Professional Documents
Culture Documents
1
Existing Justice Delivery System In India
Historical Overview:
“Judicial Reforms” is a theme, which is so much of talked about but too little has been done.
HISTORY:
Indian Judicial System has a long history right from the pre‐British days. In the 18th century a uniform
pattern of judiciary emerged and during the British regime High Courts were established in presidency
towns. Thereafter, in 1937, the Federal Court was established to hear the appeals from the High Courts.
Because of complexities of personal laws of Muslims and Hindus and various customs & practices, there
were initial difficulties in administration of justice. After independence, the government focused on to
have a systematic judicial system throughout the country and many new subordinate courts were
established in various parts of the country.
Today there is a network of over 14 thousand courts all over India and these courts are dealing with 4
crores of cases. Out of 14 thousand judges, the working strength would be about 12,500 judges and
nearly 4 thousand cases are being handled per‐Judge. This is too high as compared to the average load
per‐Judge in other countries.
Indian Judicial System
The Supreme Court is the apex court in the country. The Supreme Court’s exclusive original jurisdiction
extends to all disputes between the Union and one or more states or between two or more states.
The Constitution gives an extensive original jurisdiction to the Supreme Court to enforce fundamental
Rights.
The Supreme Court consists of a chief justice and 25 other justices, all appointed by the President on the
advice of the Prime Minister.
The High Court stands at the head of
the state's judicial administration.
There are 21 High Courts in the
country.
The Chief Justice of a High Court is
appointed by the President in consultation with the Chief Justice of India and the Governor of the state.
Each state is divided into judicial districts presided over by a district and sessions judge, who is the
highest juridical authority in a district.
Below him, there are courts of civil jurisdiction, known in different states as munsifs, sub‐judges, civil
judges and the like.
Similarly, criminal judiciary comprises Chief Judicial Magistrate and Judicial Magistrates of first and
second class.
Also, there are voluntary agencies, Lok Adalats for resolution of disputes through conciliatory method.
The constitution through its articles relating to the judicial system provides a way to question the laws of
the government, if the common man finds the laws as unsuitable for any community in India.
Effectiveness of the Legal and the Judicial Systems
Former Indian Prime Minister, Atal Behari Vajpayee, had lamented that the inability of India’s
judicial system to deliver speedy justice had itself become the source of much injustice. Judicial
action must be fast and effective. Rules for judicial proceedings should make the disposal of
cases time‐bound. Frequent adjournments should not be permitted and the performance of
judicial officers should be judged on the basis of the perspicacity of their judgments and
efficiency in their working. Govern¬ment investigative agencies should be taken to task for
dilatory procedures and as far as possible, computerization of cases and records and other
modern management techniques should be introduced in the judicial system. Besides,
continuous and vigorous inspection should be undertaken of High Courts by the Supreme Court
and of the lower courts by the High Courts. A concurrent administrative audit of judicial
institutions can help in enhancing their effectiveness.
Criminal justice system can be considered effective redressal mechanism only if criminal case are
disposed of quickly. Presently, in the Indian courts, including the special courts for hearing anti‐
corruption cases, the quantum of pendency is high. It might be a rational step to introduce shift
system in the courts. In the second shift, retired judges and judicial officers whose reputation is
high, may be appointed on a contractual basis. The performance of special courts that have been
constituted under the provisions of the Prevention of Corruption Act of 1988 should also be
reviewed with a view to make these institutions more efficient and effective. These could be
made real fast track courts. An alternative judicial system in the form of administrative tribunals
could also be strengthened.
MENACES In JUDICIARY AND LEGAL SYSTEM WITH THEIR SOLUTIONS
First, there is the natural conclusion that the number of judges and courts needs to be
increased. At a Chief Justices’ conference in 2004, a committee was constituted to get a fix on the
recommended judge/case ratio and a figure of 500 to 600 was suggested for district and subordinate
courts. Working with the pendency figures, this translates into an additional 35,000 courts or so,
depending on how one derives the number. The total number of courts right now is 12,148. Alternatively,
one can work with the judge/population ratio. In its 120th report (1987), the Law Commission stated that
the number of judges per million population should increase from 10.5 to 50. That figure of 10.5 is often
quoted, but is somewhat suspect. On 31 December 2007, the sanctioned strength in district and
subordinate courts was 15,917. Because of a large number of vacancies (with large numbers in Uttar
Pradesh, Andhra, Maharashtra, West Bengal and Andaman & Nicobar Islands, Gujarat, Karnataka,
Madhya Pradesh, Bihar and Uttarakhand), the working strength was only 12,549. However, even if one
works with the sanctioned strength, the judge/million population ratio is a shade lower than seven, not
