The mounting unfilled vacancies in judiciary also negates constitutional mandate

Echoing concern over the prevailing delay in disposal of Civil litigations, the Hon’ble Apex Court has laid down the procedures to be followed by the trial courts as well to curb frivolous litigation. A Bench of Justices Dalveer Bhandari and Deepak Verma in a judgment rendered on 04-07-2011 in the case of Ramrameshwari Devi, pronounced: "The courts have to ensure that there is no incentive to uncalled-for litigation. It is a matter of common experience that the court’s otherwise scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled-for cases."
The scourge of frivolous litigation is a colossal menace for efficient administration of justice. The Hon’ble Supreme Court of India has struck the hammer right on its head. Frivolous litigations take heavy toll on judicial resource and time. Besides, the Constitution of India mandates, inter alia, that the State shall secure that the operation of the legal system promotes justice, on the basis of equal opportunity.
Referring to a study, the Apex Court observed: “Ninety per cent of our court time and resources are consumed in attending to uncalled-for litigation, which is created only because our current procedures and practices hold out an incentive to the wrongdoer. Those involved receive less than full justice and there are many more in the country, in fact, a greater number than those involved who suffer injustice because they have little access to justice, in fact, lack of awareness and confidence in the justice system.”
The Judgment further records that "as civil litigation was largely based on documents, it would be the bounden duty and obligation of the trial judge to carefully scrutinize, check and verify the peadings and documents filed by the parties. The court should resort to discovery and production of documents and interrogatories at the earliest according to the object of the Civil Procedure Code. Imposition of actual, realistic or proper costs and/or ordering prosecution would go a long way in controlling the tendency on the litigants to introduce false pleadings and forged and fabricated documents. Imposition of heavy costs would also control unnecessary adjournments". "In appropriate cases, the courts may consider ordering prosecution, otherwise it may not be possible to maintain the purity and sanctity of judicial proceedings."
It further says: "Courts have to be extremely careful in granting ad-interim ex-parte injunction. If injunction has been granted on the basis of false pleadings or forged documents, then the concerned court must impose costs, grant realistic or actual mesne profits and/or order prosecution. This must be done to discourage the dishonest and unscrupulous litigants from abusing the judicial system. In substance, we have to remove the incentive or profit for the wrongdoer."
It, in essence, intones that "Litigation should not be permitted to turn into a fruitful industry so that the unscruplous litigants are encouraged to invoke the jurisdiction of the court. No litigant should be allowed to derive benefit from the mere pendency of a case in a court of law and no party can take any benefit of his own wrongs. The institution of litigation can not be permitted to confer any advantage on a party by delayed action of courts. It is the bounden duty and obligation of the court to neutralise any unjust enrichment and undeserved gain made by any party by invoking the jurisdiction of the court. When a party applies and gets a stay or injunction from the court, it is always at the risk and responsibility of the party applying. An order of stay can not be permitted to be conferment of additional right upon the litigating party.The persons in wrongful possession should not only be removed from the place of wrongful possession as early as possible but also be compelled to pay for wrongful use by way of fine, penalty and cost".
Giving an example of the problem, the Bench said: “It is a matter of common knowledge that lakhs of flats and houses are kept locked for years, particularly in big cities, because the owners are not certain that even after the expiry of the lease or licence period, the house, flat or the apartment would be vacated. It takes decades for the final determination of the controversy and wrongdoers are never adequately punished. Pragmatic approach of the courts would partly solve the housing problem.”
Some time back, Andhra Pradesh High Court Judge Justice V V Rao said, "If one considers the total pendency of cases in the Indian judicial system, every judge in the country will have an average load of about 2,147 cases. Indian judiciary would take 320 years to clear the backlog of 31.28 million cases pending in various courts including High courts in the country”.
About 55,000 cases are currently pending with the Supreme Court, 42 lakh with High Courts and 2.8 crore with subordinate courts. Pendency has increased by 148% in the Supreme Court, 53% in High Courts and 36% in subordinate courts in the last 10 years.
However, we can choose to lose sight of the fact at our own peril that awesome pendency of cases and consequent denial of justice to the teeming litigants also have close and inextricable nexus with the mounting unfilled vacancies in judiciary. The sanctioned strength of judges is 31 for the Supreme Court, 895 for the High Courts and 17,151 for the subordinate judges. 33% of the sanctioned positions in High Courts are currently vacant. Among High Courts, the highest number of vacancies are in the Allahabad High Court (60%), followed by the Punjab and Haryana High Court (38%) and the Calcutta High Court (28%). Vacancies in subordinate courts equal 18% of the total sanctioned strength. The corresponding figure for the Supreme Court is 6%. What adds to the woes is that the vacancies are not filled timely and adequately notwithstanding the numerous judgments of the Apex Court on this score.

Higher judiciary should be out side of the purview of the Lokpal

Independence of Higher Judiciary is sacrosanct. Each and every institution and individual in India have profound stakes in the independence of higher judiciary. Judiciary commands a special constitutional position in the task of delivering all-encompassing, comprehensive and holistic justice to “We, the People”, and in bringing home the numerous other ideals enshrined in the Constitution of India. It is the only Institution which has paid some respect to the “Constitutional tryst with destiny”. Hence, the judiciary is cornerstone of the magnificent edifice of the Constitution of India.
The demand from various quarters including the Civil Society Group led by Sh. Anna Hazare for including the Higher Judiciary within the purview of Lokpal is undesirable. For a democratic government, the rule of law is a basic requirement, and for the maintenance of the rule of law, there must be an independent and impartial judiciary. It is the first condition to protect and safeguard the inalienable & indefeasible constitutional liberties and other rights of the citizens. In a federal Constitution, it plays another important role: it determines the limits of the power of the Centre and State.
However, it is nobody’s case that Higher Judiciary should be left unchecked. The not so uncommon reports of the impropriety, misconduct and corruption in the Higher Judiciary is highly perturbing and is subliminally undermining the faith and confidence of the People in the Institution of Higher Judiciary. The Judicial Standards and Accountability Bill is hanging fire for some time in its various rechristened variants. The grim situation brooks no delay for the bill to be made into law forthwith. The Bill envisages a broad based “National Judicial Oversight Committee” (NJOC) and an all Judges “Scrutiny Committee”. However, it is urged upon that to preserve the sacrosanct “Independence of Higher Judiciary”, the final decision body i.e. “National Judicial Oversight Committee” (NJOC) should consist of Judges only and conversely to usher in judicial accountability the proposed “Scrutiny Committee” should be broad based.