There is an extremely strong case for urgent and far reaching reforms in
our judiciary. In the first three
decades of our democracy, most people reposed their faith in the political
class to govern them wisely and ensure freedom and justice to all. However, over the last 3 decades, the
political class has become mired in corruption and has become the object of
scorn and ridicule.
The public now
relies heavily upon the higher judiciary as the last bulk walk against excesses
of authority and abuse of powers of the executive. To many citizens, the courts remain the last
vision of hope for ensuring probity, efficiency and impartiality in
administration and for delivery of justice to all. However the judiciary today is collapsing under
its own weight. And under the burden of
pending cases.
Serious questions are now
being raised about integrity, efficiency and competence of our justice delivery
system. If urgent reforms are not
implemented, then it threatens to endanger not just the precincts of our civil
society and its orderly functioning but also poses the gravest danger of
plunging the future of our Republic into Anarchy and chaos.
Prelude
- Lessons from a Grizzly Nagpur Story:
In a place called Kasturba Nagar of Nagpur, there
lived a gangster called Akku Yadav. Akku
Yadav was a History sheeter who raped and murdered many women with impunity. He had been abusing the local women
repeatedly for over a decade without any care for long arms of law. Given his high connections with the local
state politicians and being hand in glove with the local police, he was able to
continue his activities with much ease.
Though there were many complaints against him the local police refused
to help the victims and discouraged them from pursuing the charges. The behaviour of local judiciary did not help
either. He was repeatedly granted bail
and the trial in the courts dragged on perpetually for almost a decade. As in scheme of things, it is said that he
would get arrested and then be immediately granted a bail. He would come out only to continue with his
crimes and avenge the victims who complained against him. And this process went on and on. As his trial dragged for years and his
activities continued, the local resident lost their faith in the judiciary and
the police system.
At 3pm on August 13, 2004, a mob of around 200 women
from slums of Kasturba Nagar entered the District Court of Nagpur. Armed with chilli powder and vegetable
knives, the mob of women entered the Court Room and in 15 minutes hacked to
death Akku Yadav, the man who they said raped them and murdered people with
impunity for more than a decade. The
Incident was extra-ordinary because yadav was murdered not in the dark alleys
of the slums, but on the shiny white marble floor of Nagpur district court in
front of a sitting Judge, stabbed 70 times in his body. It is said that that the women continued to
stab long after he was dead. Later all
200 women courted arrest claiming responsibility for his murder and had to be
released next day.
The spattered
blood marks in the court hall and on its wall remains as a grizzly reminder of
what happens when the faith in judicial system is irretrievably lost.
A
Functional and Time Bound Judiciary is the heart of a Civilization
The Judicial System of any democracy stands as focal
point for success or failure of the Repubic.
Its importance can never be over emphasized. It is not an exaggeration to say that an
effective Justice system lies at the heart of any civilization. Infact, an independent and impartial
judiciary, and a speedy and efficient system are the very essence of
civilization. It stands not merely as a
contraption or an apparatus but as a focal point that enables its
survival. Without a functioning
judiciary, the republic tends to descend into anarchy with its citizens taking
law into their own hands. Therefore where
the justice delivery system fails, the nation fails and the character of the
society is also irretrievably altered to a new low leading to moral
degeneration and anarchy.
In the same vien, a nation succeeds where its
justice delivery system is successful. Successful
nations are those where its judicial systems are strong and fearless. Where the victim of a crime can expect to
receive justice within a reasonable time.
In context of India, the Judicial System has been
the Achilles heel of our Modern Republic. Over the years, the reputation of the
Judiciary has hit lower and lower. Therefore
there is a need to reform the ills of the judiciary through incremental changes
as a matter of fundamental human rights of its citizens. Speedy Justice Delivery system is a human
right of Citizens of a democracy.
Judicial
Reforms for a better tomorrow
I have identified certain key problems with the
judicial system and provided below the steps that must be taken to reform the
judiciary. The Recommendations are based
on various studies and reports of law commission of India. It is hoped that the faith of the public in
judicial system will be restored if the Reforms are implemented on an urgent
basis.
Reform
1: Clearing the Backlog of cases in various courts in India
The
great jurist Nani Palkhiwala once observed that “the progress of a civil suit in
our legal system is the closest thing to eternity we can experience”. While the comment may have been made in a
lighter sense, it brings out the harsh reality of our Indian Judicial
system. At present, a mere 19,000
judges, including 18,000 judges in trial courts, are dealing with a pendency of
3.8 crore cases in various courts in India.
This results in a civil case lasting for nearly 15 years on an
average. On a higher side some cases can
cross a century. One Judge of Delhi
High Court calculated that 464 years will be required to clear the arrears with
the present strength of the judges in that High Court. In other words, if you file a suit today in
one of our trial courts or High Courts today there is a strong probability that
the same will last between 15-60 years on an average.
