Post on 30-Jul-2018
UNIT 1
Existing Justice Delivery System In India Historical Overview:
“Judicial Reforms” is a theme, which is so much of talked about but too little has been done.
HISTORY:
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
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 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.
Effectiveness of the Legal and the Judicial Systems
Former Indian Prime Minister, Atal Behari Vajpayee, had lamented that the inability of India’s
judicial system to deliver speedy justice had itself become the source of much injustice. Judicial
action must be fast and effective. Rules for judicial proceedings should make the disposal of
cases time‐bound. Frequent adjournments should not be permitted and the performance of
judicial officers should be judged on the basis of the perspicacity of their judgments and
efficiency in their working. Govern¬ment investigative agencies should be taken to task for
dilatory procedures and as far as possible, computerization of cases and records and other
modern management techniques should be introduced in the judicial system. Besides,
continuous and vigorous inspection should be undertaken of High Courts by the Supreme Court
and of the lower courts by the High Courts. A concurrent administrative audit of judicial
institutions can help in enhancing their effectiveness.
Criminal justice system can be considered effective redressal mechanism only if criminal case are
disposed of quickly. Presently, in the Indian courts, including the special courts for hearing anti‐
corruption cases, the quantum of pendency is high. It might be a rational step to introduce shift
system in the courts. In the second shift, retired judges and judicial officers whose reputation is
high, may be appointed on a contractual basis. The performance of special courts that have been
constituted under the provisions of the Prevention of Corruption Act of 1988 should also be
reviewed with a view to make these institutions more efficient and effective. These could be
made real fast track courts. An alternative judicial system in the form of administrative tribunals
could also be strengthened.
MENACES In JUDICIARY AND LEGAL SYSTEM WITH THEIR SOLUTIONS First, there is the natural conclusion that the number of judges and courts needs to be
increased. At a Chief Justices’ conference in 2004, a committee was constituted to get a fix on the recommended judge/case ratio and a figure of 500 to 600 was suggested for district and subordinate courts. Working with the pendency figures, this translates into an additional 35,000 courts or so, depending on how one derives the number. The total number of courts right now is 12,148. Alternatively, one can work with the judge/population ratio. In its 120th report (1987), the Law Commission stated that the number of judges per million population should increase from 10.5 to 50. That figure of 10.5 is often quoted, but is somewhat suspect. On 31 December 2007, the sanctioned strength in district and subordinate courts was 15,917. Because of a large number of vacancies (with large numbers in Uttar Pradesh, Andhra, Maharashtra, West Bengal and Andaman & Nicobar Islands, Gujarat, Karnataka, Madhya Pradesh, Bihar and Uttarakhand), the working strength was only 12,549. However, even if one works with the sanctioned strength, the judge/million population ratio is a shade lower than seven, not 10.5. If the 50 target is accepted, this works out to an additional 98,000 judges.
Second, this raises the issue of financial autonomy for the judiciary. The point about planning and budgetary exercises being undertaken without consulting the judiciary is a valid one, though since 1993, the expenditure on judicial administration has become a Plan subject. Since 1993, there has also been a centrally ‐sponsored scheme for improvement of infrastructure. Fifty percent of the expenditure is met by the centre and there has to be a 50 percent matching grant from states. These funds are made available by the Planning Commission. It is a separate matter that many state governments have been reluctant to provide the matching grants. The National Commission set up to review the Constitution also flagged paucity of funds, both through the Planning Commission and the Finance Commission, and recommended planning and budgetary exercises through a national and state‐level Judicial Councils. However, accepting that there is a financial problem is one thing. Arguing that there should be complete financial autonomy is another. Without firm evidence that the judiciary has sought to reduce pendency, the argument for financial autonomy will have few takers. For instance, the judicial appointment and promotion process is de facto in the hands of the judiciary. What then explains the high vacancy rates? Alternatively, one can quibble about the precise indicator used to measure judicial productivity, but why is the judiciary reluctant to accept disposal targets?
