Two unrelated posts:
First, there will a be a consultation this weekend critiquing the current judicial trends on environmental law at the Nehru Museum, Teen Murti House, Teen Murti Marg, Chanakyapuri, New Delhi. It will be 9:00 am to 6:00 pm on Saturday and Sunday. Speakers include Justice Kuldip Singh, M.C. Mehta, and several other leaders in the country’s environmental jurisprudence (from both the bench and the bar). This is part of an ongoing critique of judicial trends in India being put on by HRLN with other partners. Last weekend there was a consultation on trends in labor law that was quite informative and spirited.
Second, the Indian Express reports today that the Cabinet has approved a proposed expansion of the Supreme Court from its current strength of 26 justices to 31 (I can’t seem to find today’s article, so this is yesterday‘s discussing the proposal to Cabinet). One can certainly understand the desire to increase the number of justices due to the high backlog before the Supreme Court. In doing so though, I think Parliament should consider a couple of problems that may arise or have already risen from having such a large bench. First, there are already frequent complaints about the quality of justices currently on the court. If the court is to be expanded how can the government ensure there are enough talented people available to fill the positions? I have heard from some that it is getting increasingly difficult to attract top legal talent to the High Courts (and in turn the Supreme Court). This doesn’t just have to do with the availability of firm jobs. Justices are forced to retire at 65 and High Court judges even earlier – often in the prime of their legal career. They are then effectively barred from practicing in the courts, while being given very poor retirement packages. These are well-known problems and Parliament should consider addressing them at the same time they authorize any expansion of the Court.
Second, one needs to question if expanding the size of the Court will really address the source of this backlog. This law commission report from 1988 – written around the last time the court was expanded – I think is worth reading right now, to reflect on this strategy. It details how the Court has been expanded in the past in a largely unsuccessful attempt to deal with backlog. It also discusses other alternatives that have been suggested (and largely forgotten) to deal with this high caseload such as creating constitutional and legal divisions to the Court (an idea I personally don’t think is a good one, but could lead to a good one). I think the report though rightly highlights the problem of cumbersome procedures in the court that create delay, and how tackling these may increase the efficiency of the court more than the addition of more justices.
The Venkatachaliah committee recommended raising retirement age for both SC and HC judges by 3 years (an extremely modest change and quite inadequate I think). Ram Jethmalani introduced a bill in 2005 to raise the retirement age of HC judges to 65. The Union Law Minister was reported last year to have agreed to consider raising the retirement age year in response to a question in the house. And these are probably only a small fraction of the attempts actually made at reforming the system. As you pointed out, the Law Commission reports have provided a number of other suggestions some of which do not require legislative sanction. The question is why, despite all these analyses and initiatives, virtually no movement is seen on any of these fronts. Is it the political economy of the bar that is hindering change as you suggested? That is the foremost question that needs to be asked.