Judicial Reform in Justice-Delivery System
by Justice S.B. Sinha*
Cite as : (2004) 4 SCC (Jour) 35
The quest for justice has been an ideal which mankind has been aspiring for generations down the line. Our Constitution reflects this aspiration in the preamble itself which speaks about justice in all its forms: social, economic and political. Justice is a constitutional mandate.
About half a century of the Constitution at work has tossed up many issues relating to the working of the judiciary; from the difficult problems of appointments to the superior judiciary to the problems of court clogging and judicial delays. A wide variety of issues have arisen. Who should appoint judges? Should they be judges judges or peoples judges? Should the composition of the judiciary reflect the pluralism of the society? Particularly disturbing has been the chronic and recurrent theme of a near collapse of the judicial trial system, its delays and mounting costs.
Here, the glorious uncertainties of the law frustrated the aspirations for an equal, predictable and affordable justice is also a question which crops up often in the mind of the people.
While engaging ourselves in the exercise of judicial reforms, we have to bear in mind that it has two equally important aspects, namely, quality justice and speedy justice. Our country needs marked improvements in respect of both.
International experience has clearly asserted that legal institutions play a significant and independent role in development. The World Bank in a recent paper using empirical evidence clearly showed a nexus between the performance of the legal system and the economic development of the country. Recognition and enforcement of various forms of contractual and property rights plays a crucial role in attracting investment (domestic and foreign) thereby leading to economic growth. An effective legal system is the base for a market economy.
We are a country of a billion people. The fundamental question is: How do we design and structure a legal system which can render justice to a billion people? The possibility of a justice-delivery mechanism in the Indian context and the impediments for dispensing justice in India is, thus, required to be examined.
I would like to address this topic at the structural and the operational level. At the structural level, one is challenging the very framework itself and examining the viability of the alternative frameworks for dispensing justice. It might require an amendment of the Constitution or the laws. At the operational level, one is working within the framework trying to identify various ways of improving the effectiveness of the legal system.
A preliminary observation is warranted before I proceed further.
Legal reform is a difficult process. There are several competing interests involved which must be reconciled. This was clear when certain initiatives in legal reform were taken in India over the last three years. Reform cannot be achieved overnight; it is long-drawn-out process. Passing new laws is just one stage of the whole process. International experience has shown that legal reform
requires careful preparation, meticulous planning, effective execution, elaborate coordination of public officials and disparate institutions, as well as the agreement or at least acquiescence of those directly affected by it. Success in carrying out legal reform requires considerable commitment and patience. But success is elusive as the process of legal reform often has unintended consequences and sometimes is blocked by unexpected events. There are, of course, many examples of successful reforms. Yet, their success is difficult to measure and evaluate. Regardless of how success is measured, the number of new laws drafted and enacted is not the sole criterion.1
The effectiveness of the justice-dispensation machinery ultimately depends upon the way we conceptualise justice. As the World Bank Report titled Comprehensive Legal and Judicial Development asserted:
The elements of a well-functioning justice system ultimately depend on the cultural context in which it operates justice is defined by the society which it serves.
Does our conceptualization of justice serve the Indian society? The colonial impact is evident in the way we define justice in the Indian context even till date. Have we been able to develop a concept of justice which is in consonance with the aspirations of makers of the Constitution as reflected in the preamble? Does our conception of justice suit the Indian reality? Should we replace it with an Indian concept of justice? This leads us to a larger question: Is there an Indian conception of justice?
These are uncomfortable questions, questions which may not yield ready answers, but questions which we must address if we have to design a justice system which serves our society.
It is here I would like to suggest certain structural changes:
A. Shift from a conflict resolution to justice dispensation
Indian courts are attuned to resolving conflicts between the parties based on the pleadings presented by them. The higher judiciary, particularly the Supreme Court, while exercising its jurisdiction has devised several instruments for dispensing justice. Several innovative legal approaches have been used which can serve as a catalyst for legal reform. This was evident in the creation and development of the PIL jurisdiction. Similarly, there needs to be a decentralisation of justice-oriented judicial activism right down to the lowest court in the country.
B. Justice for the poor: judicial enforcement of socio-economic rights
Any discussion on justice for a billion people will be incomplete without a reference to socio-economic rights. Although the Indian Constitution does endorse these rights in the form of Directive Principles of State Policy in Part IV of the Constitution, it does not provide any mechanism for their enforcement. They are more in the nature of programmatic indicators rather than justiciable rights. The Indian Supreme Court has made them partly enforceable by extending the language of Article 21 of the Constitution. As Justice Albert Sachs of the South African Constitutional Court felicitously put it:
The Supreme Court of India smuggled the rights from Part IV to Part III of the Constitution.
