Judicial reforms: Just wee bit less crucial than economic reforms - I
by Arvind Lavakare on 19 Jun 2016 8 Comments

Towards the end of April this year, the Chief Justice of India shed tears on a public platform, mourning the humongous backlog of court cases in the country, and attributed it largely to the large number of vacancies in the subordinate judiciary being ignored by the executive.


Yes, the fact that there are just “21,000 judges in India as against the 40,000 estimated requirement as determined by the 1987 Law Commission” is a tragic fact. Consequently, “India has just over 17 judges per million as against 150 for every million Americans.” (Source: Editorial of Business Standard newspaper on 26th April 2016). But shortage of judges is not the solitary cause of the backlog of cases in our courts.


Just see the present scenario of our judiciary’s performance beyond the numerical vacancies.


In an interview to senior journalist Shekhar Gupta posted on rediff.com on March 14, 2016 (http://www.rediff.com/business/interview/mallya-saga-interview-why-sbi-has-so-far-failed-to-recover-money-from-vijay-mallya/20160314.htm), the Chairman of State Bank of India (SBI), revealed that :

(i)  The SBI went to the Debt Recovery Tribunal, (DRT), Bengaluru, in 2013 to recover its loans to Kingfisher/Vijay Mallya and that there have been 81 hearings till the date of the rediff.com interview

(ii) Vijay Mallya has filed several cases against the SBI in the DRT and the SBI has filed counter claims. There are 22 cases SBI are fighting here, and overall there have been 508 hearings. The number of adjournments is more than 180.

(iii)     The SBI consulted the Attorney General of India about going to the High Court / Supreme Court, but were told that the law demanded that the DRT should first be approached.

(iv)      The SBI Chairman concluded, “We tried our best to see the money is recovered quickly. Just as the government is looking at ease of doing business, it needs to look at ease of resolution. When something goes bad, resolution the world over happens in six-nine months’ time. Here it goes on for years.”


In fact, the Business Standard had written in its issue of December 17 2014, an article titled “Debt Recovery Tribunals Are More Pains Than Gains For Banks”



That article severely indicted the performance of DRTs for 2013-14 (when just 13% of the debts were recovered) and squarely blames the laggard performance of the DRTs which have blatantly violated the relevant law – Recovery of Debt Due to Banks and Financial Institutions Act, 1993 – that stipulated a period of six months for the recovery of loans of Banks and Financial Institutions.


Nor has there been any accountability of the presiding judges of the DRT. Who, for instance, is going to penalise the tortoise approach of someone like Judge Benakenahalli of the Bengaluru DRT for having 81 hearings in one SBI case, and 508 hearings in all 22 cases of the SBI vs. Vijay Mallya /Kingfisher, apart from a ludicrous number of adjournments totaling 181?


There was also a report in General Knowledge Today of December 29, 2011 that seven DRTs, including one of the three in Mumbai, were functioning without a presiding officer and that there were vacancies for recovery officers and assistant staff as well. (http://www.gktoday.in/debt-recovery-tribunals/) The current position on that is not known, but it’s likely that it is not any different, what with our media being unconcerned with such matters even at a time when the Debt Recovery Tribunals are part of the “Breaking News” of Vijay Malaya’s whisking off to the UK.


The revealed shameful state of our DRT is also happening in other Tribunals such as Income Tax Tribunals, Customs Tribunals, Excise Tribunals and Central Administrative Tribunals. The latest instance of the torturous working of our Tribunals was provided by a news item of 1 April 2016 in the Business Standard. That report told us that the Appellate Tribunal of Electricity (APTEL) took three years to quash the complaint over the commercial date of operating of the Reliance Power’s ultra mega 4,000 MW Sasana project in Madhya Pradesh which, by the way, was full commissioning in March 2015.


That issue had traveled from Western Regional Load Dispeatch Centre (WRLDC) to APTEL which sent it to Central Electricity Regulation Commission (CERC) and back to APTEL to Reliance which contested the CERC order (under Section 62 of the Electricity Act, 2003) and which finally ruled in its favour saying that the original order of WRLDC was “arbitrary and discriminatory treatment by WRLDC.”


Legal Labyrinth


The above labyrinth of legal authorities and their procedures are mind-boggling. Sadly, they symbolise an utterly complicated and debilitated national judicial phenomenon of our country. See the following stark statistics.

(a) As stated in the Lok Sabha by the country’s Law Minister, 58,906 cases were pending in the Supreme Court of India as on 01.12.2015. The number of cases pending in the High Courts on that date was 41.53 lakh while 2.64 crore cases were pending in District and Subordinate Courts as on 31.12.2014. 



(b) In the Question Hour in the Lok Sabha on 14-12-2014, the Law Minister said “I do concede that the vacancies of judges in various courts are very huge, especially in the High Courts, more than 400 vacancies are there. In subordinate courts, nearly 5,000 vacancies are there.”


(c) If the extreme paucity of judges in our High Courts and District Courts is appalling, the total number of judges in the Supreme Court is paltry - just 31 (including the Chief Justice). Imagine that number for a country of 1.25 billion who, moreover, have a fetish for litigation, what with its tortoise pace encouraging the unlawful to merrily remain unpunished for years.


Note here that unlike in the USA where there are select Federal Supreme Courts, there is simply no Bench in India of the Supreme Court other than in Delhi, thus forcing all the litigants concerned to go to Delhi at considerable waste of time and money for every hearing. And why is there no Federal Supreme Court in India? The answer is Article 130 of the Constitution of India. It states that Quote “The Supreme Court shall sit in Delhi or in such other places, as the Chief Justice of India may, with the approval of the President, from time to time, appoint.” unquote. 


