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CHALLENGES & OPPORTUNTIES BEFORE JUDICIARY IN THE CURRENT SCENARIORina. S. Kumar
Assistant Professor-Law, Sister Nivedita University, Kolkata
Abstract - Albert Einstein has rightly said ―In the middle of challenges lies opportunities‖
India being the largest democracy in the world known for its Judiciary is highly impartial, independent from Executives and most importantly strictly following the principles of Sir William Blackstone that is ― It is better that ten guilty persons escape than that one innocent sufferer‖ Everyone has expectations from Judiciary for fair judgment which is proved by judiciary at different stages through different watershed verdicts. Judiciary has Constitutional safeguards and powers to deal with the case of vulnerable sections of the society through enforcement of fundamental rights and writ jurisdiction of High Courts and Supreme Court. Despite the independence of Judiciary from the Executive and Legislative bodies, the Indian Judicial system faces lot of problems. The delay in justice has proved to be one of the biggest drawbacks of this system. Delay in justice creates disillusionment amongst the litigants. Judiciary is no longer attracting the best legal talent because of disparity in the income of bright young lawyers and emoluments of judicial officers. Major issues that the Indian Judicial system faces are the pendency of cases, corruption, lack of transparency, less use of technology & lack of information among people and courts. Thus if the judicial system removes these backlogs we might see Indian Judicial system as the best judicial system in the world. Last couple of years have been quite turbulent for the Indian Judiciary with the alleged involvement of an Allahabad HC judge in medical college admission scam which showed the institution in bad light. For the first time in the history of Indian Judiciary allegations of sexual harassment were leveled against the CJI and the manner in which the issue was handled by the then CJI at least in the beginning, left much to be desired. This dented the Indian Judiciary. Will this be restored is an important challenge before Judiciary. Well there is always a sense of cautious hope in the air. Then came the Pandemic which had a great impact on law. It has caused us to change our mind set and adopt something which was prohibited in the past. Ex Chief Justice Bod be took the bold decision that justice was not to be kept on hold and virtual courts had to begin functioning. The challenges in virtual hearing before the court are that under what circumstances there should be a virtual hearing, in what cases, in what manner should they be conducted and in the way technology effectively used. Judiciary must use this current situation to push for use of technology to improve procedural and substantive aspects of the legal process. The other legal challenges thrown up before Judiciary is increasing globalisation and the changing socio-economic conditions. There is a growing view that the power of a nation is being eroded by globalisation. But one never thought that it would go to the extent of an award being passed by an Arbitral Tribunal in Singapore criticizing the Supreme Court of India for its delay in handling cases. The benefits of increasing foreign investment in any particular sector should be assessed not only in terms of capital flows and wealth creation but also in term of technology transfer, infusion of knowhow and best practices. Easy access to International and comparative materials has also been the key factor behind the emergence of internationally competitive law firms and Legal Process Outsourcing (LPO).
Keywords: Judiciary, Globalisation, Pandemic & Technology.
1 INTRODUCTION
Albert Einstein has rightly said ―In the middle of challenges lies opportunities‖ India being the largest democracy in the world known for its Judiciary is highly impartial, independent from Executives and most importantly strictly following the principles of Sir William Blackstone that is ―It is better that ten guilty persons escape than that one innocent sufferer‖ The Indian judicial system follows the common law system based on recorded judicial precedents as inherited from the British colonial legacy. The court system of India comprises the Supreme Court of India, the High Courts and subordinate courts at district, municipal and village levels. As judiciary is independent of the executive, it can easily safeguard the rights of the citizen to ensure peace and harmony. However, its role is not just limited to this. It plays different roles to make sure there is smooth functioning in the
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country. Firstly, it plays a great role in making new laws. Judiciary is the rightful interpreter of our constitution as well as the current laws. It has the power to create new laws as well as overrule policies that might violate our constitution. Moreover, it also acts as an advisory body. It happens more than often that the executive or legislature seeks help from the judiciary to clarify issues regarding the constitution. Moreover, the judiciary decides upon the constitutional questions. Most importantly, the judiciary is the protector of fundamental rights of the citizens. Everyone has the right to fundamental rights;however, sometimes people try to take them away. Thus, the judiciary ensures no such thing happens and lets every citizen live with harmony. Everyone has expectations from Judiciary for fair judgement which is proved by judiciary at different stages through different watershed verdicts. Judiciary has Constitutional safeguards and powers to deal with the case of vulnerable sections of the society through enforcement of fundamental rights and writ jurisdiction of High Courts and Supreme Court. Despite the independence of Judiciary from the Executive and Legislative bodies, the Indian Judicial system faces lot of problems.
