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JUDICIARY WATCH

Judicial reforms key to development

By SK Goyal, IRS (Retd), New Delhi
13/07/2017   1 Comments

The Indian judiciary is clogged with pending cases, a poor infrastructure and unfilled staff vacancies at its various levels. The lower courts have a backlog of 20 million cases and higher courts also have a large pendency. As per an analysis, even if Judges dispose of 100 cases per hour without any break, it may take still 35 years to catch up. The general impression is that the, poor remain deprived of justice under the existing judicial process which is time consuming and expensive. The executive wing is also responsible for not properly executing Government plans and judicial decisions of the higher courts.
 
The lower courts in India have a glut of cases where the real problem lies and needs constant monitoring. Though major computerization has been done in the courts, it must include standardization of data collection across them which can assist Judges in forming judgments.
 
The Chief Justice of India (CJI) has given a call to Judges to curtail their summer vacations up to five days. The curtailing of vacations is the need of the hour in modern days even though the same is resisted by senior lawyers who wish to spend this time abroad.
      
Judges alone are not to be blamed for delays in the disposal of cases. According to a source, it is mainly lawyers who make frequent requests for case hearing adjournment. Many of them, it is alleged, have a vested interest in getting repeated adjournments so that a case hearing may drag on, especially in those cases where they charge heavily per appearance in court.
 
The facility of video conferencing is statutorily provided but rarely used in practice. Accountability needs to be fixed for causing repeated delays in justice delivery. The judiciary makes periodic encroachments in the domain of the executive. Two recent examples are the Madras High Court asking the State Government to waive farmers’ loans and a highway liquor ban imposed by the Supreme Court. This impacts the consistency and clarity of policies and may involve livelihood losses for citizens. 
 
The high care pendency in courts can decline with effective measures, Process overhaul, constant feedback and equipping the judiciary with technology and modern tools can accelerate justice delivery.
 
STRICTNESS IN ADJOURNMENTS
Judges need to be strict in granting adjournments and standing up to aggressive lawyers trying to brow beat them. Senior Judicial officers also should support their juniors in the case of complaints. The Law Commission has recommended changes in bail jurisprudence to release the poor among the 2.38 lakh undertrial prisoners to reduce the workload. As per a 40-year-old Supreme Court ruling, “The basic rule may perhaps be tersely put as bail, not jail.” In effect, it is a principle reportedly applicable only to the powerful and affluent members of society.
        
The main reason for having 67% of the current undertrial accused in jail is the great inconsistency in the grant of bail. The Law Commission cautions the police against needless arrests and magistrates against issuing mechanical remand orders.
              
Section 436A of the Cr.PC states that an undertrial accused facing an offence providing for a maximum punishment of seven years be released on bail on serving half the prescribed sentence. The Supreme Court has also reiterated to follow the same.
 
The Law Commission has suggested reducing this period to one-third and that outside sureties may be accepted where poor prisoners are unable to furnish bail bond. It has further observed that the solution lies in expediting the trial process since delay remains the primary source of injustice.
 
Indians have been governed by colonial laws and justice delivery with hardly any changes in the working of courts and the attitude of presiding officers in all these years. Time is ripe to amend old antiquated laws in tune with modern times and citizens’ aspirations. There is also urgent need to push reforms in judicial procedures and the justice delivery system to fasttrack decisions.

MAJOR PERSONAL DISPUTES               
A study or survey through a trusted agency can be conducted in major city courts and High Courts to find out the type of cases pending for a long time. These can be classified and bunched together for quick disposal. Major disputes relate to matrimony, cheque bouncing, property, petty criminal offences, rapes and murders. Law in such areas has been settled by the Supreme Court and High Courts. Many disputes can be fast-tracked by following such decisions. 
          
Matrimonial disputes, experts say, can be referred to mediation cells and divorce may be allowed in unresolved matters. Alimony needs to be fixed as per the financial status of the parties and in child custody cases, joint parenting is the best solution. The Supreme Court has already held that Section 498A is much abused. The lower courts routinely allow remand and deny bail to all family members. Dowry giving and taking is an offence for both sides. A few High Courts have ruled that lists of gift items need to be signed by both parties and allegations of giving dowry may be got verified from tax authorities. The pendency of such cases can be reduced following these decisions. 
 
Cheque bouncing cases can also be referred to for mediation and arbitration. Rape cases are already with fasttrack courts but need constant monitoring. The alternative dispute resolution mechanism needs to be applied in more cases of family and civil disputes.
 
