Judicial Reforms in India


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Judicial Reforms in India

  1. 1. Authors: Abhishek Dwivedi - PGPM508_09 Ajit Kumar - PGPM508_20 Gautam Pradhan - PGPM508_32 Gagan Seth - PGPM508_44 Chandra M Verma - PGPM508_56 Group – 9, PGPM-508
  2. 2. Historical Overview: “Judicial Reforms” is a theme, which is so much of talked about but too little has been done. Indian judicial system has a long history right from the pre-British days. In the 18th century a uniform pattern of judiciary emerged and during the British regime High Courts were established in presidency towns. Thereafter, in 1937, the Federal Court was established to hear the appeals from the High Courts. Because of complexities of personal laws of Muslims and Hindus and various customs & practices, there were initial difficulties in administration of justice. After independence, the government focused on to have a systematic judicial system throughout the country and many new subordinate courts were established in various parts of the country. Today there is a network of over 14 thousand courts all over India and these courts are dealing with 4 crores of cases. Out of 14 thousand judges, the working strength would be about 12,500 judges and nearly 4 thousand cases are being handled per-Judge. This is too high as compared to the average load per-Judge in other countries. Indian Judicial System (In Brief): The Supreme Court is the apex court in the country. The Supreme Court’s exclusive original jurisdiction extends to all disputes between the Union and one or more states or between two or more states. The Constitution gives an extensive original jurisdiction to the Supreme Court to enforce fundamental Rights. The Supreme Court consists of a chief justice and 25 other justices, all appointed by the President on the advice of the Prime Minister. The High Court stands at the head of the state's judicial administration. There are 21 High Courts in the country. The Chief Justice of a High Court is appointed by the President in consultation with the Chief Justice of India and the Governor of the state. Each state is divided into judicial districts presided over by a district and sessions judge, who is the highest juridical authority in a district. Below him, there are courts of civil jurisdiction, known in different states as munsifs, sub-judges, civil judges and the like. Similarly, criminal judiciary comprises Chief Judicial Magistrate and Judicial Magistrates of first and second class. Also, there are voluntary agencies, Lok Adalats for resolution of disputes through conciliatory method. The constitution through its
  3. 3. articles relating to the judicial system provides a way to question the laws of the government, if the common man finds the laws as unsuitable for any community in India. Judicial System Structural Changes and Reforms Post Independence to till 2004: There have been many major structural changes (post independence) in the judicial system. The major changes can be categorized as below: 1) The National Legal Services Authority (NALSA) NALSA has been constituted under the Legal Services Authorities Act, 1987 to monitor and evaluate implementation of legal services available under the Act. It functions in different ways: The NALSA issues guidelines for the State Legal Services Authorities to implement the Legal Aid Programmes and schemes throughout the country. Primarily, the State Legal Services Authorities, District Legal Services Authorities, Taluka Legal Services Committees, etc. have been asked to discharge the following two main functions on regular basis:- i. To Provide Free Legal Services to the eligible persons; and ii. To organize Lok Adalats for amicable settlement of disputes. 2) LOK ADALATS Lok Adalat is a forum where the disputes/cases pending in the court of law or at prelitigation stage are settled/compromised amicably. The Lok Adalat has been given statutory status under the Legal Services Authorities Act, 1987. Under this Act, an award made by a Lok Adalat is deemed to be a decree of a civil court and is final and binding on all parties and no appeal lies against thereto before any court. Steps have been taken to render legal aid to the needy and the poor by way of holding Lok Adalats, organising Conferences etc. The Lok Adalat movement in the country has been strengthened. Up to December 31, 2007, more than 6,98,000 Lok Adalats have been held in the different parts of the country wherein 1,86,00,000 cases have been settled. In about 14.25 lakh cases of Motor Vehicles Accident Claims have been resolved. 3) LEGAL AID Article 39A of the Constitution of India provides for free legal aid to the poor and weaker sections of the society and ensures justice for all. Article 14 and 22(1) 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, In 1987, the Legal Services Authorities Act was enacted by the Parliament which came into force on 9th November, 1995 with an object to
  4. 4. establish a nationwide uniform network for providing free and competent legal services to the weaker sections of the society on the basis of equal opportunity. 4) NATIONAL TAX TRIBUNAL Having realized the need for uniformity, certainty in the administration of taxation laws and on the recommendation of the Chokshi Committee the National Tax Tribunal Act, 2005 was enacted on 21st December, 2005 for lying/hearing appeals, instead of High Courts, against the orders passed by the Income-tax Appellate Tribunal and the Central Excise. Customs and Service Tax appellate Tribunal. The National Tax Tribunal Act, 2005 was brought into force by the notification of the Government of India S.O. 1826(E) on 28th December, 2005. 5) ALTERNATIVE DISPUTE REDRESSAL (ADR) 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 and Conciliation are tools of Alternative Dispute Redressal System. 6) SECURITIES APPELLATE TRIBUNAL (SAT) With high growth of Indian economy after globalization the focus has also been towards improving the maturity level of Indian Financial Market. SAT is a strong step towards ensuring a strong judicial system through SEBI (Securities and Exchange Board). 7) ARBITRATION Arbitration is a process in which a neutral third party or parties render a decision based on the merits of the case. In the Indian context the scope of the rules for the arbitration process are set out broadly by the provisions of the arbitration and Conciliation Act 1998 and in the areas uncovered by the Statute the parties are free to design an arbitration process appropriate and relevant to their disputes. 8) MEDIATION The Process of mediation aims to facilitate the development of a consensual solution by the disputing parties. The Mediation process is overseen by a non-partisan third Justice and Law 669 party - the Mediator. The authority of the mediator vests on the consent of the parties that he should facilitate their negotiations. 9) CONCILIATION This is a process by which resolution of disputes is achieved by compromise or voluntary agreement. In contrast to arbitration, the conciliator does not render a binding award. The parties are free to accept or reject the recommendations of the conciliator. This Department provides
