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

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 18 th 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

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 ADALATSLok 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 AIDArticle 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

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 TRIBUNALHaving 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) ARBITRATIONArbitration 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) MEDIATIONThe 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) CONCILIATIONThis 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

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 ACTThe 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 DAYNinth 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

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.

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’

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 6 th 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

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.

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

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.

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, GOI3) 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