Speedy reforms crucial

Our judiciary is passing through a crucial phase and, unless prompt steps are taken to rectify the worsening situation, the danger is that the whole system might collapse and jeopardise the whole state of an orderly society. Law courts no longer inspire public confidence. Litigants get only increasingly distant dates for their next hearings, each time they approach them. Judgments, not justice, per se, come after endless wait which rarely ensures any sense of satisfaction or justice. The maxim, “justice delayed is justice denied,” too, seems to be inadequate to describe the prevailing scenario.  Pending cases are simply piling up and our judicial system is unable to dispose them of.

The Supreme Court has a backlog of 65,893 cases – the highest figure in a decade.  While the situation is no better in country’s 24 high courts where 45 lakh cases are awaiting disposal, the total number of such cases in the lower judiciary, which constitutes the base of our entire judicial pyramid, stands at 2.26 crore, to say the least. However, these figures do not include the cases pending in various tribunals and other quasi-judicial bodies which, if added to the grand total, would be far beyond the alarming figure of 3.2 crore.

The right to fair and speedy trial holds little promise to the aggrieved who approach courts as a last resort for relief.  Invoking the law seems to mean only wasted years, heavy financial burden, besides emotional and physical trauma.  Prolonged delays also mean high rate of acquittals in criminal cases. Unable to get justice from courts, victims often take the law in their hands to settle scores with culprits.

Besides aggravating the problem of law and order, it has encouraged kangaroo courts in the form of khap panchayats or the lynch mobs in many parts of the country, which mete out rough and ready justice at the spot. The painfully slow justice delivery system also leads to corruption and lack of investment in vital economic spheres.

Inadequate judge strength is the main factor behind the delay and the resultant backlog. In proportion to its population, India has the lowest number of judges among the major democracies of the world - 13.10 judges per million people  against Australia (58 per m), the UK (100), USA (130), China (170) and Germany (250). In 2002, the SC had directed the Centre to raise the judge population ratio to 50 per million in a phased manner. This, in fact, was recommended by the Law Commission in its 120th report long back, but without any effect.

Existing judge strength further shrinks when judicial vacancies are not promptly filled. For instance, the SC has only 27 judges now including the CJI against the sanctioned strength of 31. The vacancy level in country’s 24 high courts, if put together, is 30 per cent with 280 posts of judges, against the sanctioned strength of 908 judges, lying vacant. There are 3170 vacancies in district courts, though the sanctioned strength of district judges has gone up to 17,151, according to the SC report on vacancies and pending cases.

The power of appointment to top judicial posts is vested in a collegium of senior judges with the executive virtually playing second fiddle. Apart from being opaque, the system has simply failed to deliver. It is not uncommon for higher courts to remain without their full strength for long. In any case, the existing selection process, unless replaced with the National Judicial Appointment Commission (NJAC), ought to be speeded up. Whenever a vacancy is expected to arise, steps should be initiated well in advance to fill it. In the case of resignation or death, the selection process should come into play without delay to ensure that the courts work with full strength.

Reforming colonial laws

It is imperative to simplify and reform the current procedural laws which provide ample scope to obstruct and stultify the legal process. Though of colonial antiquity and Kafkaesque obscurity and cumbersomeness, these laws have somehow survived despite their comicality in today’s eco-friendly and “paperwork unfriendly” times perhaps to ensure delays. After all, procedures are meant to help the law, not to defeat it.

Instead of arguing their cases endlessly, it would be better if lawyers present their submissions in writing to the judge so that cases can be decided on merit on the basis of documents and written submissions filed by both the parties before the judge without the fanfare of formal court sessions. There is less risk of miscarriage of justice in this process. This practice, followed in the US Supreme Court, can be easily adopted in Indian courts.  Constitutional and corporate matters have little scope for court-room histrionics.

Judges also ought to exercise restraint against the temptation of writing lengthy judgments running into several hundred pages incorporating their social, political, economic and philosophical beliefs. The judge’s time is most precious and should not be wasted in expounding one’s personal ideologies.  They are required to be more crisp and precise in their judgments. Judges should deliver judgments as early as possible instead of keeping them reserved for long durations.

The legal strategy for modern India should aim at conciliation and not confrontation in keeping with our tradition of tolerance and mutual accommodation. A judge should not merely sit like an umpire but participate in the efforts to iron out differences and encourage the parties to arrive at a settlement. This will help reduce the backlog of cases, avoid the multi-tier process and eventually lead to reconciliation of legal disputes without causing much enmity and bitterness.

(The writer is advocate, Supreme Court)