Third, there are procedural improvements required. While the Code of Civil Procedure was amended in 2001 and 2002, there is still scope for improving orders issued under the code for issues like written statements, costs, examination of parties, framing of issues, evidence on affidavits and ex‐parte injunctions. Since two‐thirds of the backlog consists of criminal cases, amendments to the Code of Criminal Procedure and the Indian Evidence Act are long overdue. Consequently, there are problems with lack of pre‐ trial hearings, service of summons, delays in supplying copies to the accused, exempting the accused from personal appearances, delays in framing charges, repeated adjournments, non‐availability of witnesses and compounding, not to speak of lack of public prosecutors and problems with the police. But it is necessary to mention that the average conviction rate isn’t 6 percent, as is commonly believed to be the case.
Fourth, while the three points made above are generic, there is a case for focusing on certain types of cases. For instance, the government litigation policy for civil cases crowds out citizens from using the court system, though Section 80 of the Code of Civil Procedure allows for out‐of‐court settlements. That apart, specific focus on the Negotiable Instruments Act, Motor Accidents Claims Tribunal cases,
petty cases, old cases and cases related to excise is possible.
Fifth, generic improvements require large sums of money. Experiments like Lok Adalats, fast track courts, Family Courts, mobile courts, Nyaya Panchayats, Gram Nyayalayas, People’s Courts and Women’s Courts can accordingly be perceived as driven by the motive of getting a bigger bang for the buck. This has been described as load shedding and a hollowing out of the Indian State. That may amount to stating it a bit too strongly. However, there is no getting away from the fundamental constraints with the justice delivery system, with these solutions being no more than add‐ons and quick fixes.
The High Court problem is in Allahabad (criminal and civil), Madras (criminal and civil), Bombay (civil), Calcutta (civil), Patna (criminal), Punjab & Haryana (civil), Rajasthan (criminal and civil), Delhi (criminal and civil), Jharkhand (criminal), Madhya Pradesh (criminal) and Orissa (civil). The Lower Court problem is in Tamil Nadu (civil and criminal), Uttar Pradesh (civil and criminal), Rajasthan (civil and criminal), Punjab (civil), Haryana (civil), Orissa (criminal), West Bengal (criminal), Kerala (civil), Bihar (civil and criminal), Gujarat (civil), Delhi (criminal) and Maharashtra (criminal). To recapitulate from Section 3, the Lok Adalat success has been in Bihar, Gujarat, Haryana, Jammu & Kashmir, Jharkhand, Karnataka, Madhya Pradesh, Maharashtra, Orissa, Punjab, Rajasthan and Uttar Pradesh. The Fast Track Courts success has been in Andhra Pradesh, Gujarat, Maharashtra, Tamil Nadu and Uttar Pradesh. The Family Court success has been most evident in Kerala, Maharashtra and Uttar Pradesh. This raises a very simple point. With or without Finance Commission funds, reforms require a buy‐in from states. Clearly, different States have different priorities. Why should there be a central scheme that is uniform and standard for all states? Why should States not be asked to determine what they would like to focus on? For instance, Bihar might want to build on the Lok Adalat success, while Kerala might want to build on the Family Court success.
Current Scenario, Path and the Pace required for Judicial Reforms:
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
implemen
2007) con
allocation
inadequat
gross nati
one have
afflicted w
Other ma
delays in
attention
The 120th
lowest in
judges fo
Associatio
per 10 lak
Even for f
25 perce
procedura
High Cou
6th Januar
11,767 w
2710 vaca
For decad
the chea
elusive. T
expressed
to lawless
be restore
Analysis d
r budgetary
ntation of jud
nstituted 0.07
n was even le
te to meet th
ional product
been provid
with huge pen
jor factors in
filling up vac
to improve t
h Law Comm
the world w
or the same
on’, the Supre
kh population
filling up of va
nt of the ju
al delays. The
rts was 886
ry 2009 leav
orking streng
ancies on Ma
des judicial sy
ap and spee
There is a hu
d fears that t
sness and vio
ed immediate
done from th
support to t
dicial reforms
78 percent of
ess, only 0.07
he requireme
t on judiciary
ing less than
ndency.
clude neglec
cancies of jud
he performan
ission Report
with only 10
number in
eme Court ha
n by 2007 in a
acancies of a
dge position
e sanctioned
and working
ving 278 va
gth of Subord
rch 1, 2007.
