December 7, 2021
Kalyan Banerjee speaks on The High Court and Supreme Court Judges (Salaries and Conditions of Service) Amendment Bill, 2021
At the threshold, I want to say that support the ‘High Court and Supreme Court Judges (Salaries and Conditions of Service) Amendment Bill, 2021’. The independence of the judiciary is indispensable in a democratic system of governance. The general contention is that in a democratic country, the judicial system should be completely free from any sort of pressure or coup, both internal and external. But it may so happen that the Government might abuse its political power. An independent judiciary is required to maintain a balance between the interest of individuals and society.
Justice delayed, it is often said, is justice denied. In India, justice is indefinitely kept pending, the result being that 4.5 crore cases are pending across courts, as of September 15, 2021. In fact, in 2019, there were 3.3 crore pending cases, which means that in the last two years, India has added 23 cases every minute to its pending list. The details of cases pending in the Supreme Court in the last three years: 57,346 cases in 2018, 59,859 cases in 2019, 63,146 cases in 2020 and in 2021, as of November 8, 70,038 cases. The number of five-judge bench matters pending before the Supreme Court is 272, the number of seven-judge bench matters is 15 and the number of nine-judge bench matters is 135.
Independency of the judiciary under the rule of law is a basic feature of the Constitution and cannot be abrogated even by constitutional amendment, as was observed in the SP Gupta case. All laws in India derive their authority from the Constitution of India, all powers of the state and its organs are contained and must be exercised within limits set out by the Constitution, which specifically directs the state to separate the judiciary from the executive in public service. The judiciary has a single pyramidal structure, with the lower courts at the bottom, the high courts in the middle and the Supreme Court at the top.
Today, our justice delivery system is facing multiple challenges. Two of them are stark and need immediate attention: appointment of judges and managing the humongous number of pending cases. The website of the Department of Justice tells us that the sanctioned strength of the high court judges is 1,098 and vacancies are 402, as on December 1, 2021. The sanctioned and working strengths of judicial officers, respectively, in the district and subordinate courts, as of December 31, 2013, were 19,518 and 15,115; both have increased, as of January 28, 2021, to 24,485 and 19,294, respectively. The pendency problem is a long-standing issue across the Indian judiciary. At present, the high courts list 5.8 million pending cases, and in your Rajasthan High Court (referring to Honourable Member PP Chaudhury), it is more than 5 lakh. The pendency of cases between 2015 and 2019 was about 18.8 million per year. In most years, the number of cases disposed of is lower than the number of cases instituted. So, the problem is getting worse. In high courts, 41 per cent of cases have been pending for five years or longer. In subordinate courts, nearly one in every four cases has been pending for at least five years. The number of cases pending for up to one year is 12,09,42,921, from one to three years is 9,73,08,411, from three to five years is 5,20,00,056 and from five to 10 years is 5,00,81,864. The number of cases of senior citizens pending is 22,25,587, of cases filed by women is 3,16,03,776. This implies that if no new cases were to be filed, the time taken by the courts to dispose of all the pending cases, at the current rate of disposal, would be 1.3 years.
Just one month back, Justice Sanjay Kishan Kaul, while taking up a matter of a criminal appeal arising out of Allahabad, observed that, if no criminal appeals are filed in Allahabad High Court, disposal of the pending criminal appeals will take 32 years. This is what Justice Sanjay Kishan Kaul said.
Sir, where do we stand, where do we stand? In two decades, since fast-track courts were first set up, pending cases in both subordinate courts and fast-track courts have continued to increase. As on date, over 9.2 lakh cases are pending in 842 fast-track courts across 28 states. What has happened to fast-track courts? What is being done in fast-track courts? Where are the disposals?
The pendency of cases over a long period have resulted in a large number of undertrial prisoners in India. As of December 31, 2019, almost 4.8 lakh prisoners were confined in Indian jails. Of this, over two-thirds were undertrials, 5,011 undertrials were confined in jails for five years or longer. Uttar Pradesh with 2,142 and Maharashtra with 394 accounted for over half of such undertrials. This is in the backdrop of a huge backlog of cases.
Sir, as on December 1, 2021, the Supreme Court has one vacancy out of the sanctioned strength of 34 judges. In the high courts, 37 per cent of the total sanctioned posts of judges are vacant. Out of the total of 402 vacancies in the high courts, the major vacancies are in Kolkata (32 out of the sanctioned 72), Telangana (23 out of 42). Patna (27 out of the 53). Rajasthan (22 out of 50), Delhi (30 out of 60) and Andhra Pradesh (19 out of 37). Allahabad High Court is also more than 50 per cent vacant. Clearly, it is the judiciary’s failure to not keep to the promise of speedy trials.
On April 20, 2021, a three-judge bench consisting of the Honourable Chief Justice Bobde, Honourable Justice Sanjay Kishan Kaul and Honourable Justice Surya Kant said: “The High Courts are in a crisis situation. There are almost 40 per cent vacancies in the high courts, with many of the larger high courts working under 50 per cent of their sanctioned strength.”
