Indian Judiciary is one of the oldest legal systems. Right from the monarchical rule to the British era and the modern system of independent India, the Indian judicial system has always tried to seek justice for the innocent and punishment for the guilty. It follows the “common law system” of legal jurisdiction. Common law is the law developed by the judges and it binds future decisions. Sometimes, also follows the adversarial system. In India, there is 1 judge for 73000 people which is 7 times more than in the USA. If the present rate of disposal continues, civil cases would never be disposed of and the criminal cases will take more than 30 years. At least that’s what the data says! Now, the real challenge is whether the judiciary is successful in fulfilling its duties as a guardian of the rights of the citizens?
Hierarchy of Courts
There are various levels of judicial bodies in India. The courts have their jurisdictions and are to follow the laws according to the Constitution of India. It is their duty, as mandated by the Constitution, to be its watchdog. They do so by calling into scrutiny any act of the legislature or the executive, who otherwise, are free to enact or implement these, from overstepping the boundaries set for them by the Constitution. The Indian judicial system is independent from legislative and executive bodies in India. If we look at the hierarchy, it is as follows:
The Supreme Court of India is the highest judicial body in India, having jurisdiction all over India. It has been established under Part V Chapter VI of the Indian Constitution. It comprises of one Chief Justice and 30 Judges, the selection of whom is done through the collegium-system. At present, there are 24 High Courts situated in different states and union territories. The High Courts have their jurisdictions limited to their related states or union territories. According to Article 141 of the Indian Constitution, the High Courts are bound to follow the orders of the Supreme Court and their guidelines. The district courts are established by the state governments in a different district of the states depending on the population and number of cases. The district courts are provided with one district judge and also numerous assistant judges depending upon the workload of the particular court.
Challenges faced by the Indian Judiciary
Despite the independence of the judiciary from the executive and legislative bodies, the Indian judicial system faces a lot of problems. The delay in justice has proved to be one of the biggest drawbacks of the judiciary system. Delay in justice implies the time taken to dispose of a case, in excess of the time which should be reasonably consumed by the court to decide the case. Delay of justice creates disillusionment amongst the litigants; it also undermines the capability of the judiciary system. One of the main reasons for the delay of justice is that the institution of cases in the courts far exceeds their disposal.
A famous proverb says, ‘Justice delayed is justice denied’. Judiciary is no longer attracting the best legal talent because of disparity in the income of bright young lawyers and the emoluments of judicial officers. To attract persons of true potential to the judicial cadre, the system must improve their service conditions, particularly the conditions of the trial court judges. The delay in justice can because of the challenges faced by the Indian Judicial system, such as:
· The pendency of cases
· Strike by Lawyers
· Less use of technology
· Lack of transparency
· Low judges strength and appointment problem
· Hardships of the undertrials
· Lack of information and interaction among people and courts.
The Pendency of Cases
Perhaps one of the biggest challenges faced by the Indian Judiciary is the massive burden of Pending Cases. If the vacancies are filled, pendency would go down and make the justice delivery system efficient. A Large number of cases that are pending in the Supreme Court as well as the other lower courts have defeated the purpose of the judicial system. According to a report of 2015,
- There were close to 400 vacancies for the post of judges in the 24 High Courts of the country
- The pending number of cases in the Supreme Court has mounted to around 60,000.
- There are some 25-30 million cases in various courts.
- Budget allocation for the judiciary is just 0.2 per cent of the GDP.
- The judge-population ratio is 10.5-11 to one million, which should be at least 50-55 to one million.
According to a report, in Mumbai, India’s financial hub, the courts are burdened with age-old land disputes which act as a hurdle to the city’s industrial development. Thus, the pendency of cases and lack of lawyers and judges is a big challenge to the Indian judicial system. This is because, in general, when the victim is not economically well off, they need to suffer as they are financially weak and hence cannot afford high profile lawyers who can win the case in a limited span of time. Meanwhile, the rich can easily afford expensive lawyers and change the course of the dispensation of justice in their favour (not necessarily true if the lawyer follows ethical standards). This also creates a big blockade for international investors and corporations who want to conduct business operations in India.
The Civil Code Procedure, 1908 suggests that not more than three adjournments shall be given in a case; however, Vidhi centre for legal policy finds the Delhi High Court gave more than three adjournments in nearly 70% of all delayed cases. Though the Code of Civil Procedure, 1908 suggests not more than three adjournments should be given in each case, Vidhi finds the Delhi High Court gave more than three adjournments in nearly 70% of all delayed cases.
Just like the other pillars of democracy, the executive and the legislative, the judiciary too (in some instances) has been found to engage in corruption. There has not been established in any system of accountability. In the case of judicial processes, even the media is unable to give a proper and clear picture of the corruption scenario. The media seems to be more focused on exposing corruption in other fields, especially the executive. A minister taking a bribe or distributing money during elections may become a headline, but a courtroom clerk taking a bribe and altering the date of the trial remains unnoticed.
As per the constitutional provision, there is no provision yet for registering an FIR against a judge who has taken bribe without taking the permission of the Chief Justice of India. Obviously, visiting the CJI, seeking his permission, and then registering an FIR is not what a poor man will prefer to do. This will prove to be more expensive and time consuming for him, besides the court and lawyer’s expenses. The Professional arrogance of the judges whereby judges do not do their homework and arrive at decisions of grave importance while ignoring precedent or judicial principle delays justice and adds to trial’s spam.
