ABSTRACT
The time has come,’’ the walrus said, “to talk of many things’’. One of them is the indispensable need of reforms in India’s judicial system. Over recent years, the Law Commission of India’s reports have recommended several reforms. In addition to these, there were reports by Justice GC Rankin (1925), Justice SR Das (1949), and Justice VS Malimath (2003). Various organizations have also released reports on the different facets of the justice delivery system. Despite the plethora of such documents, the inefficient judicial system has only become more inefficient. Unless the various problem of judiciary are addressed , other temporary changes and ad hoc reforms at the Supreme Court and high court will have not significant impact on the system, and the average litigant will continue to suffer “ the slings and arrows of outrageous fortune’’ and will look for other alternatives . In this research paper, some illustrative suggestions are mentioned, but there is enough data & research that can be used to change the legal system. However, what is absent is a strong will to change. It is worth recalling from preface to the Justice Malimath Committee’s report: “Everything has been said already, but as no one listens, we must always begin again.’’ A beginning can be made (again) today, and with the “nudges” suggested by several organizations in the India Justice Report.
Keywords: Plethora, nudges, slings and arrows, ad hoc, etc.
( I ) INTRODUCTION
“Judicial Reforms’’ is a subject, who is so much discussed yet too little has been done. It means the total or partial political change of a country’s judiciary. It is frequently done as a part of wider reform of country’s political or legal system. Indian legal framework has a long history directly from the pre-British days. In the 18th century a uniform pattern of judiciary emanated during the British era. High Courts were set up in presidency towns. After that, in 1937, the Federal Court was set up to hear the appeals from the High Courts. Due to complexities of personal laws of Muslims and Hindus and various customs and practices, there were earliest difficulties in administration of justice. After independence, the government concentrated on to have a systematic legal framework throughout the nation and numerous new subordinate courts were built up in various parts of the nation. Today there is a structure of more than 14 thousand courts all over India and these courts are handling 4 crores of cases. Out of 14 thousand judges, the working force would be around 12,500 judges and almost 4 thousand cases are being taken care of per – Judge. This is too high as contrasted to the average load per-Judge in other countries.
(II) REFORMS INTRODUCED IN JUDICIAL SYSTEM AFTER INDEPENDENCE
There have been many major structural changes (post independence) in judicial system. The major changes can be categorized as below.
- National Legal Services Authority (NALSA)
National legal Services Authority has been constituted under the Legal Services Authorities Act, 1987 to monitor and evaluate implementation of Legal services available under the act. It issues guidelines for the State Legal Services Authorities to implement the Legal Aid Programmes.
- Establishment Of Lok Adalats
Lok Adalat is a forum where the disputes/ cases pending in the court of law are settled/ compromised amicably. It has been given statutory status under the Legal Services Authorities Act, 1987.
- Provisions For Legal Aid
Article 39A of the Constitution of India[1] provides for free legal aid to the poor and weaker sections of the society and ensures justice for all. Article 14[2] and 22(1)[3] of the constitution also make it obligatory for the State to ensure equality before law and a legal system which promotes justice on the basis of equal opportunity to all.
- Establishment Of Securities Appellate Tribunal (Sat)[4]
SAT is a strong step towards ensuring a strong judicial system through SEBI (Securities and Exchange Board).
- Establishment of Alternate Dispute System[5] and its mechanisms
In order to reduce the heavy demand on Court time, efforts need to be made to resolve the disputes by resorting to Alternative Dispute Resolution Methods before they enter the portals of the court. The Arbitration, Mediation, Conciliation are tools of Alternative Dispute Redressal System. The institution of judiciary and the rule of law is the essence of modern civilization and democratic governance.
It is important that people‘s faith in judiciary and the rule of law is not only preserved but enhanced as well and simple way to achieve that is by ensuring an effective system of justice delivery.
The general impression of the people is that a large number of cases are being delayed and, if any case is filed, it would take years to get a relief. The impression about the performance of Indian judiciary is not fully correct.
(III) DRAWBACKS OF INDIAN JUDICIARY
There are several problems plaguing the judiciary. According to me there are 3 major problems plaguing the Indian judicial system.
- JUDICIAL BACKLOG AND ACCESSIBILITY TO JUSTICE FOR A COMMON MAN
Both of these issues are interconnected that’s the reason I clubbed them together.
JUDICIAL BACKLOG means the enormous no. of cases that are pending in the courts which are persisting along and not arriving at their logical outcome. The greater part of these cases is trivial issues, for example, property disputes, theft, and so forth. There are numerous explanations behind this danger. Some of them are:
- Lack of Judicial Infrastructure (Lack of District Courts, Lack of Staff, etc.)
