Judicial Reforms: Is NJAC the answer?

The discussion on judicial reforms is live all seasons and in all democratic countries. This discussion has taken prime time TV in India recently after the Supreme Court shot down the newly enacted law by the Indian Parliament, the National Judicial Appointment Commission (NJAC). The NJAC law sought to amend the provision dealing with appointment of judges in the Constitution of the Indian Republic. The existing selection committee is called, collegium of judges, which is a five member committee of judges. The collegium system was criticized as inefficient and lacking transparency. Some even went to the extent of calling it a corrupt system. The NJAC provides for appointment of the judges to the Supreme Court and the High Court will be done by a six member body headed by the Chief Justice of India (CJI). The other five members will include the Law Minister, two senior judges of the Supreme court and two eminent personalities. The two eminent personalities will be selected by a collegium of the CJI, the Prime Minister and the Leader of Opposition in Lok Sabha or the leader of the single-largest opposition party in the Lower House. The NJAC law was unanimously passed by the Parliament, which means, a rare meeting of the mind of politicians of all parties. The politicians claim that the new law is transparent and enables participation of public in the selection process through the elected Government and through the eminent persons. The Supreme Court felt it as interference by the executive in its current exclusive independence to select brother/sister judges and termed the law as unconstitutional. The executive termed the Court ruling as tyranny of unelected.

Let us examine how the NJAC will improve the judicial system from a common man's point of view. We can do this only through understanding the ailment of the Indian judicial system. Is the problem within the Indian judicial system completely emanating from inefficient selection procedure? Is it because of the quality and impartiality of the judges? Or, is it all these and something else? I would say it is all these and more of the something else. The way the NJAC is sought to be constituted, it will bring some element of transparency into the selection process. The NJAC,at the minimum, ensures that differences within the selectors will be leaked to the media because of the involvement of politicians with competing agendas and to some extent the allegiance of the so called eminent person and their political ideologies. To cite an example, something similar could happen when the palm oil tainted bureaucrat was chosen to head the CVC by the UPA Government. There is a chance that the alleged bartering within closed doors by the collegium will get reduced. The NJAC is,therefore, not addressing the core ailment of the judicial system.

The core ailment of Indian judicial system is delayed justice. Delayed Justice perpetuated by the Bench and the Bar, aided and abetted by the executive and politicians. My argument is that the Bench and the Bar should bear most of the blame. In my teens and early twenties, I lived in the proximity of Allahabad High Court. During this period, I got an opportunity to work with a couple of leading Advocates and assisted them in preparing cases. In this process, I met and interacted with a number of litigants and heard horrible stories of lawyers exploiting their clients. A number of these litigants used to be villagers having lost their case in the lower and district courts. The lawyers in the High Court maintain a network with lawyers in the lower Courts and received clients through referrals. The High Court lawyers will have the same arrangement in the Supreme Court. Some lawyers even engaged Dalals(agents), whose job is to fish for potential clients in the Railway Stations and Bus Terminals. I heard stories of plaintiffs who were actually intending to go to some other lawyer but was duped by these Dalals to go with a lawyer of their recommendation.

There were several horror stories of litigants about how lawyers extracted money out of them. One evening when I reached the Lawyer's office, I saw two elderly people sitting outside the lawyer's office. I think they were brothers.  They appeared to be in their late sixties, tired and exhausted. With the initial pleasantries in my broken Hindi, I enquired about their case. They were farmers from western UP, near Meerut, lost their case on farm dispute to their Uncle. Western UP farmers were relatively rich because of their land holding. I was shocked to learn that their case is pending for over fourteen years. They lost seventy five percent of their undisputed land paying the lawyers thus far and were deeply in debt. Their only hope was a favorable decision in the dispute under appeal from the High Court. They were in town for a potential hearing, probably the twentieth time. Every time they come, the case is not listed because the opposing party is either not present or an adjournment was sought. The poor guy spent all the money in his travel and fees to his lawyer. When his lawyer arrived in his office, the farmer pleaded for getting the case adjudicated quicker. The farmer said, I quote "Malik Barbad ho Gaya, aap homey Bachayiye,  aapka fees Bharney ko ketch nahin bacha" translation, "I have become bankrupt fighting this case, please save me Lord, I am left with nothing, not even to pay your fees".The farmer was virtually weeping. The lawyer was without emotion. He asked the farmer, "how much land he holds now?"The farmer replied in some bigha (a measurement of land in UP), I don't recollect how much. The lawyer's suggestion was to transfer the remaining land in his name. I still remember the farmer crying and saying "Bachey Bhooka Marjayenge, humarey ooper raham keejiyey" translation, my children will starve, have mercy on me.

There was no move from the lawyer to help the farmer. It was and I believe it is a big nexus between the Bench and Bar in delaying the case for a silly reason. The entire court establishment should share the blame for the collapse of the judicial system in India. When Narendra Modi was campaigning for the Parliamentary elections, he appeared concerned about the delayed justice. The nation was hopeful that the Parliament will come up with a legislation that will address the delay in the delivery of justice and a time bound adjudication of cases. On the contrary, the government appears to be content with a say in the appointment of judges via the NJAC.  NJAC may address only five percent of the problem. The remaining ninety five percent is the delayed delivery of Justice. The only way to correct this menace perpetuated by greedy lawyers is to bring up a legislation that guarantees the following:

(1) A time bound adjudication of cases.  It is not hard to fix the maximum time a particular category of case should take from the day of filing the case.

(2) Listing the case for hearing should be automated and dates for next hearing should be scheduled based on first come first serve basis. The nexus between the lawyers and the court registrar's office should be put to an end.

(3) Put a cap in the amount of fees that all lawyers together can charge for a case. This should not exceed a certain percentage of the value claimed as damages.

Therefore, the common man's concern is not how judges are appointed but what the judges are doing and how efficiently are they adjudicating cases. The common man seeks speedy justice. Government can bring in a legislation ensuring time bound disposal of cases, cap in lawyer fees and make the Courts answerable for delayed Justice. If these things start happening, a significant amount of Court cases will get disposed off quickly. This will be the biggest gift to the nation by the Prime Minister in his first tenure.