  5. 5. annual recurring Grants-in-aid to National Legal Services Authority (NALSA) NALSA is a statutory body. The International Centre for Alternative Dispute Resolution (ICADR) was set up by the Department of Legal Affairs as an autonomous body Registered under the Societies Registration Act, 1860. The main object of the ICADR is to promote popularize and propagate Alternative Dispute Resolution to facilitate early resolution of disputes so as to reduce the burden of arrears in the Courts. 10) THE RIGHT TO INFORMATION ACT The Right to Information Act, 2005 has been implemented in the Department. Information Officers and Appellate officers have also been appointed. The act empowers people with the right to know the publically transparent process. This law is a strong step towards making the government process more transparent and less effected from corruption. 11) NATIONAL JUDICIAL ACADEMY The National Judicial Academy has been set up by the Government of India to provide in-service training to Judicial Officers. The Academy was registered on 17 August 1993 under the Societies Registration Act, 1860. The Academy provides training and continuing education to judicial officers of States/UTs as well as ministerial officers working in the Supreme Court of India and the High Courts. The objectives of programmes of the Academy include Judicial Reform and Policy Development as well as Research Support Services for greater efficiency, fairness, access and productivity. It also includes improvements in Court administration and management for a litigant friendly justice system. 12) NATIONAL LEGAL LITERACY DAY Ninth November is observed as national Legal Literacy Day Every year. This year too, NALSA observed National Legal Literacy Fortnight from 5 November 2007 to 18November 2007 through its State Legal Services Authorities all over the country. The main objective of the National Legal Literacy Day was to reaffirm NALSA's commitment, solidarity and support to the disadvantaged people, to make the legal process a surer means to social justice by providing free legal services and making people aware of their legal rights. UPA Government Reforms (2004 – 09 tenure) In the last tenure UPA Government, it has taken some steps esp. to cut delays in, High Courts and lower levels of the judiciary. The Government had approved to fill maximum number of Judges Vacancies for the High Courts of the country till now even though this is not sufficient as required. It also focused on Fast Track Courts to dispose of long pending Sessions and other cases. Efforts were made to speed up the judicial process through introduction of computers with internet system in almost all the courts so that records can be updated and disposal made easy. This system developed better intra-court and inter-court
  6. 6. communication facilities. The National Legal Literacy Mission was launched by the National Legal Service Authority (NALSA) for the benefit of millions of poor and disadvantaged sections of the society. Under the Lok Adalat System About 6.40 lakh Lok Adalats have been held throughout the country in which more than 2.39 crores cases have been settled. Judicial reforms in India – need of the hour – UPA Government (2009 onwards) Mr. Veerappa Moily, Law Minister said that the UPA Government would stress during the next five years on judicial reforms and also ensure that rule of law touched every individual including the last man in queue would go a long way to realize “simple, speedy, cheap, effective and substantial” justice. And what is more noteworthy of Mr. Moily’s statement is that judicial reforms could not be partial or fragmented. He said, “It has to be holistic. Merely tackling one side will not help.” 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 Central Government proposes to set up more than five thousand Gram Nyayalayas at intermediate panchayat levels under the Gram Nyayalayas Act, 2008 in order to bring justice delivery system at the door step of rural population. The procedure to be followed by these courts has been kept simple and flexible so that these cases can be heard and disposed of within 90 days’ period. Recourse to Alternate Dispute Redressal (ADR) mechanism can greatly help in reducing pendency of cases through arbitration, negotiations, conciliation and mediation. In the United States and many other countries, ADR as dispute resolving mechanism has been highly successful. India already has Arbitration Conciliation Act 1996 and the Code of Civil Procedure has also been amended. However, the measure suffers from grossly inadequate number of trained mediators and conciliators. Both judicial officers and lawyers need to be trained with a view to grow alternate system into the mainstream of justice. The government has shown a will to take an overall view of procedural laws that allow endless interlocutory appeals and the role of ‘delay lawyers’ in posing impediments to resolve cases. Despite the Criminal Procedure Code (Amendment Act) 2002, bringing change in the procedure in suits and civil proceedings by way of reducing delays, the situation remains far from satisfactory. The issue of frivolous litigation will also have to be addressed and one of the ways could be by imposing heavy costs. The police investigation system needs to be strengthened and modernized that would decrease load on judiciary. While having a holistic view of all the intricacies and nuances of the justice delivery system, its present pitfalls and fault lines will have to be considered to ensure transparency and accountability of the judicial system.