The core socio-economic rights must be clearly identified, which may progressively be expanded based on the changing needs of the community. An obligation must be imposed on the State to take all reasonable measures to enforce these rights. This obligation of the State can be made judicially enforceable. It will also serve as an immediately enforceable negative right. Regression should be constitutionally unacceptable.
For other socio-economic rights, the judiciary must be vested with the power to declare any act or omission of the State that is inconsistent with these rights as incompatible with the Constitution. Although, the Declaration of Incompatibility will not invalidate the impugned State action, it has to be tabled before the legislature. This Declaration can also act as a benchmark for a national and international review of performance of the State in enforcing socio-economic rights. This role elevates the Court from being a mere agent of justiciability to an active partner in implementing socio-economic rights. This form of judicial review is not without precedent. The Human Rights Act, 1998 passed by Parliament in Britain uses the instrument of Declaration of Incompatibility to grant a limited form of judicial review over legislative action to the courts.
We may at this juncture notice that in the United Kingdom where there is no written constitution, according to Christopher Forsyth and Mark Elliott, the doctrine of modified ultra vires would apply in terms whereof the courts, having regard to the doctrine of good administration (as an aspect of rule of law) with the aid of common law principles can interpret a statute ultra vires keeping in view the scheme of the Act.2 Some other authors, however, dispute this doctrine and advocate the doctrine of sovereignty of Parliament.3
The aforesaid approach makes a distinction between the core and other socio-economic rights. The core rights represent the basic entitlements of every citizen which cannot be left to the ordinary political processes. In respect of the other socio-economic rights, they are dependent on the democratic prerogatives and therefore the traditional scheme of judicial review has to be modified. I believe the aforesaid strategy will ensure that socio-economic rights are not mere constitutional ropes of sand, but also concrete constitutional commitments.
At the operational level, one is working within the framework with the objective of fine tuning it so that it can achieve its objective. At this level we have to look at several factors which affect the efficiency and the effectiveness of the justice-dispensation machinery. Operational reforms can be carried out by internal efforts and also through external inputs.
The question of judicial arrears has engaged the attention of successive Governments and Law Commissions. Various proposals such as establishing specialised tribunals to take over the workload of the High Courts, increasing the manpower of the judiciary and the number of courts, simplifying procedures and cutting down appeals have been suggested as possible remedies. Some of them have been tried but the problem remains. Failure to solve this problem raises the question whether we are bereft of innovative ideas or lacking the will.
One of the primary reasons for the crisis in the judiciary is managerial incompetence of the judges and the courts.
In my view the biggest hurdle in administering justice is delays. Delay in justice administration is the biggest operational obstacle which has to be tackled on a war footing. As Justice Warren Burger, the former Chief Justice of the American Supreme Court observed in the American context:
The harsh truth is that we may be on our way to a society overrun by hordes of lawyers, hungry as locusts, and bridges of judges in numbers never before contemplated. The notion that ordinary people want black-robed judges, well-dressed lawyers, fine-paneled courtrooms as the setting to resolve their disputes, is not correct. People with legal problems like people with pain, want relief and they want it as quickly and inexpensively as possible.
This observation with greater force applies in the Indian context.
We require a new vision accompanied by a concrete strategy to accomplish that vision. The whole emphasis is to develop a legal system which does not stop at giving empty rights but backs it up with concrete rights.
Let me define the vision in the most concrete manner as possible: Every case which has been filed in a court with original jurisdiction must be disposed of within 18 months and in a court with appellate jurisdiction within 12 months.
If that is the end goal, we require a clear strategy that is able to achieve such a goal.
A. Introducing management practices
Management and movement of files is a key aspect of the work of the Registry. There are no proper systems for maintenance of files except in some rules which are normally not even adhered to. The age-old system of diarising the movement of files continues even today without any thought for improving the system. There are such a large number of functions that have to be carried out by the Registry apart from tracking down the movement of files. These will involve inspection of files by the litigants, supply of certified copies, management of deposits made in the court, etc. Who look after all these aspects? Theoretically, the Registrar or Registrar General of a court will look into this matter but does he have any managerial experience? Most High Courts bring a judicial officer as Registrar or Registrar General and he has absolutely no managerial experience.