ystem has be
edy justice h
ge pendency
here has bee
olent crime to
ely, in order t
he raw data
the judiciary
s. Rs.700 cro
f the total pla
71percent. It
ents of the jud
. According t
n 1% of thei
t in improvin
dges and ver
nce of judicia
t had pointed
judges for ev
the United
ad directed th
phased man
pproved stre
s remain va
strength of j
strength wa
acancies. Sim
dinate Judges
een crying fo
has been by
y of over 2.5
en a loss of p
o settle dispu
o arrest and
available fro
has been a
re allocated
an outlay of R
t has been ob
diciary. It is s
o the first Na
ir respective
g judicial infr
ry low popul
ry.
d out that Ind
very million
States and
he governmen
nner, which ha
ngth of judge
cant due to
udges of the
as 608 as on
milarly, with
s there were
r reforms as
y and large
crore cases
ublic confide
tes. They fee
reverse this n
om the Suprem
alluded to as
to the judici
Rs. 8,93,183 c
bserved that
said that Indi
ational Judicia
budgets for
rastructure ov
ation‐to‐judg
dia’s populat
of its popula
Britain. Acco
nt to increase
as mot been f
es much need
despite meas
nce in the ju
el that public
negative tren
me Court pub
s one of the
ary during th
crore. During
such meager
ia spends just
al Pay Commi
r subordinate
ver the past d
ge ratio that
tion‐to‐judge
ation as comp
ording to th
e the judge st
fulfilled so fa
ds to be done
sures to redu
diciary, and a
confidence in
d.
blished litera
revea
stren
at Su
othe
not c
e reasons fo
he 10th Plan
g the Ninth Pl
r allocations a
t 0.2 percent
ission, all stat
e judiciary w
decades, inor
require imm
ratio is one
pared to abo
e ’All India J
trength to 50
r.
e. It is observe
uce it. Expert
an increasing
n the judiciar
ture (Year 20
als that
ngth of the
upreme Cou
r subsidiarie
commensurat
or non‐
(2002‐
lan the
are too
t of the
tes but
which is
rdinate
mediate
of the
out 150
Judges’
judges
ed that
ts have
g resort
ry must
008‐09)
the
judges
urt and
es does
te with
the requir
almost re
preventin
Supreme
over the
Supreme
The graph
interestin
institution
Supreme C
rement of ins
emained sta
ng early dispo
Court. Our a
period of tim
Court websit
h highlights th
g point is th
nal cases cont
Court.
stitutional ca
gnated with
osal of the ins
nalysis from
me and the
e, these stark
he working st
hat the vaca
tinued to rise
ases. Over the
h the huge in
stitutional ca
the graph ab
vacancies at
k points have
trength and t
ancies have r
e resulting in
e period of tim
increase in t
ases.
bove clearly s
all levels in
been highlig
the sanction s
remained sta
overall pende
me the trend
the number
hows the wid
judiciary sys
hted.
strength of ju
agnated over
ency.
reveals that
of cases in
During
have g
yearly j
Supreme
analyze
graphica
quarters
trends
cases,
dening gap o
stem. In our
udges in the S
r the period
The gr
the Hi
District
courts
similar
vacanc
of case
identifi
the vacancie
the court, th
our analys
gone throug
judicial repo
e Court and
the
ally for the la
s and identifi
of the p
vacancies
f the pending
research fro
Supreme Cou
of time wh
raphs prepar
igh Court an
t & the Subor
also highlig
r trends in
cies and the n
es in these co
ied for
es have
hereby
sis we
gh the
orts of
d tried
data
ast five
ied the
pending
at
g cases
om the
urt. The
ile the
red for
nd the
rdinate
ght the
n the
number
ourts as
the
reduce th
Over the
associatio
addressin
e number of
years sever
ons/ organiza
g them spee
cases existing
ral benches
ations and N
edily. Yet, th
g in the Judic
of the Supre
GOs have id
he effective i
ial System.
eme Court,
entified prob
implementat
eminent law
blems in the
ion of many
The tre
courts
upper
highligh
existing
Judicial
been ab
slow ef
the jud
wyers and ju
e Judicial Sys
y such recom
end in the
is also sim
level courts
hts it as a pr
g in the
System. The
bsolutely no o
fforts taken
ges vacancie
dges, variou
tem and cal
mmendations
lower
ilar to
which
roblem
Indian
ere has
or very
to fill
s or to
s legal
led for
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 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.
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.
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.