The contentious issue of selection of judges to the high courts and the Supreme Court is being hotly debated in the Supreme Court, with the Centre producing a list of 20 bad appointees made by the collegium of judges. Among them, a ladyship habitually came hours late to the court, and one lordship wrote only five judgments in four years and had failed to deliver hundreds in the high courts. The edifice of the collegium appeared to be shaking in the face of the week-long barrage fired by the government.
In the opaque system of picking judges, extraneous considerations come into play such as region, caste, sex and religion. Therefore, merit suffers. In the increasingly complex field of law, specialised knowledge has become indispensable. But very often company and patent cases are listed before judges who have been familiar with criminal cases, and the latter class presented before judges who are adept in civil cases. The presiding judge who decided the Novartis patent case prefaced the hearing with the confession that they have no background in chemistry or science. When Reliance Industries started its arguments in the KG basin case, it produced a glossary of technical terms running into several pages to help the judges understand the technology, apart from models of geological cross-sections and exploration equipment. When accounting scams are dissected, judges who understand put probing questions, while his brethren who are not good at figures keep an understanding smile.
This situation might change if the new policy of setting up specialised benches is retained. The chief justice has set up subjectwise benches to speed up decision in decades-old cases. There is one hearing tax appeals consisting of judges who have good knowledge of revenue matters. A commercial bench is said to be on the anvil. As politicians with criminal background are increasingly becoming lawmakers, there is another attempt to speed up their prosecution, so that the issues can be decided before the life of the elected house runs out. There would be a dedicated bench for those who languish in jails without bail and those who are on death row. A 'social justice' bench has been hearing cases related to bonded labour, displacements, night shelters, mid-day meals and even wildlife preservation. Earlier, some 200 public interest petitions on these subjects were scattered before different benches. The new policy will not only add to the efficiency of the bench but also speed up, to some extent, the procedures.
However, the apex court reeling under arrears of nearly 50,000 cases has not used information technology to analyse the data regarding the pending cases. The litigants have to fill up two pages of details when they move a petition, like the subject of the case, the legal provision involved, the amount involved and the court where it originated. With all these data in hand, the court should be able to study the causes of delays and find solutions. But nothing of the sort has been attempted or published. The registry officials are not competent to analyse such huge data. Therefore, the task should be outsourced to a private consultancy agency, which has expertise in the field. Its suggestions should replace guestimates and intuition of a few people.
The result of such analysis will help recruit competent and sufficient number of judges for setting up specialised benches. Thousands of revenue cases are pending before the Supreme Court, many of them lying there for over a decade. If sufficient number of judges with experience in this field are appointed, the disposal rate would be faster. Similarly, a large number of criminal cases are pending, cramping the jails with "under-trials".
Times are particularly bad now, as no judge can be appointed either in the Supreme Court or the high courts because of the ongoing tussle between the executive and the judiciary. Five high courts have no chief justices, and 37 per cent high court posts are vacant. If this stalemate continues, soon there will be no judges to decide cases. As someone whined, the sun goes down exactly when you need it the most.