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GS Mains Foundation 2018
GS Mains Foundation 2018
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Judicial Reforms

An independent and impartial judiciary, and a speedy and efficient system are the very essence of civilization. However, our judiciary, by its very nature, has become ponderous, excruciatingly slow and inefficient. Our laws and their interpretation and adjudication led to enormous misery for the litigants and forced people to look for extra-legal alternatives.

Why Reforms needed?

1. Delay in Justice - Speedy trial is guaranteed under   article   21   of   the   Constitution   of India.   Any   delay   in   expeditious   disposal   of   criminal   trial   infringes   the right   to   life   and   personal   liberty   guaranteed   under   article   21   of   the Constitution.   The   debate   on   judicial   arrears   has   thrown   up   number   of ideas on how the judiciary can set its own house in order.

2. In   almost   every   High   Court,   there   is   huge   pendency   of   cases   and the   present   strength   of   the   judges   can   hardly   be   said   to   be   sufficient   to cope   with   the   alarming   situation.

3. The post of Chief Justice is transferable. This practice was introduced in our country after the ‘Emergency’ had been imposed. The Chief Justice, who comes on transfer for a short period of six months, one or two years, is a new man, rather alien for the place and passes his time anyhow. He has to depend on others for policy decisions in administrative matters.

4. Judicial procedure   is   very   complex,   costly   and   dilatory   putting   the   poor   at   a distance from justice.

5. Lawyers in addition to being champion at the various   laws   also   has   a social   responsibility   of  helping   the   ignorant   and the underprivileged to attain justice. This element is missing in present times.

What we need?

• Practical and effective reforms in consonance with basic features of the Constitution 

• Accountability of the judiciary   

• Speedy justice

• Reduction in costs of litigation

• Systematic running of the courts

• Faith in the judicial system

Law Commission Report

1. Uncle Judges - Selection and appointment of High Court Judges. The post of the Judge of a High Court has importance under our Constitution and the incumbent is supposed to be not only fair, impartial and independent, but also intelligent and diligent. The general eligibility criterion is that a person should have put in ten years of practice/service in the legal/judicial field. If a person has practised in a High Court, say, for 20-25 years and is appointed a Judge in the same High Court, overnight change is not possible. He has his colleague advocates – both senior and junior - as well as his kith and kin, who had been practicing with him. This affects their impartiality and justice is the loser. The judges, whose kith and kin are practicing in a High Court, should not be posted in the same High Court. This will eliminate “Uncle Judges”.

2. The post of Chief Justice should not be transferable. If the Chief Justice is from the same High Court, he will be in a better position to not only control the lower judiciary but also to assess the persons both from the bench and the bar for elevation to the High Court. This will also curtail the unnecessary delay in filling up the vacancies in the High Courts.

3. In our country, except for the judges, the retirement age in some quasi-judicial bodies has been increased. The retirement age in different tribunals has now been increased to 70 for chairmen and 65 for members. In the circumstances, the constitutional provisions need a change for enhancing the age of retirement of High Court and Supreme Court Judges at least by three years.

4. The   present strength   of   the   judges   should   be   increased   manifold   according   to   the pendency, present and probable.

5. It   is necessary that the work   of   the   High Courts   is decentralized, that is, more Benches are established in all States.

6. Once judgments are reserved on constitutional matters by larger bench or otherwise,   the   judgments   should   be   delivered   within   a   reasonable   time. There is long and inordinate delay in delivering judgments which should be   avoided   in   public   interest.

Reforms –

1. Pendency - prescribed time-limits for   all   cases.   To   deal   with   this,   there   can’t   be   one   prescribed   limit,   but the   kinds   of   cases   need   to   be   identified   and   prioritized.   So setting   time-standards   is   essential   and   it   will   vary   for   different   cases,   and   also   for different   courts   depending   on   their   disposal-capacity.

2. Technology – 

(a) Digital   techniques   and   tools are   at   our   disposal,   to   collect   information   from an   entire   database   from the time a case is instituted in a court of law to the final stages of appeal. Building   up a judicial   database   will   enable   us   to   assess   the   performance of the courts as an institution, and the Chief Justices will be able to use it to   assess   the   individual   performance   of   judges.