1.1 To
reduce the time delay in running of a case, it is suggested that judges must
deliver judgments within a reasonable time.
Statutory time limit can be fixed between 60 to 120 days depending o the
type of case
1.2 Lawyers
must curtail prolix and repetitive arguments and should supplement it by written
notes. The length of the oral argument in any case should not exceed one hour
and thirty minutes, unless the case involves complicated questions of law or
interpretation of Constitution.
1.3 Since
government of India is one of the biggest litigant, it is suggested that its
departments must come out with monetary limits on which cases will be filed on
its behalf. This has now been
successfully done for cases under Income tax Act and needs to be replicated for
other laws.
1.4 Mechanisms
must be set in place to ensure no unwanted adjournments are given. The Lawyers who take too many adjournments
must be noted and pulled up for disciplinary proceeding for wasting time of
court and elongating delays. The judges
must refuse to grant adjournments beyond a point and must make attempts to take
case to logical conclusion
Reform 2: Full Computerization of all Courts and creation of E-Courts
In a nation that prides itself of serving the world
as an information technology hub of the world, the courts have remained one of
the few institution that have largely been outside its ambit. Full computerization and creation of E-Courts
in India has the ability to radically improve efficiency and expedite court
processes to the benefit of all. For
example, with judicious use of information technology, one can club all the
similar question of law being litigated simultaneously in all courts and save
time and efforts of all concerned and deliver a single judgement.
For reforming Insitutions in India, Information
Technology has been a force of radical change.
To cite example from history, in the year 1987, the Rajiv Gandhi
government initiated the process of computerization of Indian Railways. Many
luddites and cynics mocked his efforts. They said it was absurd idea that
computerization can improve efficiency can eliminate corruption. They said
computerization would only destroy jobs and lead to greater levels of
corruption. But the Reformers with worked tirelessly (with limited budget) to computerize
every aspect of ticket booking like reservations and cancellation and waiting
list system and to provide update it real time basis. In the years to come, the
system would be so successful that the young citizenry (born in 80s and 90s)
would not even acknowledge or know of the massive levels of corruptions that
once existed in Indian Railways. As the shadows lifted, one of the world’s most
corrupt system had been brought to its knees by the power of information
technology.
In a similar vein, all court processes must be
studied and automated through the process of Information Technology. For example the courts can issue summons on
email and on SMS. All Court records can
be digitized to improve the productivity and efficiency of the courts. Computerization
of the Registry of the Supreme Court has had its beneficial effects in slashing
down arrears and facilitated scientific docket management. The same must now be replicated in all lower
courts in India. Basically the entire
process of the court from filing of a suit to delivery of judgement can be
computerized to the extent possible leaving exception only for mandatory
activities which require physical presence like arguments of lawyers. Also E-filing
and video-conferencing by dispensing with physical appearance can saves
precious time and resources and makes justice more easily accessible and a less
expensive option. Similarly, many old
cases that have become infructuous due to recent judgements or change in law
can be separated and listed for hearing or disposed immediately with the help
of technology. Further the modern technology can be used to
enable the chief justices to allocate their manpower efficiently and monitor
judges below them. It can also be used to monitor efficiency of both the judges
and the courts. Digital tools can help
to build a database of lawyers and also help in identifying the derelict ones
and to take disciplinary action against them and keep record of their
appearances. These will go a long way in
identifying where the backlog lies and scientifically analyse what types of
cases are clogging most of the judicial times and help to create policies to
correct them
Reform
3: Creation of Indian Judicial Service
The delays in the courts have also been because of
varying levels of efficiency and lack of meritocracy. It is high time that the Indian Judicial
Service (IJS) is created as an All India Service under Article 312 of the constitution.
All the offices of the District and
Sessions Judges should be held by those recruited to such a service after
adequate training and exposure provided to them to ensure they meet the local
requirements of the state. Only such a meritocratic service with a competitive
recruitment, high quality uniform training and assured standards of probity and
efficiency would be able to ensure speedy and impartial justice. The service cadre will also help in providing
a fair proportion of the High Court Judges from the merit list of the Indian
Judicial Service.
Reform
4: New Rural Courts in Rural Areas
The constitution of rural courts is necessary for
speedy justice. This is because there are many villages which
are very far removed from the courts which have jurisdiction over them. Even the travel time wasted by villagers to
reach the court is colossal, leave alone the proceedings of the case. Therefore special rural courts with special
magistrates with jurisdiction over a town, or a part of a city or a group of
villages can be the solution. These
special magistrates should be appointed by District Judge for a term of
3years. They should have exclusive civil
and criminal jurisdiction of the town or village or the part of the town under
a certain monetary limit for civil cases and under certain sentencing limit for
criminal cases. This will ease the
burden of city courts.
