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| Supreme Court of India |
Recently there was a news item which said that, going by the time taken by our judiciary to disposes of the cases, it would take about 350 years to solve all cases pending in the courts of India. The rate at which new cases are coming to judiciary far exceeds the rate of disposal, and the difference, is only increasingly. Hence we can conclude that, effectively, for a large population there is no judicial remedy available at all. I hope readers realize what a big statement that is. Unfortunately it is not a hyperbole at all. Even normal simple cases take years to complete. There is every chance of the justice being denied, on the basis of money/muscle power. Out of court settlements are the norm in India. People in power or in influential posts, hardly ever get punished. Fighting a case in court itself is extremely costly, stressful, time-consuming and somewhat like a punishment in itself.
Of all the state instruments that the Britishers brought from England to India, such as the police, the civil services, the railways etc., the judiciary was perhaps the only one, whose fundamental nature was not completely changed to suit the continuance of the colonial rule in India. Although in colonial India, Judiciary could hardly be called impartial or fair, as it openly practiced racial discrimination, (hugely favoring Europeans over native Indians) enforced laws that were against the very principle of national justice, bowed to the Viceroy's wishes in cases of great political significance etc. However the Judiciary, even then, was completely secular, above caste politics and most importantly based on rule of law, and not personal prejudice. This, being very rare in contemporary Indian society, was very much appreciated, and it even created the famous myth of "British fair play".
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. Also, the judiciary was made completely independent of the government, thanks to the vision of Jawaharlal Nehru. Over these years our Indian Judiciary was given some excellent decisions and has earned the faith and respect of ordinary citizens more than any other institution. However, this is only limited to the higher Judiciary. The lower judiciary is riddled with corruption and nepotism. In fact, as a whole, the standard of the judiciary has been falling continuously.
Of all the state instruments that the Britishers brought from England to India, such as the police, the civil services, the railways etc., the judiciary was perhaps the only one, whose fundamental nature was not completely changed to suit the continuance of the colonial rule in India. Although in colonial India, Judiciary could hardly be called impartial or fair, as it openly practiced racial discrimination, (hugely favoring Europeans over native Indians) enforced laws that were against the very principle of national justice, bowed to the Viceroy's wishes in cases of great political significance etc. However the Judiciary, even then, was completely secular, above caste politics and most importantly based on rule of law, and not personal prejudice. This, being very rare in contemporary Indian society, was very much appreciated, and it even created the famous myth of "British fair play".
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. Also, the judiciary was made completely independent of the government, thanks to the vision of Jawaharlal Nehru. Over these years our Indian Judiciary was given some excellent decisions and has earned the faith and respect of ordinary citizens more than any other institution. However, this is only limited to the higher Judiciary. The lower judiciary is riddled with corruption and nepotism. In fact, as a whole, the standard of the judiciary has been falling continuously.
Lack of accountability of Public Servants
The most crucial thing that plagues our judicial system is that it is not able to punish Public Servants for not doing their jobs properly. Let me explain it. Suppose a person is intentionally harassed by the bureaucracy, like his pension/salary is not being released, or, on some flimsy reasons, he is not given the required license/documents etc. He then goes to the courts with his petition. All that the courts will do, will be to ensure that the genuine work of the petitioner is done. But most importantly, nothing would be done to the bureaucrat, who should have done this job, without court intervention. There is no fixed accountability of any bureaucrat for any particular job or task. The accountability notionally rests on the whole department, or on the 'Head of Department', who actually never looks personally in each case. Blatantly deliberate acts of delay or denial of services never get punished and are never even considered under the prevention of corruption act. Now consider the consequences – the bureaucracy does not have the fear of the judiciary and hence they openly harass the common citizen for bribery. If the citizen protests, he can go to the courts (which is way more expensive and time-consuming) where his work would be done but the bureaucrat would have nothing to lose. Hence naturally most people prefer to pay a bribe and the rest keep increasing the court case score, without changing anything in the system. It is therefore not a surprise that maximum cases in courts are about matters that are no-brainers and that should ideally have been sorted out by the bureaucracy itself.
