Events
& Issues
New Delhi, 11
February 2021
Judicial Challenges
FORTIFY JUSTICE DELIVERY SYSTEM
By Dhurjati Mukherjee
The second edition of
India Justice Report (IJR), 2020, that judges States on the delivery of justice
to people, has found Maharashtra to occupy the top position among 18 large and
medium-sized States – each with a population of over one crore. This was followed
by Tamil Nadu, which improved its ranking from its previous third position in
2019.
The IJR, an
initiative of Tata Trusts in collaboration with Centre for Social Justice,
Common Cause, Commonwealth Human Rights Initiative, DAKSH, TISS–Prayas, Vidhi
Centre for Legal Policy and How India Lives, found that in the list of seven
Small States (population less than one crore each) Tripura topped followed by
Sikkim and Goa.
What is significant
about the report, which is aimed at portraying a comprehensive picture of the
progress States have made in capacitating their justice delivery structures to
effectively deliver services to all, is that “two-thirds of the country’s
prisoners are yet to be convicted” or acquitted in the past 25 years, since
1996. Besides, “only 1.5 crore people have received legal aid though 80 per
cent of the country’s population is entitled to it.” Such a high number of
under trials highlight the crying need for expanding the judicial process,
which translates into more courts, more judges and more benches.
This leads to the
obvious oft-repeated necessity of the expansion of the judiciary being an
imperative need with the explosion of human population and with newer
complicacies emerging in society. Thus, it’s quite inevitable that there is a
quantum jump in number of cases. However, there has not been a commensurate
expansion in the judicial system for the last few years, thereby leading to
cases piling up in High Courts as also District Courts. Unfortunately, the recent
Union Budget has not come out with any proposal for expansion of the judiciary
by setting up more Benches and more sector specific courts.
Importantly, the
Supreme Court recently criticised the government for chronic delay in
processing names sent by High Courts and forwarding these to the SSC collegiums
for recommending suitable ones for appointment of judges as HCs, which are
functioning with an alarming 40 per cent vacancy and huge pendency of cases.
The apex court pointed out instances of the government not taking action on
names suggested by the SC collegiums for around one-and-a-half years!
As per recent data
available from the Lok Sabha, Allahabad High Court tops the list with 64
vacancies against a sanctioned strength of 160 judges followed by Calcutta High
Court with the number of vacant judge’s posts numbering 40 vacancies. The High Courts
of Delhi and Bombay follow suit with 31 and 30 vacancies respectively against
their sanctioned capacities. Moreover, what is further disappointing is that in
the past three years since 2018, around 194 proposals from various High Court
collegiums are still under various stages of processing with the government.
In this connection,
it may be mentioned that recently 22 out of 25 High Courts in the country have
operationalised designated fast track courts to adjudicate disputes related to
infrastructure project contracts. The special courts of Madhya Pradesh and
Allahabad, Karnataka and Calcutta within the jurisdiction of the respective HCs,
have dedicated special days every week to enable exclusive handling of relief
matters, pertaining to infrastructure contracts. The Union Law Ministry has
been entrusted with the task of improving India’s ranking on the “enforcing
contract” aspect of the case of doing business ranking and been in regular
touch with each of the High Courts to ensure that separate commercial benches
of the HCs and district courts under them are set up to expedite resolution of
commercial disputes.
According to the IJR,
women comprise only 29% of judges in India. This is a telling remark on Gender
Equality, which governments have sought to bring about. It will be worthwhile
that the Ministry of Women and Child Development take up the issue of
‘discrimination’ with the Union Law Ministry and prepare a roadmap, wherein the
government is acts and not make hollow promises on empowerment of women.
Another aspect of the
judicial challenge is the brewing controversy regarding its independence.
Earlier the judiciary has always been a separate pillar but, in recent times,
the political influence has turned out to be a talking point. Recall, two years
ago, four Supreme Court judges had complained to the Chief Justice of India against
allotting important cases to benches that would not by convention have been
given. There were allegations that the CJI flouted clear guidelines regarding
the strength and composition of benches for particular sorts of cases.
The importance of the
judiciary in a parliamentary democracy cannot be overemphasised and, as such,
if there is erosion in this sector, it speaks poorly for the Indian
polity. Added to this is the mounting number of cases in the High Courts
and District Courts and this is a stumbling block for socio-economic
progress.
The question that
needs to be addressed is the criticism against the judiciary for being ‘partial’
and, in many cases, trying to ‘shield’ the government. There are accusations of
‘judicial barbarism’ for taking decisions which have not gone on well with the
general public. Much like in politics, the leading exponents of extreme speech
when it comes to judicial commentary are not crazies at the margins but
prominent members of the Bar and the public.
Recall there has been
questions raised about the urgent hearing of Arnab Goswami’s case and that the
court came to his aid with even ministers raising a hue and cry on Maharashtra
police action. A political controversy, wherein the channel, owned and managed
by Goswami, is viewed as blatantly echoing government policies and
programmes. On the other hand, scores of poor and destitute under trials
without heavyweight lawyers or influential supporters continue to languish in
prison.
As per available
data, there are 77 examples of cases listed urgently in the apex court daring
the lockdown. Moreover, there are 4098 bail applications pending in the Bombay High
Court and 37,245 such applications in eight major High Courts combined (as on
June end, 2019). The institutional problem remains unaddressed but delays in
the case of political prisoners are only its most visible symptoms. The
question that arises is obviously the need to provide equal justice to all
quickly and fairly.
This is the basic
reform needed for the judiciary and thus additional judges need to be appointed,
at least in the different High Courts and District Courts. It goes without
saying that keeping the country’s judicial heritage in mind, the personal
liberty of the wrongly incarcerated needs to be given uppermost importance.
The foremost focus of
the Indian judiciary has to be helping the downtrodden and the marginalised in
getting justice. There is need for evolving some policy to ensure that the
weaker sections are assured of free legal aid at the sub-divisional and
district courts. Unless the justice delivery system is expanded, true
democratic functioning in the country cannot become a reality. The
government must remember the adage: Justice delayed is justice denied.---INFA
(Copyright, India
News & Feature Alliance)
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