So, good Lord, the Chief Justice of India, no less, is to decide whether there should be benches of the Supreme Court at crucial cities like Mumbai, Chennai and Kolkata. Our Parliament, of nearly 800 representatives of 1.25 billion people, and the so-called temple of democracy, does not have the power to decide where all the Supreme Court must have Benches for the convenience of the population. How truly anti-national has our Constitution has turned out to be!


(d) Frivolous Cases filed in our courts compound the shortage of judges and aggravate the pendency of cases. For instance, cases have been filed for removing the word “Sindh” from our national anthem as well as against Ram and Laxman for exiling Sita!! It was a case under Section 367/34 and other sections of the IPC, seeking direction of the court for justice to Sita in this regard, and the case was filed by a lawyer, Thakur Chandan Kumar Singh!



Imagine this case being filed in February 2016, some 14 months after the Chief Justice of India, H.L. Dattu, had, in an official inaugural address at Bengaluru, warned that “the increasing number of frivolous or premature cases is a disease that plagues all courts in India including the Supreme Court. Owing to this, cases needing genuine aid from Court may not get time.”



And do you know what happened in that complaint-case filed in the court of chief judicial magistrate in Sitamarhi Patna, Bihar? The court admitted the case and fixed the hearing for February 1, 2016!


Procedural Paradox


Now look at the apparent paradox of some of the paradoxes of certain the legal procedures before we go the various rungs of the legal ladder in India.


(i) In her earlier cited rediff.com of March 14, 2016, the SBI chairman says that the Attorney General told the Bank that the Supreme Court would ask the Bank to first go to the Debt Recovery Tribunal for recovering its defaulted loan running into crores and crores of rupees. But, by some paradoxical provision/procedure of the law on the issue, the SBI was given an Order by a High Court to get the possession of Vijay Mallya’s villa in Goa (which must have been collateral for the SBI’s defaulted loan to him/Kingfisher Airlines). It’s a different matter that the Collector of Goa, instead of acting on the High Court’s Order, had eight hearings with the Bank and then… went on leave!


(ii) Consider another paradox of procedure gleaned from a report in The Indian Express (Mumbai edition) of 15 September, 2015. For an allegedly inflammatory speech made by him in Amethi (UP) during the Lok Sabha polls of 2014, Arvind Kejriwal was required to appear before a metropolitan magistrate under a bailable warrant, in a case under the Indian Penal Code. Kejriwal appealed to the Allahabad High Court for exemption for personal appearance. The Court asked him to first appear before the trial court and then seek personal exemption on a subsequent day of hearing. When Kejriwal went to the Supreme Court, a joint bench not only stayed the warrant issued by a court in Amethi, but also granted him exemption from personal appearance! So, the SBI is denied to approach the apex court for recovering a big defaulted loan (also a case under IPC) while the said court overrules the Allahabad High Court over a mere bailable warrant and grants leave from personal appearance!

Legal Ladder


To a layman, and perhaps to a junior lawyer securing a final court order on a brief is positively Himalayan.


(i) A criminal case is first tried in a trial court; then it goes to the Sessions Court; next is a single Bench High Court; next comes the Division Bench of the High Court before going up to the Supreme Court from where it could travel to a Division Bench or a Constitution Bench. Even a Court decree for seizing a property is a Himalayan exercise for the beneficiary, what with the corrupt bailiff and the police, apart from the hired goondas engaged by the loser of the case, to stall the hand-over.


At each of the above rungs of the ladder, there is the fear in the litigant that a criticism by him of the court’s verdict could make him vulnerable to contempt proceedings under Articles 129 and 142 of the Constitution of India, whereby the Supreme Court has been vested with power to punish anyone for contempt of any court in India.


In fact, the Supreme Court performed an unprecedented action when it directed a sitting Minister of the state of Maharashtra, Swaroop Singh Naik, to be jailed for one month on a charge of contempt of court on 12 May 2006. “This was the first time that a serving Minister was ever jailed.” (https://en.wikipedia.org/wiki/Supreme_Court_of_India).


This means that, 69 years after independence, the Indian citizen does not still have the fundamental to criticize the judiciary under the fundamental right of freedom of speech and expression given to us by our Constitution under Article 19 (1)(a) subject to the restrictions laid down under 19 (2)


(ii) And pray what happens to the Judge whose verdict has been turned down by an upper court for some reason?


Nothing that is known. There is no punishment at all for the erring judge excepting, perhaps, remarks in the annual confidential Appraisal Reports.


For instance, who will be punished for the “arbitrary and discriminatory” order in the above-cited 4,000 MW Sasana project that must surely have caused its promoters the agony of waiting for a verdict in the date of commencement of its project? Will it be Western Regional Load Dispatch Centre (WRLDC) or the Appellate Tribunal of Electricity (APTEL) or the Central Electricity Regulation Commission (CERC)?


Who will be held accountable and punishable? None.


What about the Bengaluru High Court judge who made an arithmetical error in calculating Ms Jayalalithaa’s assets and acquitted her after she had been convicted by the trial court in the disproportionate assets case?


The case of the defeated candidate’s Lok Sabha election (of 2009) petition case of 25 June 2009 against Mr P Chidambaram for allegedly indulging in “manipulation” and “corrupt practices” to win the election is still to be decided! Similarly, the alleged culpable homicide case of 2002 against Bollywood’s Salman Khan.


There is no judicial accountability. We talk of economic reforms and administrative reforms, totally forgetting that judicial reforms are just as important as those reforms because judicial functioning impacts the entire socio-economic and political morale of the country.


(To be concluded…)

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