1.1 Issues with the Indian Judicial System & Opportunities The major issues that the Indian judicial system faces are:
The pendency of cases.
Corruption.
Lack of transparency (particularly in the appointment of judges).
Lack of information and interaction among people and courts.
2 THE PENDENCY OF CASES
One of the primary issues with the Indian judicial system is the pendency of cases. If the vacancies are filled, pendency would go down and make the justice delivery system efficient.
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 percent of the GDP. The judge-population ratio is 10.5-11 to one million, which should be at least 50-55 to one million. 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.
Right from the lower court up to the Supreme Court, there is a shortfall of judges as well as lawyers who will try the cases. The figures will actually tell you the story. There is one judge for around every, 73,000 people in India. This data is seven times worse than that of the U.S. A calculation made by Bloomberg Business week, says, ―If the nation‘s judges attacked their backlog nonstop—with no breaks for eating or sleeping—and closed 100 cases every hour, it would take more than 35 years to catch up‖. Aren‘t the numbers something to worry about? Hence, the steps need to be done to quicken the Indian judicial system. 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. 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 dispensation of the justice in their favor (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.
It is high time that we come out of this dormant state and something effective is done to make the Indian judiciary speedy. This is important for the betterment of the community at large. Some of the things that could be done to quicken the legal proceedings are the following:
2.1 To Increase the Strength of the Judiciary:
The first thing that the government ought to do is increase the number of judges. This is not an easy process. It requires intervention at every step. In fact, at every level, the number of judges needs to be increased including the Supreme Court, the High Court, and the lower court. The investment must be done to increase the number of students taking up
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law as a major field of study. There should be a number of national law schools and also private law colleges.2.2 To Keep Courts Open Throughout the Year:
Times have changed and today people are active round the clock. But the Indian judiciary still works in early fashion. They have summer vacations, winter vacations and a lot of other leaves. It is just not when we are carrying the baggage of three crore backlog cases. In fact, the special night shift magistrate needs to be implemented so that people need not wait till the courts open. The government needs to get it straight that the Indian Judicial system should get the status of emergency service.
2.3 Proper Modernization of Courts:
Today India dreams of becoming a completely digitized country. In fact, we have been successful to a large extent. But strangely enough, the Indian judiciary is left behind. This should not be the scenario. The Indian law system should be completely digitized right from the beginning till the end. This will help in saving a lot of to and fro documentation time.
2.4 Introduction of Fast Track Courts:
There are many cases that almost everyone knows will go through the session‘s court, the lower court, the High court and finally the Supreme Court. So when the destination of the case is known, there is no need of wasting time by presenting the case in the sessions and the lower court. Rather, a fast track court needs to be introduced so that a case can be directly sent to the Supreme Court without wasting time.
2.5 Non-acceptance of Flippant Cases:
Many times it is seen that a powerful political figure gets any sort of case admitted in the court of law. The case may be dismissed at a later stage, but it wastes valuable time for the judiciary. Therefore, judges should have clear instructions about the kind of cases they can accept in the court of law.
Last but not the least, along with the Indian Judicial system it is also the responsibility of the Indian citizens, not to waste the time of law with false cases for personal gains. It is a collective responsibility of all not to deny justice to anybody.
3 CORRUPTION
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 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.
3.1 Lack of Transparency (Particularly in the 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. Well, be it the collegium system or the NJAC, none seem to be transparent enough to make the selection process of judges clear and understandable to the common public. All democracies are swiftly moving toward an open government and a citizen‘s right to know — an international trend increasingly being supported by judicial decisions. 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. The current government led by Prime Minister Modi states that
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the introduction of NJAC shall be more transparency in appointment of judges. The supreme court of India, however, denied the fact and said there is a need for the even higher level of law for the appointment of judges as NJAC is not ―perfect.‖ 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. The best way out here is the introduction of such system by way the public are aware of the appointment of judges. In this manner there will be a transparency among the public regarding the appointment of judges.3.2 Lack of Interaction Among People and Courts:
For any Judiciary to be successful, it is necessary that the general public must know the mechanics of judiciary. The society must participate in the court proceedings. However, 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.