The point that is sought to be made is that there has to be first, some managerial systems and practices introduced in the work of the courts and second, these have to be monitored on a regular basis. Existing practices can be modified, with the advent of technology which can be easily applied to a large number of areas and more efficient practices adopted or incorporated.
B. Emerging technologies
So far as the external sources of judicial reform in the operational field are concerned, the courts need to look at emerging technologies in a more positive way. It is not enough to provide computers to the Registry and to the judges. They must know how to use the computers efficiently and effectively. There needs to be a systematic training of court staff in the use of computers and even for judges who can get tremendous help from various kinds of programmes that are available on computers such as CDs of case-law, information from the Internet and research facilities from specialised websites dealing with legal topics.
Videoconferencing has been talked about for quite some time but it is not being implemented which is a little surprising because it is one way of reducing costs, particularly in matters pertaining to undertrials. The amount of time and energy that is expended in bringing undertrials to court is quite phenomenal. If a videoconferencing facility is established, the costs can be recovered at an early date. In a State like Uttar Pradesh, the cost savings will be tremendous and it is an aspect which, I think, should be looked into a little more seriously.
C. Judicial infrastructure
There is a need for greater allocation of funds for the development and maintenance of the judicial infrastructure in India. Allocation of resources plays a key role in ensuring independence of the judiciary. Realizing this principle our Constitution-makers have expressly incorporated charging the expenses of the Supreme Court and the High Court to the Consolidated Fund of India.
The famous Syracuse Draft Principles on independence of the judiciary were formulated by a Committee of Jurists and the International Commission of Jurists at Syracuse, Sicily in 1981. They specially dealt with the need for collaboration with the judiciary in the preparation of budget for the judiciary so that reasonable provision is made for infrastructural developments for clearance of backlog of cases and for avoiding undue delay.
The Universal Declaration on the Independence of Judges as adopted in the World Conference of the Justices, Montreal dealt with independence of international and national judges. This highlighted the need to provide adequate resources and to meet budgetary requirements.
The Beijing Statement of the Principles of the Independence of the Judiciary adverts to judicial administration and availability of amounts sufficient to enable courts to function without crippling caseloads.
To ensure a greater degree of independence the following steps may be adopted:
1. There is a need for a national policy decision whereby a percentage of the government funds must be allotted towards the judiciary. This is of particular importance in the Indian context since electoral imperatives play a key role in the allocation of funds and judicial reform is definitely not an electoral imperative in the Indian context.
2. Judiciary must be included separately in the Plan by the Planning Commission and separate allotment be made by the Planning Commission and the Finance Commission.
3. A National Judicial Council and State Judicial Councils must be set up as recommended by the National Commission to review the working of the Constitution. The National Judicial Council will deal generally with the overall needs of the judiciary. The State Judicial Council will deal with the policy-making, budget and implementation of the same, so far as the subordinate judiciary is concerned. Budgets are to be prepared by the National Judicial Council or the State Judicial Council initially and are to be presented to the executive and finalized at that stage, by mutual effective consultation, keeping in mind that expenditure on the demands of the judiciary is no less important than other development expenditure and thereafter the budget as finally settled, is to be presented in Parliament or the State Legislature, as the case may be.
4. A National Institute of Court Management to be established to confer degrees and to train court staff and judicial officers in court management. (NCRWC)
5. A more effective use of information technology can enable the judiciary in reducing time on the process. The experience of the Supreme Court in containing the docket explosion in the nineties is instructive in this regard. All over the world, court management and case-flow management is recognized as a specialized skill which needs to be adopted by the Indian judiciary.
D. Intensive use of the ADR framework privatisation of dispute resolution
Alternate-dispute resolution, to my mind, is essentially the privatisation of the process of dispute resolution.
The Arbitration and Conciliation Act, 1996, the Legal Services Authorities (Amendment) Act, 2002 and Section 89 of the Civil Procedure Code have provided for an institutional framework for resolution of disputes without the intervention of the courts. But there is a need for tightening this framework for the resolution of disputes so as to reduce the burden on the courts.
We must take the alternate-dispute resolution mechanism beyond the cities. The Gram Nyayalayas as contemplated by the Law Commission should process 60 to 70 per cent of rural litigation leaving the regular courts in districts and subdivisions to devote their time to complex civil and criminal matters. With a participatory, flexible machinery available at the village level where non-adversarial, settlement-oriented procedures are employed, the rural people will have a fair, quick and inexpensive system of dispute settlement. Only revision jurisdiction on civil matters and that also on questions of law may be left to the District Courts.
