Opinion: Does CJI Chandrachud’s rebuttal to criticism of Indian judiciary hold water?

Written by Arvind Kumar

The Chief Justice of India, DY Chandrachud, recently participated in a media conclave where he attempted to address issues over which the judiciary has come in for severe criticism: pendency of cases, appointment of judges, separation of powers, and long vacations of judges. While it is a norm for judges to speak only through their judgements and actions, there is no rule prohibiting them from expressing their views outside the courtroom.

Speaking about his vision for the judiciary, Justice Chandrachud said, “What we need to do is completely modernise the Indian judiciary. Our model for judicial administration has been based on the colonial model which we inherited from the British, which is that people have to access justice. It is also reflected in the design of...grand colonial buildings...intended to create a sense of fear and awe about the court," he said, adding that the colonial model needs to give way because "justice is an essential service which we provide to our citizens".

"Part of my mission of dealing with where we should be in the next 50 or 75 years is to transform the judiciary with the use of technology," he added.

Various top constitutional functionaries, including President Droupadi Murmu, Vice President Jagdeep Dhankhar, and Union Law Minister Kiren Rijiju, have criticised the judiciary for its slow delivery of justice, and for allegedly usurping the powers of the executive in appointing judges to higher judiciary positions. Additionally, there have been allegations of the judiciary being under pressure from the Union government.

I want to examine whether the CJ's responses effectively address these issues. 

Pending cases

Indian courts have nearly five crore pending cases, with over 69,000 in the Supreme Court alone. The judiciary has faced severe criticism for this, as delays in justice are seen as a denial of justice. A common response to the increasing number of cases is the shortage of judges. It is argued that there are fewer judges per thousand population in India as compared to developed countries. Justice Chandrachud too cited inadequate infrastructure and a poor judge-to-population ratio as the main reasons for the backlog in cases. 

However, the impact of the judge-to-population ratio should be uniform across all communities. Sadly, Scheduled Castes (SCs), Scheduled Tribes (STs), Other Backward Classes (OBCs) and minorities are overrepresented among undertrial prisoners in India. According to data from the National Crime Records Bureau (NCRB), as of December 2021, nearly 18% of all undertrial prisoners were Muslims. According to the caste-wise breakup, SCs (21.07%), STs (9.88%) and OBCs (35.41%) comprised 66.36% of the total undertrial prisoners. However, the same groups are least represented in the higher judiciary. 

The CJI has also put forward two other arguments regarding the ballooning number of pending cases. Firstly, he stated that the Constitution of India provides a mechanism for every citizen to approach the Supreme Court, which is not the case with the apex courts of other countries such as the United States, resulting in fewer pending cases there. 

This argument fails to explain the high number of pending cases in district courts, particularly against members of marginalised communities. It also fails to address the issue of the high number of appeal cases pending in the High Courts and the Supreme Court.

The CJI's second argument was that the increasing number of pending cases shows higher public trust in the judiciary. “I think [the huge backlog of cases] is reflective of the faith of the people in coming to court in the first place. Which is not to justify the backlogs… But it’s just an indicator of the kind of faith people have,” Justice Chandrachud said. This argument is problematic, as the number of pending cases is not a reliable measure of trust, and proper surveys are necessary to measure trust accurately.

Justice Chandrachud’s response also failed to adequately address the various problems caused by pending cases. A major political fallout of this backlog is the emergence of power centres that promote a culture of extra-judicial or out-of-court settlements. There is an increasing number of legislators with a personality cult — with the image of a feudal, masculine authority cultivated along the lines of fictional characters like Baahubali, and sometimes also having a criminal record –  in the Parliament and in state Assemblies. They are heroes to people who are demoralised by the legal system and seek instant justice. 

There seems to be a growing tendency among people to look for all-powerful leaders, leading to the rise of authoritarian leadership. This has implications not only for the judiciary but all public institutions at large.

The rise of Prime Minister Narendra Modi in India may also be in part due to the public’s frustration with public institutions, including the judiciary. This might be the reason PM Modi tried to reform the judiciary by introducing The National Judicial Appointments Commission (NJAC) Bill in the early days of his prime ministership, which the Supreme Court struck down.

Another problem with the backlog of cases is that it is slowing down the economy and deterring foreign investments due to the judiciary's inefficiency. Multinational corporations are witnessing that Indian courts take years to pass judgements, which hampers their prospects and future plans. Moreover, pending cases are also leading to the extraction of state resources, as lawyers charge high fees to government departments and public sector undertakings (PSUs) embroiled in long-pending cases. This is also a cause of concern for Indian universities, which spend substantial public funds on fighting petty cases.

Pending cases are also aggravating poverty as the poor and lower middle class cannot afford to pay the hefty fees charged by lawyers. This issue was highlighted by President Droupadi Murmu, who noted that the poor often have to sell their utensils to get bail. This raises questions about whether the judiciary is making people poorer.

Defending the collegium system, and the ‘merit’ argument

In the same media conclave, Justice Chandrachud defended the collegium's appointment of judges by stating, “First, we look at merit and professional competence. Second is seniority. Third, a need for a broader sense of inclusion and diversity, but that is not at the cost of sacrificing merit.”

However, while delivering the BR Ambedkar Memorial Lecture, 2021 organised by the Indian Institute of Dalit Studies, Delhi, Justice Chandrachud had said that a “narrow concept of merit” only allows “upper caste individuals” to mask their obvious caste privilege. “Such a narrow concept allows upper caste individuals to relegate the achievement of Dalits and other reserved classes as being a consequence of caste-based reservation afforded to them,” the CJI had said at the time. 

It is clear that his public stance on the idea of merit does not reflect in the appointment of judges, as the collegium under him has not appointed any judges from SCs, STs, or OBCs in the Supreme Court.

At the conclave, the Chief Justice also discussed the functioning of the collegium system and claimed that there were well-defined processes. However, since the appointment of judges can only be challenged in the Supreme Court, and the same judges selected through the collegium will be making judgements on the matter, the idea of separation of powers – a cardinal doctrine of democracy – seems to vanish into thin air.

Judges taking long vacations

The judges of India's higher judiciary have been criticised for taking long vacations, a topic that gained public attention after PM Modi suggested reducing judges' summer vacation to resolve the pendency of cases in 2016. Justice TS Thakur, who was the CJI at the time, responded to this argument stating that judges do not enjoy holidays during vacation, but instead write judgements. However, his response was not very convincing, and the issue persists. When asked about the same issue, CJI Chandrachud reiterated Thakur's response, adding that vacations provide a necessary time for thinking and deliberation on judgements that shape Indian society. He also cited statistics from the US and Singapore, where judges have a higher number of vacation days than in India.

However, despite his thoughtful response, CJI Chandrachud failed to address the criticism that long judicial vacations have its roots in colonial traditions. Colonial administrators used to shift to hill stations during the summer and enjoy long vacations during the Christmas and New Year holiday season. Most institutions in India have reduced their vacation periods during Christmas, but the judiciary has not followed suit.

Therefore, the CJI's responses highlight the need for the judiciary to develop a deeper understanding of public grievances and to adopt reforms quickly to deliver justice. Ignoring suggestions for reform in the guise of judicial autonomy is not beneficial for the country.

Arvind Kumar is a PhD scholar at the Department of Politics, International Relations and Philosophy; and visiting tutor at the Department of Law and Criminology, Royal Holloway, University of London. He is also Associate Fellow of the Higher Education Academy (AFHEA), United Kingdom. Views expressed are the author’s own.