10.5. If the 50 target is accepted, this works out to an additional 98,000 judges.
Second, this raises the issue of financial autonomy for the judiciary. The point about planning and
budgetary exercises being undertaken without consulting the judiciary is a valid one, though since 1993,
the expenditure on judicial administration has become a Plan subject. Since 1993, there has also been a
centrally ‐sponsored scheme for improvement of infrastructure. Fifty percent of the expenditure is met
by the centre and there has to be a 50 percent matching grant from states. These funds are made
available by the Planning Commission. It is a separate matter that many state governments have been
reluctant to provide the matching grants. The National Commission set up to review the Constitution also
flagged paucity of funds, both through the Planning Commission and the Finance Commission, and
recommended planning and budgetary exercises through a national and state‐level Judicial Councils.
However, accepting that there is a financial problem is one thing. Arguing that there should be complete
financial autonomy is another. Without firm evidence that the judiciary has sought to reduce pendency,
the argument for financial autonomy will have few takers. For instance, the judicial appointment and
promotion process is de facto in the hands of the judiciary. What then explains the high vacancy rates?
Alternatively, one can quibble about the precise indicator used to measure judicial productivity, but why
is the judiciary reluctant to accept disposal targets?
Third, there are procedural improvements required. While the Code of Civil Procedure was
amended in 2001 and 2002, there is still scope for improving orders issued under the code for issues like
written statements, costs, examination of parties, framing of issues, evidence on affidavits and ex‐parte
injunctions. Since two‐thirds of the backlog consists of criminal cases, amendments to the Code of
Criminal Procedure and the Indian Evidence Act are long overdue. Consequently, there are problems with
lack of pre‐ trial hearings, service of summons, delays in supplying copies to the accused, exempting the
accused from personal appearances, delays in framing charges, repeated adjournments, non‐availability
of witnesses and compounding, not to speak of lack of public prosecutors and problems with the police.
But it is necessary to mention that the average conviction rate isn’t 6 percent, as is commonly believed to
be the case.
Fourth, while the three points made above are generic, there is a case for focusing on certain
types of cases. For instance, the government litigation policy for civil cases crowds out citizens from using
the court system, though Section 80 of the Code of Civil Procedure allows for out‐of‐court settlements.
That apart, specific focus on the Negotiable Instruments Act, Motor Accidents Claims Tribunal cases,
petty cases, old cases and cases related to excise is possible.
Fifth, generic improvements require large sums of money. Experiments like Lok Adalats, fast
track courts, Family Courts, mobile courts, Nyaya Panchayats, Gram Nyayalayas, People’s Courts and
Women’s Courts can accordingly be perceived as driven by the motive of getting a bigger bang for the
buck. This has been described as load shedding and a hollowing out of the Indian State. That may
amount to stating it a bit too strongly. However, there is no getting away from the fundamental
constraints with the justice delivery system, with these solutions being no more than add‐ons and quick
fixes.
The High Court problem is in Allahabad (criminal and civil), Madras (criminal and civil), Bombay
(civil), Calcutta (civil), Patna (criminal), Punjab & Haryana (civil), Rajasthan (criminal and civil), Delhi
(criminal and civil), Jharkhand (criminal), Madhya Pradesh (criminal) and Orissa (civil). The Lower Court
problem is in Tamil Nadu (civil and criminal), Uttar Pradesh (civil and criminal), Rajasthan (civil and
criminal), Punjab (civil), Haryana (civil), Orissa (criminal), West Bengal (criminal), Kerala (civil), Bihar (civil
and criminal), Gujarat (civil), Delhi (criminal) and Maharashtra (criminal). To recapitulate from Section 3,
the Lok Adalat success has been in Bihar, Gujarat, Haryana, Jammu & Kashmir, Jharkhand, Karnataka,
Madhya Pradesh, Maharashtra, Orissa, Punjab, Rajasthan and Uttar Pradesh. The Fast Track Courts
success has been in Andhra Pradesh, Gujarat, Maharashtra, Tamil Nadu and Uttar Pradesh. The Family
Court success has been most evident in Kerala, Maharashtra and Uttar Pradesh. This raises a very simple
point. With or without Finance Commission funds, reforms require a buy‐in from states. Clearly, different
States have different priorities. Why should there be a central scheme that is uniform and standard for all
states? Why should States not be asked to determine what they would like to focus on? For instance,
Bihar might want to build on the Lok Adalat success, while Kerala might want to build on the Family Court
success.
Current Scenario, Path and the Pace required for Judicial Reforms:
We want long‐term reforms on various aspects.