Since rent and eviction suits constitute a considerable chunk of litigation in urban courts, and that they take on an average three or more years to get adjudicated in the court at first instance, the Law Commission felt that an alternative method for these disputes is imperative. The Law Commission examined several alternatives and preferred to recommend the model of Conciliation Court along with a participatory model where a professional judge interacts with two lay judges and evolves a reasonable solution. There will not be any appeal against the decision and only a revision petition will be permissible on questions of law to the District Court.
Whatever mechanism we adopt, our ultimate must be to ensure that not more than 15% of the cases go for final adjudication. This is the trend in the legal systems of developed countries where most of the cases are resolved by alternate-dispute resolution mechanisms like conciliation, mediation and arbitration. Pre-trial conciliation accounts for the disposal of a large number of cases. We cannot lose sight of the fact that in some areas Kangaroo Courts have come up because of the failure of the justice-delivery system. I am told that some mafia-type elements settle cases through the use of muscle power and money power. We need to improve our systems so that such instances do not occur.
E. Criminal-justice system
Crime control implies orderly and efficient method for arresting, prosecuting, convicting and punishing the guilty and for deterring crime by others. The protection of individual rights is necessary to guard the accused against the arbitrary exercise of power by the State. The rising crime rate and the high rate of recidivism clearly indicate that the system is not an effective deterrent. Today, cases of murder, rape, theft, assault, robbery, disorderly conduct, and bride-burning occur much more than in the past. In actual practice, the problem of crime is much more serious than the official figures show, as it has been estimated that one third to one half of all serious crimes are not reported due to a variety of reasons, including intimidation and harassment of the victims.
Justice process in India, however, seems to be a series of discretion and decision-making processes through which the suspects may pass. The police, prosecution, and the courts exercise too much discretion with least accountability. Many a time, discretion is exercised in a selective and discriminatory manner prejudicial to the interests of the poor, undereducated and powerless persons.
The primary object of the police is prevention and detection of crime. The increasing criticism that police failed to discharge the traditional or modern duties of being accountable to people is not without truth. The police suffers from declining credibility and is dubbed as the protection of the rich and those who can afford. Has the police acquitted itself on expected lines? Violent crimes during 1986-96 have increased by 33.7%, homicides by 38.1%, rape by 86.7%. In 1998 alone, there were more than 40,000 reported murder cases in a total of four lakh crimes registered in India. This certainly does not augur well for the efficiency of the police.
Delay and heavy workloads in the courts have resulted in the informal system of pre-trial bargaining and settlement in some western countries, especially in the United States. The system is commonly known as plea bargaining. A suspect may be advised to admit part or all of the crime charged in return for a specified punishment rather than await trial with the possibility of either acquittal or a more serious punishment. Plea bargaining, as most criminal justice reformers relieve, is more suitable, flexible and better fitted to the needs of the society, as it might be helpful in securing admissions in cases where it might be difficult to prove the charge laid against the accused. Practically desirable, the practice has some disadvantages. The main danger is that suspects especially the poor may confess in order to have the matter settled promptly. It is regarded in India as non-permissible. However, the Law Commission of India in its 154th Report has come out with this concept to lessen the burden of piling arrears awaiting trial. The Commission also made it clear that plea bargaining shall not be made available to habitual offenders and persons accused of offences against women and children. Before introducing this unique concept in our criminal-justice system, we should seriously consider the pros and cons of this concept in the context of our legal values and norms.
The most important factor in preventing and deterring crime is the certainty of punishment, the frequency with which those who commit crimes are arrested, prosecuted, convicted and punished. For achieving the said purpose, it is imperative that changes are effected in the investigative processes. Scientific investigation should substitute the conventional ones. For the said purpose, requisite laboratorial facilities should be extended to the investigating agencies in all district towns. The investigating and the prosecution agencies should be separated. Efforts should be made to improve the management of prosecution in order to increase the certainty of conviction and punishment for the most serious offenders and repeaters. For the better administration of criminal justice, recidivists, career criminals and violent offenders need to be prosecuted expeditiously in a selective manner because these offenders pose a serious threat to the society. For selective prosecution, cases may be classified in terms of (a) the seriousness of the offence based primarily on the extent of actual harm done to the victim rather than the legal definition of crime; (b) the past criminal records of the accused; and (c) the assessment of the evidentiary strength and the probability of the conviction. In selective prosecution, special attention is being given to the career criminals, worst offenders and to all those who commit crime against women and children. Today, the problem is that the prosecutors in India are overburdened with too many cases of widely varying degrees of seriousness with too few assistants and inadequate financial resources. The result, however, has been the long delay in courts with individual misery and serious hardships. With slight improvement in the management of prosecution, the prosecutors can play a significant role in the administration of criminal justice by prosecuting only those who should be prosecuted and releasing or directing the use of non-punitive methods of treatment of those whose cases would best be processed outside the courts.
