REJECTED DRAFT BASE PAPER
NATIONAL SEMINAR ON JUDICIAL REFORMS
Held on 2nd-3rd December, 2000 at Chennai
Organized by Department of Culture, Government of India
On the occasion of 50th Anniversary of Republic
The judicial system in India faces two diverse problems
The two problems combined have led to a serious erosion of faith in the judicial system on part of general public as well as on part of administration and legislatures, who in turn are trying to pass draconian laws that either prescribe very harsh punishment or lay down a summary procedure which often leads to a denial of justice to the weak. In both cases, the inefficiencies of the judicial system are forcing a metamorphosis of a civil society into a savage society.
The challenge of judicial reforms is to ensure that quick justice does not become a quicksand of barbaric practices, while at the same time expediting the judicial process as well as ensuring that the percentage of guilty escaping punishment is reduced considerably.
The issues suggested below are not exhaustive but it is hoped that a national consensus on these issues followed by appropriate actions will go a long way in ensuring that the judiciary and thereby democracy in India gets strengthened.
A. Simplification Of Rules And Procedures
Most Rules and Procedures in India have their roots in a colonial background when rules were made by the "superior" race for the "natives". The key design consideration is, generally, the convenience of the bureaucratic machinery rather than the common man. It is essential to bring about a paradigm change in this mind-set and carry out a re-engineering of the complete set of rules and procedures with a view to make the same more user-friendly and even to an extent idiot-proof (so simple that even an idiot can use them).
The problem with any exercise of simplification is that often such exercises are carried out by so-called experts, whose expertise lies in being able to find their way through a maze of rules and procedures. It is not possible for such experts to actually tear through the grand structure that gives them their aura. A creative approach based on a user's perspective designed by non-experts may be the solution. Easier said than done! But that is the challenge for us - the ones who want to create a new India.
B. Repealing Out-dated Laws
It may not be an exaggeration to say that India is one country that has the largest number of laws. There, possibly, does not exist even one lawyer or judge anywhere in India who has read all the laws that are applicable to a citizen of India. Yet, an ordinary citizen is supposed to know all laws and act accordingly and they say "Ignorance of law is no defence". This is a ridiculous situation that needs to be corrected.
Reducing the total number of laws can involve repealing all out-dated laws and also those laws that are not possible to implement.
C. Judge Population Ratio
The number of judges per 100,000 people in India is very low as compared to most developed countries and also in comparison to some developing countries. It needs to be discussed whether there should be a statutory provision prescribing a minimum ratio or a consensus may be evolved to work towards realizable time-bound targets in this regard. It may also be examined if some system of Honorary Judges who are not full time judges can be worked out for some class of cases.
D. Time-bound Filling of Vacant Posts in Judiciary
Judicial appointments and promotions need to be streamlined to ensure that posts do not remain vacant for any length of time. Appropriate institutional structure may need to be created that will estimate the posts likely to fall vacant in future and take the necessary steps in anticipation. The role of High Courts, Supreme Court and Administration may need to be redefined to make the process transparent, fair, smooth and fast.
E. Appointment, Promotion and Transfer of Judges
A judiciary is just about as good as the people who man it. Ensuring high quality of judicial officers and judges is critical for a high quality judicial system. Basic principles of good Human Resources Development are as essential to judiciary as they are in an industrial enterprise. Getting the best talent and maintaining high level of motivation is possible if and only if the system is fair and transparent in all matters that concern the person who is a part of it. Appointment, promotion and transfer are, hence, critical to build a high quality judicial system. Working out a fair and transparent system in all such matters must, therefore, receive high priority.
F. Judicial Accountability
It is ironic that a judge can order for a man to be hanged or to be imprisoned for the best part of his life and a few years later some higher court can set aside the order of the lower court, without any system of punishing the lower court judge for a bad order. Every other pillar of democratic governance is subject to some system of ensuring accountability and checks and balances. Judiciary has neither a system of rewards nor a system of punishments. It is necessary to discuss whether attempts to improve the quality of judicial system should include some mechanism of rewards and punishments for judicial officers and judges monitored and operated either by an internal institution or by an external body.
G. Contempt of Court
Contempt of Court proceedings have sometimes been taken to such ridiculous lengths that one wonders whether the basic principles of jurisprudence and natural justice should permit such god-like status to anyone in a democratic society. Healthy criticism and debate must not be sacrificed at the altar of courts in any guise. It is important that there is a debate to examine the law relating to contempt of court in the light of basic theory of democracy.
H. Transparency of Court Proceedings
Indian courts do not allow electronic media presence during court proceedings, while in many other countries trials are extensively covered by media leading to active interest of the common man in the judicial proceedings. It is necessary to discuss whether the judiciary and justice will gain by more transparency.
1st August, 2000
Please write to me your comments about the above article.
ANIL CHAWLA is an engineer by qualification but a philosopher by vocation and a management consultant by profession.
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