SOLUTION: Higher investment is required in judiciary which ought to be govt. utmost preference. Creation of an enormous no. of nyaya panchayats and nyaya samitis in rural and urban regions both as sanctioned by the Nyaya panchayat Act, 2009 yet likely on a larger scale. Govt. is likewise a major stakeholder in the legal arena.
- Archaic Laws And Sections In The CrPC And IPC
SOLUTION: These laws ought to be permanently amended and left out in addition judicial practices that are time taking ought to be discarded.
- Crafty And Cunning Lawyers And Inexperienced Judges And Judicial Staff
SOUTION: We required to recruit experienced, well trained &competent judges and legal staff. This can be possible by improving the recruitment framework. Judges should be more strict and should assure that the court time isn’t wasted.
A significant reform would be abolishing the age bar of retirement for high court and Supreme Court judges as in the USA so that more judges are accessible at the district level. This will likewise ensure more experience in the judiciary.
- JUDICIAL CORRUPTION, APPOINTMENT AND ACCOUNTABILITY
Extremely highly respected late Chief Justice of India Justice J.S Verma said that he can’t say with full surety that there is no corruption in the judiciary. He further wanted Justice KG Balakrishnan to resign on moral grounds. This shows that corruption in the judiciary has reached at the top level. Corruption is rampant in India’s courts. Judicial corruption in India is due to factors such as “delays in the disposal of cases, lack of judges and complex methods, which are all worsen by predominance of new laws”. Another worrying thing is ex-judges getting govt. jobs after retirement which has challenged their neutrality. Besides, many people say that judiciary isn’t answerable to anyone and corruption charges against individuals from judiciary can’t be examined. Solution to this problem are- Passage of proper Judicial accountability and Judicial appointments bill, Guarantee that no resigned judge can take a govt. job.
- 3. JUDICIAL OVERREACH
The judiciary usually over reaches at its authority and goes into issues which are not under its jurisdiction. According to me this is not a major issue because a major purpose behind this over reach is the incompetency of different organizations which compels the judiciary to go into these issues. When these organizations begin working ordinarily, at that point judicial overreach will likewise stop.
The poor budgetary support to the judiciary has been alluded to as one of the reasons for non implementation of judicial reforms. During the Ninth Plan, the allocation was less, only 0.071’%[6]. It has been observed that such mere allocation is too inadequate to meet the requirements of the judiciary. Inordinate delays in filling up vacancies of judges and very low population – to- judge ratio these require immediate attention to improve the performance of judiciary. The problem of low population- to-judge ratio had pointed out by the 12th Law Commission[7]. The interesting point is that the vacancies have remained stagnated over the period of time while the institutional cases continued to rise resulting in overall pendency.
For decades judicial system has been crying for reforms as the cheap and speedy justice has been by and large elusive .Experts have expressed fears that there has been a loss of public confidence in the judiciary. They feel that public confidence in the judiciary must be restored immediately. According to one of the Parliamentary Standing Committee on Home Affairs (2001) almost 50% of the reports of the Law Commissions awaited implementation.
There have been measures in recent years to improve functioning of courts. For application of Information and communication technology (ICT) to the justice delivery system for better management, a Scheme for computerizing all the district and subordinate courts across the country and for upgrading the ICT infrastructure of Supreme Court and High Courts was approved by the central govt. in 2007[8].
Meanwhile, the disposal of cases can be increased by greater use of the existing infrastructure with courts having more than one shift. Gujarat is one of the states where evening courts are functioning with appreciable results.
Fast Track Courts (FTC) have been recommended by 11th Finance Commission[9]. The same have been recommended in the situation in respect of land acquisition cases.
As regards criminal cases, there are other contributory factors which cause large pendency of cases in some of the cases, the investigation is hard and inefficient and takes long time to file the final report. We don’t have enough scientific laboratories and many a time the report of the forensic laboratory is delayed inordinately. Weak prosecution is hugely responsible for slowing down and protracting the criminal trial in many courts.
The judicial system in India faces two diverse problems – Slow disposal of cases leading to delays as well as accumulation of backlog, Very low rate of prosecution in criminal cases.
The challenge of judicial reform is to ensure that quick justice does not become a quicksand of barbaric practices, while at the same time expediting the judicial process as well as ensuring that the percentage of guilty escaping punishment is reduced considerably.
(IV) FOLLOWING REFORMS MUST BE INCORPORATED IN THE PRESENT JUDICIAL SYSTEM
The issues recommended below are not exhaustive but it is assumed that a national consensus on these issues followed by proper actions will go far in assuring that the judiciary and thereby democracy in India gets strengthened.