We should have
(i) legislative reform to remove the bottlenecks that are adversely affecting the adjudication;
(ii) Strengthening of the Bar;
(iii) Strengthening of legal education;
(iv) Legislative reform to strengthen the powers of judges to control judicial processes to ensure
just and efficient outcomes in line with international reforms in this direction
(v) Satisfactory framework for judicial accountability.
If the decision making authorities take firm, independent and impartial decisions, the citizens would not
normally be driven to litigations. Lack of proper and good governance largely contributes to the number
of cases in subordinate courts.
The poorr budgetary support to the
t judiciary has been alluded
a to ass one of thee reasons fo
or non‐
implemen
ntation of jud he 10th Plan (2002‐
dicial reformss. Rs.700 crore allocated to the judiciary during th
2007) con
nstituted 0.07
78 percent off the total plaan outlay of R
Rs. 8,93,183 ccrore. Duringg the Ninth Pllan the
allocation
n was even le
ess, only 0.07
71percent. Itt has been ob
bserved that such meagerr allocations aare too
inadequatte to meet th
he requiremeents of the jud
diciary. It is ssaid that Indiia spends justt 0.2 percentt of the
gross natiional productt on judiciary. According to the first Naational Judiciaal Pay Commiission, all stattes but
one have been providing less than
n 1% of theiir respective budgets forr subordinate
e judiciary which
w is
afflicted w
with huge pen
ndency.
Other major factors include neglect in improving judicial infrrastructure ovver the past d
decades, inorrdinate
delays in filling up vaccancies of jud
dges and verry low population‐to‐judgge ratio that require imm
mediate
attention to improve the performan
nce of judiciary.
The 120th
h Law Commission Reportt had pointed dia’s populattion‐to‐judge ratio is one of the
d out that Ind
lowest in the world w
with only 10 judges for evvery million of its populaation as comp
pared to abo
out 150
judges fo
or the same number in the United States and Britain. Acco
ording to the ’All India Judges’
J
Associatio
on’, the Supre
eme Court haad directed th nt to increasee the judge sttrength to 50 judges
he governmen
per 10 lakkh population nner, which haas mot been ffulfilled so far.
n by 2007 in a phased man
Even for ffilling up of vaacancies of approved strength of judgees much need
ds to be donee. It is observeed that
25 percent of the judge positions remain vacant due to
proceduraal delays. Thee sanctioned strength of judges of the
High Courts was 886 and working strength waas 608 as on
6th Januarry 2009 leavving 278 vaacancies. Sim
milarly, with
11,767 working strenggth of Subord
dinate Judgess there were
2710 vacaancies on March 1, 2007.
For decad een crying for reforms as
des judicial syystem has be
the cheaap and spee
edy justice has
h been byy and large
elusive. TThere is a huge pendencyy of over 2.5 crore cases despite meassures to redu
uce it. Expertts have
d fears that there has beeen a loss of public confidence in the judiciary, and aan increasingg resort
expressed
to lawlesssness and vio o settle disputes. They fee
olent crime to el that public confidence in
n the judiciarry must
ed immediateely, in order to arrest and reverse this n
be restore negative trend.
Analysis d he raw data available fro
done from th om the Suprem
me Court pub
blished literature (Year 20
008‐09)
revea
als that the
ngth of the judges
stren
at Su
upreme Cou
urt and
other subsidiariees does
not ccommensuratte with
the requirrement of insstitutional ca
ases. Over thee period of tim
me the trend reveals that the vacanciees have
almost reemained stagnated with
h the huge in t number of cases in the court, th
increase in the hereby
preventin
ng early dispo
osal of the insstitutional ca
ases.
The graph
h highlights th
he working sttrength and tthe sanction sstrength of ju
udges in the SSupreme Cou
urt. The
interesting point is th
hat the vacaancies have remained
r staagnated overr the period of time while the
institution
nal cases conttinued to rise
e resulting in overall pendeency.
However, there have been measures in recent years to improve functioning of courts. For application of
information and communication technology (ICT) to the justice delivery system for better management,
a Scheme for computerizing all the district and subordinate courts across the country and for upgrading
the ICT infrastructure of Supreme Court and High Courts was approved by the central government in
February 2007 to be completed in two years at cost of Rs.442. Under the project 13,365 laptops have
been provided to Judicial Officers, laser printers to about 12,600 judicial officers and eleven thousand
judicial officers and 44 thousand court staff have been given training in the use of ICT tools so far. 489
district court and 896 taluka court complexes have been provided with broadband Internet connectivity.
Meanwhile, the disposal of cases can be increased by greater use of the existing infrastructure with
courts having more than one shift. Gujarat is one of the states where evening courts are functioning with
appreciable results.
