#Agenda2014 Judicial Reforms

One of the fundamental values that a true democracy is expected to fiercely cherish and nurture is the “Rule of Law”. According to the World Justice Project (WJP), the rule of law is a system in which the following four universal principles are upheld:

1.   The government and its officials and agents are accountable under the law;

2.   The laws are clear, publicized, stable, fair, and protect fundamental rights, including the security of persons and property;

3.   The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient;

4.   Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or representatives, and judicial officers who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.

The first universal principle embodies the very idea which is central to the rule of law- none, including the Government, is above the law. In fact, the Government’s very existence must be rooted in the law to establish its legitimacy. Not just that, the functioning of the government too must be in accordance with the law, which is a restatement of the requirement of accountability. In this regard, in recent times, the Hon’ble Supreme Court of India can take pride in its efforts to hold the Central Government accountable on multiple occasions, be it the 2G Spectrum Scam, the Coal Blocks allotment scam or the interference of the Government with the functioning of the Central Bureau of Investigation (CBI). However, what this also points to is that practically every case of national importance ultimately has had to go all the way to the Supreme Court for course correction at critical junctures. Why is this happening with such alarming frequency? Does this point to a fundamental malaise in the system which has critically adverse consequences for the average citizen who expects fair and expeditious dispensation of justice from trial Courts? Without a doubt, it does.

For the first universal principle of rule of law to be given effect to, the fulfilment of the other three principles is a condition precedent. After all, it is not possible to hold an all-powerful Government accountable unless:

(1) There are laws which are adequately armed and optimally worded to prevent mischief;

(2) Public participation is encouraged in the formulation of such laws by taking into account their first-hand experience with the inequities and unfairness of the system; and

(3) Courts of law are presided over by independent, honest, fair-minded and public-spirited adjudicators who are ably assisted by equally independent, honest, fair-minded and public-spirited judicial officers, both of who keep pace with the advances in investigative tools and jurisprudence.

Clearly, judicial reforms must go hand-in-hand with legislative and police reforms for the first principle of rule of law to be a realistic goal. Without an exception, all three require the one key ingredient that makes all the difference- political will. Unfortunately, the public’s need for political will to cleanse the system competes with the need of the political class to interfere with the functioning of law enforcement agencies.

A case in point would be the case of Prakash Singh & ors. v. Union of India & ors. (September 2006), in which, yet again, it was the Hon’ble Supreme Court that directed the Central and State governments to implement a slew of police reforms. These reforms were aimed at insulating the functioning of the police from political interference and to improve the overall quality of policing in the country. Importantly, these reforms were meant to provide an ad hoc framework until suitable legislations were enacted by the Central and State Governments. However, what is indeed shocking is that in April 2013, almost seven years after directions were issued by the Apex Court, the Court had to yet again lament on the lack of serious implementation of the measures directed by it, and the visible lack of interest in Union and State Governments to enact the Model Police Act which was meant to replace the 150-year old British era relic, the Police Act, 1861.

It is during these seven years that the country has witnessed an explosion in the variety, intensity and frequency of crimes committed with impunity, ranging from terrorist acts to the infamous Delhi gang rape, all of which have only contributed to the deteriorating global perception about the law and order situation in India. It is indeed surprising that even the directions of the Supreme Court, which are binding and are the law of the land, have not spurred Governments into action. This speaks volumes of the state of rule of law in this country. When the Union Government does not respect and obey the express direction of the Supreme Court, it is Utopian to expect State Governments and the average citizen to respect the law. Therefore, clearly respect for rule of law must start from the top.

The approach to judicial reforms has been no different. While dragging its feet on police reforms serves the interests of the establishment, a hands-off approach to judicial reforms is largely due to the fear of antagonising the Judiciary and to continue having a hold over judicial appointments for reasons best left unstated. Surprisingly, former members of the Judiciary have been more candid and genuine in advocating speedier implementation of reforms before the public’s faith in the Judiciary is eroded and undermined beyond repair. Specifically, judicial reforms must address the following issues broadly:

A.  Pushing for greater independence of the Judiciary by appointment of Judges through an All India Judicial Service

B.  The free fall in ethical standards in the Judiciary must be broken with immediate measures

C.  Expeditious disposal of cases, in particular criminal cases, must be pursued vigorously

D.  Judiciary must train its members to handle evolving branches of law which are of commercial importance.

Similar to police reforms, the primary thrust of judicial reforms must be to push for insulation of judicial appointments from Executive interference and to abandon selection through collegiums of Judges. To this end, the formation of an All-India Judicial Service (AIJS) was specifically addressed in the 116^th Report of the Law Commission in the year 1986, the pros and cons of which still being debated in 2013. Under Article 312 of the Constitution, creation of AIJS needs the support of two third members of the Rajya Sabha. However, with seven State Governments and 11 High Courts opposing the proposal tooth and nail, the AIJS seems a distant dream. The creation of AIJS could go a long way in addressing the challenge of judicial vacancies by attracting young talent, which is otherwise wary of wading through all the politicking that is associated with judicial appointments.

