Judiciary is the foundation and backbone of the democracy. We the people of India while giving unto ourselves the sacred document, the Constitution entrusted its three wings : (i) Legislature the duty to make laws within the framework of the Constitution; (ii) Executive the duty to administer laws and to govern the country; and (iii) Judiciary to keep a watch, vigil and see that the freedom enshrined in the Constitution reach to every citizen and is not jeopardized or tinkered with or obstructed by the executive or any person in authority or otherwise. Function of the judiciary is to vouchsafe that any law enacted by the Parliament or State legislature is intra-vires the constitution and not ultra-vires, making the mockery of law and denying the freedom of life and liberty, with equality and dignity to the people. The third wing has been created in order to secure justice and in order to let reach every citizen the freedom, the peace, the prosperity spiritual and economic, so as to achieve the objectives contained in the preamble of the Constitution. All citizens of this largest democracy of the world are entitled to access to justice and seek justice expeditiously and cheapest at its doors. The judiciary is playing a vital role in keeping balance between the three wings. To sum up the Legislature make law, the Executives implement them; the Judiciary keep actions of Executives and Legislature within the parameters prescribed by the Constitution.

Judicial activism is resorted to only when other organs of the State become dyes-functional, and fail to perform the duties or discharge the obligations laid upon them by the Constitution and the laws or act contrary to them. Judicial activism cannot and need not be confined to any doctrinaire theory. The fundamental rights and directive principles enshrined in the Constitution cannot remain idle or merely ornamental; they should be a living reality and not only on paper. Constitutional functionaries have to do their duty faithfully, fearlessly and expeditiously.

Legislature is elected and there is no requirement of formal education for a legislature. Executive is appointed but the judiciary is selected from amongst man well versed in the knowledge and practice of law with integrity and accountability. The judiciary is expected to supplement and compliment the work of the other two wings. Legitimacy of judicial interpretation of the Laws is the recognition that it is the institution with an ability. The balance of power in the three organs has to be maintained in order to impart justice and to look at the common good of the citizens of India. The separate spheres of constitutional authority have to be necessary respected to harness the collective energy in society. By proper functioning of the democratic institutions within the framework of constitution, the depleting legitimacy of the democratic order can be arrested and it can be further protected and promoted by good governance, the object of the Constitution.

Our Constitution is a sacred and solemn document and it is soul, spirit and sound of the people of Bharat. However, in order to keep up with the aspirations of new generations and in public interest it has been amended, modified, altered, tinkered more than 100 times during the last 65 years. So much so that emergency was declared in 1975, writ jurisdiction was suspended, some of the Hon’ble judges of the Supreme Court were superseded. Judges keeping with the philosophy of the ruling party were elevated and all efforts were made to tame the judiciary. So much so that basic structure was tried to be disturbed against the wishes of the founding fathers. But Constitution is a permanent document framed by the people through their chosen and learned representatives for regulating their social and political life in free India. The Constitution has been accepted by the people to govern them for all times to come. The basic structure of the Constitution is unchangeable and only such amendments to the Constitution are allowed which do not affect its basic structure and rob it of its essential character. The Constitution was framed by its makers keeping in view the situations and conditions prevailing at the time of its making; but being a permanent document, it has been conceived in a manner so as to apply to situations and conditions which might arise in future. The Supreme Court in Keshvanand Bharati’s case, after struggle of war, had to hold that the basic structure cannot be tinkered with. We salute our stalwart Mr. N.A. Palkhivala, Senior Advocate for the resounding success. Thus over years tug of war commenced between the three wings and the Legislature and the Executive claim to be superior and not equal, different and not supplementary or complimentary to each other.

