Prime Minister Narendra Modi is not a rule of law man. He takes potshots at the judiciary which not only exposed communal violence in Gujarat but also exposed illegal decisions.
He was no different at the important inaugural session of the joint conference of chief ministers and chief justices. The judiciary is trapped in the architecture of government. Its finances come from the executive which proposes the judiciary's budget being charged on the consolidated and other funds.
The strength of judiciary depends on the Union and state governments for money. Appointments are not processed. Despite the victory in the NJAC (National Judicial Appointments Commission) case giving primacy to the collegiums in making judicial appointments, the files are not moving with the speed with which they should.
The executive is never impolite but always holds the upper card. Modi's haughty intervention: "Jab jaago tab savera" was both an indictment and offensive. Who was to wake up? The judiciary? The chief justice of India?
Modi made the promise of an "in camera meeting" to resolve issues. Why doesn't he resolve them? The judiciary is not asking him for a personal favour. Justice Thakur's concerns overwhelmed him as they do the judiciary.
Chief justices of India speak for the judiciary. After Justice Sabharwal, there was a lull in judicial statesmanship.
Although loose allegations against CJ Sabharwal were irresponsible, his successors invited question marks. What if I told you one chief justice's clerks wrote at least one judgment I saw?
Here's another one. Earlier, chief justices could not dictate judgments in court. They were incompetent administrators. Both were political appointments. The advent of Justice Lodha changed things.
He appointed two members from the Bar to the Supreme Court and sorted out many things. Justice HL Dattu carried some of the momentum but not all. Chief justice Thakur rose to the challenge with great assiduity.
|CJI TS Thakur breaks down at the inaugural session of joint conference of chief ministers and chief justices of high courts on April 24, 2016.|
The problem posed by him is pre-eminently one of resources. Given India's 1.2 billion people, Thakur's conservative estimate was that the present strength of 22,000 in the higher judiciary was not enough and there is a need for 40,000 - in other words double the budget to increase these numbers.
I would put the need on the basis of my research at 60,000. The judiciary does not raise revenue. There is court fee; and of course stamp fee which is gobbled by the government and not credited to the judiciary.
CJI Thakur also wants substantive increases for the lower judiciary. That money will come from chief ministers. It is impossible to get substantial funds for the high courts and lower courts.
CJI Thakur recounted that the law commission in 1987 and a parliamentary committee in 2002 said that instead of ten judges for million people, the figure should be 50.
If the judiciary were Cinderella, Modi and Jaitley are not the right godmothers. But does it have a choice? That is why CJI Thakur said: "I beseech you to rise to the occasion and realise, it is not enough to criticise. You cannot shift the burden to the judiciary... Inaction by the government and the increase does not take place".
The frustration of the moment overtook him and he shed a tear. This attracted the media more than the cause he was espousing. So, the controversy became why did the chief justice cry? Or even, was it dignified for the chief justice to cry? The question should have been: What was the CJI crying about?
He was crying about the impossibility of justice unless the executive was serious about it. Till recently, the short fall in the Supreme Court was nine and 464 in the high courts. There should be 20,358 subordinate courts. There are only 15,360 with a deficit of 49,938.
According to Daksh's research, the average number of hearings per judge in the high court per day is colossal: 149 in Patna, 148 in Calcutta, 109 in Telangana and Andhra, Rajasthan's 97 may be compared with Allahabad's 77.
Hurried justice is no justice at all. These figures are abysmal. Final hearings are reduced; the length taken to decide cases increases. Judges of the Supreme Court hear cases during the day, write judgments in the evening and read briefs for the next day. What they produce is reasoned and closely argued.
This is why the rule of law survives and lives on a tender thread.
We think the "rule of law" is just a phrase. Imagine a democracy without the rule of law. Many such countries are failed states. A major reason for this is that rule of law institutions are deprived of finances, resources and respect.
Indians should begin to recognise that many parts of India constitute failed states - not because of Maoists and terrorists but because of endemic decay in governance.
No account of false pride in India as a democracy can hide this process of degeneration. If politicians and bureaucrats are the custodians of the democratic and instrumental texts of governance, the judiciary is the custodian of the rule of law texts.
As part of the rule of law, the judiciary's job is to have the final say in interpreting the Constitution. Parliament runs into rowdy sessions. The executive thinks it is a law unto itself.
But the buck stops with the judiciary which is overworked, underpaid but respected by the people. A new mechanism for resolving executive, judiciary is urgently needed.
Why did the chief justice weep? Not for himself but for the future of Indian democracy and lack of cooperation by the executive including PM Modi.
(Courtesy of Mail Today.)