Reform
5: Transparent & Independent system of Appointment of Judges:
The Parliament recently passed the landmark National
Judicial Appointments Commission Bill, 2014 and simultaneously also passed the
Constitution Amendment Bill to give effect to the same. The effect was that the 20 year old collegium
system of appointment of Judges of High Court and Supreme Court by a group of
senior judges including the Chief Justice of India was scrapped.
Earlier the Standing Committee report to Rajya Sabha
in December 2013 noted that, "Because of its inherent deficiencies in the
collegium, as many as approximately 275 posts of judges in various High Courts
are lying vacant, which has direct bearing upon justice delivery system and
thereby affecting the 13 institutional credibility of judiciary”
Therefore the old system of collegium which was
always mired in controversy over its secrecy of appointment has now been
effectively abolished. The new system of
JAC provides for the establishment of a six-member Judicial Appointments
Commission to make recommendations to the President on appointment and transfer
of judges to the higher judiciary. It
may be noted that the appointments have to be approved by 5 out the 6 members. The members constituting JAC will comprise of
the Chief Justice of India, two other senior most judges of the Supreme Court,
the Union Minister for Law and Justice, and two eminent persons to be nominated
by the Prime Minister, the CJI and the Leader of Opposition of the Lok Sabha.
While the system appears good on paper, it is hoped
that the political nominees of the executive would not stall the elevation of
judges who are harsh on the executive.
Another reform which can be done is that once a
lawyer has been elevated as a judge, he may be transferred to another
court. The reason is that lawyers who
serve for 20-25 years would have built friends and enemies in the courts and
their relationship before elevation may affect their decisions taken after
becoming a judge of the same court.
Further their own colleagues may have to appear before them as
counsels. In line with service
guidelines lik that of IAS officers, the posting as a judge must be given in
the same court where the lawyer practiced for many years to prevent nepotism
and favouritism
Reform
6: Age of retirement of Judges
In India, the current Age for Retirement of High
Court judge is 62 while for Supreme Court judge is 65 and for different tribunals
it has been increased to 70 for chairmen and 65 for members. In the USA, many states have no mandated
retirement ages, while others states it ranges from 70-75 years old. Given the increase in productivity and
increased life expectancy of many senior citizens and also given that many of
them are active as chairman of commissions or as legal advisors, it is
appropriate to increase the retirement age to 70 for all the judges both high
court and supreme court.
Reform
7: Increasing the number of judges and creation of new Benches and Fast Track
Courts
It is also necessary that the work of the High
Courts is decentralized and more benches are established in all States. If there is manifold increase in the strength
of the judges and the staff, all cannot be housed in one campus. Also it does not make sense for the litigants
to travel to the capital of the state if their cases are filed there. An analysis can be done to ascertain where
the cases are filed in plentiful and a special bench can be established and new
benches created as necessary. The
Benches should be so established that a litigant is not required to travel
long.
Further the number of judges are very low in our
country. The Judiciary is under great
pressure. We have about 10 judges per million population right now. The Supreme
Court had opined that we should have 5 times the number of judges we currently have.
Therefore it is felt that now the time has come when
not only the strength of the Honourable Judges in both the Supreme Court and
the High Court should be increased substantially and recommendations must be
made to fill up the vacancies soon. Also
the new Benches must be established in southern and eastern regions. While doing this, it must be kept in mind
that quality of judges is not compromised.
Further as the Law Commission of India earlier
opined, that “considering the alarming situation of pendency of cases and the constitutional
rights of a litigant for a speedy and fair trial, the Government of India
should direct the State authorities to set up Fast Track Courts in the country,
which alone, in the opinion of the Law Commission, will solve the perennial
problem of pendency of cases”
In 2009-10 about 1562 Fast Track Courts have been
set up which have disposed of more than 18 lakh cases transferred to them. Around 190 Family Courts, established in
various parts of the country, have speedily settled matrimonial disputes
through reconciliation. Therefore
setting up of more fast track courts and family courts can help to clear the
backlog effectively
Reform
8: Number of working days and vacations and Work Culture
There must be full utilization of the court working
hours and efforts should be made the judges are punctual and lawyers do not seek
too many adjournments, unless it is absolutely necessary. Judges must grant of adjournment only in the
most deserving of cases. Also considering
the staggering arrears, vacations in the all the judiciary must be curtailed to
a week maximum and the court working hours should be extended by at least 2-3
hours. Further, lawyers must not resort
to strike under any circumstances and must follow the decision of the
Constitution Bench of the Supreme Court in this connection. Those who do so fall in line must be liable
for disciplinary action from the bar council of India.
