Justice delayed is denied.
The pendency of cases have already reached nearly 4 crores which is very high. The COVID 19 pandemic made the existing pendency worse. For India to become a “Vishwa Guru” judiciary must be fixed.
In this article we will discuss the reforms that should be undertaken to make Indian Judiciary a lean, thin and efficient organization.
We need “core” and “structural” reforms.
What is the core problem plaguing judiciary? Summarizing in 1 simple sentence
“The 3 wings of government (Legislature, Executive and Judiciary) are in a perpetual power struggle to dominate and no branch believes in distribution of power. “
Lets understand how?
- The Executive wants to keep Judiciary under its control. It has made numerous attempts to take over the power to appoint judges. Even now, Govt. sits on the recommendations of SC for judges’ appointment. IT uses this delaying technique as a method to control the judiciary.
- The concept of tribunals were introduced in 42nd Amendment of Constitution. The Central and State Govt appoint the judges of the tribunal, this undermines the principle of “separation of powers”. A big number of cases are adjudicated by these tribunals.
- The Supreme Court on the hand doesn’t want to be accountable to anyone. Though NJAC amendment had flaws, the SC struck down the entire amendment.
- Judges appoint themselves. The judges of SC and HC are appointed by 5 senior most SC judges.
- Many laws are passed through ordinance route there by making the Parliament a notice board and having ceremonial powers to approve it.
What should be the ideal scenario?
- SC should be made accountable to will of people i.e. the Legislature.
- SC should be put in charge of the entire judiciary and its powers should be increased.
- Executive should have just ceremonial say in matters of Judiciary.
How to achieve this? The following are my suggestions which I will try to explain one by one.
- Have a system like https://kreately.in/appointment-to-key-constitutional-positions/
- Reform the tribunals.
- Strengthen the lower judiciary.
- Make upper judiciary work smart instead of work hard.
- Introduce newer form of punishments.
- Govt. should play a more responsible role.
- Alternate dispute resolution mechanisms
First, National Appointment Council (NAC):
- We should have a system as explained in https://kreately.in/appointment-to-key-constitutional-positions/. Having a NAC appoint the SC judges, SC Collegium members and Chief Justice of India will ensure that capable people go to the top (instead of senior judges as it happens today). For e.g., the CJI or a Collegium member needs to have excellent administrative and managerial abilities. Seniority doesn’t guarantee that.
- Having SC/HC Collegium as a constitutional body will make them more accountable.
- Making the SC and HC appoint judges without Executive intervention will reduce the vacancies and guarantee Judiciary’s independence.
- This will ensure that meritocracy will prevail in the entire pyramid of judiciary.
- NAC will appoint CJI, SC Collegium and SC judges. SC Collegium will appoint CJ of High Court, HC Collegium and HC judges. HC Collegium will appoint the lower judiciary. This will build the judiciary on lines of having a corporate management pyramid. The problem today is: SC Collegium and CJI is accountable to none. The progression to CJI and Collegium is organic, rather it should be based on merit.
- Having a specified timeline will ensure that Executive can’t sit long for accepting the recommendations and vacancies will get filled up in time.
- NAC in this case by controlling the SC appointments will bring those judges to SC, appoint CJI and Collegium members who can make the judiciary better.
Second, Reform the tribunals:
- In many cases that end up in tribunals Govt is a party and Govt. itself appoints the judges (sounds funny, isn’t it???). What I mean by reform of tribunals is “minimize and ultimately eliminate Govt’s role in matters of appointment of tribunal judges/members”. How?
- Form a National Tribunal Commission (NTC) consisting of a chairperson and other members enjoying the level of immunity as a supreme court judge for a period of 6 years. They will be appointed by president on recommendation of NAC.
- Need to make changes in articles 323B of Constitution which will specify that all members of the tribunals will be appointed on the recommendation of NTC. The “appropriate govt” may request to reconsider the recommendation, but has to accept it.
- Repeal 323A which empowers the Parliament to establish Administrative Tribunals. Ideally, both Parliament and State Legislatures should have rights to establish Administrative Tribunals.
- Repeal 323B(3).d which gives power to legislatures to exclude the jurisdiction of all courts (except SC) from tribunal matters. We need to have an unified Judiciary(not a parallel judiciary) and the head of Judiciary(SC) should be controlled by the will of the people (i.e. NAC appointed by Parliament by 2/3rd majority).
