Improbable saga of piling cases in Courts?

The cases pending adjudication in the trial Courts, High Courts and Supreme Courts are over 3 Cr, according to authentic Government sources. . But Chief Justice disputed the figure of mounting arrears and status of all cases that is pending administration of Justice. Justice S H Kapadia, the Chief Justice of the Supreme Court addressing an all-India Seminar on Judicial reforms held at New Delhi recently.

The Chief Justice, like an experienced Economist explained that a Case filed today becomes a pending case of tomorrow. But, is that an arrear? CJ queried the audience in the immediate presence of Hon’ble’ President of India Smt Prathiba Patil, and other distinguished legal luminaries. He went on to report that 60% of the Cases pending in trial Courts were less than a year old. A realistic look at the arrears of Cases excluding cases which are a year old, the Chief Justice remarked, were around 1 Cr cases. He readily conceded that 1 cr cases were not small figures, and hence felt that a three track mechanism would help the Court to dispose off these Cases faster.

Track- I would comprise sticky cases involving complex questions of Law and would take time for adjudication; Track-II would include’ subversive’ cases where one of the litigants try to unduly prolong the case. Track-III cases are those which are delayed due to omissions and commissions of delay in serving summons and notices. He felt that judicial reforms should percolate to the Bar as well, if it has to be meaningful. He also invited senior advocates to contribute their wisdom towards expedition of complex cases.

The President, in her speech recounted the problems of the litigants in getting delayed justice. The justice delivery system has been afflicted by explosion of litigation. While she agreed with the Chief justice that we have to draw a line between arrears and pendency of Cases, even though the pending cases has been put at 3 cr which may include cases filed during the last one year.

She reminded the audience that while the litigant has one life, litigation transcended generations. She wanted Court procedures to be simplified. Frequent demands for adjournments, filing of multiple suits and similar tactics should be avoided to increase judicial productivity. Timely pronouncements of judgments and execution of decrees would go a long way to provide Justice without delay.

The major piling up of the Cases are the result of Government filing appeal against each and every judgment made by a lower Court without examining the merits of the Case. When a case is referred to the Law Ministry, the so called Under Secretary, finds it convenient to say that a grave lawful point has to be clarified, hence suggests filing an appeal. If due to any reason, he writes against appeal, there is a distinct possibility that the CAG or some other agency writing a note against the grave loss that the Government underwent because of non application of rational thinking. In many Cases, the Supreme Court had frowned upon the Government for filing appeals against judgments when there was not even 1% merit in the Case. The Government can indulge in such vexatious luxury as money is no constraint. So judicial reform should include Government on flimsy texts approaching the Court of Law for remedy when through arbitration, it can solve the case without indulging in wasteful expenditure This will curtail wastage of Court’s precious time. Reforms should begin at the Government’s cupboard.

Powers of the Executive under Indian Constitution?

The Supreme Court, through its five member Constitution Bench had upheld that the President of India did not have unfettered right to withdraw his pleasure whenever he felt so and removal of a judge is subject to judicial scrutiny. The Court refused to accept the plea of Article 156(1) that President has been conferred absolute or unfettered power to withdraw his pleasure. In one of the cases, the highest Court held that the “power of the sovereign of England has not descended on the Indian President”. He is subject to checks and balances.

In case of executive acts, he shall always be bound by the advice of the Cabinet of Ministers. If somebody appeals to him for mercy, he will forward that petition to Home Ministry and it would sit over it for any number of years as it has happened to 50 odd cases where the convict is in solitary prison for more than a decade. All that the President of India can do is ride to the Republic Day parade saluting base drawn by five horses, stay in the Rashtrapathi Bhavan, for opening and closing any function where the President is present, his permission has to be sought and obtained. He will give Padma Awards to the distinguished personalities chosen by the Home Ministry. He can refuse to sign a Bill and send it back to Parliament for its re-consideration. If it is still passed, he shall sign on a dotted line. He may be away at Russia, America or Germany, however, he will sign on the dotted line for declaring President’s Rule under Article 356 of the Constitution. He will swear in all the Ministers, Chief Justice, and diplomats like High Commissioner or Ambassador shall present their credentials to the President.

In addition, President can visit different places for doing different ceremonial acts. He will read the Government’s prepared text, where “My Government” will predominate. The Governor is appointed by the President on the basis of the whims of the ruling party in power. Being a political appointment, an attempt to impose category of values to the Post defies logic? Often, a retired and inconvenient politician wears the vestige of a colonial past- the post of Governor.

In the present judgement, the Supreme Court states that, “If the aggrieved person is able to demonstrate prima facie that his dismissal was arbitrary, mala fide, capricious or whimsical” then the Court invoking the judicial review will reinstate him. Governors can be removed for compelling reasons which as physical or mental disability and acts of corruption, was the Petitioners’ plea. But the Court held that political or subjective grounds cannot be the only reason, but valid reasons must exist depending upon the facts and circumstances. However, Court has held that the Governor may be appointed by a Government that might have been a different party from a different party in governance. That cannot be a ground for removal. The change of government need not necessarily mean that the Governor appointed by the previous Government should quit, if not, he will be retired, using the ‘pleasure of the President’. In such a case, President cannot remove his pleasure.

We had a Minister who forgot to pay Income-Tax for many scores of years. We had a Parliamentarian, a member of Lok Sabha, Chief Minsiter of a State with the support of the Opposition yet voting with the ruling party claiming that he has failed memory. They continued as Ministers without any disability.

Politicians, retired bureaucrats, or somebody whom the Government wants to provide employment, can be appointed as Governors. Are they agents of the Central Government? Or they employees of the Central Government? Does he have a security of tenure to gubernatorial office? Can a Governor be removed arbitrarily? If he does not resign on his own, can’t the Governor be forced to resign? For all these, the answer is “No” theoretically, but practically, “Yes”. With the judgement which gives leeway to the Government, it is to be seen whether the Government will stop with arbitrary removal of Governor? The appointing authority is the dismissing authority, the Court had ruled. If a Governor is appointed for some fanciful reason, the same Governor can be removed for some improbable reason; this is the philosophy of political parties across the board. Then who will decide,” discrimination”?