As PTI
reports on Mar 6, 2010, Andhra Pradesh High
Court judge Justice V V Rao said, “ Indian judiciary would take 320 years to
clear the backlog of 31.28 million cases pending in various courts including
High courts in the country.” "If
one considers the total pendency of cases in the Indian judicial system, every
judge in the country will have an average load of about 2,147 cases,"
Justice Rao had added, while delivering the keynote address on E-Governance in Judiciary.
At that time, it was mentioned that India
had 14,576 judges as against the sanctioned strength of 17,641 including 630
High Court Judges working out to a ratio of 10.5 judges per million population
whereas the Apex court in 2002 had suggested 50 judges per million population.
If the norm of 50 judicial officers per million becomes reality by 2030 when
the country's population would be 1.5 to 1.7 billion, the number of judges
would go upto 1.25 lakh dealing with 300 million case.
The above position of our law system indicates
alarming condition. We all agree that the Law is a system of rules and guidelines which are enforced through
social institutions to govern behavior. Laws are made by governments,
specifically by their legislatures. The formation of laws themselves is
influenced by our constitution and the rights encoded therein. The law shapes politics,
economics and society in countless ways and serves as a social mediator of
relations between people.
The adjudication of the law is generally divided
into two main areas. Criminal law deals with conduct that is designated
dishonest by the government and in which the guilty party may be imprisoned or
fined. Civil law deals with disputes between individuals or organizations, in
which compensation may be awarded to the wronged litigant.
To implement and enforce the law and provide
services to the public, a government's bureaucracy, the military and police are
vital. While all these organs of the state are creatures created and bound by
law, an independent legal profession and a vibrant civil society inform and
support their progress.
Law provides a rich source of scholarly inquiry
into legal history, philosophy, economic analysis and sociology. Law also
raises important and complex issues concerning equality, fairness, and justice.
This is what our forefathers might have cherished when they were carrying on
the struggle for freedom. We got independence in 1947 but unluckily, so far we
did not evolve our own Law system.
We have forgotten that the Arthashastra and the Manusmriti were foundational treatises in India,
and comprise texts considered authoritative legal guidance. Manu's central
philosophy was tolerance and Pluralism, and was cited across Southeast
Asia. Before the arrival of the British in India, India was governed by laws based on
The Arthashastra, dating from the 400 BC, and the Manusmriti from 100 AD. In
fact there existed two codes of laws one the Hindu code of laws and the other
Muslim code of laws. They were influential treatises in India, texts that were considered
authoritative legal guidance. The Judiciary,the Executive, and the Legislature
were the same person the King or the Ruler of the Land. But the villages had
considerable independence, and had their own panchait system to resolve
disputes among its members. This tradition in India
continued beyond the Islamic conquest of India, and through to the Middle
Ages. Islamic law "The Sharia" was applied only to the Muslims of the
country.
The present Indian judicial
system is descended from British colonial rule, and many of its characteristics
appear on the surface identical to those of British courts. This British system
of law, however, was unsuited to the needs of the Indian people. Even the last
colonial administrators of India
so acknowledged in 1945, three years before India gained full independence.
Though it has come a long way, the Indian judicial system still lacks the
resources to meet the needs of India's
more than 1 billion citizens. We are still following hundreds of enactments
which were made when the British ruled over us to meet their own administrative
requirements of meeting targets of exploitation of our resources, having no
concern with our development. Even we have kept more or less the same uniform
of the Advocates what was prevalent before independence, though that is not
suitable to the local climate. Even today, the proceedings of the Supreme Court
and High Courts are conducted in English only which is used by less than two
percent of Indians.
According to the World Bank, "although India's courts
are notoriously inefficient, they at least comprise a functioning
independent judiciary" A functioning judiciary is the guarantor of
fairness and a powerful weapon against corruption. But people’s experiences in
fall far short of this ideal. Corruption in the judiciary goes beyond the
bribing of judges. Court personnel are paid off to slow down or speed up a
trial, or to make a complaint go away. Judges are also subject to pressure from
above, with legislators or the executive using their power to influence the
judiciary, starting with skewed appointment processes. Citizens are often
unaware of their rights, or resigned, after so many negative experiences, to
their fate before a corrupt court. Court efficiency is also crucial, as a
serious backlog of cases creates opportunities for demanding unscheduled
payments to fast-track a case.
