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7 PM Editorial |Why Only Filling Judicial Vacancies Won’t Decrease Pendency| 29th April 2020

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Why Only Filling Judicial Vacancies Won’t Decrease Pendency

What has happened? Judicial reforms in India till now have talked majorly about supply side solutions like more judges and more funds for the courts. But there are several issues in Indian judiciary apart from judicial vacancies, which demands comprehensive judicial reforms in the country.

The Indian judicial system is plagued with problems of delay and backlog. The consequence of such high pendency of cases is erosion of faith in institution of judiciary. But there is more to judicial reforms than only filling up the judicial vacancies

This brings us to the question of what other issues are there in our judicial system that needs to be addressed. Therefore, in this article we will discuss the following:

  • What is the need of judicial reforms in India?
  • Why only filling judicial vacancies won’t decrease pendency?
  • What are the steps taken by government?
  • What are the possible solutions?
  • Conclusion

What is the need of judicial reforms in India?

The judiciary since its functioning from January 28, 1950 has been the nation’s moral conscience, speaking truth to political power, upholding the rights of citizens, mediating Centre-state conflicts, providing justice to the rich and poor alike, and on several momentous occasions, saving democracy itself.

Despite its achievements, a gap between the ideal and reality has been becoming clear over the years. Some of the prevailing issues are: 

  • Backlogs of cases:
    • As per Law Minister Ravi Shankar Prasad, More than 43 lakh cases are pending in the 25 high courts in the country and over 8 lakh of these are over a decade old in 2019.
    • The backlogs plaguing our judicial system have gained us disrepute in the international community, too.
    • A prime example is the investment arbitration award in the case of White Industries v. Republic of India. An ICC Tribunal found that the Indian Supreme Court’s inability to hear an Australian investor’s appeal for over 5 years amounted to a breach of India’s obligation to provide investors with effective means to enforce their rights under the India-Australia Bilateral Investment Treaty. India was asked to pay a hefty sum of AUS$4.85 million to White Industries.
  • Disproportionate vacancies in some states:
    • As per the Department Related Standing Committee Report, released in March this year, the current sanctioned strength for the District Judiciary across the country is 24,018. Out of these, 5,146 (around 21%) posts of judicial officers are lying vacant.
    • Five states are struggling more than others when it comes to recruiting judges. Vacancy in the district judiciary is highest in Uttar Pradesh(1053), Bihar (776), Madhya Pradesh (370), Gujarat (308) and Rajasthan (309).
  • Vacancies not limited to District Judiciary:
    • As per the Standing Committee’s Report, 397 out of 1079 sanctioned posts lie vacant in various High Courts in the country. This amounts to almost 37%vacancy in High Courts – higher than the vacancy percentage of 21% in the District Judiciary.
    • Out of the 397 vacancies, recommendations for 206 posts have been sent by the High Courts, but the recommendations are still being processed between the Government and the Supreme Court Collegium.
  • Gap between policy and practice:
    • The Supreme Court has endorsed the methodology of the National Court Management Systems (NCMS)committee for calculating judge strength. But in practice, High Courts follow different methodologies. Only two out of the 18 High Courts are using the NCMS methodology for calculation of judge strength. This shows there exists a gap between the policy debates at the Centre and the actual manner in which the court administration calculates the number of judicial posts needed across all tiers and cadres.
  • No measure to check productivity of judges:
    • The National Judicial Data Grid (NJDG)system, which was created with the objective of improving judicial productivity qualitatively and quantitatively, is not collecting granular, relevant data from courts to determine performance indicators.
    • Meaningful data in this regard would include time spent by judges on different case types and at different stages during the trial process.
  • Inexperience of trial court judges:
    • A recent report by think tank Vidhi Centre for Legal Policy claimed that Civil judges and judicial magistrates in India are too young and consequently they lack “significant life experiences”.
    • The average age of new judges who are being appointed as Civil Judges and Judicial Magistrates is between 26-27 years except in Kerala where the average age is 33 years. Such candidates have little to no experience at the bar and also unlikely to have significant life experiences.

Why only filling judicial vacancies won’t decrease pendency?

The conversation on judicial reforms in India so far has focused on supply side solutions like more judges and more funds for the courts. Reforms in the past have been made with a limited understanding of judicial vacancies and have ignored factors such as higher vacancies in some states and differences in the method used for calculating judge strength.

What are the steps taken by government?