Law and Order is the State subject. Judiciary is appointed. Terms, tenure and conditions are decided by the other two wings and ultimately Hon’ble judges of the Supreme Court/High Courts are appointed on the warrant issued by the President of India. Much say was with the Prime Minister/Governors/Chief Ministers and not with the Chief Justice of India/High Courts. Many politico-motivated appointments were made, recommendations of the Chief Justices by passed. In public interest and in order to have independent judiciary the Apex Court in 1993 decided to adopt “Collegium System” with Chief Justice of India and 4 senior most judges of the Supreme Court, to finally approve on the recommendation of Chief Justice and two senior judges of the High Court. Last year proposal for an eminent Senior Advocate recommended by the Collegium for direct elevation in the Supreme Court, was turndown and substituted by another eminent Senior Advocate, causing unrest in the judiciary. System worked well, but it caused irritation with the Central/State Governments resulting in the amendment of procedure by the 99th Amendment Act and setting up of “National Judicial Appointment Commission” (NJAC).

Age of Superannuation : Presently age of superannuation is 60 for the judicial officers; 62 for the members of Tribunals and Hon’ble judges of the High Courts and Chief Justices; 65 for the President of Income Tax Appellate Tribunal, Hon’ble judges of the Supreme Court and Chief Justice of India. With awareness, health check-ups, improved treatment facilities, the average age of an Indian is on increase and is around 70 as against 60 when these ages for superannuation were fixed. A large number of healthy, experienced justices, judges, members are available but their services are not availed of, resulting in national waste. Demands were made from all corners to increase the age limit. The Parliament constituted a committee headed by Smt. Jayanti Natrajan as Chairperson for considering the increase in age limit of Judges of High Courts from 62 to 65. The Committee observed : “Taking into account the justifications given by the Secretary, Department of Justice, and the statement of objects and reasons appended to the bill, the Committee supports the proposal for increase in the retirement age of judges of the High Courts from sixty two years to sixty five years and to be par with the retirement age of the judges of the Supreme Court. The Committee also acknowledges that the Bill has been brought forth in pursuance of the recommendation made by the Committee in its earlier reports”. The Law Commission has also recommended for increase of age from 60 to 62 of the subordinate judiciary.

Though the Committee made the above recommendation on 7th December, 2010, till date no progress has been achieved in the matter. It is desirable that an appropriate decision be taken at the earliest. We are of the considered opinion that increase in age limit will help to reduce substantially the pendency of cases, with utilization of vast experience of the Hon’ble judges and members. We are further of the opinion that age of the Chief Justice of India and Chief Justices of High Courts be enhanced to 68. The age limit of judicial officers be enhanced to 62. It may be noted that in the United States there is no age of retirement for federal judges. They are tenured posts. If a federal judge feels that by reason of old age he cannot function, he will receive the last drawn salary as pension for the rest of his life and is permitted to work In the United Kingdom and Canada, Judges retire at the age of 75. In Australia Judges of Federal Court and Supreme Court retire at the age of 70. Similarly, in Japan Judges of High Court retire at the age of 65.

It may also be considered in the context that on retirement the Hon’ble judges cannot practice in the said High Court and a member of I.T.A.T. cannot appear before the I.T.A.T., causing waste of intellectual asset of the nation. It is equally desirable that no retired judge should be appointed in any Tribunal or Commission and should not be permitted to do consultation/arbitration, else to forego pension and other facilities provided after retirement. The Bombay High Court recently noticed that arbitration has become a ‘luxury corporate litigation’ with fat fees and in five star environment.

Delay in Justice: Since independence, there have been long delay in disposals and cost of litigation, with uncertainties, have substantially increased. So much so that matters prolong for long years causing unrest and distrust in justice delivery system. Faith of the people in the judiciary is shaking. It is noticed that more than three crore matters at different levels are pending. Some of the matters are pending for over 30-50 years. Distressed litigants commence due proceedings but finality is achieved by their grand sons, with great agony for the family. Some litigants have committed suicide. The prime reason for the backlog and for such precarious condition is absence of adequate strength of Hon’ble Judges and judicial officers apart from large number of vacancies. It is noticed that around 40% of the sanctioned strength is vacant. A citizen cannot appreciate when the outer date is known. It is highly desirable to increase the strength. During the UPA Government in 2008, recommendation was for additional appointment of 1,500 judges of the High Court and double the number in subordinate judiciary, but remained in paper. It is equally necessary that procedure for appointment/elevation commences before 6-9 months from the anticipated vacancy and final oath is administered within 15 days from the date of vacancy. By filling up the vacancies, 40% of the backlog would be wiped of. Hon’ble Justice H. L. Dattu, Chief Justice of India in the conference, in last week of December, 2014, desired that every case should be disposed of finally within 3 to 5 years against normal 10 years taking presently. It is well said “Justice delayed is justice denied” and equally it is rightly said “judgment hurried is justice buried”. Non enforcement or delayed enforcement would be disastrous to democracy. It would make the people violent and to adopt unethical means or muscular power, dangerous to democracy. Law Commission in July, 2014 reported to Mody Government for speedy steps to clear backlog. It deserves to be done on war speed.