Thus if the judicial system removes these backlogs we might see the Indian Judicial System as the best Judicial System in the world.
3.3 Challenges before Judiciary & Its Achievements
Last couple of years has been quite turbulent for the Indian judiciary. The January 12 press conference by four senior-most judges against the then Chief Justice of India (CJI), Dipak Misra, face-off with the government over the appointment of Justice KM Joseph and alleged involvement of an Allahabad HC judge in medical college admission scam showed the institution in bad light during 2018. The year gone by proved to be even worse. For the first time in the history of Indian judiciary, allegations of sexual harassment were levelled against the CJI and the manner in which the issue was handled by the then CJI, at least in the beginning, left much to be desired. He was given a clean chit and matter stands closed, but it dented the image of the Indian judiciary. Notwithstanding the negative developments during 2018-19, it managed to do much on judicial front by delivering historic verdicts that would possibly change the course of history. In 2018, the SC de-criminalised homosexuality and adultery, allowed entry of women of all age groups into Sabarimala Temple, upheld Aadhaar validity and legalised passive euthanasia by allowing individuals to write a ―living will‖. In 2019, a five-judge Bench headed by then CJI Ranjan Gogoi managed to solve one of the most contentious land disputes in India by ruling that the disputed land in Ayodhya belonged to Ram Lalla. It‘s a judicial feat that establishes the authority of the SC as the final arbiter.
4 CHALLENGES & OPPORTUNITIES BEFORE INDIAN JUDICIAL SYSTEM DURING PANDEMIC
The COVID-19 pandemic has affected the health and wealth of many people in India. It has had a great impact on law. It has caused us to change our mindset and adopt something which was prohibited in the past. Just two months ago, if a person was to go to court and take a photograph or even more heretical, undertake an audit or video recording, he would be thrown out and would likely be thrown in jail.
In August 2016, there was a news report of a young woman in Bengaluru who had come to the court in connection with a matter. She took a photo on her cell phone, intending to send it to her sister. A judge saw her and immediately had her cell phone confiscated and threatened to initiate contempt proceedings. Her father came to the court and apologised. Fortunately for her, the contempt proceedings were not initiated. This is one end of the spectrum — a ban on photography and recording.
This matter of recording and filming has been a subject of great debate and discussion in many countries. It appears that photography was permitted in courts in the US till about 1925. Thereafter, restrictions were introduced. Committees were constituted and rules framed towards prohibiting or restraining photography. But in some cases, exceptions were made, such as in the trial of O J Simpson, which was telecast. However, the US Supreme Court, since as far back as 1955, has been recording oral arguments made before it, which are available to the public online. The oral arguments have also been transcribed and put up on the same website. They are available soon after the arguments
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have taken place. Other countries too have been concerned with this issue. Coming back to India, the matter of Swapnil Tripathi is very relevant. Tripathi, a student of National Law University Jodhpur, was interning in Delhi. He had worked on a particular matter and wanted to accompany his senior to the Supreme Court. However, on Mondays and Thursdays, interns were not allowed in the Court on account of a large number of matters being taken up and the fact that the Court gets completely filled up. Tripathi, was very upset that he was not permitted to go to the Court office and with the consent of his senior, filed a writ petition praying that at least live streaming should be allowed. The matter was taken up along with other matters involving similar issues.Then the pandemic struck. On March 16, Chief Justice Sharad Bobde took the bold decision that justice was not to be kept on hold and virtual courts had to begin functioning.
The Bombay High Court was quick off the mark to hear a matter by video-conferencing.
Thereafter, the Supreme Court and other courts have heard several matters. Now it appears that the technology and the Apps being used are different from what were used on the first day and that there have been glitches. It also appears that while the first few matters could be heard by anyone who logged on, now access is restricted and only the parties concerned are admitted into the virtual hearings. To have virtual courts is, therefore, no longer the question. The questions now are: Under what circumstances should there be a virtual hearing, in what kind of cases, in what manner should these be conducted, and in what other ways can technology be effectively used.
