Judicial Reforms

Introduction Speedy justice is not only our Basic Human rights but

also a prerequisite for maintaining the rule of law and delivering good governance. In its absence, the judicial system ends up serving the interests of the corrupt and the law-breakers. Failed attempts in the past to secure this right have, over the years, led to erosion in people’s faith in the judicial system, signs of which are visible in the growing vigilantism. Trade, commerce, manufactur-ing, services, personal safety hinge on the effectiveness of the rule of law.

Therefore, judicial reforms should be made the prime development agenda. Judiciary needs comprehensive reforms to deal with its ineffectiveness, and also to re-store its waning credibility. The reforms must include making the judicial system- (1) accessible and effective for the poor, (2) accountability of judges, (3) transpar-ency in court proceedings and appointments of judges, (4) creation of a transparent, full-time independent judicial complaints commission to investigate com-plaints against judges, (5)implementation of the RTI, (6) setting up an All India Judicial Services, (7) use of information technology tools for better court/ time management, and (8) making the bar and the bench sensitive and accountable towards issues of social jus-tice.

A review of architecture of the present system of justice dispensation, which violates human dignity, should also be pursued. The high pendency rate in India’s judicial system have dragged down growth and Investments in an investment-starved economy. Today, justice needs to be begged for in a format where judges talk down to the litigants.

Suggested Reforms Over the years, various commissions have laid out sev-

eral recommendations to tackle the issue comprehen-sively.

11th Finance commission in 2005 had recommended the formation of fast-track courts to expedite cases.

The 229th report of the Law Commission of India came up with the suggestion of retaining the New Delhi bench of the Supreme Court as a Constitutional Court and the establish-ment of Cassation Benches of the Su-preme Court in the four regions at New Delhi, Chennai/Hyderabad, Kolkata and Mumbai.

More recently in 2014, the 245th Law Commission recommended setting up special courts adjudicated by recent law graduates to hear more trivial cases (such as traffic offences) and raising the retire-ment age of judges in lower courts.

The 99th Constitutional Amendment Act of 2014 and the National Judicial Appointments Commis-sion Act of 2014 have replaced the Collegium System of appointing judges to the Supreme Court and High Courts with a new body called the National Judicial Ap-pointments Commission (NJAC). However, in 2015, the Supreme Court has declared both the 99th Constitu-tional Amendment as well as the NJAC Act as unconsti-tutional and void. Consequently, the earlier collegium system became operative again. This verdict was deliv-ered by the Supreme Court in the Fourth Judges case (Supreme Court Advocates–on–Record Association and another vs. Union of India (2015). The Court opined that the new system (i.e., NJAC) would affect the independ-ence of the judiciary.

Among other suggestions few pertained to reducing the vacation period of Judges and setting up of Fast Track courts.

Faults of the Collegium The collegium solved problems of excessive executive

intervention in appointments, as well as the systematic “court packing” practiced by governments. Despite good intentions, the collegium also has many faults. It lacks

transparency, is inherently secretive, and provides for no oversight, due to which there are no checks or bal-ances on the judiciary. Choosing judges based on undis-closed criteria in largely unknown circumstances has led to an increasing democratic deficit.

The collegium must become fair, transparent and open, to counter allegations of opaqueness and lack of accountabil-ity. Challenges Article 142 gives judges the power to do whatever

it takes to secure justice. The use of Article 142 has become a sign of immense judicial indiscipline.

Article 50 of Constitution of India puts an obliga-tion over the state to separate the judiciary from the executive.

The judiciary also “wrested control” of the ap-pointment process from the government follow-ing the Three Judges Cases in the 1990s, although the final say still rests with the president. It is therefore solely responsible for managing the court system, and for the quality and effectiveness of the judicial process.

When CBI interferes in the working of judiciary, it leads to executive control over the judiciary, which goes against the basic principles of the con-stitution.

Way Forward The judiciary will need to reform itself. But its capacity to do so will depend heavily on whether the central and state governments choose to facilitate these reforms or impede them. LEGAL Reforms The Arbitration and Conciliation Act, 1996, should be

amended to make India a robust centre for institutional arbitration, both domestic and international. A new autonomous body, viz., the Arbitration Council of India, should be set up to grade arbitral institutions and ac-credit arbitrators to make the arbitration process cost effective and speedy, and to pre-empt the need for court intervention.

Shift certain sections of the workload out of the regu-lar court system to commercial courts.

Merge and rationalize tribunals to enhance efficiency. Appointments to tribunals must be streamlined either through a specialized agency or under the DoPT.

STRUCTURAL Reforms Judicial decisions need to take account of their eco-

nomic and social impact, especially in cases pertaining to contract, labour, tax, corporate and constitutional issues

Multi-faceted training faculty for judicial academies including reputed lawyers, successful NGOs and others, for holistic exposure may be considered.

ADMINISTRATIVE Reforms Consider a performance index for judges and a sepa-

rate state wise index for ease of getting justice. Introduce an administrative cadre in the judicial system to streamline proc-esses. To maintain judicial independence, cadre should report to the Chief Justice in each High Court. TECHNOLOGICAL Reforms Prioritize court process automation and ICT enablement for electronic court and case management, including elec-tronic management of court schedules and migration of all courts to the unified

national court application software. Training modules should be live streamed on an e-

platform to make information easily accessible. Facilitate the availability and usage of videoconferenc-

ing facilities to assist in speedy access to justice and to minimize logistical issues.

Judicial reforms will only happen if the prime minister, the chief justice of India, and key state chief ministers come together to make it happen. Otherwise, a key pil-lar in India’s transition to the 21st century will become – if it isn’t already – an obstacle to such a transition.

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Structure, organiza-tion and functioning

AIJS—Debate

Why- It is a paradox that despite the promise for equal-ity of opportunity in public employment guaranteed under Articles 14 and 16 of the Constitution, an eligible person in India cannot apply for judgeship in higher judiciary. Nor is there any system of open nomination. It will ensure a transparent and efficient method of

recruitment to attract the best talent in India’s legal profession

Who Suggested-The idea of having All India Ju-dicial Services (AIJS) is not new. In, All India Judges Association versus Union of India

and others (1993), the Supreme Court said the Centre should take up appropriate steps to set up an All India Judicial Service.

The First National Judicial Pay Commission i.e. Justice Shetty Commission also recommended creation of the AIJS. There are Parliamentary Standing Committee Reports favouring the AIJS as well.

In its report, 'Strategy for New India@75', the NITI Aayog mooted the creation of an All India Judicial Ser-vice (AIJS).

Arguments Against - Article 312 (3) says the AIJS can’t include a post inferior to the rank of district judge. It may also end up not taking into account local laws,

practices and customs which vary widely across States, vastly increasing the costs of training for judges se-lected through the mechanism.