Inevitable Footsteps For Inefficient Court System.
June 8, 2020
The judicial branch is the ICU of a constitutional democracy; and essentially a publicservice of a critical nature; not another public employment opportunity. There is nolegitimacy or rationale for the existence of this branch if some of us are unable to delivereven the minimal quality of justice that is expected of this, sentinel on the qui vive.
Hon’ble Chief Justice of India, S.A. Bobde
The thought of justice comes from the ancient concept of ‘Dharma’ which can be perhaps a broader idea of Justice. But before getting further into this, we should know what does constitutional justice mean? The very first mention of the word “Justice”, finds its place in the preamble of the Indian Constitution. It says we, the people of India, have solemnly resolved to secure to all its citizens: Justice, social, economic and political. Then comes the question, what does this social, economic and political mean?
Social Justice means, everyone should be treated equally, irrespective of their caste, creed, religion or sex. Economic justice means, no one shall be discriminated on the basis of economic standing. Political Justice means, all the citizens of this nation, have equal political rights in terms of participation in the process of governance of the society.
According to Hon’ble Chief Justice of India S.A.Bobde, it is not mere text in preamble instead it’s the duty of every judge to realize the concept of justice, not merely by its text but by its spirit. So, the constitutional justice is only achieved when the two views (functional and aspirational) are synchronized and quality access thereto is protected. A magnificent vision of justice, without adequate means of a safe and sound system alone or efficient means of delivering it alone, would benefit none.
Justice without adequate, affordable and effective access is merely an eyewash.
In the case of the Indian judicial system, accomplishing such efficiency is a herculean task but it is not an impossible thing. Main issues which are the reasons behind the plaguing of the judiciary can be classified into the following categories:
Judicial Backlog Delays in judicial delivery are the first and foremost responsible factor for a large number of our country’s problems. The backlog of pending cases stands at 3.5 crore cases as of August 2019 in the Supreme Court of India itself. A study by the Vidhi Centre for Legal Policy (VCLP) conducted on Delhi HC found that in 91 per cent of cases which got delayed over two years, adjournments were sought and granted. Such backlog in the judiciary system results in the assertion, justice delayed is justice denied which eventually leads to a lack of justice accessibility to the average citizen who actually looks upon the judicial system for their rights. Firstly, the bulk of the cases which are piled up are of trivial matters such as property disputes, theft etc. Secondly, there is a clear lack of fundamental infrastructure in subordinate courts in Tier-II and Tier-III. Thirdly, most of the work is still done in pen and paper format, through the minuscule staff that each Judge is given.
The place of Justice is a hallowed place, and therefore not only the Bench, but also the foot space and precincts and purpose thereof ought to be preserved without scandal and corruption.
Judicial Corruption, Appointments, and Accountability Once, late CJI J.S Verma said that he cannot say with full surety that there is no corruption in the judiciary. In reference to the report of Transparency International, judicial corruption in India is attributable to factors such as delays in the disposal of cases, shortage of judges and complex procedures, all of which are exacerbated by a preponderance of new laws. Some analysts believe that following are the reason for corruption even after we implemented the concept of independence of judiciary: – Firstly opaque appointment system through a collegium system and lack of agreement between Centre and Collegium over Memorandum of Procedure (MOP) for appointing judges of high courts and the Supreme Court leads to sycophancy in the judiciary. – Secondly, another worrying matter is ex-judges getting a post-retirement job after which questions their neutrality. Moreover, courts are outside the purview of RTI which gives them a lack of accountability in public eyes. For instance, the appointment of our Former CJI Gogoi as member of Rajya Sabha has created a bad impression among the citizens. However, a nominated member doesn’t get enough say on matters, if any.
Judicial Overreach There is a thin line dividing judicial activism and judicial overreach. Judicial overreach is when the judiciary starts interfering with the proper functioning of the legislative or executive organs of the government, i.e., the judiciary crosses the line of its own function and enters the executive and legislative functions. Judicial overreach is considered undesirable in a democracy. It also goes against the principle of separation of powers. But, this is not a major problem since a major reason for this is the incompetence of other institutions and branches, which forces the judiciary to intervene. However, steps must be taken that this unrestrained overreach doesn’t become a norm, and as far as possible, the respective domains of Executive, Legislature, Judiciary must be respected. It also adds to the pendency of cases, because of unnecessary encroachment. The Judiciary must keep reviewing existing policies and laws, and see that they are in tune with the ideals of the constitution. It should at best, only advise the respective ministry to take up some action, but not enforce it.
Archaic laws and Vague drafting of Laws The archaic laws that fill up the statute books, faulty or vague drafting of laws and their multiple interpretations by various courts are also reasons for prolonged litigation. Some of these laws date back to the 1880s. If somebody wants to do something, he/she is shown a law drafted in the last century and asked not to do it.
Even though our judiciary is not an ideal example for The Efficient Judicial system, due to the above mentioned stagnant factors, both, citizens and the state should undertake different measures to accomplish this position. For this purpose the government have devised the following schemes and projects:
National Mission for Justice Delivery and Legal Reforms The mission had been set up to ensure better access to justice by reducing delays and arrears in the system and augment accountability through structural changes and by setting performance standards. The objectives were to be attained in a time-bound manner by 2015-16 through a mission mode approach. The Mission was planned to have a Mission Directorate, an Advisory Council and a Governing Council for overseeing the implementation of the Mission.
eCourts This project was initiated for the purposes like computerization of district and subordinate courts, ICT, the infrastructure of the Supreme Court and the High Court etc. At present, this project has implementing Case Information System (CIS) 2.0 across the country.
Gram Nyayalay Gram Nyayalayas were established for speedy and easy access to the justice system in the rural areas across the country. The Gram Nyayalayas Act came into force on October 2, 2009. In reference to Section 3(1) of the Act, it is for the State Governments to establish Gram Nyayalayas in consultation with the respective High Courts. The Act also authorizes the Gram Nyayalaya to hold mobile courts outside its headquarters. However, the Act is not enforced properly, with only 208 functional Gram Nyayalayas in the country against a target of 5000 such courts. The major reasons behind the non-enforcement include financial constraints, the reluctance of lawyers, police and other government officials.
Alternative Dispute Resolution (ADR) ADR is a mechanism of dispute resolution that is non-adversarial, which means working together cooperatively to reach the best resolution for everyone. ADR can be instrumental in reducing the burden of litigation on courts while delivering a well-rounded and satisfying experience for the parties involved. It provides the opportunity to expand the pie through creative, collaborative bargaining, and fulfil the interests driving their demands. The four modes of ADR are: Arbitration, Mediation, Conciliation, negotiation and Lok Adalats etc.
National Court Management System To address issues such as case management, court management, setting standards for measuring the performance of the courts, a national system of judicial statistics etc.
National Litigation Policy Government regarded to be the biggest contributor (46%) to litigation in India and NLP introduced to reduce government litigations which were piling up at an infinite level in the courts. The government also launched Legal Information Management and Briefing System as a database of all the ongoing cases with the government as a party.
Fast Track Courts These types of courts were instituted for quick disposal of cases pending in the lower courts. Recently, the Supreme Court in a suo moto petition had issued directions in this regard that districts with more than 100 cases pending under the POCSO Act need to set up special courts that can deal specifically with these cases.
I would like to conclude this writing by suggesting that we must focus on addressing the distinction between dispensing justice and dispensing with justice, while we assess the performance of the court and its procedure. We also should devise such programmes where we appreciate the courts who give a quality performance, which had indirectly inculcated healthy competitive spirit among the courts and tribunals to become the most efficient court.