Judicial Reform – Perspectives and Prescriptions
Abstract: This article describes the Indian justice system, which is denial of justice by delay. Justice is beyond the reach of most people. The costs are prohibitive. Those in authority and those who have access to justice are insensitive to the needs of those who are denied even minimal justice. The legacy system is to be replaced. It is simple to achieve the objective of justice for all. The Indian Constitution calls for “Justice – social, economic and political”, as the first and foremost purpose of the Indian Constitution. Changes in administration of justice would partly achieve social justice. People must struggle for economic and political justice simultaneously.
Problems of Indian Justice system
There is no justice as understood conventionally in most parts of the world. Several millions of cases are pending for decades. Cases take ten to fifteen years. The poor have no access to justice at all. Police are known for brutality and insensitivity. Rape victims are ridiculed. Simple remedies are possible. However, those who could change things seem to have a vested interest in continuing the state of affairs. Many legislators have criminal cases pending against them. The law-makers break laws. Corruption in judiciary has been reported. A former chief justice of the Supreme Court has been accused of amassing wealth. An advocate has stated that eight of sixteen Supreme Court judges of a certain period were corrupt. The delays in Consumer Redressal Forums, is a matter for serious concern. They are to dispose cases in 90 days. The average time for cases is several years. Corruption could be a cause for delays.
The system of selection of people for judicial services and appointments to higher judiciary need changes. Police reforms are essential. In spite of Supreme Court directions, states have not implemented this. They will not. Politicians would never cede control of their instruments of manipulation. Politicians across party lines, except for a BJP and CPI (M), were against bringing CBI under Lokpal. Police should be divided into two; one for law and order and the other for criminal investigation and prosecution. The first – for law and order - could be under executive control. The second – for criminal investigation and prosecution – should be under independent control of a Constitutional Authority.
Trials could be speeded up with some simple measures. Firstly, sufficient funds should be allocated to increase the number of courts. The budget allocation for the Law Ministry for dispensing justice should be a substantial proportion of the annual budget. Courts should be modernised with facilities and methods to keep records. All records could be digitized, with hard copies filed in folders designed to prevent damage.
Selection to judicial and police services could include psychometrics to ensure that persons with right aptitude are inducted. Performance of judges and police officers, in terms of quantity and quality of output should be monitored using appropriate measures. The performance assessment using such measures carried out by superiors could be made available to public. Promotions in both judicial and police services should based on such performance. Every judge should be provided with law-qualified office staff to study cases and provide briefs to assist them.
Selection to higher judiciary should be transparent. Political and other biases in such selection should be eliminated. This could be done by changing the membership of the selection collegiums, laying down criteria and holding public hearings, as is done by the US Congress. The appointment of public prosecutors and government advocates should follow similar processes and not be political appointments, as is the case now, of senior law officers of the government.
Enormous time of lower courts, nearly half the day is wasted in what is termed, “Call work”. This is the practice of listing over a hundred cases each day, calling out the cases, taking applications and giving preliminary orders. Such work should be assigned to separate judicial officers. They should have guidelines for disposing the applications. Information technology could be used effectively to ensure that cases are not delayed by unscrupulous methods in giving dates. Dates for hearings are usually given by court clerks. Judges do monitor this, but the system has many pitfalls. Delaying tactics should be curbed. Trial courts should hear a few cases in a day and be able to decide in a few days time, depending on complexity. Judges should be constantly provided refresher courses to keep themselves abreast of developments in jurisprudence.
Advocates have to rush from one court to another across the cities and towns. Computerised scheduling of cases and use of communication alerts could prevent this and aid advocates to reach courts in time.
Where the poor and illiterate are unable to afford advocates and court fees, they should be provided special assistance. Legal aid should be much more than it is today and wide publicity to should be given to availability of legal aid. The old, infirm, and differently abled should be provided with means to avail justice without having to travel long distances and stand for hours.
Police brutality during interrogations should be dealt with severity. All cases of brutality should lead to immediate arrest and criminal prosecution.
Once police is divided into two parts, with criminal investigation and prosecution separated from executive control, manipulation of police forces to accept politicians’ whims would become difficult. The non-service of over 20 NBWs to a minister is indicative of the need for such separation of police from executive control for criminal investigation.
Need for public pressure
One cannot hope that politicians and bureaucrats would do anything to change the system of justice. Only intense and continuous public pressure will. All stakeholders with a passion for ensuring justice, among judiciary, politicians, bureaucrats, media, lawyers and most importantly among the people must campaign for what is their right, Justice – social, economic and political.