Strike by Lawyers
The Supreme Court bench stated that lawyer strikes are one of the major reasons for pendency of cases. As per the High Court of Uttarakhand, advocated were on strike for 455 days between the years 2012 to 2016. That means that on average, lawyers went on strike for 91 days per year. Recently the High Court Lawyers of Odisha went on a strike for two and a half months. Due to this strike the pendency of court cases has gone up by around 4,600 in past months from 1.67 lakhs to 1.71 lakhs.
Less use of technology
In order to have a more effective judiciary, it needs to adopt the technology. This will reduce the huge amount of paperwork involved. The database of the court is also not maintained in one place and there is no recording of the proceedings and hearings. Thus there is a need to use better technology for recording the statements, other technology such as CCTV’s should also be used for recoveries and another related process.
Lack of Transparency
Judiciary does not come under the ambit of the Right to the Information Act. In the functioning of the Indian judiciary system, the substantial issues like the quality of justice and accountability are not known to the citizens properly. There is also a need for transparency in the appointment of the judges. Right to know is a part of freedom of speech and expression, as provided by the Constitution, however, the present system violates this fundamental right. The citizen’s right to know is also an international trend also supported by judicial decisions. Right now we do not have a transparent and foolproof system of appointment of judges. These also lead to delays in filling the vacancies.
Low judges strength and Appointment Problem
The vacancy of judges can also result in the delay of justice. There is a tussle between executive and judiciary over who should be appointing judges rather than how judges should be appointed. There are almost 5000 vacancies in trial courts. This is a serious issue as this is a place where the common man comes in the hope for justice. The pendency of the cases will also go down when the vacancies are filled. In this regard, All India recruitment exam (All India judicial services) may help in resolving the issue of appointment of judges.
In the recent past, there have been many debates around all over the nation regarding the Collegium system and the new system that the government wants to introduce for the appointment of judges, the NJAC. Further, the right to know is a part of the freedom of speech and expression and the present secretive system, as implemented by the collegium system, violates this fundamental right. The principle of open trials and justice is highly essential for the fair administration of justice. According to the SC, the bar council was invited to amend the NJAC saying that the committee must comprise of the Chief Justice of India and four senior judges of the supreme court. Well, let’s say on this matter the government and the Supreme Court stand face to face, but the fact is still unanswered whether the stated amendment or even the current proposal bring transparency in the selection of judges and make the framework clear to the common public?
Hardships of the Undertrials
In India, over two-thirds of India’s roughly 4.2 lakhs prisoners are under trial, which is one of the world’s largest numbers of under-trial prisoners. Precisely, for those who have committed a crime, it is OK, but is it fair for an innocent to spend more time in jail just for waiting for his trial? They are in jail not because they have been found guilty but because they are being prosecuted on charges that are non-bailable or when they are too poor to afford bail. In most of the cases they end spend up more time in jail during the prosecution than the actual term awarded of the crime has been actually committed. Under trials are not guilty till convicted. On the other hand, the rich and powerful people can bring the police to their sides, and the police can harass or silence inconvenienced and poor persons, during the long ordeals in the courts.
No Interaction with the Society
In order to form an effective judiciary, is necessary that the judiciary form an integral part of the society. Judiciary’s interaction with society is a must and it should be both regular and relevant. Several countries involve their citizens in judicial decision making, however, in India, there is no such setup. The citizens need to actively take part in judicial activities to build an effective judicial system, as it is the duty of public as well to make sure that they are participative enough to have the knowledge related to the judiciary. The law officer and makers must be close to the public and seek their opinion on a particular law or judgments.
Even though the Indian Judiciary system is one of the strongest amongst all, it is facing certain challenges that are making it ineffective. Because of these challenges, people are losing their faith over the judicial system and they are reluctant to use this organ to help them overcome their problems. The courts need to ensure that there is no delay of injustice as ‘justice delayed is justice denied’.
In order to deal with the pendency of cases it is necessary that the courts are open throughout the year, however, calendar of Supreme Courts (which is also applicable to other courts) provides week-long vacations with each for Holi, Dussehra, Muharram, and Diwali along with the fortnight-long winter vacations. Let’s take a look at the calendar of Madhya Pradesh High Court. In the era of modernization, the court should not be left behind. They need to be fully digitized and a proper infrastructure should be built to provide easy access. The 11th Finance Commission recommended the creation of 1734 Fast track courts. These courts were established for expeditious disposal of long pending cases in session’s courts and other courts. The Indian judicial system needs to let go of archaic laws and focus on taking consideration of the present social condition while giving a judgment. The judges should have clear instruction about the kind of cases they can accept in the court. Thus it is of utmost importance that the judiciary overcomes these challenges as fast as they can so that the citizen of India does not hesitate before approaching it.
Meera Bharathi S
Student, Tamil Nadu National Law University
Meera Bharathi is a curious and enthusiastic person who loves writing. She has co-authored a few anthologies. She believes that a legally empowered society can pave the way for a better environment for the people to live in. For any clarifications, suggestions and feedback kindly find her at @firstname.lastname@example.org