Interview – Justice Ajit P. Shah

APS Our legal system and judicial apparatus suffer from a
number of ailments. Our courts at all levels are burdened with dockets that are
bursting at seams. Around three crore cases are pending in the lower courts and
the High Courts. Our procedures tend to convert every litigation into a process
which puts more stress on the form rather than on the content. Our tools and
techniques of court management, docket management and case management continue
to be archaic and still depend on the advice of ‘generalists’ rather than
managerial expertise. Alternative Dispute Resolution system we all love to talk
about also seems to be reducing into more tokenism rather than becoming a potent
tool to make a real impact. Criminal justice administration perhaps remains the
most neglected area where the truth is (more often than not) the casualty and
where reform or rehabilitation seems to be the last priority. The courts are
able to dispose of on an average only 19% of the pending criminal cases. Around
two lacs undertrials are actually in prisons. The state of the prisons and
lock-ups is a cause of grave concern. Overcrowding in prisons is a rule rather
than an exception. These are some ground realities that cannot be brushed under
the carpet. They individually and collectively point to our failure at some
levels in discharging our obligation to provide good governance through an
effective legal system.

BCAJ The Government as well as the judiciary has been
talking about backlog of cases. What are the causes of delay ? Is the main cause
inadequate number of judges ? How far are the advocates and lawyers responsible
for delaying the proceedings ?

APS Yes, we have been talking about backlog of cases for
a long time but unable to find a solution to this gigantic problem. There are
many causes for delay and one of the main causes is certainly the lack of
adequate number of judges. The Law Commission in its 120th Report recommended
that the strength of judges per million population may be increased from 10.5 to
50 judges. The present judge strength in India is 14 per million population
(approx.). The Vision Paper published by the Law Ministry talks of appointment
of 15000 ad hoc judges in the subordinate courts and running courts in three
shifts. More than eight months have passed but no progress has been made. The
idea of appointment of 15000 ad hoc judges at one go and running the courts in
shift system is basically flawed and is impracticable and unworkable. The
establishment of Gram Nyayalayas has not made much progress due to lack of
support from the State Governments. The need of the hour is to plan gradual
increase in the strength of judges. The infrastructure provided to the judges in
most of the States is inadequate and in some places it is virtually
non-existent. There is a need for firm commitment of the Central and the State
Governments for making available the necessary infrastructure and financial
resources to the judiciary.

No amount of reforms would be meaningful unless the Bar joins
as partners in the stakes involved. Unfortunately, willingness of the lawyers to
embrace reforms seems to be amiss. Kathryn Hender from the Law School University
of Wisconsin posed a very serious question in an article begging for an answer
in the title itself as to whether the legal community represents ‘gentlemen of
change or unchanging gentlemen’. Professor Madhava Menon writes about the fear
psychosis in the judiciary or political class when it comes to confronting the
Bar which is vastly responsible for the major ill of the system, namely, delay,
cost and corruption. Adjournment culture, strikes and boycotts by the lawyers
have virtually paralysed the judicial system. There should be a concerted effort
from the Bench and the Bar to eliminate this menace. Administration of justice
is a joint venture in which lawyers and judges are equal participants. This is
all the more reason why both must take the stick for the ills that plagued the
judicial system and why they must share the responsibility for reforms.

BCAJ In your opinion, what steps need to be taken to
address the delay in disposal of matters ?

APS The first and foremost priority is to increase the
number of courts. This could be achieved in a phased manner in the next four or
five years. Secondly, as suggested by the Jagannadha Rao Committee it would be
necessary to assess the impact of every new legislation in terms of the burden
it would put on the judicial system. The burgeoning load of cheque bouncing
cases is a glaring example of lack of planning. In Delhi out of the pendency of
9 lac criminal cases, more than 6 lac cases are u/s.138 of Negotiable
Instruments Act. In 2009, Delhi Courts disposed of around 1.6 lac such cases, of
which only 400 were disposed of through a trial and the rest were disposed of
either by settlement or withdrawal. Perhaps these cases can be tried in shift
system even by appointing ad hoc judges. The Government should also consider
taking out petty criminal cases from the regular judicial system, so that judges
can concentrate on more serious cases pertaining to the law and order.