Simplification Of Rules And Procedures
Most Rules and Procedures in India have their roots in a colonial background when rules were made by the “superior’’ race for the ‘natives’. The key design consideration is, generally, the convenience of the bureaucratic machinery rather than the common man.
- Judges Population Ratio
The no. of judges per 1,00,000 people in India is very low as compared to most developed countries and also in comparison to some developing countries. Judges who are not full time can work for some class of cases.
- Time – Bound Filling Of Vacant Posts In Judiciary
Appropriate institutional structure may need to be created that will estimate the posts likely to fall vacant in future.
- Appointment, Promotion And Transfer Of Judges
Ensuring high quality of judicial officers and judges is critical for a high quality judicial system. Getting the best talent and maintaining high levels of motivation is possible if the system is fair and transparent in all matters that concern the person who is part of it.
- Judicial Accountability
It is ironic that a judge can order for a man to be hanged or to be imprisoned for the best part of his life and a few years later some higher court can set aside the order of the lower court, without any system of punishing the lower court judge for a bad order.
- Transparency Of Court Proceedings
Indian courts do not allow electronic media presence during court proceedings, while in many other countries trials are extensively covered by media leading to active interest of the common man in the judicial proceedings.
- Faster And Speedy Cases Resolutions
The rate of resolving the cases need to improved at much faster rate.
- More Focus On The Use Of It For Faster Disposal Of Cases And Improvements
Bottlenecks causing delays in civil and criminal process to be monitored through a computerized system and special attention to be provided through a special cell at the High Court and District level to resolve issues.
(V) CASE LAWS
RECOMMENDATION MADE BY MALIMATH COMMITTEE
This committee was formed by the order of Government of India, Ministry of Home Affairs by its order dated 24 November 2000. The main aim of this committee is to make recommendation for reformation in Criminal justice system, simplifying judicial methods, practices and making the delivery of justice to the common man faster, simple and inexpensive.
On Vacancy of judges
It suggested that to increase the existing 10.5 or 13 judges per million population to 50 judges per million population within 5 years as decided by the Supreme Court in All India Judges Association and others Vs. Union of India. Also, it recommended that it is necessary for each state to make an estimate of the number of Judges required to be appointed having regard to pendency and inflow of fresh cases and nature of litigation.
It also recommended for constituting a National Judicial Commission, being considered at the national level to address with appointment of the Judges to the High Courts and the Supreme Court and to deal with the complaints of misconduct against them. It focuses on the quality with the quantity of judges.
Improving the Quality of Justice: Specialization, Training and Qualification
The Committee suggested that the cases have to be assigned accordingly to the specialized area of the judges. Assigning cases without consideration, specialization results into delay in deciding the matters. Also some specialized tribunal must be established to deal some issues pertaining to tax, services, and labour, etc. separately.
It recommended that the specialization provide consistency, certainity, speedy and quality judgements. It additionally recommended that the newly appointed judges and the judges promoted from sub – ordinate courts to the higher courts must be given intensive training for reasonable period to improve their skills in hearing cases, taking decisions, writing judgments and in court management.
The insufficient competence of the judges resulted into delay in justice need to be eliminated via proper training. It additionally advocated that special attention should be paid in the matter of prescribing qualifications for recruitment of Judges at all levels and to enhance the methodology for selecting the most competent persons with established integrity, character, having regard to the nature of functions which a Judge is required to discharge.
No other consideration other than merit and character should be taken into consideration in choosing the Judge for the Courts.
(VI) CONCLUSION
The judiciary as a machinery was set up to give full meaning and content to the democratic system and also to protect inalienable fundamental rights of every human being to pursue a path of excellence without being impeded by injustice. Judiciary in the ultimate analysis is the system meant for dispensation of justice along with protecting and enriching the rights of every individual to live a life of his choice, without treading upon the similar rights enjoyed by his fellow beings. Ensuring provision of timely justice is an important step in this direction.
To enable our judicial system to administer timely justice to our citizens I have the following suggestions.
- Judges and members of bar can consider how to limit the number of adjournments being sought.
- It is necessary to implement e – judiciary in our Courts as a mission.
- It is necessary to classify and group the cases having similar facts and identical law.
- Improving the element of legal education in all our Universities on the pattern of law schools is needed.
[1] https://www.constitution.org/
[2]http://www.legalserviceindia.com/
[3] https://legodesk.com/
[4] http://sat.gov.in/
[5] http://icadr.nic.in/
[6] https://books.google.co.in/
[7] http://www.lawcommissionofindia.nic.in/
[8] https://books.google.co.in/
[9] https://data.gov.in/