(b) Now, digital technology offers us new packages like database, ERP tools,   court  management   practices   –   these   will   help   in   increasing   the productivity   of   courts;   video-conferencing   –   through   which   we   can record   evidence.

3. Reforms at the village level -

The   Gram   Nyayalayas   Bill   has   been   enacted   to   set   up   more   trial courts   at   the   intermediate   Panchayat   level.   The   welcome   feature   is   that the   procedures   have   been   kept   simple   and   flexible   so   that   cases   can   be heard   and   disposed   of   within   six   months.   It   is   also   envisaged   that   these courts will be mobile, to achieve the   goal of bringing justice to   people’s doorsteps. Training and orientation of the judiciary, especially in frontier areas   of   knowledge,   like   bio-genetics,   IPR   and   cyber   laws,   need attention.

4. Appointments and transfer of judges-

Two alternatives are available to the Government of the day. One is to seek a reconsideration   of   the   three   Judges’   cases   by   the   Hon’ble   Supreme Court. The other alternative is to enact a law restoring the primacy of the Chief   Justice   of   India   and   the   power   of   the   Executive   in   making   the appointments.

5. Disposal of legal disputes at pre-litigative stage by permanent and continuous   Lok   Adalats   would   provide   expense-free   justice   to   the citizens   of   this   country.   It   also   saves   the   courts   from   additional   and avoidable   burden   of   petty   cases   enabling   them to   divert   their   court-time to   more   contentious   and   old   matters.

Alternate Dispute Resolution

The only   field   where the courts   in   India   have recognized   Alternate   Dispute   Resolution   (ADR)   is   in   the   field   of arbitration.   Another   area   where   ADR   is   recognized   in   India is family law. The   legislation which emphasizes ADR   is   the Legal Services Authorities Act 1987. Provisions   have   been   made   in   the   Legal   Services   Authorities   Act for settling cases through Lok Adalats; a Lok Adalat generally comprises a judicial officer, serving or retired,   a   lawyer,   and   a   person   of   a   social welfare association,   preferably,   a woman.  Power   has   been   given   to   Lok Adalats   to   dispose   of   disputes   referred   to  them  by arriving   at   a compromise   or   settlement   between   the   parties;   awards   of   Lok  Adalats are deemed   to be  decrees   of   civil   courts   or   orders   of   other   courts   or tribunals;   every   award  made   by   a   Lok   Adalat   is   treated   as   final   and binding   on   all   the   parties   to   the   dispute,   and   no   appeal   lies   to   any  court against the award.  

Justice J.   S. Verma statement about 2nd Judges Case

Shri.  Justice J.   S. Verma,   a   former   Chief   Justice   of   India,   who   had   written   the   lead judgment   in   the   2nd Judges’   case,   expressed   in   an   interview   to   the Frontline   Magazine   published   in   its   issue   of   October   10,   2008.   When asked: “You said in one of your speeches that judicial appointments have become judicial   disappointments.   Do   you   now   regret   your   1993 judgment?”   Justice Verma responded:   “My 1993 judgment,   which   holds the   field,   was   very   much   misunderstood   and   misused.   It   was   in   that context  I   said  the  working   of  the  judgment  now  for   some  time  is   raising serious questions, which cannot  be called unreasonable.  Therefore, some kind of rethink is required. My judgment says the appointment process of High  Court   and   Supreme   Court   Judges   is   basically   a   joint   or participatory   exercise   between   the   executive   and   the   judiciary,   both taking part in   it.  Broadly, there are two distinct   areas. One is   the area of legal   acumen of   the   candidates   to   adjudge   their   suitability   and   the   other is   their   antecedents.   It   is   the   judiciary,   that   is,   the   Chief   Justice   of   India and his colleagues or, in the case of the High Courts, the Chief Justice of the High Court and his colleagues (who) are the best persons to   adjudge the   legal   acumen.   Their   voice   should   be   predominant.   So   far   as   the antecedents   are   concerned,   the executive   is   better   placed   than   the judiciary to know the antecedents of candidates. Therefore, my judgment said   that   in   the   area   of   legal   acumen   the   judiciary’s   opinion   should   be dominant   and   in   the   area   of   antecedents   the   executive’s   opinion   should be   dominant.   Together,   the   two   should   function   to   find   out   the   most Suitable (candidates) available for appointment.”

 

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