I was invited to speak before many Mumbai Activists by the ‘Society for Fast Justice’ on Sat28Feb09 at a ‘Seminar on Judicial Reforms’ held at the Nalanda Hall of Times of India, CST, Mumbai. Other main speakers were: Dr. Leo Rebello, Adv. Jamshed Mistry, Shri Bhagwanji Raiyani. Some sixty persons attended in a well organized program, Chaired by Adv. Shafi Kazi. It drew good participation from the audience. My 20 minute speech is reproduced below.
I learned during the seminar some interesting things, which I list below.
* A citizen can file Supreme Court petition by going on line on the internet at: http://tempweb97.nic.in/sc-efiling/index.html
* Prosecution of errant Magistrates is possible under IPC:219.
* ADR (Alternative Dispute Redressal) system is quite successful in Delhi.
* Writ Petition (Civil) No: 122 of 2008 are pending in the Supreme Court of India. This is filed by ‘Janhit Manch’, ‘Common Cause’ among others with ‘Union of India’ as Respondents. It seeks Judicial Reforms and Accountability.
* The outcome of the Seminar was a Resolution demanding much of what is in the above Writ. The audience was advised to write to all the Political Parties a short letter seeking inclusion of Judicial Reforms and Accountability in their Manifestos for the coming Parliament Election in April-May 2009. A list of postal addresses and draft letter were handed out to all participants.
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JUDICIAL ACCOUNTABILITY AND REFORMS
Respected friends, I put before you EIGHT points which if implemented holistically, will ease the lives of all Citizens of India in their normal course.
First some contextual information:
· Justice costs over Rs 6,000 per minute in Delhi HC
· all matters that are listed for hearing cost the court, on an average, Rs 1,300, even if they get adjourned without any argument
· total expenditure incurred by the court was Rs 42.45 Crores for 213 working days
The reported pendency as of 31Mar2006:
Total cases pending 240 Lakh
Traffic challans etc 15.46 Lakh
Bounced cheques 14.55 Lakh
Summons related 14.19 Lakh
Marriage maintenance 2.42 Lakh
Food adulteration 51,816
Juvenile crime 43,863
I start with the presumption of the supremacy of the People of India who have given the Constitution of India to themselves. The State organs comprising the Parliament, the Ministers, the Commissioners and Judges - owe their origin, derive their authority, discharge their responsibilities and are conferred Powers, Privileges and Immunities only for one purpose, which are for Security and Dignity of each and every individual.
The Judges are not divine beings, their acts and omissions can have the element of error and foul play inherent in every other human being. The Courts are not mere benches where they adjudicate upon disputes but are Temples where they get an opportunity to serve and protect suffering humanity. The Court of Law like the Temple must be the place, where People can come with no fear.
Ordinarily, a person publicly critical of any Judicial action or inaction doesn't do so to malign or scandalize any Judge or Judiciary, on the contrary he is the ONE who wants the dignity of the Justice System to be protected. One who criticizes has a profound interest in the well being of the criticized.
Lord Denning, a Judge of England said, "Let me say at once that we will never use contempt Jurisdiction as a means to uphold our own dignity. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor we resent it. For there is something far important at stake ... it is freedom of speech itself ".
1. IT IS THEREFORE RELEVANT FOR THE CONTEMPT LAWS TO BE URGENTLY REVIEWED AND SIMPLIFIED TO ALLOW MEANINGFUL CRITICISM FROM CITIZENS.
Civil society, instead of approaching Law Courts, prefers to protest for the simple reason that the Courts have rendered themselves incapable of giving speedy justice. Efficient delivery of Justice System is one of the Sovereign functions of any Country, and India is no exception. What I mean by Sovereign function is simply that the function is the prerogative of the State and cannot be delegated to private bodies, where even today most citizens prefer to go.
The problem with Judicial system begin with the lack of access to the system for the weak and poor, partly because of the procedurally complex nature of the system which can only be accessed through Lawyers who are simply beyond the reach of common man. Moreover, those who can afford access to the system bear the brunt of lethargy of the system.
No system crumbles overnight ... there is always a slow process of deterioration. And so it has been with our judiciary ... we have failed to look at the symptoms of illness ... failed to listen to voices of litigants ... for whom this grand system is meant, said Ms.Indira Jaising, SC lawyer and Editor of The Lawyer.
2. THE JUDICIAL SYSTEM NEEDS TO BE CLEARED OF COMPLEXITIES AND MADE ACCESSIBLE TO THE UNDERPRIVILEGED; SAME AS IF THEY WERE TO VISIT A POST OFFICE.
A failed ‘justice delivery system’ brings prosperity to the corrupt and law breakers; and spells misery, annoyance, humiliation, frustration for the innocent and law abiders. Administration and dispensation of Justice often scripts disasters and tragedies. A failed justice system nullifies and erodes every conferred fundamental and statutory right and incites breach of duty.
