Union Law Minister Kiren Rijiju during his speech at the first convocation of Maharashtra National Law University in Aurangabad said nearly five crores of cases are pending in Indian courts and that the number would increase further if no action was taken. The minister described the situation “as a matter of great concern to all of us. “He demanded that drastic action be taken in this case (DE 9 July). The Minister recounted the experience of his last visit to the UK and said: ‘In the UK each judge gives judgment in a maximum of three to four cases a day. But in Indian courts, each judge presides on average over 40 to 50 cases every day.
After reading the statement of the Minister of Justice, it can be said that the country has not done much to put the justice system on track. We may remember how Chief Justice TS Thakur in 2016 diagnosed the disease plaguing our justice delivery system. Today, the Minister of Justice almost echoes it. The former CJI, while addressing the conference of chief justices and chief ministers held in April 2016, said “It is not just on behalf of a litigant or people languishing in prisons, but also in the name of the development of the country and its progress that I beg you to seize the opportunity and to understand that it is not enough to criticize. You can’t put the whole burden on the judiciary. He reflected on the appalling conditions of the judicial infrastructure and the enormous expectation of the courts. Overwhelmed by the enormity of the situation, Shri Thakur cracked down on PM Modi, present at the conference.
A functioning judicial system is a true indicator of a country’s real socio-economic progress and reflects a nation’s willingness to adhere to democratic values. In India, justice is a constitutional mandate. Unfortunately, the judicial system does not work well. Often the heads of the judiciary have expressed fear that it will collapse. The executive rarely paid attention to it.
Today’s statement by the Minister of Justice and those concerned in the past raises fundamental questions; What are the obstacles to the administration of justice in India? how can we design a legal system that can bring justice to the people – what should be the concept of justice? Should it be a resolution of conflict or a dispensation from justice. The resolution of a dispute does not mean that justice has been done. The time has probably come when one can think of the inquisitorial system rather than the adversarial system in certain situations and in certain cases. The answer to these questions lies in the Indian context. Our oldest legal system never distinguished between law and justice.
While the malaise of delay afflicts civil jurisdiction, in criminal jurisdiction two challenges arise; one of delay and the other of disproportionate acquittals. The issue therefore needs to be analyzed from a proper perspective and comprehensive corrective measures are needed.
There are various reasons for the decline of the judicial process;
1, Abnormal delay in settling civil cases
2, faulty investigation of a crime and faulty prosecution of criminal cases.
3 Discrepancy in judge-to-population ratio;
4 Procedural impediments.
5 delaying maneuvers by lawyers; and
6 Insensitivity of judicial officers. It is mostly the inertia and unwillingness of the executive to deal with executive business that throws even a purely administrative matter into the courtroom. The Minister cited the example of a British judge, but he should know that in the UK it is rare for a political or executive case to be brought to court for decision.
It is true that a democratic form of governance obliges a political party in power to satisfy the whims of its workers. Finding it impossible to favor a party candidate, government officials advised him to take legal action. It is precisely for this reason that Article 226 of the Constitution survived Prime Minister Indira Gandhi’s urgent assault. In doing so, she wanted to clip the wings of the High Courts which she felt were interfering with her business. The renowned jurist Fali Nariman informs us in his book Before Memory Fades how the rustic S Swarn Singh, much against the wishes of ministers knowing the law, explained it thus to Mrs Gandhi and saved Art 226 from being scrapped .
To improve the criminal justice delivery system, we need a witness protection law, without affecting the right of the accused to cross-examination. Separation of investigation from policing functions is desirable. Delineate minor criminal cases from serious cases. As the late Judge JC Verma (former CJI) suggested, decriminalizing petty offenses involving traffic violations, village trespassing, etc. Empower Panchayat Adalats. (What happened to our Dehi Adalat program). On the civilian side, strengthen the ADRS. It is encouraging news that the Mediation Bill is on the anvil which may become law in the next monsoon session of Parliament.
The government cannot afford to be a litigator. Internal means must be devised to resolve intra-departmental problems. He must keep faith in the judgment of the High Courts and refrain from overly appealing. The state must not abdicate its duties and entrust its dirty work to the courts. The ungodly internal work of political parties should not be thrown into the courtroom. Judges may refrain from receiving frivolous PILs. The procedural protocol for the appointment of superior court judges must be put in place soon and the appointments accelerated. The 120th report of the Law Commission which states that the current judge to population ratio of 10.5 to 10 lakh should be increased to 50 to 10 lakh must be accepted.
Lawyers have an important role to play in ensuring the proper functioning of the justice delivery system. According to Rtd VR Judge Krishna Iyer, “No group has a greater responsibility than lawyers to help keep our institution free from society. Because they are uniquely equipped by training and experience to be the FBI Director Edgar Hoover once reminded American lawyers of their duties to society: “At this hour America especially needs the leadership of lawyers. The moral fabric of our society is very torn. Disrespect for law and order is rampant. Very fitting for the current situation in India.
(The author is the former Senior District and Sessions Judge)