Need of Further Judicial reforms Article draws attention towards the urgency of reforms in the judiciary .Coming straight to the point ,first in, country needs a national judicial services system along the lines of the UPSC.There are so many vacancies in the judiciary which need to be filled by appointing more judges.Further, why only restrict it primarily to advocates with a minimum of ten years of litigating experience in the High Court ? (except the eminent jurist that the President can appoint).There is no incentive for a performing and honest district judge to reach Supreme Court. Maximum, in rarest of rare cases, he can reach upto the High court and that too in the last years of his service. Through this we are closing the doors for talented young individuals to enter the judiciary and may be implicitly giving rise to affiliations. The so called bhaaibhateejavad in the judiciary has been mentioned time and again by different eminent legal luminaries themselves .In such a highly respected institution like the judiciary, one rotten vegetable can be a contagious infection eroding the public trust This is the real issue. Further, despite being less in number, the judges do not work on Saturday and Sundays-this is not done! Moreover working for a limited time daily (courts largely finish by 5 pm in the evening and begin by around 10-10.30 am) adds to the burden of pending cases making it difficult for the citizen to get timely recourse. The situation in higher judiciary is still better but the state of affairs in district courts is deplorable. The accountability has to be fixed in the lower judiciary because that is where a peasant, a landless labourer would generally approach for his due. After more than 60 years of independence if you are having two to three months of holidays, how can that be acceptable and rational? Conventions should be carried out only if they are serving public good .What is the public good and logic behind the large number of holidays especially when 3.2 crore cases are pending in the high court and lower courts? (as of 2011 response by the then law minister to a question in RajyaSabha). Think about the mother who has lost her daughter and is waiting for justice, think about the father who has lost his son to the wills and fancies of the local goon.Holiday for what sir? When Aristotle said, ”justice is when every person should get his due” he also meant “every person should get his due in time”. Courts should function round the clock 9 am to at least 6 pm, 365 days a year .They are doing public service. There have to be enough judges for that purpose. This is the first PIL (Public Interest Litigation) the court should entertain, rather react to, and make an observation on its own. It should direct the government on this front. Ok, it is understood that the national judicial service is the governments prerogative, but what is stopping the courts from at least increasing the working hours and removing holidays to a bare minimum. The step taken by the Chief Justice on reducing the number of holidays is a progressive step, but much more needs to be done. Let us dwell on another issue in the meantime. Why are there so many adjournments? Further what is the rationality of the adjournments? It is explored further on this by talking to a few experts in this regard. The court generally has three options -either to direct the police to get the evidence, ask a third person to do soormost importantly the judge can take cognizance on his own-that is react! Still countless adjournments. it was found that case which was pending in the’ Central Appellate Tribunal’(CAT) for 1.5 years, just juggling between whether it should be handled by a single member bench or a double member bench. If it is compared with any contemporary legal justice system, in the United States or United Kingdom for instance, even murder trials are completed within 3 months. Cases involving foreign terrorist attack, or foreign nationals take a maximum of one year due to cross –border procedural requirements. Critics may raise a finger upon opinion that cases which are exceptions and not matter of rule. However, in depth study of the pending cases and reports of the various laws reform commissions will substantiate this point. The defence that is given in favour of adjournments is that a benefit of doubt has to be given to the accused ,”the innocent till proven guilty” logic. Agreed ,however there is nothing in CRPC as benefit of doubt ,this is just a convention that the court has evolved over time. Legal stalwarts would defend it as going against the principle of natural justice, but in context of a citizen of this country, right and access to timely justice is what an individual is bothered about. Justice delayed is justice denied . Imagine the pain of a poor victim in need of justice, a rape victim who is harassed every time she enters the court by going through the same agony again and again. In such a scenario it is unacceptable to have repeatedadjournments. Fix the time limit of judgments to 1 year maximum; it has to complete within one year It is the responsibility of the courts to direct the investigative agency. If the copy of the chalan is not provided to the accused ,the courts should direct the police to provide the copy.Noting one point here is important- It is an appellate system ,where the accused can appeal to a higher court against the judgment of the district court and finally to the Supreme court. It is important that at every level time bound judgment takes place, else the cases will be pending in the district court for years. The hair will start greying, but judgement might not come. Procedures are important, however procedure without outcome is like the body without the soul. The PIL option is a positive Indian innovation,but if that was the medicine for the disease of pendency of cases, it would not have more than 10 lakh cases pending in the Allahabad High court alone. Now coming upon the next issue. The important issue of judicial independence. There is no question that the independence of the judiciary is non-negotiable and sacrosanct .But does independence of the judiciary prohibit the judiciary from being more transparent ?Rather ,the judiciary should be transparent in all its functioning. When having the details of all the financial emoluments of the secretary ,when the politician has to file his affidavit declaring his financial emoluments before the returning officer, what restricts the judiciary from disclosing all financial assets on its website? When the legislature and the executive can discloseit, then it should be done by the judiciaryas well. Financial