In exercise of Writ Jurisdiction or Writ of mandamus (Constitutional Courts give authoritative directions to the State agencies to do something or refrain to do something), Constitutional Courts are not burdened with framing of issues OR of establishing the guilt of the accused. Thus writ cases must always be expedited.
If the facts stated in the petition are self evident and the existence of which is palpable and striking, by all means the Hon Court may in its discretion and in the interest of Justice, take leave of hearing the Respondents and may proceed to pass interim or final Orders.
3. THE COURTS SHOULD REFRAIN FROM GIVING ADJOURNMENTS TO STATE OR LAWYERS, IMPOSE HEAVY FINES AND INVOKE CONTEMPT PROCEEDINGS AGAINST THOSE WHO CAUSE ADJOURNMENTS.
Many cases that come before the Court involve either violation of rights of the people or gross dereliction of duty of public authorities. The judges really speaking, particularly in PIL Writs, merely protects Citizens against blatant illegal acts and omissions of public authorities, cases which even a man of Ordinary prudence can decide. Thus really speaking, it is the vast powers that are vested in Judges, makes us believe complexity in their job, which is in reality an easy job when compared to IAS / IPS / other Executive functions, legislative functions, job of Municipal Commissioners and so on.
They say Cases drag on for years ... is it really possible to drag on the case without active consent of the presiding Judge? Since one can't condemn judges the only thing left to say, Counsels have been successful in unduly prolonging cases. They just don't listen to judges’ objections to adjournments.
4. THE WORKING HOURS AND DAYS FOR COURTS NEED TO BE INCREASED ALONG WITH THEIR NUMBER TO COVER URGENT AND LONG PENDING CASES.
Life, liberty and dignity of a 'man' are not at mercy of existence or non existence of enacted laws. The essence of democracy lies in the fulfillment of the legitimate wishes of the people. Judiciary is well independent to fashion out strategies to address above issues. There is a great void in communication between the people and the judges. They must interact regularly.
Yet, forms of accountability may differ but the basic idea remains the same that the holders of Public Office must be able to publicly justify their exercise of power not only as legally valid but also socially wise, just and reasonable, chiefly designed to add to the quality of life of the people. Thus, every Judge while interpreting laws and making Orders, should verify as to how the Order/ decision reached will benefit people or society at large.
Time bound adjudication of rights in a Court of law is ones’ right and not a privilege to have. Citizens must be heard in a time bound manner. Whenever a case come before the Court, for adjudication of rights and duties of litigants ... the Court must frame the issues to be decided, declare the position of law ... and thus proceed to adjudicate and pass orders. Number of items listed for hearing should be limited and pursued whole heartedly.
When Courts are empowered to deny a just relief due to a litigant, due to he being delayed in approaching it in limitation period, is not it the duty of the Court to render justice in a time bound manner to a man who approaches to it within limitation time? Also, with particular reference to HC and SC, they are of strict view that all alternate remedies must be explored before invoking the Writ Jurisdiction of the Court. Having said that, is it not the duty of the Court then to render justice quickly in a time bound manner, when a man so approaches after exhausting all other alternate remedies? Judiciary is well independent to fashion out strategies to address above issues.
Citizens come to Courts by compulsion, less by conviction. Origin of every salary drawn and every perk and privileges enjoyed by Judges can be traced to my purse, his purse and to the purse of one living in hell like conditions.
5. DISPENSATION OF JUSTICE IN A TIME BOUND MANNER IS NOT ONLY DESIRABLE BUT IS PARAMOUNT FOR SECURING RULE OF LAW IN OUR SOCIETY.
It is not that Judiciary is to intervene at the climax of human tragedy or when some public spirited citizen approaches them for relief. They are empowered to intervene at the mere threat of human life. The watchdogs are to act su moto. Particularly in cases of violence, when the threat to human life is palpable and striking, there is no justification whatsoever for the Judiciary to sit quiet and wait for some public spirited citizen.
Among the principal barriers to justice identified were lawyers and, surprisingly, laws themselves. The Indian legal system's inexplicable persistence with its colonial past is reflected in its reluctance to break away from the pattern of institutionalization of mechanisms of adjudication and enforcement. The post Independence era shows that most of the laws inherited from British Rule that had colonial exploitation as their basis, were left untouched. The present judicial system so inherited is largely left intact.
Many a time conclusive orders of the Court are not complied with. Time and again even Courts have shown their inability to monitor implementation of their Orders. The Hon Court while passing Orders, interim or final may direct- "Appellant / Respondents Govt / Public Authority to update their website about Court's directions so given and action taken in pursuant thereof. As long as the Appellant's/ Respondent's website doesn't show up details of action taken, non compliance of Court Orders can and should safely be presumed and be alleged."
