Who watches the watchmen?


It has been a long, hard summer for the judiciary and there is no respite on the horizon. From a heated debate about the declaration of judges’ assets, it has stumbled directly into an ugly controversy regarding the elevation of P D Dinakar. As reported in The Hindu on September 16, a letter of complaint by several lawyers from the Chennai Bar has made allegations against him relating to “land grabbing and other irregularities”.

Cue the claims and counter-claims . The report reveals that eminent lawyers like Fali S Nariman and Shanti Bhushan have weighed in on the complainants’ side. Dinakaran himself has denied the allegations of course, saying, as quoted by Nagendar Sharma and Satya Prakash in Hindustan Times on September 17, “I come from a rich agrarian family… My legal career is an open book and I do not need to indulge in such wrongdoings”.

The Dravida Kazagham and certain advocates of the Madras High Court have mounted a more unusual defence on his behalf. A September 23 Financial Express report reveals that that they “have counter-charged that he was a victim of a vilification campaign, for being ‘a South Indian and a Dalit’.”

The most interesting aspect of the entire affair is the way it has gone beyond a specific allegation of corruption to re-examine judicial accountability as a whole. As Vinay Sitapati points out in the Indian Express on September 21, “a collegium of the five senior-most Supreme Court judges shortlist nominees themselves, then decide among these names. There is no political oversight – either executive or legislative – nor is there a forum for the public to air grievances”.

Nariman has been particularly vocal, raising several important issues in an interview with Shekhar Gupta carried in the Indian Express on September 21. Among the more troubling points he makes is that “the greatest problem with our courts, high courts particularly, is the problem of caste. If you are a lawyer belonging to a particular caste appearing before a judge of such and such caste, you will either lose or win depending upon your caste”. He goes on to push the idea of a judicial ombudsman as a check built into the system to “inquire into the complaints against High Court judges and Supreme Court judges. Keep it to himself, quietly consult the Chief Justice, take his views and move in a particular direction”. There are opponents to this point of view, such as former CJI J S Verma. Ajmer Singh reports in Mail Today on September 22 that Verma believes an ombudsman would challenge the CJI’s authority, and instead recommends a “national judicial commission, headed by the vice- president and with members from the executive and judiciary”. While the collegium debates what to do about Dinakaran, the only consensus seems to be that there are serious lacunae in the Indian judicial system.



SC sticks to its guns

Despite demand to increase working days


Despite demands by the Law Commission and Parliamentary Standing Committees to curtail the rather “long vacations” enjoyed by judges of the apex court, Chief Justice of India KG Balakrishnan has approved the 2010 calendar with less than seven months of working days.

Compared to last year when the Supreme Court had 190 working days, the calendar for the coming year has exactly the same number of working days with the total holidays (besides Saturdays and Sundays) totaling 93 as compared to 92 the previous year.

The Law Commission had lately recommended that with the new pay scales available to judges from this year, there must be commensurate increase in the number of working days as well.

The calendar adopted for 2010 has been prepared by the Chief Justice of India under the Supreme Court Rules 1966. As per the Order II, Rule 4(2) of the Rules, the period of summer vacation “shall not exceed ten weeks.” The Rules even provide for the total number of holidays not to exceed 103 (excluding Sundays not falling in the vacation and during holidays).

Since the rules do not permit the court to sit on Saturdays or gazetted holidays, it was in 2006 that the summer vacation of the court got reduced from eight weeks to seven weeks and the total number of working days increased from 185 to 190 days, the same which continues till date. During the vacations, the court does provide skeletal service by appointing vacation Benches, a Bench of two judges to decide old appeals and attend to urgent matters.

This measure has often been presented as an antidote for the mounting pendency.

But after judges have begun to get more pay through the recent law brought in by the Government, the issue of long vacations has got revived. The Law Commission in its 230th report submitted in August this year stated, “With the increase in salaries and perks of the judges, it is their moral duty to respond commensurately. Considering the huge pendency of cases at all levels of judicial hierarchy, it has become necessary to increase the number of working days.”

The Government had lately passed a law granting three-fold hike in the salaries of Supreme Court judges from Rs 30,000 per month to Rs 90,000, in keeping with the revised pay scales of Government servants under the Sixth Pay Commission. The Chief Justice of India got a revised pay scale of Rs one lakh per month.

Creating a link between vacations and pay hike, the report went on to suggest, “Considering the huge pendency of cases, vacations in higher judiciary must be curtailed by at least 10-15 days and court working hours should be extended by at least half-an-hour.”

Successive parliamentary reports even linked the “long vacation” of the Supreme Court with the colonial legacy and recommended that in the modern era long leave by judges was not reasonable taking into account the huge pendency.

But the counter argument presented by those subscribing to the Supreme Court’s calendar suggest that judges work through the holidays, often writing judgements and studying material linked to the cases presented before them.

By refusing to alter the working days of the apex court judges, the message emanating from the judiciary is clear – pendency has to be resolved by adding more courts and appointing more judges and not by making the higher judiciary work for more number of days.

Speaking at the Chief Justices and Chief Ministers Conference held in August this year, the Chief Justice of India had stressed this aspect and sidestepped the controversy surrounding long vacations of the Supreme Court. The CJI insisted on augmenting judicial infrastructure and filling up posts as the solution to overcome judicial arrears. Till January 1, 2009, he indicated a shortfall of 280 judges in the High Courts and 3,129 judicial officers in subordinate courts.

At present, the average disposal per judge in the High Court comes to 2,504 cases in a year. The similar figure per judge in the subordinate courts comes to 1,138 cases. Compared to countries abroad, this is far beyond the total disposal rate of the entire judges of a court taken together.