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.
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.”