IAS Gyan

Daily News Analysis

JUDICIAL CHALLENGES

26th August, 2021 Polity

Context

  • Supreme Court Collegium showing the way in judicial appointments.

Background

  • The Indian Judiciary acts as a guardian of the Constitution of India and protects the fundamental rights of the society, thus making it the most important organ for the citizens of India.

Database

  • The Indian Judicial System is one of the oldest legal systems and still follows the features it inherited from the British judicial system.
  • The Indian Judiciary system follows the “common law system” of legal jurisdiction. Common law is the law developed by the judges and it binds the future decisions.
  • The Indian Judiciary also follows the adversarial system.
  • If the present rate of disposal continues, civil cases would never be disposed of and the criminal cases will take more than 30 years.

Challenges faced by the judiciary

Delay in justice

  • The Indian judiciary system has failed to deliver justice expeditiously.
  • This 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.

The pendency of cases

  • If we look at the figures, 2.84 crore cases are pending in the subordinate courts, the backlog clogging the High Courts and Supreme Court (SC) is 43 lakh and 57,987 cases, respectively.
  • According to National Judicial Data Grid (NJDG), the five states which account for the highest pendency are Uttar Pradesh (61.58 lakh), Maharashtra (33.22 lakh), West Bengal (17.59 lakh), Bihar (16.58 lakh) and Gujarat (16.45 lakh).
  • This number is increasing day by day which shows the inadequacy of the courts to deal with this matter.
  • Generally, the victims of this are ordinary or poor people.
  • The pendency of the cases also creates a big blockade for international investors and corporations to do business in India.

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, the All India recruitment exam (All India judicial services) may help in resolving the issue of appointment of judges.

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, advocates were on strike for 455 days between 2012 to 2016. That means that on average, lawyers went on strike for 91 days per year.
  • The figures of the UP courts are worse, as the periods of the strike over five years in the worst affected districts were.

Lack of transparency

  • 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.

Hardships of the under trials:

  • In India, over two-thirds of India’s roughly 4.2 lakh prisoners are under trial, which is one of the world’s largest number of under-trial prisoners.
  • 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 a bail.
  • In most of the cases they end up spending more time in jail during the prosecution than the actual term awarded of the crime has been actually committed. Undertrials are not guilty till convicted.

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

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 other related processes.

How to speed up the Indian Judicial System

To increase the strength of the judiciary

  • In order to increase the strength, the All India recruitment exam (All India judicial services) may help in resolving the issue of appointment of judges.

To keep courts open throughout the year

  • 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 each for Holi, Dussehra, Muharram, and Diwali along with the fortnight-long winter vacations.

Proper modernization of courts

  • 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.

Introduction of fast-track courts

  • The 11th Finance Commission recommended the creation of 1734 Fast track courts.
  • These courts were established for expeditious disposal of long pending cases in sessions courts and other courts.

To do away with the archaic laws

  • 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.

Non-acceptance of flippant cases

  • The judges should have clear instruction about the kind of cases they can accept in the court