Code of Compulsory Cost: Over years it is apparent that a fairly large number of litigants tell a lie, do not believe in truth, mutilate facts and drag litigation from Court to Court, to higher Court and the highest. Appellant/Respondents move frivolous infructuous applications/petitions to prolong the proceedings, to harass the other side and litigation goes on from generation to generation. Adjournments are asked and granted without sufficient cause, mere on mention. The Hon’ble Supreme Court in the case of Sahara Group observed “Ways and means need to be evolved, to deter litigants from their compulsive obsession, towards senseless and ill-considered claims. One needs to keep in mind, that in the process of litigation, there is an innocent sufferer on the other side, of every irresponsible and senseless claim. He suffers long drawn anxious periods of nervousness and restlessness, whilst the litigation is pending, without any fault on his part. He pays for the litigation, from out of his savings (or out of his borrowings), worrying that the other side may trick him into defeat, for no fault of his. He spends invaluable time briefing counsel and preparing them for his claim. Time which he should have spent at work, or with his family, is lost, for no fault of his. Should a litigant not be compensated for, what he has lost, for no fault?” This abuse of the judicial process is not limited to any particular class of litigants. The State and its agencies litigate endlessly up to the highest Court, just because of the lack of responsibility, to take decisions. So much so, that we have started to entertain the impression, that all administrative and executive decision making, are being left to Courts, just for that reason. In private litigation as well, the concerned litigant would continue to approach the higher Court, despite the fact that he had lost in every Court hitherto before.

Hon’ble Mr. Justice Jagdish Singh Khehar added “A conscious effort on the part of the legislature in this behalf, would serve several purposes. It would, besides everything else, reduce frivolous litigation. When the litigating party understands, that it would have to compensate the party which succeeds, unnecessary litigation will be substantially reduced. At the end of the day, Court time lost is a direct loss to the nation. It is about time, that the legislature should evolve ways and means to curtail this unmindful activity. We are sure, that an eventual determination, one way or the other, would be in the best interest of this country, as also, its countrymen”. We suggest that a code of compulsory cost be formulated to award exemplary costs to the winner and to check frivolous litigation with waste of precious time of the Courts and all concerned.

Supreme Court and Elevation: Article 130 of our Constitution reads: “The Supreme Court shall sit in Delhi or in such other place or places, as the Chief Justice of India, may with the approval of the President, from time to time, appoint”. To make available justice at the door and at low cost to the litigants, the Parliament Committee relying on the said Article had asked the Union Government to persuade the Supreme Court to set up its benches in three distant regions. Hon’ble Dr. Manmohan Singh, then Leader of Opposition in Rajya Sabha in his letter dated 22-10-2002 has also endorsed the view in favour of establishment of Benches of Supreme Court. Many Senior Advocates, Former Attorney Generals of India and Associations and very recently All India Bar Association through its President, Dr. A. C. Agarwala have suggested for the circuit benches of the Supreme Court at Mumbai, Chennai and Kolkata. The Federation have also made similar representation.

It has been noticed that presently there are three Hon’ble Judges from Maharashtra (110 million population), only two from U.P. (200 million population), one Judge each from Bihar (100 million population), West Bengal (90 million population), Gujarat (60 million population), North Eastern States (45 million population) and there is no judge from Rajasthan (60 million population). It may be mentioned that one time there were two Hon’ble Judges from Rajasthan apart from two Chief Justices of High Courts, whereas presently there is none in the Apex Court as well as a Chief Justice. It is highly desirable that proper representation is given to the Hon’ble Judges of 24 High Courts in the Supreme Court.