Now I will straight to paragraph 11, which is more interesting. You will be surprised but mark my statement. Paragraph 11 states: “ … in order to facilitate timely appointment, we are of the view that it would be advisable to follow the following timelines in addition to the aforesaid:
“i. The Intelligence Bureau (IB) should submit its report/inputs within 4 to 6 weeks from the date of recommendation of the High Court Collegium to the Central Government.
ii. It would be desirable that the Central Government forward the file(s)/recommendations to the Supreme Court within 8 to 12 weeks from the date of receipt of views from the State Government and the report/input from the IB.
Iii. It would be for the Government to thereafter proceed to make the appointment immediately on the aforesaid consideration and undoubtedly if Government has any reservations on suitability or in public interest, within the same period of time it may be sent back to the Supreme Court Collegium with the specific reasons for reservation recorded.”
The last point is most important.
“If the Supreme Court Collegium after consideration of the aforesaid inputs still reiterates the recommendation(s) unanimously (Clause 24(1), such appointment should be processed and appointment should be made within 3 to 4 weeks.”
If reiteration is made then, in terms of this order, the appointment sould be made within three to four weeks. But what has happened in our State? In Calcutta High Court, Jayatosh Majumdar’s case was forwarded on July 24, 2019, then reiterated on September 1, 2021, but the Supreme Court order has not been implemented. Amitesh Banerjee was first recommended on July 24, 2019 and then reiterated on September 1, 2021. Raja Basu Chowdhury was first recommended on July 24, 2019, then reiterated on September 1, 2021. Lopita Banerjee was first recommended on July 24, 2019, then reiterated on September 1, 2021. Sakya Sen was first recommended on July 24, 2019, then reiterated on October 8, 2021.
But Sir, the collegium recommends that if a lawyer belongs to the Bharatiya Janata Party or is directly or indirectly associated with the BJP government, he is appointed at rocket speed. I am not questioning their suitability, I am questioning the discriminatory attitude of the Central Government when the State Government is of another political party, In 2019, when the name of the additional solicitor-general came up, he was appointed immediately. But since the others are State Government lawyers, their appointments were not done. One of the judges—and I am again not talking about the competency of the judges—was associated with the Anadaman and Nicobar Islands’ administrative cases. His case was recommended on September 1, 2021 and it was cleared by the Central Government on November 16, 2021. Not only our case, but Jammu and Kashmir High Court also has two judges recommended for it, whose names have been reiterated twice. For Karnataka High Court, two names have been reiterated. For Allahabad High Court, two names have been recommended. For Calcutta High Court, two women judges, Ananya Bandyopadhay and Rai Chattopadhay were recommended and their names were reiterated on November 11, 2021. Another gentleman, Suvendu Samanta … The Honourable Chief Justice is saying that we want more women judges in the judiciary. I have given three names of women lawyers whose names have been recommended. But they have not been implemented.
Sir, now I say whether this is a clear violation of the orders of the Supreme Court or not, whether the central government is violating the orders of the Supreme Court which I have referred to by judgement delivered by Chief Justice Bobde. Sir, whether it is a violation? Does it come within the ambit of Article 215 of the Constitution of India or not? Does it come or not?
Sir, under Article 144 of the Constitution of India, what does it say? “All authorities, civil and judicial in the territory of India, shall act in aid of the Supreme Court.” Is the central government doing that? Is the central government not violating Article 144? Is the central government not creating a discrimination? Is the central government not violating the rights protected under Article 14 of the Constitution, which speaks about equality before the law.
Sir, that is the reason I have said that there is total violation that is already quoted by Mr. Tharoor. But I am quoting again that when the Constitutional machinery, you are the Constitutional authority, in flagrant violation of the Constitutional laws, in flagrant violation of all statutes, in flagrant violation of all norms, they act. They do not appoint the persons whose faces are not liked by them, only the faces they like are being appointed by them.
Similarly, Sir, Dr. Ambedkar said, “No matter how good our Constitution may be, if the Constitution is good and those implementing it are good, everything will be well. But if those following it are not running it with the right intentions, the best Constitution is rendered worst, and the most valueless Constitution can be made good if those running it are with good intentions and objectives. This Constitution object of Dr. Ambedkar’s statement, Dr. Ambedkar views have been thrown into the river Yamuna, in our state, in the river Ganga.
I am not blaming you also, the central government, I am blaming. You have given an answer to my question which I have got yesterday. There are pending cases that the High Courts are not sending, the collegium are not sending. Sir, collegium is an Administrative Act as you know, and I have a right to criticize any Administrative Act.
In terms of the judgement of the Chief Justice Bobde, collegium was required to fill up the vacancies, they have to initiate the proceedings, they have to initiate the process prior to six months of retirement if any vacancy of any judge occurs. But what are they doing? All the collegiums in the entire country, all the High Courts, what are they doing? What steps have they taken? They are also answerable. It is not that they are not answerable. There are the administrative act of any High Court and the administrative act of the Supreme Court. They are also answerable to Parliament. If a government official does not act, the Supreme Court and high courts will thrash him like anything. They will be sent to jail. But if the collegium does not act, whom will they send to jail, what will happen? Is it not a mockery of justice now? Everyone is responsible for this. If today’s debate enters their ears, they will do it.