  7. 7. Current Scenario, Path and the Pace required for Judicial Reforms: 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. This impression about the performance of Indian Judiciary is not fully correct. Out of total pendency of these cases, only 40% cases are less than one year old. 90% of delayed cases are pending in the subordinate courts. We should have a national planning and management system for the administration of justice. What the Indian judicial system lacks is a systematic plan at the State and National levels to overcome the delay and arrears of cases. Our National Judicial Academy is preparing a proper case management system to avoid the delay and arrears of cases. We want long-term reforms on various aspects. We should have (i) legislative reform to remove the bottlenecks that are adversely affecting the adjudication; (ii) Strengthening of the Bar; (iii) Strengthening of legal education; (iv) Legislative reform to strengthen the powers of judges to control judicial processes to ensure just and efficient outcomes in line with international reforms in this direction (v) Satisfactory framework for judicial accountability. If the decision making authorities take firm, independent and impartial decisions, the citizens would not normally be driven to litigations. Lack of proper and good governance largely contributes to the number of cases in subordinate courts. The poor budgetary support to the judiciary has been alluded to as one of the reasons for non- implementation of judicial reforms. Rs.700 crore allocated to the judiciary during the 10th Plan (2002-2007) constituted 0.078 percent of the total plan outlay of Rs. 8,93,183 crore. During the Ninth Plan the allocation was even less, only 0.071percent. It has been observed that such meager allocations are too inadequate to meet the requirements of the judiciary. It is said that India spends just 0.2 percent of the gross national product on judiciary. According to the first National Judicial Pay Commission, all states but one have been providing less than 1% of their respective budgets for subordinate judiciary which is afflicted with huge pendency. Other major factors include neglect in improving judicial infrastructure over the past decades, inordinate delays in filling up vacancies of judges and very low population-to-judge ratio that require immediate attention to improve the performance of judiciary. The 120th Law Commission Report had pointed out that India’s population-to-judge ratio is one of the lowest in the world with only 10 judges for every million of its population as compared to about 150 judges for the same number in the United States and Britain. According to the ’All India Judges’
  8. 8. Association’, the Supreme Court had directed the government to increase the judge strength to 50 judges per 10 lakh population by 2007 in a phased manner, which has mot been fulfilled so far. Even for filling up of vacancies of approved strength of judges much needs to be done. It is observed that 25 percent of the judge positions remain vacant due to procedural delays. The sanctioned strength of judges of the High Courts was 886 and working strength was 608 as on 6th January 2009 leaving 278 vacancies. Similarly, with 11,767 working strength of Subordinate Judges there were 2710 vacancies on March 1, 2007. For decades judicial system has been crying for reforms as the cheap and speedy justice has been by and large elusive. There is a huge pendency of over 2.5 crore cases despite measures to reduce it. Experts have expressed fears that there has been a loss of public confidence in the judiciary, and an increasing resort to lawlessness and violent crime to settle disputes. They feel that public confidence in the judiciary must be restored immediately, in order to arrest and reverse this negative trend. Analysis done by our team from the raw data available from the Supreme Court published literature (Year 2008-09) reveals that the strength of the judges at Supreme Court and other subsidiaries does not commensurate with the requirement of institutional cases. Over the period of time the trend reveals that the vacancies have almost remained stagnated with the huge increase in the number of cases in the court, thereby preventing early disposal of the institutional cases. During our analysis we have gone through the yearly judicial reports of Supreme Court and tried analyze the data graphically for the last five quarters and identified the trends of the pending cases, vacancies at Supreme Court. Our
  9. 9. analysis from the graph above clearly shows the widening gap of the pending cases over the period of time and the vacancies at all levels in judiciary system. In our research from the Supreme Court website, these stark points have been highlighted. The graph highlights the working strength and the sanction strength of judges in the Supreme Court. 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. The graphs prepared for the High Court and the District & the Subordinate courts also highlight the similar trends in the vacancies and the number of cases in these courts as identified for the Supreme Court.
