New Delhi: Will the winds of change sweeping the government touch the judiciary? The problems are enormous: a backlog of more than 33 million cases; 4,296 of the 19,238 sanctioned subordinate courts lying vacant; and 266 positions of high court judges of the 906 sanctioned vacant.
There is a ray of hope and former Chief Justice P. Sathasivam expressed it thus: "I have confidence that Prime Minister Narendra Modi will definitely do a lot by earmarking more funds for the judiciary."
"I think if the government sanctions 75 percent of what we ask every year just before the budget then it will take care of many issues facing the courts. At present, just 50 to 60 percent is what is sanctioned by the government," Sathasivam, who demitted office on April 27, told IANS on the phone from his native Kadappanallur village in Tamil Nadu.
Urging the new government for innovative and out-of-the-box thinking for reducing the arrears without compromising on the dispensation of justice, former additional solicitor general and senior counsel Amarendra Saran says capacities for justice delivery should be created.
He listed these as "creation of judicial infrastructure, simplification of procedural laws and reduction in number of appeals, revisions and reviews."
This is significant because every fifth court in the subordinate judiciary is seeking a judicial officer to make it functional. Similarly, every fourth sanctioned position of a high court judge is vacant.
Just before his retirement, Sathasivam said he had asked the then prime minister, Manmohan Singh, to increase by 25 percent the sanctioned strength of high court judges.
"Before my retirement I had handed over a memorandum to the prime minister seeking a 25 percent increase in the sanctioned strength of the judges in the high courts," Sathasivam said, adding that the law ministry did write to the high court chief justices inquiring about the available infrastructure.
There also has to be an improvement in the service conditions and retirement benefits of the judges of the higher judiciary, Sathasivam said, agreeing that a number of senior counsel with good practice and eligible to be appointed as high court judges are reluctant to take the journey from the bar to the bench.
"Improving the service conditions and retirement benefits is important. That is why advocates with lucrative practices don't come forward to join the bench", said Sathasivam, who felt that members of the bar should voluntarily come forward and take up the job of judges.
For filling existing vacancies, Sathasivam said that priority should be given to appointing judges from women, backward classes, the scheduled castes and the scheduled tribes and this required relaxation of the criteria related to their annual income.
While in office, he said he had asked the high court chief justices to speed up the process of filling vacancies.
Law Commission member Mool Chand Sharma had another take on the issue of pending cases.
"The government being one of the largest litigants before the courts, it needs to reflect more closely, seriously and sensitively on how and when to pursue litigation and, importantly, also reflect on when not to pursue litigation, Sharma told IANS.
Such an approach "is probably a fundamental aspect of any notion of good governance. Such an approach would help optimal application of governmental resources - financial as well as professional - and may also in many situations help in better utilization of judicial time."
Going by the unhappy experience of the UPA-II when the apex court had to step in on many cases that otherwise came under the domain of the government, apex court lawyer and writer Sanjay Hegde said that the "new government should take good decisions and not duck them for the judiciary to step in".
There should not be policy paralysis on the apprehension that any policy decision would be adversely viewed by the courts, Hegde said, cautioning that the government should avoid the temptation of judicial determination of issues for which it has been mandated to take a call.
Hegde's view has been endorsed by new Attorney General Mukul Rohatgi that the government should avoid frivolous litigation. Rohatgi, upon his appointment, had said that he would try to reduce the filing of frivolous appeals or appeals involving recovery of petty amounts by the government.
Hegde also said that there should be a "cost-benefit analysis of the pending government litigation" and law officers and public prosecutors should be authorised to settle these disputes out of court.
"In cases involving criminal law, the government should authorize the public prosecutors to enter plea bargaining to reduce pressure on criminal courts," Hegde, advocating greater leverage for the law officers in dealing with cases, told IANS.