Alternative Dispute Resolution (ADR) has been the buzzword for the past two decades. Mediation is now increasingly used as an adjunct to the litigation system in the US and in several other western countries. This is not a marginalised phenomenon, but has been introduced as a case management imperative. Unfortunately, after the build-up of a positive public opinion and securing general cooperation of the Bar (which was originally very resistant) for the past few years, there is a downslide trend which is very disturbing. Mediation centres were set up through missionary zeal of judges who also developed a cadre of trained mediators to run them. Latest statistics signal waning enthusiasm on the part of the judges reflected in steadily declining references and the rate of settlements (For example, the Bombay High Court and the Madras High Court). The Delhi High Court is one of the few courts where mediation policies are being successfully implemented. Especially District Court Mediation Centres are doing extremely well with reported success rate of 15 to 20% of the total filing.

One of the important tools of ADR in use for many years now is the forum of ‘Lok Adalat’. The problem with this forum is that the proceedings are dominated by judges both as organisers and presiders. Correspondingly, the role of lawyers is notably diminished, compared to regular courts. There is a need to revamp the Lok Adalat organisation making it more participative including the robust support from the Bar.

Reforms in many fields remain incomplete unless they also utilise modern technology. It is not right to run the court system in the 21st century using a system which is developed in the 19th century. The courts must take advantage of the new technologies and adapt new ways of working. However, full potential of computers has not been fully and optimally tapped. There is no thought about reaping the real benefits of computerisation by redefining our needs and re-engineering our processes. The entire case information system ought to aim for providing a comprehensive management to exploit the available human resources fully.

The Delhi High Court has achieved significant success in full utilisation of information technology and at least two e-courts (paperless courts) are functioning in the Delhi High Court and one e-trial court has become functional for the first time in India. The Delhi Government fully backed the High Court in computerisation process. The technology involved, if put to optimum use, will virtually revolutionise the case management. It all boils down to change of the mindset and adaption to rapidly advancing technology.

The Delhi High Court, in one of its initiatives undertook the task of examining the issue of arrears. The Committee of Hon’ble Judges analysing the data scientifically, came out with certain concrete suggestions with regard to the distribution of business amongst various benches, suggested clear targets and change in the rule of procedure. The changes introduced in wake of the report have given encouraging results within a year.

Judicial appointments :

APS India is perhaps the only country in the world where the judiciary makes the appointments to itself. In the Second Judges’ case, a larger Bench of the Supreme Court reversed the view in SP Gupta’s case and declared that the word ‘consultation’ appearing in Article 142 of the Constitution should be read to mean ‘concurrence’, thereby vesting the CJI with the final say in the mater of appointments. The power so vested in the judiciary would be exercised through the collegiums consisting of the CJI and two most senior colleagues. In the Third Judges’ case, the Court slightly altered the process by directing that the CJI shall make a recommendation to appoint a Judge of the Supreme Court in consultation with four senior-most puisne judges of the Supreme Court and insofar as the appointments to the High Courts are concerned, recommendation must be in consultation with the two senior-most judges of the Supreme Court.

There is a considerable controversy about whether the Court has not amended the language of the Article by purporting to interpret it. This new dispensation of appointment and transfer of judges laid down by the Supreme Court has not been well received in India. The Bar and other sections of the society have been critical of this. For example, Mr. T. R. Andhyarujina has said : “A collegium which decides the matter in secrecy lacks transparency and is likely to be considered a cabal. Prejudice and favour of one or other member of the collegium for an incumbent cannot be ruled out.” Justice Krishna Iyer has described the pro-tem collegiums — “an egregious fabrication, a functioning anarchy”.

Vesting the power of appointment only in the executive or the self-selection by the judges are both fraught with difficulties. Hence, the trend now in modern constitutions, is to entrust the power of recommendation for judicial appointments to an independent council or commission. Such a council or commission is composed of representatives of institutions closely connected with administration of justice. The civic society also gets adequate representation. Such councils are now functioning in England, Wales and South Africa. The 1998 European Charter on the Statute of Judges also recommends selection by independent commission where at least 50% of the members should be sitting judges. In the USA, a candidate nominated by the President for appointment to the Supreme Court has to face public hearings conducted by the Senate.

BCAJ Unfortunately, of late, corruption seems to have crept into the judicial process as well. What are the probable causes of this ? Are the judges underpaid so that they are lured ? What needs to be done to arrest this trend ?