- Govt has taken steps to reform tribunals by having a “tribunal search committee” comprising of Judges from SC and members from executive. Though a welcome step, I feel Govt should further reduce its powers in matters of appointment in tribunals. Hence amendment in constitution as said in the above point is needed.
- No appeal from any tribunal would go to SC. IT should go to HC (or may be DC) as shall be specified in law.
- Appropriate Legislature may be law mandate the HC to have dedicated judges for hearing appeals from tribunals, and judiciary must follow it.
Third, strengthen lower judiciary instead of higher judiciary(why?):
- Every time I hear the discussions, people speak about filling vacancies in High Courts and Supreme Courts. No one talks about lower judiciary. You must have troops at border to defend and weaken the enemy in the very first go instead of waiting for them to reach the capital. Hence, it is important to have a well staffed lower judiciary. Filling vacancies in the lower judiciary is more important to prevent cases tricking up to higher judiciary.
- I feel, the strength in upper judiciary good enough, they need to work smart instead of work hard. Will explain why, later.
- We currently have 3 tiers of judiciary “District Courts (DC), High Courts (HC) and Supreme Court (SC)”. I would suggest to have a fourth tier below the DC which I will call Magistrate and Munsiff Court (MMC).
- MMCs should be organized on lines of “Gram Nyayalays”. If MMCs are established, then Gram Nyayalays are not needed and Gram Nyayalays can be converted to MMCs. These should be located as Rurban areas as the State Govt may decide, and in such number the state govt may decide.
- The MMCs should be given more power. The Gram Nyalalyas have the powers of a judicial Magistrate First Class. I would suggest that the MMC should have powers of a Chief Judicial Magistrate and can hear civil disputes of much higher values. This will ensure that most of the cases will first start from MMCs.
- DC will hear appeals form MMC and hear big offenses like say Rape, Murder, Kidnapping, terrorism etc.
- Empower DC to hear some certain PILs having cause of action in the district. This will lower the burden on SC and HC who exclusively hear PILs.
- Using powers of article 32(3) of Indian constitution empower DC to hear some (if not all) writ petitions say for e.g. “habeas corpus” or others selectively. This will also reduce writ burden from HC and SC.
- Give more importance in filling up positions of lower judiciary first instead of upper judiciary.
- Have separate and dedicated judges in the areas where cases are high (like traffic cases or cheque bounce cases).
- In case of traffic violation cases give some judicial power to the Senior Police Officers to settle the matter with appeal to DC.
Fourth, Make upper judiciary work smart instead of work hard:
- For any organization whether a company or army, it is important for it to lean and thin. Ask any seasoned manager, (s)he will never say that a big team is more efficient. If the team becomes big, managing it takes time and reduces productivity. It is important it have the right sized team.
- The secret of reducing the pendency of cases lies in making lower judiciary strong, the upper judiciary is already strong enough.
- Lets come to SC. SC should hear cases which are of national importance i.e. disputes between states and center, places where a wider interpretation of law is needed, and constitutional matters. And also listen to appeals on death penalty. Why does SC hear bail pleas? Does US SC hear grant bails? The bar for a case entering SC should be kept very high. In nutshell, SC should hear far less number of cases than it is hearing now, but the most important (or impactful) ones. USA SC hears just 80 cases a year.
- SC accepting appeals liberally and changing the HC judgements undermines SC’s trust in the lower judiciary, which is harmful for entire judiciary.
- SC should ensure that the courts lower to it are made responsible instead of itself assuming responsibility.
- Strike hard on motivated PILs. Along with imposing cost, prohibit such persons from filing PILs for a certain period (say 1-2-3 years or so).
- Use review petitions in rarest cases. IF the case is heard well enough what is the need to review petitions(ideally)?
- Abolish Curative petitions.
- Make majority of writ petitions start from HC under Article 226 of Constitution instead of SC.
- Also make writ petitions be filed from DC by using powers of 32(3) of Constitution.
- Remove all original jurisdictions of all HCs excepting in matters of writ/PIL etc.
- In nutshell, empower Tribunals, DC and MMC so that most of the cases don’t reach HC and are settled at the lowest level.