  • National Mission for Justice Delivery and Legal Reformswas set up with the twin objectives of increasing access by reducing delays and arrears in the system and enhancing accountability through structural changes and by setting performance standards and capacities.
    • The Mission has been pursuing a coordinated approach for phased liquidation of arrears and pendency in judicial administration which, inter-alia, involves better infrastructure for courts including computerization, increase in manpower strength of judiciary, suggesting policy and legislative measures in the areas prone to excessive litigation, recommending re-engineering of court procedure for quick disposal of cases and emphasis on human resource development.
  • The National Judicial Academy (NJA)has made changes in delivery of training programs in the Academic Year 2015-16 to inculcate better use of technology among Judges in a stress free environment.
    • A session on library reading and computer skills has been introduced for one hour each every day after technical sessions are over. Further, management and psychology disciplines to resolve disputes, conflicts, differences with peers and other stakeholders in the justice system have been introduced.
  • The central assistance is provided to the State Governments / UT Administrations under the centrally Sponsored Scheme (CSS) for development of Infrastructure Facilities for Judiciaryfor construction of court halls and residential units for Judicial Officers / Judges of District and Subordinate Courts. The funds sharing pattern for Centre and State is 60:40 in respect of States other than North Eastern and Himalayan States (which is 90:10).
    • An on-line monitoring system will be set up by the Department of Justice enabling data collection on progress, completion of court halls and residential units under construction as well as better asset management.
  • Scheme on Fast Track Special Courts (FTSCs)for expeditious disposal of cases of rape and Protection of Children against Sexual Offences (POSCO) Act.
    • The scheme of Department of Justice aims at effective implementation of Criminal Law Amendment Act, 2018 by ensuring targeted disposal of pending rape & POCSO Act cases.
    • A total of 1023 FTSCs will be set up under the Scheme out of which 389 FTSCs will exclusively handle POCSO Act case.

What are the possible solutions?

  • Creation of All-India Judicial Service (AIJS):
    • The competence and quality of judges in trial courts is critical for the integrity and credibility of the whole justice system.  Therefore there is a strong case for creation of an All-India Judicial Service, in line with the All-India Services.
    • Article 312of the Constitution provides for the creation of an All–India Judicial Service (AIJS) common to the Union and the States.  Such a service can be created and regulated by the Parliament by law, provided that the Council of States has declared by resolution supported by not less than two-thirds of the members present and voting that it is necessary or expedient in the national interest to do so.
  • Using bottom-up approach: Improve the district courts.
    • A high-level team must visit each district court to ascertain what is lacking in terms of infrastructure and facilities. It would surprise many to know that many court halls and rooms for the registry have not been whitewashed for several years. Broken windows, chairs, shelves can be found across most.
    • Discussions must also be held with district court judges to appreciate the bottlenecks they encounter in their day-to-day functioning and to understand their needs with a view to ease their high-pressure assignment.
  • Case and court management must be embedded in the justice delivery system:
    • Case management is a comprehensive system of management of time and events in a law suit as it proceeds through the justice system, from initiation to resolution. Here, the court sets a timetable for the case and the judge actively monitors progress.
    • The Singapore judiciary has successfully implemented case management, and today its achievements are recognized across the world.
  • The Law Commission of Indiain its 230th report has also offered a long list of measures to deal with the pendency of cases.
    • These include providing strict guidelines for the grant of adjournments, curtailing vacation time in the higher judiciary, reducing the time for oral arguments unless the case involves a complicated question of law, and framing clear and decisive judgments to avoid further litigation.
    • In addition, the courts should also seriously consider incorporating technology into the system; digitizing courts records has been a good start in this context but a lot more can be done. For example, just like automation powered by Artificial Intelligence is already helping doctors, it can also be leveraged to assist judges and lawyers.
  • The court administration, in-charge of computing judge strength, should be trained to use data management tools efficiently so that they apply the method best suited for computation of judge strength.
  • All judicial reforms should be based on strong empirical foundations. Given the volume of administrative functions, a possible alternative can be outsourcing functions such as calculation of judge strength, which require rigorous statistical skills, to private experts.
  • The NJDG (National Judicial Data Grid)which has been developed as part of the e-courts project, needs to collect better data which can assist in computation of judge strength. It should be able to measure judicial hours spent on different case types and at each stage of court processes.
  • Expanding local courts all over the country, especially in urban areas, we can create an acceptable, simple mechanism for ensuring speedy justice in cases of ill-treatment of women, as well as many simple civil and criminal cases. For instance, if a person is held guilty of eve-teasing or harassment in a bus or train, the trial in a local court can be completed within days, and the person, in case of first offence can be imposed a fine and the conviction can be entered in his academic and employment record, with the condition that the entries can be deleted by the court after three years of good conduct.

Conclusion

Timely selection of judges and courts working at full strength will undoubtedly help improve the speed of justice delivery in the country if it also addresses the systemic issues in the ecosystem. Hence filing the vacant seats is not the only solution for judiciary to function efficiently. The mission shall ensure that the Indian judicial system will not only be known for the eloquence of its substantive judgments but also because of its ability to deliver justice quickly, independently and in a manner that keeps the faith of the public intact.

Source: Vidhi Centre for Legal Policy

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