  10. 10. The trend in the lower courts is also similar to upper level courts which highlights it as a problem existing in the Indian Judicial System. There has been absolutely no or very slow efforts taken to fill the judges vacancies or to reduce the number of cases existing in the Judicial System. Over the years several benches of the Supreme Court, eminent lawyers and judges, various legal associations/ organizations and NGOs have identified problems in the Judicial System and called for addressing them speedily. Yet, the effective implementation of many such recommendations is still pending. According to one of the Parliamentary Standing Committee on Home Affairs (2001) almost 50% of the reports of the Law Commissions awaited implementation. However, 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 government in February 2007 to be completed in two years at cost of Rs.442. Under the project 13,365 laptops have been provided to Judicial Officers, laser printers to about 12,600 judicial officers and eleven thousand judicial officers and 44 thousand court staff have been given training in the use of ICT tools so
  11. 11. far. 489 district court and 896 taluka court complexes have been provided with broadband Internet connectivity. 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. The same have been recommended in the situation in respect of land acquisition cases. The amount awarded by the land acquisition officer has never been reasonable or proper. The parties are driven to litigation in large number of cases. At the district level, if there is a District-wise High Power Committee to fix the compensation at reasonably good amount, most of the claimants may accept it and only very few would resort to file land acquisition cases for enhancement. As regards criminal cases, there are other contributory factors which cause large pendency of cases. In some of the cases, the investigation is tardy and inefficient and takes long time to file the final report. We do not have enough scientific laboratories and many a time the report of the forensic laboratory is delayed inordinately. Inept policing and weak prosecution are hugely responsible for slowing down and protracting the criminal trial in many courts. Our Opinion / Proposal for Reforms Required: 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 reforms 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. The issues suggested below are not exhaustive but it is hoped that a national consensus on these issues followed by appropriate actions will go a long way in ensuring that the judiciary and thereby democracy in India gets strengthened. After doing the research and discussion among the group we propose the following actions: A. 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. It is essential to bring about a paradigm change in this mind-set and carry out a re-engineering of the complete set of rules and procedures.
  12. 12. B. Judge Population Ratio The number of judges per 100,000 people in India is very low as compared to most developed countries and also in comparison to some developing countries. It needs to be discussed whether there should be a statutory provision prescribing a minimum ratio or a consensus may be evolved to work towards realizable time-bound targets in this regard. It may also be examined if some system of Honorary Judges who are not full time judges can be worked out for some class of cases. C. Time-bound Filling of Vacant Posts in Judiciary Judicial appointments and promotions need to be streamlined to ensure that posts do not remain vacant for any length of time. Appropriate institutional structure may need to be created that will estimate the posts likely to fall vacant in future and take the necessary steps in anticipation. The role of High Courts, Supreme Court and Administration may need to be redefined to make the process transparent, fair, smooth and fast. D. Appointment, Promotion and Transfer of Judges A judiciary is just about as good as the people who man it. Ensuring high quality of judicial officers and judges is critical for a high quality judicial system. Getting the best talent and maintaining high level of motivation is possible if and only if the system is fair and transparent in all matters that concern the person who is a part of it. Appointment, promotion and transfer are, hence, critical to build a high quality judicial system. Working out a fair and transparent system in all such matters must, therefore, receive high priority. E. 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. Every other pillar of democratic governance is subject to some system of ensuring accountability and checks and balances. Judiciary has neither a system of rewards nor a system of punishments. It is necessary to discuss whether attempts to improve the quality of judicial system should include some mechanism of rewards and punishments for judicial officers and judges monitored and operated either by an internal institution or by an external body. F. 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. It is necessary to discuss whether the judiciary and justice will gain by more transparency.
  13. 13. G. Faster and Speedy Cases Resolutions The rate of resolving the cases need to improved at much faster rate. We feel that each court to ensure that no more than 5% of the cases in that court should be more than 5 years old (5x5 rule) within the next three years; and in 5 years to ensure that no more than 1% of the cases should be more than 1 years old (1x1 rule). H. More Focus on the use of IT for faster disposal of cases and improvements 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. It is necessary to discuss whether the judiciary and justice will gain by more transparency. 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 in coordination with Executive Agencies : (a) Service of process; (b) Adjournments; (c) Interlocutory Orders; and (d) Appearance of witnesses and accused. References: 1) Judicial Reforms in India : Issue and Aspect - Author: Hazra, Arnab Kumar & Debroy, Bibek 2) India Year Book – 2009, MINISTRY OF INFORMATION AND BROADCASTING, GOI 3) All India seminar on “Judicial Reforms” - February 2008, New Delhi 4) Paper on “The Lack of Judicial Accountability In India” by Prashant Bhushan 5) Reports from http://www.supremecourtofindia.nic.in/courtnews.htm