Presently 40% of the judicial vacancies remain unfilled in the lower and High Courts. Recruitment to the lower judiciary is done by respective High Courts through a competitive written examination. Many aspirants fail to qualify. Higher Courts vacancies are filled up on the recommendations of the Collegiums of High Courts and the Supreme Court by the Government. There was delay over the last three years since a Constitution Amendment Act on appointments to the higher judiciary was challenged and struck down by the Supreme Court. Recently there was a stalemate on the signing of an MoP on this issue in view of the differences of opinion between the Government and the apex court.

SELECTING JUDGES
The Judges Inquiry Act 1968 falls short of prescribing a procedure to deal with errant Judges. The procedure of impeaching such Judges does not work due to its onerous and political nature. There is no effective law for judicial accountability.
 
There is need to re-evaluate the selection process that leads to the appointment of such Judges. The general public has utmost confidence and trust in the judiciary. Courts are the last refuge of citizens for the enforcement of their rights and to protect them from arbitrary and unlawful administrative actions.
 
In the SCAORA vs Union of India case the Supreme Court recorded the need for an impartial judiciary manned by persons of sterling quality and character, undaunting courage, determination and independence who will dispense justice without fear or favour, ill-will or affection.
 
We should preserve the sanctity of the judiciary as an independent democratic institution that will not compromise with its oath to protect the Constitution.
           
There are numerous instances of miscarriage of justice in cases of dowry harassment, arrests, denial of bail, petty criminal offences and suspected terrorism. All these cases require urgent remedial measures.
 
The judiciary has to work in tandem with the Government to usher in reforms to provide succour to the poor Indians.

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7/14/2017 12:20:21 AM

Indeed a good article on judicial reforms by Shri S K Goyal, and no one will disagree that such reforms is the key to development. But the big question is – who can cause such reforms successfully and effectively? Can it be expected from the people to gather, go and sit on hunger strikes in front of the High Courts of their States and the Apex Court, and seek such reformation and proper judicial conduct from them as well as the complete protection of their rights too? Or such reforms can be expected from the uncourageous and confused Government who appears absolutely helpless and thus left the issue to the fate of people completely after the collapse of NJAC? What for the Indian Parliament is? Why the Government could not show courage to officially and severely criticize in quite strict words the odious conduct of other Judges (while appreciating the one who dissented) who observed and held the NJAC as unconstitutional being violative to the basic structure of the Constitution of India, and holding the collegium as constitutional, legal and perfect, ignoring the fact deliberately and for obvious reason that it (the word “collegium”) does not find any place in the Constitution nor is there any such example in any other country of the world where the judges are appointed by the judges? In fact, by an ordinance, the Government should transfer all administrative and other responsibilities of its executive branch also to the judiciary, as the judiciary has already encroached the area of the legislative branch and has started legislating the law under the pretext of interpretation which is apparent in many cases, otherwise there cannot be any good reason for rendering conflicting and bad decisions almost every day in the matters having similar backgrounds. So far as independence of the judiciary is concerned, there cannot be any disagreement that the judiciary is already independent enough which has severely corroded the minds of many of its members tremendously to conduct arbitrary and in unbridled manner. The “Lords” were not the “Lords” in past, not they remain “Lords” forever, still conduct usually in “Lordly Manner” and have rendered thousands of conflicting dicisions on so-called “contempt” which has caused a great confusion amongst the people and even in the top minds of the country, and except judges no one else could understand till date as to what really constitutes “contempt” – whether causing obstruction in the administration of justice and shaking people’s faith in the institution (which has rotten itself), or criticizing a tainted element of the judiciary? And the poor and unfortunate people are helplessly bearing all heavy losses and mutely watching the mockery as there is absolutely no control of the Government over it. However, the issues are very much important to ponder upon and consider by the Government on top priority basis, as it would really be ridiculous to seek such reformation by the judiciary itself, as it has rightly been expressed by the author that “Indians have been governed by colonial laws and justice delivery with hardly any changes in the working of courts and the attitude of presiding officers in all these years”. The real development of any country only dependes on legislating the strong, effective and deterrent law; proper enforcement of the law and order; and especially by ensuring the impartial judiciary manned by persons of sterling quality and character, as have rightly been expressed by the SC in SCAORA vs. Union of India, as referred.