A citizen’s charter (or Grievance Redressal mechanism) which actually treats delay/denial of services under the prevention of corruption act and fixes personal accountability for every task to a public servant, would go a long way in easing the pressure on the judiciary.
Sticky Areas
There are certain types of cases which form an unusually high percentage of the total cases. These are the result of a lack of clear (or deliberately ambiguous) policies and rules. Let us take the example of land disputes, which form the single largest chunk of court cases. The worst thing about land disputes is that no document can claim to be unambiguously final and above any reproach. You can have the same piece of land lawfully registered by multiple parties. In the court, the land registry is given no weightage. And the worst part is that the officer who issued the land registration, without checking whether the land was prior registered or not, goes absolutely scot-free. Land Registration document, for which government charges so much and is considered valid proof in many scenarios, is thus effectively, just another instrument of confusion. Documents are deliberately kept in an inconsistent state and are the breeding grounds of corruption in India. It’s not just our complicated history, but the rules that are to blame for this mess. There is no reason why in India we can’t have digitization of all land records, which would be available all across India, in every department in perfect synchronization. It is not a new idea and we have several successful implementations of it. It would ensure that inconsistent documents can never be generated in the future. It would also result in a drastic decrease in land disputes cases with every passing year. All such area (like land disputes) require the same solutions – making laws simpler and clearer, increasing transparency in government departments, introducing IT solutions (e-governance) and reducing human dependence.
Lack of fear of Courts
Sticky Areas
There are certain types of cases which form an unusually high percentage of the total cases. These are the result of a lack of clear (or deliberately ambiguous) policies and rules. Let us take the example of land disputes, which form the single largest chunk of court cases. The worst thing about land disputes is that no document can claim to be unambiguously final and above any reproach. You can have the same piece of land lawfully registered by multiple parties. In the court, the land registry is given no weightage. And the worst part is that the officer who issued the land registration, without checking whether the land was prior registered or not, goes absolutely scot-free. Land Registration document, for which government charges so much and is considered valid proof in many scenarios, is thus effectively, just another instrument of confusion. Documents are deliberately kept in an inconsistent state and are the breeding grounds of corruption in India. It’s not just our complicated history, but the rules that are to blame for this mess. There is no reason why in India we can’t have digitization of all land records, which would be available all across India, in every department in perfect synchronization. It is not a new idea and we have several successful implementations of it. It would ensure that inconsistent documents can never be generated in the future. It would also result in a drastic decrease in land disputes cases with every passing year. All such area (like land disputes) require the same solutions – making laws simpler and clearer, increasing transparency in government departments, introducing IT solutions (e-governance) and reducing human dependence.
Lack of fear of Courts
Falling Moral standards
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| Indira Gandhi |
No one can deny that the moral standard of Indian Judiciary is falling by leaps and bounds. It has a bit of history behind it. The tussle between the Judiciary and Indra Gandhi is very well known. During the emergency, the power and prestige of the Judiciary were greatly damaged. Till then, the selection of the Judges was solely under the executive and it was highly misused by Indra Gandhi, besides several other mechanisms to make the institution more loyal to her. Just like the permanent damage that Indra Gandhi did to constitutional posts like the governor, the president etc., the damage to the Judiciary could never be fully restored, even after valiant efforts of people like law minister Shanti Bhushan. More than laws, the customs, traditions and prevalent ethics matter in any establishment.
The government too has played its part, by giving extremely lucrative positions to preferred High Court and Supreme Court judges, after their retirements. Even though there are no reservations in the Judiciary, the common custom has been to have that consideration, in the selection of Judges, resulting in a poor selection and falling standards.
The whole approach has to change. Once a case gets in the court, it should become the court's responsibility to ensure justice, and not the petitioner's job to follow up his case, ensure that it does not get lost in the endless files, bribe babus to get dates quickly etc. IT solutions should be employed to ensure no manual interference. Special officers need to be appointed to look at every case in the backlog and ensure that the cases are closed properly. Not just the judgments, but even the relevant documents of each case must be digitalized. Cases which are no longer relevant must be closed off.