The dignity of the court must be maintained and the ultimate touchstone on which such steps should be tested, is whether the cause of justice is served. Virtual courts cannot be a substitute for actual live courts. However, in certain circumstances they can supplement or step in to fill the gap. We must recognise that technology has led the way and we must use this in the best manner possible.
Article 130 of the Constitution of India states that the Chief Justice of the Supreme Court may, with the consent of the President of India, cause benches of the Supreme Court to be set up in different places. But, we have not had benches of the Supreme Court outside Delhi in all these years. Perhaps, now is the time to give life to this provision. An option should be available to a litigant who is not from Delhi and does not wish to travel, particularly in these times, and wishes to be heard through video.
Such a litigant‘s application may be accepted subject to conditions such as — additional court fee, the lawyer will appear from a court room or a chamber of commerce or a designated centre, an officer of the court would be present in the court room, the opposing lawyer could be in Delhi, appearing before the Judge, or could be arguing from a designated room in any court or centre, a definite date and time should be fixed for such a hearing, and that hearings should be accessible to all.
Once the lockdown is lifted, it is possible that this urgency will come to an end and we will get back to the situation as it existed before. But, we must use this opportunity to implement the technology available for improving the procedural and the substantive aspects of the legal process. To paraphrase Winston Churchill, ―Never let a good crisis go to waste!‖
4.1 Impact of Globalization on Legal Systems
All of us associate globalisation with the free movement of capital, labour, goods and services across national borders. However, these parameters of economic globalisation cannot be viewed in isolation from other aspects such as the free exchange of ideas and practices. Especially from the viewpoint of developing nations, the benefits of increasing foreign investment in any particular sector should be assessed not only in terms of capital- flows and wealth creation but also in terms of technology-transfer and the infusion of know- how and best practices. From this perspective the legal systems in various countries have a lot to learn from each other – both in terms of institutional design and the evolution of substantive laws. The reverse linkage is of course the impact of globalisation on our respective legal systems. In the age of the internet and frequent international travel, judges, lawyers, academics and even law students from different countries have a lot of opportunities to interact, collaborate and learn from each other‘s experiences. The functioning of our legal systems is also being continuously re-shaped by the various socio- economic parameters of globalisation. For instance, reliance on foreign precedents is
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necessary in certain categories of appellate litigation and adjudication. For instance in litigation pertaining to cross-border business dealings as well as family-related disputes, the actual location of the parties in different jurisdictions makes it necessary to cite and discuss foreign statutes and decisions. Another factor which sows the seeds for more ‗trans judicial communication‘ is the increasing international alizarin of legal education. The leading law schools in Europe as well as the United States are increasingly drawing students from more and more countries, especially for postgraduate and research courses.The diversity in the classroom contributes to cross-fertilization of ideas between individuals belonging to different jurisdictions. When students who have benefited from foreign education take up careers in their respective country‘s bar and judiciary, they bring in the ideas imbibed during their education. Access to foreign legal materials has become much easier on account of the development of information and communication technology. To take the example of India where until a few years ago subscriptions to foreign law reports and law reviews were quite expensive and hence beyond the reach of most judges, practitioners and educational institutions. However, the growth of the internet has radically changed the picture. The decisions of most Constitutional Courts are uploaded on freely accessible websites, hence enabling easy access all over the world. Furthermore, commercial online databases such as LexisNexis and Westlaw among others have ensured that judges, practitioners and law students all over the world can readily browse through materials from several jurisdictions. Such easy access to international and comparative materials has also been the key factor behind the emergence of internationally competitive commercial law firms and Legal Process Outsourcing (LPO) operations in India.
5 CONCLUSION
The time has come when judiciary must find out its own device or method to wipe out the black ships in Judiciary. There is no magic band in the hands of the judiciary to change all the ills of the system overnight but we hope that we will gradually be able to reclaim the judiciary and restore it as an independent and accountable institution. “Challenges are great opportunities in disguise. Each challenge you accept opens a new door to your success.”
REFERENCES 1. www.legodesk.com 2. http://blog.ipleaders.in
3. http://www.delhihighcourt.nic.in 4. http://indianexpress.com 5. The tribune