Apart from the issue of appointments, there is an increasing chorus to address grave allegations of corruption in the Judiciary. The Judicial Standards and Accountability Bill, 2010 is a much-needed step in the right direction. However, on the face of it, although the Bill addresses issues ranging from declaration of Judges’ assets to a mechanism to receive complaints against Judges, it is not without its share of significant flaws and deficiencies.

One of the primary criticisms against the Bill is with respect to the composition of the Complaints Scrutiny Panel consisting of serving Judges of the Supreme Court and High Courts, who are expected to vet the complaints received against brother Judges. Former members of the Judiciary and legal luminaries have categorically questioned the ability of this mechanism to impartially address the complaints.

Another major criticism of the Bill has been its obsession with maintaining the confidentiality of complaints received against Judges. Although it is important to ensure that not every frivolous complaint is made public, it has been suggested that at least those complaints which have been prima facie found to have basis, should be made public and subsequent proceedings must not be conducted in-camera.

Further, to prevent the lure of plum post-retirement positions from affecting the exercise of discretion by Judges during their tenure, a two-year post-retirement cooling off period has been suggested. The absence of such a mechanism reduces all talk of preserving judicial independence from executive influence to mere lip service and needless to say, it encourages political partisanship in the Judiciary.

As regards expeditious disposal of cases, one cannot really blame the people for placing their faith in parallel extra-legal structures where disputes are settled by slum-lords and goons with political connections because as Nani Palkhivala once famously quipped, the progress of a civil suit in Indian Courts is the closest thing to eternity one can experience. This year alone, on more than one occasion, the Supreme Court has come down heavily on the practice of granting generous adjournments in trial courts, despite express provisions of the law which discourage the grant of frivolous adjournments. Clearly, the law is equipped to address this issue; it is execution and enforcement which is this country’s Achilles’ heel.

A good number of these adjournments are sought and granted in matters which involve Governments as litigants, who account for 2.1 crore pending cases in various courts in India, which is approximately 70% of all pending cases in the country. Precisely to address the reputation of Governments as inefficient and irresponsible litigants, National and State Litigation Policies were mooted in 2010. However, these policies hardly seem to have been given effect to. A case in point is the recent example of 12 government pleaders in Kerala seeking pass-over on the same day, forcing a Judge of the Kerala High Court to walk out in utter frustration.

Finally, yet another reason for grant of generous adjournments is the lack of knowledge and training with respect to niche legislations (like the Patents Act) and lack of familiarity with associated commercial realities. Besides creation of special Benches and Courts to address the issue, frequent training must be conducted to train members of the Judiciary in such areas of law and to equip them with the latest legal research tools. Adequate scientific assistance must be provided by creating a roster of experts who can readily assist the Court in fact-finding.

Finally, for a growing economy with an enterprising people whose entrepreneurial spirits the world is beginning to take note of, it is important for us to have a Judiciary which is independent, accountable and competent so that the rule of law is upheld to protect civil liberties and safeguard property rights, both of which are important to create a vibrant democracy and a strong economy.

In each of these instances, the recurring theme is that, although the civil society and the Judiciary can play significant roles in mooting debates and urging for reforms, it is political will that is the prime mover capable of setting reforms in motion, and ensuring that they are not rendered paper tigers. Therefore, a government capable of comprehending issues and taking timely policy decisions, without pandering to vested interests or succumbing to myopic populism for electoral success, is a condition precedent for any of these reforms to see the light of the day.

An example of such a government would be the State Government of Gujarat which was among the first States to give effect to the Supreme Court’s directive on police reforms by passing the Bombay Police (Gujarat Amendment) Act, 2007, which came into force on April 23, 2008. Again, to ensure speedy delivery of justice in rural areas, 183 courts manned by civil Judges and Judicial First Class Magistrates have been made functional to cover 225 talukas in Gujarat. Since 2006, 102 evening courts have been established, resulting in disposal of over 9 lakh pending cases. Over 200 fast-tracks courts were established, resulting in disposal of over 40,000 cases. High Court proceedings were telecasted live to increase legal awareness. Further, the State Government went on an e-drive investing heavily in computerisation for over half a decade.

Clearly, where there is a will, there is inevitably a way. It is ultimately for the electorate to choose the kind of leadership and governance model it wants, to fulfill its aspirations of living in a society where justice is swift and assured, and where individual rights and dignity are assiduously protected.