Chief Justice: There was a practice to elevate Senior Judge as Chief Justice in the own High Court. It was predominantly with an intention and object that senior judge having been in the State for more than 10-12 years is well acquainted with the functioning of lawyers and judicial officers. Hence, the elevations would be better and faster. However, later a convention has been developed whereby senior most judge of the High Court is transferred to other High Court few months before the retirement of Chief Justice of that High Court and with hope for being elevated as Chief Justice. But it has been observed that the Chief Justices of the High Courts coming from other States do not make just and proper administrative decisions as they are usually unaware of the local and social affairs of the Bar, and the ability and reputation of the local lawyers. Thus, they have to be totally reliant on the local judges of the particular High Court or the lower staff coming in touch with them. It is desirable to revert back to the old system.

Elevations: 99th amendment has been made in the Constitution and the appointment of the Hon’ble Judges is being entrusted to National Judicial Appointment Commission. Both bills were passed by voice votes in Parliament and in spite of number of adverse observations by all concerned. Six member commission led by CJI will now appoint judges to the Supreme Court and the 24 High Courts. Besides CJI, the Commission will have as members to other senior most judges of the Supreme Court. The Law Minister and two eminent persons appointed by a panel comprising the Prime Minister, Chief Justice of India and the leader of the opposition in the Lok Sabha. Till date the two eminent persons could not be selected and rules and procedure could not be framed and may be further delayed with the CJI reportedly showing his reluctance on “ethical grounds” till a petition challenging the NJAC is settled by the Supreme Court and is sub judice.

A public interest litigation has been filed in the Supreme Court in the month of January, 2015 by a lawyer, Bishwajit Bhattacharya. The petitioner says “The two bills (now Acts) make frontal attack on the independence of the judiciary and on the doctrine of separation of power, both basic features of India’s Constitution. Such violence done to the basic structure of India’s Constitution is reminiscent of the dark days of Emergency”. So the fate of NJAC for the time being is in doll drum, meaning thereby no elevations would be done by the Commission and one does not know as to whether the old existing collegium system would continue in the meanwhile. Thus, it is evident that unless and until a final decision is taken by the Government, there may not be further elevations and vacancies may increase causing unrest and piling of pendecy.

Confirmations: Additional judges are appointed. Acting Chief Justices are notified. Officiating President of Income Tax Appellate Tribunal has been appointed though Shri Vimal Gandhi, Past President retired on 3-6-2010 but the officiating President has not been confirmed. Similarly, a vacant post of Senior Vice President and Vice Presidents of ITAT have not yet been filled up. More than seven Acting Chief Justices are awaiting oath as Chief Justice. Some of the additional judges await confirmation till last day i.e. end of tenure of two years. It shows legislature and executive have no time for judiciary. It causes unrest and insecurity in the functioning of the incumbents. When the elevations are made of man of integrity, knowledge and on seniority, one fails to appreciate the latches, delay, in action or slow action on behalf of all concerned. Representation to the Hon’ble Law Minister have been made by the Federation but no expeditious action is evident. Present Law Minister is an eminent Senior Advocate of repute of the Supreme Court and must realize the agony caused on account of giving less priority to the judicial functioning.

Uncle Judges: In 1994 there was a practice to transfer newly elevated judge immediately or after few months of elevation to other High Court. The basic objective therefore, was to avoid gossips on account of personal prejudices, nearness or favour while in profession. With transfer at national level, the object of integration use to be achieved. Suspicion as to “uncle judges” when the children, parents, close relatives, kith or kin of the elevated judge practice in the same High Court is diminished. Representations have been made by the Bar Council of India, State Bar Councils and other Bar Associations but one is transferred only when there are serious allegations in the parent High Court. Instead it is advisable to make it a convention as was existing in 1994 and few years thereafter.

Member, Editorial Board

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