6. THE JUDICIAL SYSTEM NEEDS TO BE RESPONSIVE TO THE CURRENT NEEDS OF THE CITIZENS FOR THEIR GENERAL WELFARE AND YET DISTANCE ITSELF FROM THE EXECUTIVE AND LEGISLATURE. THE JUDICIARY SHOULD UNDERGO KNOWLEDGE UPGRADATION ON A REGULAR BASIS.
The Chief Justice of India, on 26 November 2004 on the occasion of Law Day, explained the impossible situation under which our Judges are expected to perform. No matter how hard the Judges in our subordinate Courts work … there is a constant backlog of about 2.53 crore cases in the civil and criminal Courts. Although 1.32 crore cases are disposed off every year, there is an influx of about 1.42 crores new cases.
The strength of the subordinate judiciary has remained static for many years at about 13,000 and at least 2,000 of these posts always remain vacant. On an average, the overburdened Judge is able to dispose of 1,150 cases per year. The situation in the High Courts is equally appalling. The total annual pendency of cases since 2000 has remained in the region of 33 Lakh cases. At any given time at least 200 of the 700 posts of High Court judges remain vacant. Even while the High Courts dispose around 13 Lakh cases, there is an equal number which get filed every year.
Each High Court Judge is able to dispose of around 1,500 cases. Not surprisingly, we have pendency of criminal appeals in certain High Courts since 1981 and civil appeals of even earlier years. Our judge:population ratio is less than 10 per million; it needs to be ten times higher. The government's response has been inversely proportional to the gravity of the situation. The 9th Five Year Plan made an allocation of 0.071% of the total plan outlay for the judiciary. This rose to 0.078% in the 10th Plan.
Lack of judicial infrastructure is but one of the factors impinging on access to justice. The problems of the legal system become acute when examined in the context of the needs of those socially and economically disadvantaged. For them in particular, the expense of pursuing cases in Courts, the intimidating structure of the legal profession and the Courts, and the inability of the legal aid system to reach all sections of the population, constitute the major institutional barriers to justice. Illiteracy, cultural inhibitions, bureaucratic and political corruption serve to aggravate the denial of access.
There are some positive signs due to Lok Adalat’s, a device formally recognized by the LSAA, which facilitates disposal of long pending cases through mediated settlements outside the formal legal process in Courts. According to the Ministry of Law and Justice, 12.2 lakhs cases were settled in about 40,000 lok adalats organized in 2003. What these statistics do not reveal is that a litigant in a lok adalat is most likely agreeing to a settled verdict for negative reasons – for avoiding uncertainties, delays and expense in pursuing litigation in Courts. Lok Adalats cannot be the answer to the need for quality justice. They underscore the failure of the formal legal system.
7. GOVERNMENT MUST ACT TO RESOLVE THE INFRASTRUCTURE AND TECHNOLOGY ISSUES PLAGUING THE JUDICIAL SYSTEM BY INCREASING FUND ALLOCATION AND VERIFYING OUTCOME.
Ironically, the greatest burden on the Courts stems from the government, the biggest litigants before the Courts. Over 50% cases have State, Government or its Bodies as main litigants, leaving the main task of private disputes to the fringes.
Not more than 2% people of the country can hope to get any meaningful justice through the existing judicial system. The Courts have upheld the validity of totally draconian laws like POTA and the Armed Forces Special Powers Act.
The media glare and the attendant public campaign on judicial accountability has certainly succeeded in bringing this issue and reform, to the fore and has put pressure on the government and the judiciary to urgently address this issue.
It is strange that judges of Supreme Court and High Courts don't want to be transparent and open and accept RTI Act, as if they are above constitution of India and people who pay them and appoint them.
It is ironical that the judiciary disowns its decade-old resolution that made disclosure of judges’ assets mandatory, at a time when there is a strong demand for greater transparency in appointment and functioning of superior judiciary.
8. AN INDEPENDENT FULL TIME NATIONAL JUDICIAL COMMISSION TO LOOK INTO ALL MATTERS OF JUSTICE NEEDS TO BE SET UP. THIS TO INCLUDE ALL STAKE HOLDERS, INCLUDING CITIZEN ACTIVISTS BUT MINIMISING POLITICIANS AND ADMINISTRATIVE BABUS.
I thank this august body and its conveners for giving me this opportunity to present my view point. I have had to bear the brunt of a poorly responsive system in my youth and even now. I also thank Shri Raiyani, Jalan and John for their inputs which helped me in collating this speech.
Compiled and Edited: Praful Vora, JNM. 27th Feb. 2009.
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Posts
Size is an unsatisfactory method to determine taxes, in this even Mahindra & Mahindra are affected, when it is clear that their main market is in the rural areas where road condition and passenger load are vastly different from metros. Minimum safety is specified and if some offer more, they charge more, and so where is the inequity?
Size is an unsatisfactory method to determine taxes, in this even Mahindra & Mahindra are affected, when it is clear that their main market is in the rural areas where road condition and passenger load are vastly different from metros. Minimum safety is specified and if some offer more, they charge more, and so where is the inequity?