APS There is no point in saying that there is no corruption in the judiciary. Corruption has definitely crept in the lower judiciary and in some States it has reached disturbing levels. The higher judiciary also cannot be said to be completely free from corruption, though, in my opinion, it is marginal. Former CJI S. P. Bharucha has publicly stated that nearly 10% of the judges of the superior judiciary are corrupt. At present, two High Court judges are facing impeachment proceedings. I may also refer to the infamous incident of ‘cash at door’ in another High Court. Surprisingly, no further action was taken in spite of the report of an in-house committee indicting a sitting judge. I am not prepared to accept that this phenomenon has anything to do with the salary structure of the judges. Salaries of the judges have vastly improved after the VI Central Pay Commission. The problem, according to me, lies with the flawed selection process. Further, the process of impeachment is extremely tedious and has not proved to be effective against erring judges. Perhaps, time has come to devise a new procedure for disciplining judges without in any manner compromising the judicial independence.

Tribunalisation :

APS In a recent judgment of the Supreme Court in Union of India v. R. Gandhi, the validity of the constitution of National Company Law Tribunal (NCLT) and National Company Law Appellate Tribunal (NCLAT) has been upheld. One of the questions before the Supreme Court was whether the ‘wholesale’ transfer of powers as contemplated by the Companies (Second Amendment) Act, 2002 would have offended the Constitutional scheme of separation of powers and independence of judiciary and to what extent the powers of judiciary and High Court (excepting judicial review under Articles 226-227) can be transferred to tribunals. Though the Apex Court upheld the constitution of the NCLT and NCLAT, further directions were given to the effect that only judges and advocates can be considered for appointment as judicial members. Certain other directions were given protecting the tenure, salaries and perks of the members of the tribunal. As per the direction of the Apex Court, the selection of the members has to be made by a committee presided over by the CJI or his nominee.

The argument generally advanced to support the tribunalisation is that the court functions under archaic and elaborate procedural laws and highly technical evidence law and all litigation in courts can get inevitably delayed which leads to frustration and dissatisfaction amongst litigants. On the other hand, tribunals are free from shackles of the procedural laws and evidence law. They can provide easy access to speedy justice in a ‘cost-affordable and user-friendly’ manner. But, in India unfortunately tribunals have not achieved full independence. The secretary of the concerned sponsoring department sits in the selection committee for appointment. When the tribunals are formed they are mostly dependent on their sponsoring department for funding, infrastructure and even place for functioning. In L. Chandra Kumar, the Supreme Court observed that the tribunals have been functioning unsatisfactorily because there is no authority charged with supervising and fulfilling their administrative requirements. The tribunals constituted under different enactments are administered by different administrative departments of the Central and State Governments.

In R. Gandhi’s case, the Supreme Court has extensively referred to the Leggett Committee Report, which was submitted to the Lord Chancellor of Great Britain in March, 2001. Some of the important recommendations in the report are that the members of the tribunal would be independent persons, not civil servants. They should resemble courts and not bureaucratic boards. There is a need to rationalise and modernise the tribunals by creating more coherent framework for their functioning. All tribunals should be supported by a tribunal service i.e., a common administrative service which would raise their status, while preserving their distinctiveness from the courts. The Supreme Court has urged the Central Government to consider and implement the key recommendations of the Leggett Committee. In the absence of these reforms, the objective of forming these tribunals would not be achieved and, as stated by you, they would be merely one additional forum for litigation.

Arbitration and mediation :

APS The use of arbitration has taken on staggering proportions in international arena. The full potential of arbitration has not been realised in India. The basic problem lies in the system of ad hoc arbitration. According to critics, many arbitrators are not familiar with the practice of arbitration or how to effectively conduct arbitration process. Lawyers are often not trained in the law and practice of arbitration. There is a tendency among them to prolong arbitrations, seek unnecessary adjournments. One of the critics commented that often retired judges are appointed as arbitrators who, by virtue of long tenure on the Bench, have got accustomed to tedious rules pertaining to procedure and evidence. As a result, arbitrations become battle of pleadings and procedure, with each party trying to stall, if it works to their favour. The Parliamentary Standing Committee’s Report of 2003 highlights that there is absence of accountability of arbitrators, huge pendency of cases, no rules as to who can be appointed as arbitrators or regarding their views, time limit for making an award or consequences of not making an award within the time limit.

The need of the hour is institutionalisation of arbitration in India, along the lines suggested by the Parliamentary Standing Committee Report. The Ministry of Law and Justice has published a consultation paper suggesting extensive amendments to the Arbitration and Conciliation Act, 1996. One of the proposed amendments is to S. 11 whereby the Chief Justice, instead of choosing an arbitrator may choose an institution and such institution shall refer the matter to one or more arbitrators from their panel. As a result of the decision of 7-Judges Bench judgment in SBP Company v. Patel Engineering Limited, the provisions contained in Ss.(4), Ss.(5), Ss.(7), Ss.(8) and Ss.(9) of S. 11 with regard to appointment of arbitrators by any person or institution designated by the Chief Justice rendered totally ineffective. I hope that with the amendment institutionalised arbitration will develop in India.

