Judicial reforms in India have become one of the most pertinent issues recently. The need for judicial reforms is one of the subjects that enjoys wider consensus across the country.
In his swearing in speech, the recently appointed Chief Justice of India, Justice U U Lalit, talked about bringing measures to expedite the listing and hearing of cases. A joint conference to discuss various aspects of the justice delivery system was held in April. In the inaugural speech, PM Modi stressed the importance of a robust judiciary in India’s development. He also mentioned that judicial reforms are not merely a matter of policy.
In the words of Rawls, a great political philosopher, “Justice is the first virtue of social institutions, as truth is of systems of thought.” The preamble to the Indian Constitution resolves to secure social, economic, and political justice for all its citizens. In this backdrop, reforming the Indian judicial system to meet the aspirations of the people has become vital.
Issues Plaguing the Indian Judiciary
Huge Pendency of Cases
With around 4 crore cases pending, India has the largest backlog of cases in the world. According to Justice V V Rao, Andhra Pradesh High Court judge, the Indian judiciary would take more than 300 years to clear this backlog.
The existence of a huge number of vacancies across the Indian judicial system is one of the main causes behind huge case pendency. Reports suggest that around 400 posts lie vacant across the 25 high courts of India, while in the lower courts, the number rises to 5000. Also, lower courts often lack basic facilities for the litigants, staff, or judges.
The issue was exacerbated during the pandemic when physical hearing was restrained. The pandemic highlighted the failure of the Indian judicial system to realise the aim of e-courts. We are far behind the advanced nations in employing technologies, such as artificial intelligence and block chain, in the justice system.
Slow Hearing of Cases
As per the ‘Ease of Doing Business India 2018’ report by the World Bank, the average time taken for the disposal of a case in India is 1450 days (around 4 years).
The aphorism “justice delayed is justice denied” perfectly fits the Indian scenario. The huge pendency and “the culture of seeking adjournments” diminish people’s hope of getting justice from the system and thus breed discontentment.
India’s image as a credible and stable economic hub also suffers from the judicial delay. The lack of a quick dispute resolution mechanism repels investment and thus impedes economic growth.
Lack of transparency in the appointment of judges
The Collegium system is one of the most contentious issues between the judiciary and Parliament. In this system, the appointment or elevation of a Supreme Court Judge or the transfer of a High Court Judge is done by a forum consisting of the Chief Justice of India along with the four most senior judges of the Supreme Court.
This system has evolved through various judgements of the Supreme Court, not by any act of Parliament. It is not mentioned in the Constitution either.
The collegium system limits the role of the government in the appointment of the judges. The government only approves the names suggested by the Collegium. Though it can raise objections, it is bound to accept the proposals if they are sent again by the collegium. Thus, the independence of the judiciary remains intact.
However, the system lacks transparency. No major democracy in the world practises it. This opaqueness of the system is accused of breeding corruption and nepotism. That is why, several sections demand the abolition of the Collegium system.
An attempt to reform the system of appointment culminated in the passage of the 99th Constitutional Amendment Act, 2014. The Act proposed the establishment of the National Judicial Appointment Committee (NJAC), composed of members from legislative, judicial, and civil society. However, the Supreme Court declared it null and void. As per the Supreme Court of India, the Act violated the independence of the judiciary.
Thus, any step in this direction has to strike a balance between the independence of the judiciary and the transparency of the system. A solution to this burning issue can come only when the government and the courts cooperate with each other.
Out of Touch with the Common People
At present, the proceedings of the courts take place in two languages—Hindi and English. This is completely detached from the ground realities of India, where a large number of people cannot speak either of the languages. In the words of former CJI Justice N V Ramana, “the judiciary, as well as every other institution of our democracy, must mirror the social and geographical diversity of the country.”
A Parliament Standing Committee for the Ministry of Law and Justice suggested in its report that the composition of the higher judiciary should reflect socio-economic diversity and inclusiveness. For example, statistics show that women constitute nearly 48% of the population but account for a mere 3% of the highest courts of various states.
The Path Ahead
The Indian judicial system requires comprehensive reforms. However, it is a long-term process. Only the collaborative efforts of all the stakeholders can lead to fruitful results. Reforms should be such that they improve the functioning of the courts without undermining their independence.
Increasing the number of judges as well as the number of benches across the country will help reduce the number of pending cases and also expedite trials. Fast track courts and e-courts should be established. Although the ideas of fast track and e-courts are not new, they have not been properly executed on the ground. For example, the government of India had a target of 1,023 Fast Track Special Courts, but only 609 FTSCs were functional as of December 31, 2020. That means, there is a shortfall of almost 40%.
It is also suggested by many constitutional experts, such as Desh Ratan Nigham, to establish two types of courts at the highest level—a federal court of appeal that deals with civil and criminal cases, and a Constitutional Court that deals with the questions of law. Important matters, such as the Constitution validity of CAA and the abrogation of article 370, get dragged for years. A separate court for such issues will expedite the process and will be beneficial for the welfare of the people.
Indian judiciary enjoys immense respect in the eyes of the common people. A common Indian is assured that her/his rights will be protected and defended by the Indian courts against the excesses of society, Parliament, or the executive. Former CJI rightly pointed out in one his address that people in the country know that “when things go wrong, the judiciary will stand by them.”
Thus, it is extremely important to preserve this trust and bring the necessary changes with a sense of urgency.