Before Our Faith Is Lost

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 1/3^rd 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.