Judicial reforms: Just wee bit less crucial than economic reforms - II
by Arvind Lavakare on 20 Jun 2016 6 Comments

The tortoise pace of over a hundred thousand court cases in the Supreme Court and lower  courts have almost paralysed the basic objective of delivering justice to the people of a democracy speedily, fairly and without obstruction and pain of any kind.


We have reached the stage when it’s not a joke that solicitors and lawyers speak of the number of decades it could take for a newly filed case to reach finality of verdict. The multiple stages of a trial, the complex procedures, the very many adjournments in a case, the waste of time and energy of litigants in meetings with lawyers and attending court hearings – all has succeeded in causing apprehension in the common man of walking up the steps of a court to get his rights honoured by the justice system.


A former Chief Justice of India, H.L. Dattu, in December 2014, described the huge pendency of cases as a matter that “strikes at the very root of democracy and erodes respect for law among citizens who are at the receiving end of unjust treatment. This is where judiciary has to stand as a strong pillar. If this pillar develops cracks the entire nation will feel its ripples.”



The same danger can be foreseen with regard to the failure to correct various judicial shortcomings pointed previously. This writer believes that India needs a series of judicial reforms and changes in legal architecture that impact the working of the judicial system with its multiplier effect on the country’s politico-socio-economic progress. 


Suggested judicial reforms


(i) Have many more judges at all levels. And make a judge’s emoluments more attractive so that a judge is happy and proud to be a judge. Simultaneously, to increase the pool of judges, it is essential to start an Indian Judicial Service (IJS) for employing promising lawyers between the age of 30 and 40 years and get them honed either at the hands of senior counsels for a minimum period of three years and/or though special courses in noted Law Universities.


(ii) Create many more courts at all levels. The goal should be a court at a maximum distance of 20 kilometers from residential areas. And for every court, small or big, a first-class infrastructure – an attractively designed building with varied facilities (including clean, hygienic waiting rooms with toilets), a trained staff, and computers. Every court must be a joy to work in for the administration. Let each court be guarded against red tape that leads to corruption with a watchful security staff.


(iii) Reduce the number of levels of a trial and drastically reduce the number of adjournments granted.


(iv) Amend the Indian Penal Code, 1860 (IPC) to get rid of its colonial features, and all other laws such as the Debt Recovery Act of 1993 which have failed miserably to achieve their objectives.


(v) Revise the Criminal Procedure Code and Civil Procedure Code so as to make all procedures therein rational and facilitate the litigants and the judicial administration. For instance, there is a procedure that the complainant in a criminal case must always be present during a trial hearing, but no such compulsion for the accused! Yet in a civil case trial hearing, none of the contesting parties are required to be present. What is required instead is that all procedures should cause minimum hardship to the litigants as well as the judge and the judicial administration. To speed up the justice system considerably, the number of adjournments granted in a case to a litigant should be restricted to the maximum of three.


(vi) Fines imposed for offences against the prevalent law should immediately be imposed on the litigant parties for every court misdemeanour. There is an urgent need to impose much higher fines on offences against the established law, in contrast to generally low ones stipulated in the Indian Penal Code, 1860, during British times. These steps will not only help to deter potential criminals but would go a long way in increasing the court revenues. So will an increase in regular fees for filing a case. To increase court revenues, each adjournment granted by a judge should be paid for by the concerned party at Rs 25,000 for the first adjournment, Rs 50,000 for the second and Rs 1,00,000 for the third and last. This will have the beneficial effect of preventing too many briefs being accepted by senior advocates who are known to engage lawyers only for seeking adjournments.


(vii) Like in case of several senior positions in the Indian government’s bureaucracy, a newly promoted Chief Justice of India must be given tenure of five years so that he can introduce incremental reforms of the entire justice system in a sustained and committed manner.


(viii) Remove the contempt of court provisions of Articles 129 and 142 from our Constitution so as to restore the sanctity of Article 19(1)(a) regarding “freedom of speech and expression” subject, of course, to the provision of Article 19(2) laying down certain restrictions on that freedom.


(ix) Make frivolous litigation vanish by imposing a fine of Rs 1,00,000/- on the litigant and his/her lawyer for frivolous cases.


(x) Have special courts for adjudging criminal and civil cases filed against members of village panchayats, gram panchayats, municipal councils, municipal corporations, State Assemblies /Union Territories and Members of Parliament. Have two or three regional or central courts for the purpose. Prime Minister Narendra Modi had, in fact, made such a request to the Supreme Court in 2015, but it’s essential to have such special courts for elected representatives to quickly punish their criminality which remains only an allegation for near eternity.


(xi) Banish the provisions of Article 124 (4) and Article 218 from our Constitution which stipulate the procedure for removal of a Supreme Court and a High Court judge from office. Presently, both these provisions require to be preceded by an address by at least two-third majority of members present and voting in each House of Parliament recommending the removal to the President of India on grounds of proven misbehaviour or incapacity. Conventional trial proceedings are done away with on the ground that those provisions enable the Judge to give his verdict without fear and favour, and without inducements. But both the cited Articles overlook the fact that they turn that presumption on its head when a Judge does give his verdict on the basis of inducements, and therefore ultimately escapes a court’s punishment by seeking refuge in those restricting conditions. In at least two cases in the past, a Judge has got away with resignation from office instead of being jailed and foregoing all his pecuniary financial benefits. That is what happened in September 2011 when a High Court judge lost in the Rajya Sabha but brazened it out till the last minute before resigning.


(xii) Devise punishment for judges who err, not so much misinterpretation of the law, but because of lack of commitment to work and who show obvious lack of diligence in the case before them.


(xiii) Parliament must carry out unambiguous, clear-cut reforms suggested by an expert Committee and take some initiatives of its own. For instance, Parliament should choose one fixed day in the annual calendar to be called “Justice Day”. On that day the Chief Justice of India should be invited to address all Members of Parliament in the Central Hall of Parliament House. The choice of subject must be left to him/her, but he must answer five questions given to him in advance by Parliament’s Standing Committee on Parliamentary Affairs and Law & Judicial Affairs. Such an interaction will create a better and desirable understanding between the Judiciary and the MPs. Based on experience, such an annual address and question-and-answer session could be undertaken by the Chief Justice of each of the States.


(xv) At the time of the national Budget, the Registrar of the Supreme Court must reveal the annual Budget of the Supreme Court. This must also be done by each High Court, so that the people finally get a full and detailed account of what this country spends on the Judiciary and what revenue it collects. Such an annual exercise will also enable Parliament to consider ways of increasing the revenue of the Judiciary and ensure that the Judiciary itself monitors its financial resources with the responsibility that the issue demands.


Prime Minister Modi alone has the courage and the dynamism to bring about those reforms in our judicial system. Will he dither or dare?



See also


User Comments Post a Comment

Back to Top