Fast Track Courts (FTC) have been recommended by 11th Finance Commission. The same have been
recommended in the situation in respect of land acquisition cases. The amount awarded by the land
acquisition officer has never been reasonable or proper. The parties are driven to litigation in large
number of cases. At the district level, if there is a District‐wise High Power Committee to fix the
compensation at reasonably good amount, most of the claimants may accept it and only very few would
resort to file land acquisition cases for enhancement.
As regards criminal cases, there are other contributory factors which cause large pendency of cases. In
some of the cases, the investigation is tardy and inefficient and takes long time to file the final report. We
do not have enough scientific laboratories and many a time the report of the forensic laboratory is
delayed inordinately. Inept policing and weak prosecution are hugely responsible for slowing down and
protracting the criminal trial in many courts.
Our Opinion / Proposal for Reforms Required:
The judicial system in India faces two diverse problems
• Slow disposal of cases leading to delays as well as accumulation of backlog
• Very low rate of prosecution in criminal cases.
The challenge of judicial reforms is to ensure that quick justice does not become a quicksand of barbaric
practices, while at the same time expediting the judicial process as well as ensuring that the percentage
of guilty escaping punishment is reduced considerably.
The issues suggested below are not exhaustive but it is hoped that a national consensus on these issues
followed by appropriate actions will go a long way in ensuring that the judiciary and thereby democracy
in India gets strengthened. After doing the research and discussion among the group we propose the
following actions:
A. Simplification of Rules and Procedures
Most Rules and Procedures in India have their roots in a colonial background when rules
were made by the "superior" race for the "natives". The key design consideration is, generally,
the convenience of the bureaucratic machinery rather than the common man. It is essential to
bring about a paradigm change in this mind‐set and carry out a re‐engineering of the complete
set of rules and procedures.
B. Judge Population Ratio
The number of judges per 100,000 people in India is very low as compared to most
developed countries and also in comparison to some developing countries. It needs to be
discussed whether there should be a statutory provision prescribing a minimum ratio or a
consensus may be evolved to work towards realizable time‐bound targets in this regard. It may
also be examined if some system of Honorary Judges who are not full time judges can be worked
out for some class of cases.
C. Time‐bound Filling of Vacant Posts in Judiciary
Judicial appointments and promotions need to be streamlined to ensure that posts do
not remain vacant for any length of time. Appropriate institutional structure may need to be
created that will estimate the posts likely to fall vacant in future and take the necessary steps in
anticipation. The role of High Courts, Supreme Court and Administration may need to be
redefined to make the process transparent, fair, smooth and fast.
D. Appointment, Promotion and Transfer of Judges
A judiciary is just about as good as the people who man it. Ensuring high quality of judicial
officers and judges is critical for a high quality judicial system. Getting the best talent and
maintaining high level of motivation is possible if and only if the system is fair and transparent in
all matters that concern the person who is a part of it. Appointment, promotion and transfer are,
hence, critical to build a high quality judicial system. Working out a fair and transparent system in
all such matters must, therefore, receive high priority.
E. Judicial Accountability
It is ironic that a judge can order for a man to be hanged or to be imprisoned for the best
part of his life and a few years later some higher court can set aside the order of the lower court,
without any system of punishing the lower court judge for a bad order. Every other pillar of
democratic governance is subject to some system of ensuring accountability and checks and
balances. Judiciary has neither a system of rewards nor a system of punishments. It is necessary
to discuss whether attempts to improve the quality of judicial system should include some
mechanism of rewards and punishments for judicial officers and judges monitored and operated
either by an internal institution or by an external body.
F. Transparency of Court Proceedings
Indian courts do not allow electronic media presence during court proceedings, while in
many other countries trials are extensively covered by media leading to active interest of the
common man in the judicial proceedings. It is necessary to discuss whether the judiciary and
justice will gain by more transparency.
G. Faster and Speedy Cases Resolutions
The rate of resolving the cases need to improved at much faster rate. We feel that each
court to ensure that no more than 5% of the cases in that court should be more than 5 years old
(5x5 rule) within the next three years; and in 5 years to ensure that no more than 1% of the cases
should be more than 1 years old (1x1 rule).
H. More Focus on the use of IT for faster disposal of cases and improvements
Indian courts do not allow electronic media presence during court proceedings, while in many other
countries trials are extensively covered by media leading to active interest of the common man in the
judicial proceedings. It is necessary to discuss whether the judiciary and justice will gain by more
transparency. Bottlenecks causing delays in civil and criminal process to be monitored through a
computerized system and special attention to be provided through a special cell at the High Court and
District level to resolve issues in coordination with Executive Agencies: (a) Service of process; (b)
Adjournments; (c) Interlocutory Orders; and (d) Appearance of witnesses and accused.