The Delhi High Court has started an arbitration centre in its own precincts. The endeavour is to create a system that would ensure expeditious disposal of the matters referred to arbitration. The Centre has state-of-the-art infrastructure and elaborate rules have been laid down to govern the mattes referred to it. The panel of arbitrators of the Centre includes not only retired judges but also eminent chartered accountants, engineers, architects, etc. Incidentally, I may also mention that some of the other amendments proposed by the Law Ministry would be able to clear the confusion created by the recent Supreme Court judgments and make the implementation of the Act smooth and effective. Lok Sabha has passed the Commercial Division of High Court Bill, 2005 which provides for constitution of arbitration division in the High Courts to deal exclusively with arbitration cases.

BCAJ Courts,  tribunals  (e.g.,  CLB)  often  informally ask parties to settle the matter by negotiations. Will statutory recognition to this help in reducing the backlog? What can be done to promote and make effective the alternate dispute resolution mechanism ?

APS I fully agree that there is an urgent need to introduce provisions on the lines of S. 89 of the CPC for tribunals like CLB, DRT, etc. S. 89 itself requires an amendment to bring clarity in the process of mediation and conciliation. Mediation and court-supervised mediation in particular, has become more common place in the US and in many countries. The procedure has become increasingly a standard practice. Court-ordered mediation has proved to be a very good way to involve and commit lawyers and participants to the mediation process, because in essence they have no other choice. In the UK penalties in terms of cost can be imposed on parties that refuse to mediate on unreasonable and unsatisfactory grounds. With the active support of the Bench and the assistance of trained mediators, many of the matters can be resolved in CLB or even in DRT.

Right to Information :

BCAJ The RTI Act has been servicing the citizens fairly well. No doubt it has some deficiencies. Huge controversy is on between the Government (DoPT, Ministry of Personnel, Public Grievances and Pensions) and citizens, between Sonia Gandhi and PM and so on. What are your views on this issue ?

APS The right to access the information has been described as a right to citizenship or a right to humanity. All major human right conventions such as UDHR, ICCPR, incorporate specific provisions on the right to information. By a series of decisions of the Supreme Court, (State of UP v. Raj Narain and S. P. Gupta v. Union of India), the right to information is held to be implicit in the guarantee of free speech and expression under Article 19(1)(a) of the Indian Constitution. In a recent decision in Secretary General Supreme Court of India v. Subhash Chandra Aggarwal, the Delhi High Court has held that the right to information is embedded in Article 14 (equality), Article 19(1)(a) (free speech and expression) and Article 21 (life and liberty). The right to know and freedom of information are inalienable components of freedom of expression and participation in public affairs.

Corruption is now recognised as violation of human rights and one of the objectives of right to information is eradication of ineffective and corrupt governance. UNDP has reported decline in ‘Human Development Index’ (HDI) in more than thirty countries, which affects ordinary man. Therefore, it is really necessary that the ordinary man is enabled to participate in the process that affects his daily life and is empowered with the information to play an effective role in policy making and legislative decision making. With access to information, poor people can begin to organise themselves to form groups to be able to influence the decisions that affect them.

Some of the most serious violations of human rights and fundamental freedoms are justified by governments as necessary to protect the national security. It is therefore imperative to enable people to monitor the conduct of the Government to participate fully in democratic society by giving them access to Government-held information and to limit the scope of restrictions of freedom of expression that may be imposed in the interest of national security. Without free access, the common man is likely to feel ‘powerless’, ‘alienated’ and ‘left out’.

Any attempt to dilute the RTI Act must be discouraged. The Government machinery must now learn to live with the information regime.

BCAJ The CJI has been advocating for exemption of judiciary from the application of RTI Act. As per the press reports the CJI has pointed out that the ‘independence of the higher judiciary needs to be safeguarded in the implementation of the RTI Act’. What are your views on this ?