Indian courts have large backlogs. For instance,
the Delhi High Court has a backlog of 466 years according to its chief justice.
This is despite the average processing time of four minutes and 55 seconds in
the court. As could be understood, the largest number of cases that are
actually pending in the Indian Courts are that of minor Motor Vehicle Cases,
petty crimes such as stealing, abusing, insult, slap, etc. It is an established
fact which the Govt. of India accepts that there is 40% shortage of judicial
staff. Opposition and ruling party's corrupt politicians profit from the delays
in the system.
On January 12, 2012, a Supreme Court bench said
that people's faith in judiciary was dwindling at an alarming rate, posing a
grave threat to constitutional and democratic governance of the country. It
sincerely acknowledged few of the serious problems such as -
- Large number of vacancies in trial courts,
- Unwillingness of lawyers to become judges,
- Failure of the apex judiciary in filling vacant HC judges posts.
It wanted to seek answers from the government on amicus
curiae's suggestion that access to justice must be made a constitutional right
and consequently the executive must provide necessary infrastructure for
ensuring every citizen enjoyed this right. It also wanted the Government of
India to detail the work being done by the National Mission for Justice
Delivery and Legal Reforms.
Corruption is
rampant in India's
courts. The time has changed and the corrupt practices in all the levels of the
judiciary have come to that stage that in recent times, the working of the
judges of superior courts (High Courts and the Supreme Court) has come in for
intense scrutiny and grave doubts have been cast against the conduct of some
judges.
The last two decades have marked the
extraordinary rise of India.
This has however been tinged with cynicism about our major democratic
institutions and a pessimism about their future. The judiciary, which till now
has been looked upon as the strongest pillar of Indian democracy, has been
beset with unprecedented problems. In recent times, the working of the judges
of superior courts (High Courts and the Supreme Court) has come in for intense
scrutiny and grave doubts have been cast against the conduct of some judges.
The pressing call for greater institutional accountability in the Indian
judiciary is now stronger than ever.
According to 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". Most disturbing is the fact that corruption
has reached the highest judicial forum,:
- In December 2009, noted social activist, campaigner for judicial accountability and a Supreme Court lawyer Prashant Bhushan in response to the notice of contempt issued by the Supreme Court (for his interview to a news magazine in which he had said, "out of the last 16 to 17 Chief Justices, half have been corrupt"), filed an affidavit standing by his earlier comments saying: "It is My Honest And Bonafide Perception". Later In September 2010, he submitted a supplementary affidavit in which he submitted evidence to back his allegations. In November 2010, former Law Minister, Shanti Bhushan echoed Prashant Bhushan's claim saying: “It is my firm belief that there is a lot of corruption in judiciary. I am saying the same thing which Prashant Bhushan had said. The question of apology does not arise. I will rather prefer to go to jail. The judiciary cannot be cleansed unless the matter is brought into the public domain”.
- In June 2011, a very widely respected former Chief Justice of India J. S. Verma echoed these views saying that "certain individuals with doubtful integrity were elevated within the higher judiciary" He cited the case of Justice M. M. Punchhi, whose impeachment had been sought by the campaign for judicial accountability. Justice Verma said he was willing to permit the allegations to be probed but the political executive refused to allow this. Justice Verma further explained, "Because the allegations, if proved, were serious and therefore they required to be investigated, so that one could know whether they were true or not." He acknowledged that Justice Punchhi was later elevated to CJI despite facing "serious allegations". Justice Verma also talked about another former CJI K G Balakrishnan's continuance as National Human Rights Commission chairman. Justice Verma said, "He should have demitted long back and if he doesn't do it voluntarily, the government should persuade him to do that, otherwise, proceed to do whatever can be done to see that he demits office."
