Justice delayed is justice denied and people often hesitate to approach court, even when they are wronged, because of long delays and the high cost of legal proceedings in India. Can this situation be changed for the better without major changes in the justice delivery system or need for administrative reforms?
Mr Shailesh Gandhi, former Central Information Commissioner (CIC) believe it can, based on an analysis of publicly available data on number of pending cases, new cases filed every year and those disposed off. In a session titled “Fast Justice- How pending cases can be dramatically reduced even within the existing system and framework” at Moneylife Foundation on the 22 February 2017. Mr Gandhi took the audience through a detailed presentation of his findings and the numbers that back his contention.
Senior Advocate and human rights activist Mihir Desai, who practices at the Bombay High Court and Supreme Court, then presented his views on what is the practical experience in a court as well as the need for significant improvements at tribunals and other quasi-judicial forums that were expected to take some of the load off the primary judicial system.
The programme had important discussants such as Advocate Jamshed Mistry, Ashank Desai, Founder and ex-chairman of Mastek, Sanjay Pandey, who is Deputy Commandant of Home Guards as well as Deputy Director of Civil Defence Organisation, Vilas Tupe, former ACP of Mumbai Police, well known activists Anil Galgali and Bhavesh Patel, among others.
Laying immense emphasis on the vast and unfavourable effects of Judicial Pendency, Mr Gandhi stated that we have become a lawless state because of judicial pendency. Mr Gandhi provided data from the Central Bureau of Investigation (CBI), anti-corruption bureau, the Supreme Court website and Law Commission’s reports, to support his argument that India needs to fill up just 21,000 vacancies (rather than 70,000 mentioned by former chief justice of the Supreme Court).
Citing quarterly data released by the Supreme Court for 2009 to 2013, Mr Gandhi said, the average percentage of vacancy is 12% in the apex court, 30% in the High Courts and 20% in the District and subordinate Courts. However, due to not appointing judges, the number of missed disposal (of cases) is 205 lakh across the country. The Supreme Court missed disposal of 44,358 cases due to not appointing judges, while the same for High Courts and District and subordinate Courts is 25.85 lakh and 1.78 crore, respectively, he added.
Mr Gandhi said, “When someone says he is in prison, we believe he/she is guilty, when the fact of the matter is that many people are in prison for no real fault of theirs.”
Narrating the tragic case of a poor villager, Tukram, who was locked up an under trial and found that he had lost his parents and his wife had remarried when he got out of prison, how we have made poverty into a crime, he added.
Around 65%-70% prisoners are languishing in jail as under trials, while 1.5 lakh are unlikely to be convicted! Whatever happened to “Innocent till proved guilty” he wondered?
Mr Gandhi believes that our “dysfunctional judicial system” is not “a problem we have to live with- we can find a solution”. We have to stop blaming the government and politicians, and have to take things in our hands, he said on the issue of judicial pendency.
Although the legal system needs many reforms, Mr Gandhi believes that filling up vacancies is the single most important change that can eliminate judicial pendency. The solution, he says, becomes obvious: Zero tolerance to vacancies. It is a special responsibility of lawyers, law students and even common citizens to spread the word to as many as possible and stand consolidated against this crucial obstruction.
Senior Advocate Desai’s added several important dimensions to the discussion. He said, “Every time a new law is promulgated, it brings with it the potential of new litigations. This is rarely taken into account by policy makers. Consequently, it is not accompanied by providing the required budget and infrastructure. He further stated, that it is true that we have a low ration for judges to citizen, however, what is more of a worry is that the sanction strength of judges is also never filled up.
Mr Desai also spoke on the quality of judges and the experience of making direct appointments to the bench as judges. He said that such lateral appointments are rare although there have been some appointments to the Supreme Court in recent times. Explaining the process, he said, many successful lawyers would accept a judgeship (which involves giving up significant income as lawyers) only if they have a reasonable chance of becoming a chief justice or being appointed to the Supreme Court. However, long delays in the appointment process discourages many good lawyers from accepting such assignments.
Mr Desai emphasised that along with quantity, or number of judges appointed, the quality of the judges must also be taken into account. We require “competent and independent judges, who have integrity” and the efficiency to effectively provide justice, which is not the case in many instances today.
Speaking about various tribunals, which have “the colour of a court” he pointed out that they have not been effective in its objective of reducing loads on the courts. One reason is that cases heard by the tribunal also end up in a civil court, with the usual delays. Many times cases come to civil courts even to decide jurisdiction, furthermore tribunals have their own share of backlog.
Advocate Desai believes that courts also need to control the lawyers, especially in matters of the length and relevance of their arguments. Also, they should opt for submitting written arguments wherever possible, as “cases can go on for years”. This is also important to reduce judicial delays.
In terms of the data obtained and the various reports compiled by Mr Gandhi, Mr Desai suggested that one take into account the origination of the case and not merely its duration in one particular court. He concluded by saying that there is a great need for transparency in the appointment of judges as well as a more accountable judiciary.
Following the two addresses, a question-answer session was opened up to the audience. There were multiple comments and suggestions from our special guests and a lot of the questions put forth were answered. All in all, the session was very enlightening and proved successful in thoroughly scrutinizing our current judicial system as well as coming up with possible solutions and reforms that must be implemented in due course of time.