APS Independence of judiciary cannot be separated from judicial accountability. The guarantee of judicial independence is for the benefit of the people and not the judges. It is neither a right, nor a privilege of the judges. An accountable judiciary without any independence is weak and feeble and independent judiciary without any accountability is dangerous. The usual recommendations for increasing accountability in general are not very different for the judiciary than they are for any other public institution. The total transparency in the judicial system can be achieved

    (a) by a transparent system of selection of judges, publicised criteria and discussion on their applications, and (b) transparency of internal operations and their subjugation to pre-established rules, use of resources, salaries, judicial standards of behavior and evolution etc. and (c) functional system for registering complaints for institutional operations or behavior of individual trust. As observed by the Delhi High Court, well defined and publicly known standards and procedures complement, rather than diminish, the notion of judicial independence. The former CJI in subsequent interviews clarified that he is not in particular against the application of the RTI Act to the judiciary, but his reservation is only to the disclosure of information relating to the appointments. As stated earlier, the present system of appointments is opaque and shrouded in secrecy, there is need to bring total transparency even in the procedure for appointments to the superior courts.

BCAJ Under the RTI Act, ‘Information’ includes information relating to any private body which can be accessed by a public authority under any other law for the time being in force.

Considering this, can one access documents of public companies, especially public utility companies as ‘information’ ?

APS The term ‘information’ is widely worded and includes information relating to any private body which can be accessed by a public authority under any law for the time being in force. Right to information is defined to mean information accessible under the Act, which is held by or under the control of any public authority. In Secretary General, Supreme Court of India v. Subhash Chandra Aggarwal, the Delhi High Court gave a broad meaning to the word ‘held’ to mean the information which has been created, sought, used or consciously retained by a public authority. Both the provisions will have to be read together and the applicant will not have any right to access the information of any corporations or public utility companies unless it is held by the public authority within the meaning of S. 2(j) of the RTI Act.

BCAJ What changes could be made in RTI Act for furthering its objectives?

APS From the screened system of governance protected by the Official Secrets Act, we have taken more than 70 years to enact the Right to Information Act. We cannot really say it is a voluntary movement towards openness, this is more a reaction to the unstoppable global trend towards the recognition of the right to information. Ideally the Act should also apply to the corporations and MNCs which are engaged in public utility services. NGOs, educational institutions, charitable trusts, and trade unions should be just as accountable and as transparent as the Government in a developing democracy. The involvement of MNCs in human rights violations and generating hazards is well documented. The Bhopal gas tragedy is a glaring example of violation of human rights at the hands of MNCs. Corporations produce wealth; they also produce risk, both to humans and to the eco system. Further the Act provides for sweeping exemptions, there is no mechanism to deter the delay or refusal in granting information, there is no scope for intervention in spreading awareness. . . . . suo moto or proactive duty on the part of the authorities to furnish information, information is given only on demand. Notwithstanding all these, it is a great move towards the access.

Criminal justice system :

BCAJ In criminal matters the conviction rate is said to be rather low. Is it that investigations are shoddy or do we need to review the way courts consider the evidence ?

APS First, let me give some statistics. On an average about 60 lac crimes are registered in each year in the States and Union Territories. 1/3 of these are IPC crimes and the rest are offences under Special and Local laws. Under the CrPC, as it exists today, the investigation of a criminal offence is by the police, whose duties are the maintenance of law and order. The strength of the police force over the years (from 1995 onwards) has remained between 12 and 13 lac, and they are expected to handle virtually unimaginable workload.

In India, not even 45% of the people charged with IPC offences, including mob violence, are ultimately convicted. In other countries like the UK, France, the USA and Japan, the conviction rate for similar offences is over 90%.

Huge number of criminal cases are pending for years together. When they are placed before Magistrates or Sessions Courts at the stage of evidence, due to excessive lapse of time, the witnesses are either dead or have left to some other place or their whereabouts are not known to the prosecution. There are many causes for failure of prosecution and delay is certainly the main cause.

The Malimath Committee’s report has suggested many reforms and although one may not agree with all the recommendations, at least some of them were excellent, but not implemented by the Central Government. For example, the Committee recommended that there should be a separate investigation wing with experienced police officers trained in forensic methods of investigation to be in charge of the investigation, leaving the law and order to be dealt with by a separate and distinct enforcement wing.

Plea bargaining was an important recommendation by the Malilmath Committee, which has been partially accepted but its implementation is far from satisfactory. The Malimath Committee also recommended stringent action against perjury. It has recommended to States for providing more infrastructures to the investigating machinery, especially in regard to accommodation, mobility, connectivity, use of technology, training facilities, etc. It has emphasised that forensic science and modern technology must be used in the investigation, right from the commencement of the investigation. There are some excellent suggestions like representation to victims or if he is dead, to his legal representatives and creating a victim compensation fund. Even after passage of more than ten years, there is not much progress on these recommendations. It is a pity that the much-needed police reforms are not taking place in spite of specific directions of the Supreme Court.