Sir, I know Mr. Rijiju, the Hon Minister, sorry that I said Mr. Rijiju is a very good friend of mine, particularly on a day and a particular place, we exchange our views.
Sir, I know in his reply he will say how many appointments have been made. You will say eight Supreme Court judges have been appointed. This amount of judges have been appointed which has not been done. But he will never say to this House within last three years including the resume of Mr. Chaudhary, between 2014 and 2019 how many vacancies have occurred. That is right (when Treasury benches said 400 judges have been appointed). But you have not said how many vacancies? I can give the figures which have been given to me yesterday. How many vacancies have occurred? It is not my job to find out the vacancies, it is your job to find out. My job is to point out that vacancies are not filled up. This is your job, you must work it out.
You have got a very good supporter Mr. Chaudhary. [ Interrupted by Dubey ] Mr. Dubey, you possibly do not know my background, that is the reason you are saying so. My offer came in 1994, on record I am saying it, and had I been accepted I would have been CJI for nearly three years, keep it in your mind and then pass comments. Yes, I have not gone there and have chosen this path.
Sir, I request <interruptions> Sir, I have a request today <Chair>. In 2018, when the CJI Dipak Mishra was there, four judges went to press, criticized him and said, “Democracy has won”, right. There is no Supreme Court over this Supreme Court. If that is there, I do not know what would have been the fate of their cases. On the contrary, the first man who spoke became CJI later on and then we have seen him in the Rajya Sabha.
But Sir, with a very painful heart I’m saying this. I’ve also completed 40-41 years. The way Chief Justice Sanjib Banerjee has been transferred from Madras High Court to Meghalaya, that is not acceptable, not acceptable. I know, you have not done it, Mr Rijiju, I know you have not done it, you have just implemented. It was done by the Collegium. Why? Because he criticised the Election Commission of India. Then if he has criticised, why did the Central Government not come forward for the impeachment of those four judges who criticised the Central government when they have said that there is no Democracy in the country?
Sir, I’m telling you, Chief Justice Sanjib Banerjee is not losing anything, please kindly allow me to tell, he is not losing anything, he will remain. But I feel, I have a feeling—he was famous for raising so many matters against our state government, he was a very straight-cut judge, really an erudite judge. You will consider today, Sir, I’m telling you that the first judge of Supreme Court, Justice Nariman, was not only a great judge of this country, but a jurist of this country, I can tell you, in India, amongst all the judges, Chief Justice Sanjib Banerjee is the best judge of Indian High Courts. But he was transferred to Meghalaya.
I request also from this Parliament through you Sir, to the Collegium, please consider, Justice Sanjib Banerjee is not losing anything, what you are really wasting a property of the nation. He is a property of the nation. What has been done is very shocking. These things should not have been done.
Sir, I’m ending with this: please do not continue with contempt of court, do not violate the orders of the court. You are the central government, if you violate, what will be the consequences? You may not like to face, you may not like state governments, bol ke aaya tha na, is bar 200 ka par. Lekin nehi to huya! Maan lijiye, maan lijiye, maan lijiye, yeh manne ka baat hai. Mamtaji, Mamtaji karke kuch nehi hoga, Mamtaji dikha diya, jitney jo aayo, aayo, hum dekh lenge, aur coming days mein bhi hum log dekh lenge.
I’m coming to a very important point I’ve forgotten to say. Mr Tharoor was speaking about that—why there was no enhancement on the retirement of judges? Bill should be brought. Sir, I will tell you why? In 2012, you were also there, the UPA was there. UPA II introduced a Bill for enhancement of the retirement of judges, 62 to 65, 65 to 67. High Court and Supreme Court respectively. It was introduced, but not moved, was not discussed, not placed. Sir, I will request you that there are no requirements on this. What is the requirement? Constitution has said, 10 years of practice is sufficient for suitability. Now the collegium in their own wisdom has said, unless one is 45 years, one cannot be a judge—they used their own wisdom. Thereby, this country will be deprived of getting good lawyers on becoming good judge. Make it less-40,41 or 42—what about Justice Chandrachur? He became a judge at the age of 41, what a great judge he is? What about the Chief Justice of Bombay High Court, Justice Dipankar Dutta, he was appointed at the age of 41 only, a great job he is doing. Therefore, kindly decrease, through you I will request the Collegium, don’t insist on 45, be flexible. If you get good lawyers at the age of 40, 41, 42 or 39 then make him a judge. Chief Justice Altamas Kabir, who became judge at the age of 38 years, 38 years and stayed, since so many comments have been passed to me, I got this offer at the age of 37.
Yes, Sir, I’m grateful to you, you have given me the chance to speak my agony, my pain, whatever is there and whatever the grievances are there in my mind, not only I’m a lawyer, not only I’m a Member of Parliament, but also I’m a citizen of India. I express before you, I express my anguish, I express my pain, I express my sorrow in this matter with respect to all these.
Sir, I convey my heartiest thanks to you, convey my regards to you for giving me the chance to speak on this matter.