Reform
9: Strengthening the Alternate Dispute Resolution Mechanism
In India, the Arbitration and Conciliation Act, 1996
has been enacted to accommodate the UNCITRAL Model which is used worldwide as
an alternate dispute resolution mechanism. The Indian Law today provides an option for
the settlement of disputes outside the court. Such process help to reduce the burden of
judiciary and ensure that the resolution is reached between the parties. Due to
exceedingly slow judicial process, there is a large focus on Alternate Dispute
Resolution mechanisms in India. Earlier
the Delhi Services Legal Authority had constituted 300 benches for all kind of
cases including civil cases, criminal compoundable cases, Negotiable Instrument
Act cases, electricity cases, motor accident claims apart from pre-litigative
matters and plea bargaining cases in which 3,44,998 cases were disposed of and
compensation amount of Rs 39.89 crore was disbursed. Therefore it is believed that such Alternate Dispute
Resolution mechanism can dispose of cases at a pace much faster than the civil
courts. In light of the above, we
recommend strengthening of such Alternate Dispute Resolution Mechanisms and to
cover many more areas which can prevent the burden of piling up of the cases in
the civil courts.
Reform
10: Increase the Salary of Judges and Judicial Officers
Its high time that India increases the salary of
judges and judicial officers. This is
necessary not only to ensure that reasonable compensation is paid for judicial
services but it also helps to attract and retain the best legal mind in the
judiciary.
In India, even after the sixth pay commission has
come into effect. The salaries remain
very low. The chief justice of India
makes Rs 1,00,000 per month, the judge of a Supreme court makes Rs 90,000 per
month, the Chief justice of High Court makes Rs 90,000 per month and judges of
High Court makes 80,000 per month.
Considering that it takes 2 decades of legal experience for a lawyer to
reach the position of a High court judge and at least 3-4 decades of experience
to reach the position of a Supreme Court judge, the salaries paid to them is
inadequate with reference to their services.
Infact most judges know that lawyers working in
corporate world who are less than half their age (some times 1/3rd
their age) make much more money, sometimes twice as much in salaries and
bonuses in a top law firm. Infact when a
practicing lawyer leaves his practice to become a judge, his income normally
becomes half of what he used to earn or even less.
The salaries of Judges in India are amongst the
lowest in the world. Consider for
example that the Supreme Court justices of USA make $244,400. The judges in the US Court of Appeals judges
are getting $211,200. The annual salary of a U.S. District Court judge increased
to $199,100. Even if we adjust the
purchasing power parity between India and USA, the difference in salaries is
still staggering. Therefore it is fair
that the salaries paid to our best legal minds be doubled. This not only helps to eliminate corruption
in some ways but also ensures that the cause of justice is well served with the
best minds entering the profession
Reform
11: Overhaul the Infrastructure of the Judiciary
The Court premises today are in very deplorable
condition. Most infrastructure is
decades old and the accommodation is totally crammed. There is no storage space. The files which are supposed to be court
documents lie everywhere. The toilets
are poorly maintained. Most furniture
are in unusable. There is no drinking
water facility. The fans do not work due
to negligence and repairs. Overall the
court room of today presents a picture of despair and its working is by itself
a miracle.
On the contrast, many lawyers will tell you that the
office of corporate lawyers are far more equipped with modern gadgets and
technology. Sometimes the cases quoted
by the lawyers are difficult to trace for the honourable judges due to lack of
technological means to do so. In other
cases the judgements get delayed due to poor maintenance of printer or computer
system
Therefore, to better serve the interest of the
litigant and the lawyers and to meet the ends of justice in a more efficient
manner. The court premises should be
immediately modernised and renovated and equipped with modern technology and
modern tools of communication.
Reform
12: Rationalization of removal of judges and impeachment process
The Indian Constitution provides that a judge of a
Supreme Court or a High court shall not be removed from his office except on
the grounds of 'proved misbehaviour'. The
prefix 'proved' only means proved to the satisfaction of requisite majority of
Parliament. The Problem here comes with
the long drawn process of removal and garnering the requisite majority in the
parliament.
Given the time lag it takes to prove the
misbehaviour before our members of parliament, it is suggested that a new
commission be formed for handling disciplinary complaints and for removal of
judges. In the United States, the
judicial discipline and disability commission has the authority to investigate,
as well as to initiate, complaints concerning misconduct of judges. After
notice and hearing, the commission may, by majority vote of the membership,
recommend that a judge be suspended or removed.
It is suggested that a similar discipline and disability commission be
instituted in India as well to ensure that discipline is well maintained in our
judicial system.