The role of the lawyers, especially in simple cases, should be diluted. The result of any case should depend on the merits of the case and not on the lawyers involved. Unnecessary technicalities must be straightened out and courts should encourage educated people, in simple cases, to present the case themselves. Currently, cases are dismissed on the basis of mere technicalities. Instead of that, the judges should themselves assist in reformatting the writ (as far as possible) then and there.
Lack of check and balances
Because of the notion of the Independence of Judiciary, removal or even trial of any Judge is extremely difficult. Permission is required from the Chief Justice of India to even start an investigation against a Judge. While protecting judges against trivial and personally motivated false cases, is very important; the special privileges and lack of accountability of Judges, becomes counterproductive when bad eggs are introduced in the system. They further spread their corruption unabated in the system, endangering the entire system.
The situation demands urgent remedies. An institution, completely independent of the Government and the Judiciary (like LokPal or a separate institution altogether) should be empowered to decide whether a case against a Judge merits investigation or not. A feeling of accountability needs to be created among Judges and it cannot be left just to the corrective measures within the Judicial System itself.
The government too has played its part, by giving extremely lucrative positions to preferred High Court and Supreme Court judges, after their retirements. Even though there are no reservations in the Judiciary, the common custom has been to have that consideration, in the selection of Judges, resulting in a poor selection and falling standards.
Reform of court proceedings
Today the moral standard has stooped so low that bribes are openly taken in courts to just get the case heard. Courts itself have become arenas of corruption and harassment. How can we expect the citizens to have faith in the judiciary, if even in the courts, we have bribery, nepotism and preference to the rich and the powerful?The whole approach has to change. Once a case gets in the court, it should become the court's responsibility to ensure justice, and not the petitioner's job to follow up his case, ensure that it does not get lost in the endless files, bribe babus to get dates quickly etc. IT solutions should be employed to ensure no manual interference. Special officers need to be appointed to look at every case in the backlog and ensure that the cases are closed properly. Not just the judgments, but even the relevant documents of each case must be digitalized. Cases which are no longer relevant must be closed off.
The role of the lawyers, especially in simple cases, should be diluted. The result of any case should depend on the merits of the case and not on the lawyers involved. Unnecessary technicalities must be straightened out and courts should encourage educated people, in simple cases, to present the case themselves. Currently, cases are dismissed on the basis of mere technicalities. Instead of that, the judges should themselves assist in reformatting the writ (as far as possible) then and there.
Vernacular Languages
For most local people, courts are a complete mystery because of their ignorance of English language and illiteracy. Though local languages are allowed in lower courts, in many places, it is generally not the norm. Rulings are generally written in English only. This results in over-reliance and blind faith in lawyers, who may or may not have the best interests of their clients in their minds. Lower courts must function in local languages only. For judges it should be absolutely necessary that they know English, Hindi, the local language, as well as local dialects prevalent. All judgments should be in all three languages. Judges should not be burdened with this. Special staff should be kept just for this translation.
The petitioner should be able to comprehend all that goes on in the courts, the reasons and logic for a particular court decision and thereafter he should make an honest judgment whether to go a higher court or not. Lawyers typically always encourage the losing party to go to a higher court, for their own personal gains. Moreover, the penalty must be increased if a person goes to a higher court unnecessarily on flimsy grounds.Lack of check and balances
Because of the notion of the Independence of Judiciary, removal or even trial of any Judge is extremely difficult. Permission is required from the Chief Justice of India to even start an investigation against a Judge. While protecting judges against trivial and personally motivated false cases, is very important; the special privileges and lack of accountability of Judges, becomes counterproductive when bad eggs are introduced in the system. They further spread their corruption unabated in the system, endangering the entire system.The situation demands urgent remedies. An institution, completely independent of the Government and the Judiciary (like LokPal or a separate institution altogether) should be empowered to decide whether a case against a Judge merits investigation or not. A feeling of accountability needs to be created among Judges and it cannot be left just to the corrective measures within the Judicial System itself.