transparency is at the heart of the judicial reforms. If a judge is morally upright ,what problem will he have in disclosing his financial assets. Further in this regard, it is certainly believe that the emoluments for the judges should not be decided by the judges themselves. When having a commission for deciding the pay, emoluments and benefit for the IAS,IPS officers, and the Parliament regulating the salary and benefits for a Member of Parliament, why cannot it be done for the judiciary? There are no problem in judges becoming part of the commission(ideally it should be done by the retried judgesand notthe sitting judge),but a need of the commission cannot be denied. Today the pay of a DJ(District judge) is similar to that of an ADG(additional director general police). The financial transparency has to be addressed at the earliest. It is understood that the judiciary should not be brought under the RTI. However, by not bringing it under the RTI it is still possible to achieve financial transparency. The step will enhance public trust , promote honesty and integrity and help scrutinize and punish the deviants. On the front of the judicial accountability and standard bill, arguments put forward by some in opposition is what to be debate. The bill has to be seen in the light of wider consultation, which is absolutely necessary. When judges are appointed, shouldnt there be maximum transparency on how the appointment is done? The manner in which the judges are appointed is as important an issue as who appoints them .In the collegium system, there was minimal transparency on what basis a judge was appointed by the collegium. Further, the judiciary reserved the supreme right to appointment irrespective of the governments reservation against a particular name for substantive reasons like a pending inquiry. Some raise the point that the new system would lead to an appointment of pro –government judges .But think of it in this way-if a judge today buckles under pressure from the government, it is entirely possible that the same judge can bend in favour of a corporate house under immense pressure. That judge does not qualify for considerationto be appointed as a high court judge, let alone his consideration for a Supreme Court judge. Moral uprightness, irrespective of the pressure of any appointing authority, is the duty of the judge. Widening the consultation to include 2 eminent jurist in the panel (who are appointed by a committee comprising of the Prime Minister, Chief Justice of India and Leader of Opposition)along with having the Chief Justice of India ,2 Supreme Court judges and the Law Minister will bring in more accountability and eliminate chances of favouritism. There is a need to trust the collective will and wisdom of the Prime Minister, Chief Justice of India and Leader of Opposition in appointment ,who reflect legitimate public mandate, public trust and a non-government political voice. People need to move further on this reform path. The next step should be to work towards institutionalizing the procedure with an office that can collect all the data on the deliberations of the meetings,and keeps a record of the judgment made by the respective judges in the high courts and district courts .A secretary level officer can officiate the administrative work. For a cautious approach, a retired secretary can be appointed rather than a serving secretary. The mentioned step understands the paucity of time faced by the appointing authority and will provide them all the facts to takea decision with respect to appointments. Moving a step forward in this regard, people should not make the deliberations of the meeting public, however should definitely keep the shortlisted names the committee is deliberating, in the public domain. The citizen has every right to know about the people manning the public institution ,especially when it is the one that is deemed to provide him justice. Rajendra Yadavs statement is remembered in the Constituent Assembly debate where he emphasized that even if the Constitution is perfect and the people interpreting it are not of the highest order of honesty and integrity, the system will not deliver to its maximum efficiency and effectiveness. The Constitution is a lifeless machine which acquires life because of the men who operate and control it. Integrity of the judiciary is not questioned, but people are trying to lay emphasis on the need of progressive steps to improve it and eliminate corruption, however small it might be. More importantly, people have to understand that the Constitution is not a rigid document, it is an evolving document deriving its powers from We the people of India and reflecting the aspirations of We the People Of India. The Constitution allows for change keeping the basic features intact, and consultation as envisioned by the bill is not an encroachment on judiciarys powers. A point to note here is that the system of checks and balance is in itself an integral part of the Constitution. Today, the democracy has evolved and matured with an independent judiciary driving it forward. Moving on this path and comparing it with some of the best practices across the world, it is found nowhere the “judges appointing judges”. Thus, fears expressed should be allayed to make way for the reformative step to bring in more transparency. The last issue that which should be flagged is with respect to the manner of appointment of retired judges. No one can deny the need to appoint retired judges in order to use their legal acumen for national interest. However, the recent appointment of the ex- Supreme Court Chief Justice as governor in less than 1 year of demitting office might not be a right precedent to begin with. In order to ensure neutrality and impartiality.there has to be a cooling off period before which an ex judge of supreme court or a Chief Justice of High Court can be selected for a post retirement appointment. Perception of being honest and integral is as important as being honest and just .The time of the cooling off period can be discussed and deliberated. The reforms mentioned above, in my personal opinion are not the only reforms we need, but are the ones that we need urgently. The government has laid its right foot forward by going forward with “The judicial Standard and Accountability Bill”. It is time for it to continue on the reform path .What best time to do so than NOW, with such a huge mandate. However, any reform should only be undertaken after taking the judiciary into complete confidence. भाग मिलखा भाग, क्यूंकी कल कभी नहीं आता
Posted on: Tue, 16 Sep 2014 14:22:42 +0000
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