- In November 2011, a former Supreme Court Justice Ruma Pal slammed the higher judiciary for what she called the seven sins. She listed the sins as:
- Turning a blind eye to the injudicious conduct of a colleague
- Hypocrisy – the complete distortion of the norm of judicial independence
- Secrecy – the fact that no aspect of judicial conduct including the appointment of judges to the High and Supreme Court is transparent
- Plagiarism and prolixity - meaning that very often SC judges lift whole passages from earlier decisions by their predecessors and do not acknowledge this – and use long-winded, verbose language
- Self Arrogance – wherein the higher judiciary has claimed crass superiority and independence to mask their own indiscipline and transgression of norms and procedures
- Professional arrogance – whereby judges do not do their homework and arrive at decisions of grave importance ignoring precedent or judicial principle
- Nepotism – wherein favors are sought and dispensed by some judges for gratification of varying manner.
The above are some submissions and abstracts of the various
reports about our judicial system. Since we agree that we need improvement of
our system, we may join hands to get appropriate changes, some of them can be amongst
below:
1. The
E-courts project was established in the year 2005. According to the project,
all the courts including taluk courts will get computerized. As per the project
in 2008, all the District courts were initialized under the project. In 2010,
all the District court were computerized. The entry of back log case has
started. The IT department had one system officer and two system assistants in
each court. They initiated that the services in the Supreme Court in June 2011.
The case lists of most district courts are available in http://lobis.nic.in.
This website is updated daily. Now the establishment work is going on taluk
courts. The project also include producing witnesses through video conference.
Filing cases, proceedings, and all other details will be in computers.
Similarly, it should include working of the Police Station also to ensure
that First Incident Reports be lodged on
internet. The complainants, unable to do so, should be provided assistance
through the network of the post offices/other government offices against
nominal fee. The police usually do not register all the cases to keep their
work at minimum level. If bribed suitably, they book even the fake reports. By
putting the FIR on net, their undue discretion would be eliminated.
2. After
the case is registered online, an Investigating Officer be assigned immediately
to file a preliminary report within the shortest period with legal opinion
whether a case can be instituted or not. If the case is grievous, that be
formalized after legal opinion and the alleged persons be arrested to be given
to the judicial custody with proper respect. The police may take on remand for
further inquiry. Until then, the complaint will not be made a public document
to avoid escaping of the alleged persons.
3. The
trial must start within 30 days of the arrests so made and be finished within
90 days keeping the proceedings on net.
4. The
dates and attendance should also be marked on net and the cases must be taken
on serial basis in the courts.
5. The
Magistrates/judges must be asked to have presence on the dais itself. All the
meetings etc. and office work be conducted after 3 PM.
6. No
strike be allowed. Limited public offs excluding those based on religious
matters be allowed in the judicial system.
7. Copies
of the judgments and the documents of evidence value accepted in the courts be
made freely available by downloading.
8. Summons/warrants
must be issued automatically to the persons the Court desires. The litigants
should not be expected to do pairvi once the Court takes cognizance of the
cases.
9. Every
court must dispose of all the applications on the date fixed. The
prosecution/litigants should be alert enough to provide the information within
time.
10. Every case
must be decided through jury system so that the emotions/personal views of a
single judge may not harm the interests of the litigants.
11. Every
Advocate should be permitted to have a limited number of cases in hand and
maximum ceiling of the fee including expenses as per relative section of the
acts under which the case is being registered, so that they are able to prepare
fully for each case. There must be an age limit for the practicing advocates to
participate in active court proceedings.
12. Supreme
Court must have only full bench in national capital, the smaller benches must
be set up in the State Capitals. Similarly, High Courts should have full
benches in State Capitals and the smaller benches should be set up at
Divisional levels.
13. Every
Advocate, Magistrate, Judge and employee associated must declare the worth of
his assets every year. The details can be open to the concerned Income Tax
Officer only.
14.The
proceedings of all the courts be preferred in vernacular language and national
language, Hindi. Those persons who do not understand vernacular and national
language may ask for the translation in the language against nominal expenses.
I welcome those friends who may add up their
suggestions so that we may ensure better law system for better society.
Be Happy – We May Ensure Better
Law system.
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