix is so skewed that the supply of justice administration is severely dwarfed by the demand being generated. Also, it is the same talent pool which goes to feed the demand and supply of the justice administration system. So, why not create a more rigorous legal education curriculum, where law students must study for the stipulated duration, followed by two years of acting as a trainee judge under supervision of a judge? How would this differ from judicial clerks? Judicial clerks, whilst incredibly useful, are more in the nature of external consultants to justice delivery process, whilst trainee judges would actually assist in moving the judicial wheel forward. For example, a trainee judge can decide questions of adjournments, framing of issues, supervising cross-examinations and other tasks under guidance of a senior judge. The senior judge should be able to decide on the allocation of tasks over the two-year period depending on the skill displayed by the trainee judge.
For a country which loves precedents, is there an example? Germany has an institutionalised system that puts all law students through this process, even if they were to decide that a corporate law career is what they will eventually do. It’s a two-way street, even if a law graduate with two years of experience as a trainee judge does not go down the full judicial career, it would have helped a senior judge manage his case load efficiently, enriching the newbie lawyer with unique insights into how judicial process works. Of course, if it were to be implemented in India, I see two impediments. The government would likely prostrate itself before the all-mighty BCI to “deliberate” on this issue, since doing anything else under the principle of supremacy of the legislature would be seen as encroaching on the independence of the judiciary. Didn’t understand the last sentence? Don’t worry, nor did I, but when a mob of 10,000 march from Tis Hazari to Jantar Mantar, as a lawmaker whether you comprehended the last sentence would be last thing on your mind. If the government were to somehow overcome such strong-arm tactics, there will be a batch of PILs filed in high courts challenging such a policy under Article 19(1)(g) of the Constitution guaranteeing the right to pursue a trade or profession. Do they have merit? Yes, certainly, if we as a society abrogate to the mob what duly qualified lawyers or, for that matter, any class of professionals should undergo by way of preparation to render such services. So, the legal challenge should wither away under any sensible bench of justices, but not without eating up substantial judicial time.
When we are trying to contain the fallouts of the impending demographic disaster, should we or should we not use them to reinvigorate the judicial system? If the answer is yes, then rather than worrying about the pension pot that will need to be enriched to increase the retirement age of judges, we should immediately implement this system. Having been in the position and having seen scores of young law graduates over the years, I can confidently say the pendency figures will head south and the quality and speed of justice can only inch north.
The author is partner, Duane Morris, London