- Use powers of Articles 128 and 224A of Constitution which enables SC and HC to use the services of retired judges. I see many retired HC and SC judges fit and healthy, but their services are not used and SC/HC keep blaming the Govt for not filling up the vacancies.
- Eliminate the culture of infinite stay. Stay orders should have a time limit.
- In general, making the process of appeal “bit” more tougher that it is today.
- Higher Judiciary should trust the lower judiciary, then only it will become more trust worthy.
Fifth, Introduce newer form of punishments
- Add community service as a punishment instead of sending people to jails. Such a system will declutter our jails. The IPC prescribes jail sentence for every offense. For e.g. minor sexual offenses, brawls should be punished with community service. Say for passing lewd comment on girls, IPC prescribes a jail term for the boy, the ideal punishment for such an offense should be cleaning the girls’ hostel’s toilet or washing the utensils of the girls’ hostel. Such punishments will act as a big deterrent. For this changes in IPC is needed.
- Similarly for fraud (IPC 420 etc.), provisions should be made for heavy fines which will deter people for committing the same offense again. Hit the offenders where it hurts.
- Make changes in IPC and CrPC to specify newer form of punishments. Say for a student committing offense, deducting his marks or dropping a year, or for a minor financial fraud preventing issue of any credit card, debit card or suspending any bank amount for a certain period of time will be good punishments. Jailing people for every punishment is not the right thing.
- Say a Govt employee takes a small bribe, instead of dismissing and jailing him/her (as specified in Prevention of Corruption Act), reducing his salary by 50% for 5 years, freezing promotions or forfeiting gratuity will be a good deterrent. By this, the judiciary would also earn money for the Govt. Laws needs to be innovative and flexible in finding newer punishments. Jailing people for every crime results to overcrowding of jails which further results to many offenders going un-punished. It is okay if the jail term is awarded for huge embezzlement of funds, but trap cases should be punished in other ways.
- In nutshell, unless the offense is serious and really threatens the society at large (like say rape, murder, kidnapping, armed dacoity etc.), the person should not be sent to jail and be punished by other means (which (s)he will remember for life).
- Indian Penal Code views the jails as punishment centers. Rather they should be viewed as centers meant for isolating those people who pose a threat to society at large. And make an attempt to reform them (if possible).
- It hurts when people have to cough out money. Make fines (wherever possible) very high. Many sections of IPC and many laws specify financial fines. For any change in fine, the law needs to be amended. We see the fines in many cases are abysmally low as they have not been revised over years. Make a provision in IPC where in a law commission shall be constituted by President and Governor with not less gap of 5 years and will revise the financial fines only without going to legislature.
- Indian judiciary does the right thing by awarding death penalty for “rarest of rare” crimes. But death sentences are rarely executed. Hundreds of prisoners on death row are still waiting for gallows. I think, if the death row convict has exhausted all his/her legal options, (s)he should be hanged immediately. Ensuring that death sentences are carried out regularly will have an impact on hardcore criminals who are afraid “only of” of death. Changes in CrPC is needed here, which should specify strict timelines.
Sixth, What role Govt needs to play?
- Govt is the biggest litigant in India.
- Govt officials prefer go to court to keep themselves safe from any kind of future inquiry as why did not (s)he file a case.
- However, in order to ensure that Govt files the right cases only when needed, there should be dedicated department (let me call it Prosecution Department) who should take the decision. That department should decide if a Prosecutable case is possible or not. Only after getting a go ahead from the department, Govt should go to the court. The Central Govt and every State Govt should have such a system.
- Many of the civil cases are land disputes. These can be resolved by having schemes like land passport, proper demarcation and maintaining proper record rights etc.
- The recent initiatives like “Vivad se Bishwas” are welcome steps and should be continued and improved.
Seventh, emphasize more on alternate dispute resolution
- Institutionalize mediation. The Mediation Bill, 2021 which has been introduced in parliament is a welcome step.
- Give some amount of Judicial Powers to Sarpanch and Corporators so that mediate or act as judges in certain class of disputes which can be defined in the law.
Hence, Looking at all these, we need a concerted and structural effort to fix the judiciary and make it efficient.
Starting from Constitutional amendments at the top to changes in rules and procedure at the Tehsildar(or even clerical) level is the need of the hour.
DISCLAIMER: The author is solely responsible for the views expressed in this article. The author carries the responsibility for citing and/or licensing of images utilized within the text.