F. Other areas
The National Commission to Review the Working of the Constitution has suggested that goals should be set and action plans should be made to achieve those goals. How many High Courts actually follow this advice given by some of the top legal luminaries of the country? Have any action plans been made by any High Court for disposal of cases or for improving the working conditions of the district judiciary or for improving the facilities available? The answer would be an emphatic No. All this needs to be looked into and positive action taken in this regard. An exercise in this direction would help the courts in anticipating their needs and inducing changes. It would also encourage the lawyers and litigants to look at the court system a little more pragmatically and positively which has now been taken over by a culture of adjournments. The general lethargy has resulted in a lack of punctuality and judges seldom sit for the entire period of working day.
Judicial academies have been set up in almost all States and these need to be revitalised. Training of judges at the grass-roots level is extremely important and if judgments at the district level are of a high quality, the number of revisions and appeals may be reduced. The courts, particularly the High Courts, must show initiative in this regard and try and give more strength and vigour to the judicial academies by holding constant programmes for training of judicial officers in the districts. Performance indicators have been prepared by all High Courts. These need to be reconsidered because in some of the High Courts they are completely outdated and do not reflect ground realities.
Provision of legal aid requires to be strengthened. Similarly, Lok Adalats also need to be democratized for doorstep delivery of justice.
There is a need to look at the infrastructure which is available in the court complexes. Most of the buildings are several decades old and in some places there has been no scope for expansion with the result that every nook and corner of a building is used for some court work. An environment of this kind is not conducive to justice delivery. If the environment is not good, it has an impact on the attitude of the judicial officers, lawyers and the litigants. It can have an effect on management of work and deciding priorities in work. Perhaps with a little bit of expenditure incurred in improving the quality of the infrastructural facilities, such as table, chairs, whitewashing, cleanliness, a lot can be done to improve the court systems.
Role of lawyers
There is no gainsaying the fact that no reform of the justice-delivery system is possible without full cooperation of lawyers and their active assistance. It is trite that the Bench and Bar are two sides of the same coin. What can be the contribution of lawyers to reform?
Firstly, there must be some reform in the education system. We need to give high priority to merit and to encourage students and fresh law graduates to actively participate in the management of law. This can be achieved by encouraging them to actually participate in the settlement of disputes through the Lok Adalat or through mediation.
Secondly, there is a paucity of research papers on various aspects of law. Students and freshly enrolled lawyers should be encouraged to study the prevailing systems, point out the flaws therein and suggest remedies. With the wealth of talent that is available in the country, they can do wonders in research work.
Thirdly, interactive sessions should be conducted by senior lawyers who should teach young lawyers various aspects of lawyering like court craft, ethics, etc. A pilot project has been launched by the British Council which has received a tremendous response from various Bar Councils. Lawyers are taught the art of examination of witnesses, how to prepare and present a case. This programme is conducted over the weekends during which period senior lawyers spend their time with youngsters.
By spending time in improving the quality of professionals, we will be giving the justice-delivery system a great boost. The standing of lawyers in society will improve and the respect that the noble profession once had will be restored. Sometime back, The Times of India and Aditya Birla Group conducted an opinion poll. The results of this poll were extremely depressing. Of the 16 professions/fields that were polled, the participants rated the legal profession the least honest and advocates were said to contribute the least to upliftment of society. We need to change this mindset if our profession is to regain its respectability.
It is well known that there are no financial benefits in being a judge. For this reason, many affluent lawyers are not willing to give up a lucrative practice. I call upon well-to-do practising lawyers to have a rethink, because it is your contribution to society and the justice-delivery system that is most needed. If the best and the brightest do not come forward, our system can never improve and we will only continue criticizing the justice-delivery system. Surely, this is not a good way to tackle the problem.
Failure of the judiciary to deliver justice within a time frame has brought about a sense of frustration amongst lawyers and litigants.
The overflowing dockets of the courts are not a sign of failure of the system but a sign of faith in the administration of justice. Public resort to court to suppress public mischief is a tribute to the justice-delivery system. The problem of delay in the disposal of cases, however, is a real problem. It is also a challenge.