Published on: August 05,2021 13:20 IST
By Neha Choudhary
Introduction
Every nation needs development for the constant growth of the country. The prosperity and advancement of the country depend on how well the transformation has been adopted by the citizens and the government authorities and how the improvement in that particular field has been determined to be the best.
Likewise, the development of a country also depends on the maintenance of law and order, judicial system, working of the judicial mechanism in delivering and ensuring justice, decreasing the pendency of the cases, and how well the system is engaged according to the framework and foundation set by the Constitution of the country.
Thus every developing country is giving prior importance to the indispensable reforms.
India as a developing country needs lawful changes in every sector possible for the constant growth among other advanced nations and to be in the limelight as to be the most progressive country, the judicial reforms are also must to ensure impartial, predictable, accessible, and efficient judicial system.
Thus there is a demand for India’s judicial system to alter itself for the better future of the country to ensure just and equity and must give a central role to the judicial reforms that would strengthen and enhance the rule of law.
Indian Constitution sets the groundwork and framework according to which there are three pillars of the government particularly Legislature, Executive, and Judiciary.
Among the three organs that although are meaningful for the smooth functioning of the country, the third pillar i.e. the Judiciary is thus the most influential and authoritative foundation of the country due to its autonomous and unique entity and its ability and capacity to be reformed with flourishing times.
The judicial pillar is a sovereign body that administers it with the powers to make laws, rules, mandate the citizens to follow certain regulations, delivering justice to the innocent, setting an example by punishing the guilty while at the same time ensuring their rights haven’t been infringed and declaring justifiable pronouncements for the betterment of the society.
However, the judicial organ of the government requires compelling reforms to compete with the overall developments in the country.
In reference to the required reforms in terms of the legal system of the country, it is thus prescribed to improve the facilities and infrastructure of the courts, especially in the district courts, the frequent check on the pending cases and their status as to assure the instantaneous delivery of the justice which has been lacked in recent times even after the existence of the fast track courts.
According to the reports, fast-track courts have failed to deliver timely justice in various criminal cases whereas some have been disposed of in a matter of minutes.
Moreover, the overall administration of the courts and the cases are to be transformed as to assure the smooth functioning of the delivery system as it is the comprehensive system that continues from initiation to resolution.
Over the years, there have been several recommendations made by the Law Commission of India in which they have mentioned the needs and aspirations of the judicial reforms.
Moreover, reports have also been published by Justice GC Rankin (1925), Justice SR Das (1949), and Justice Vs Malimath (2003). Many concerned organizations have also released the announcement on the different facets of the justice delivery system.
However, the reports and the efforts put in by the authorities have not made any difference to the judicial system and the inefficient justice delivery system has only become more inefficient, disorganized, or incompetent with times.
In India, the need for the judicial reforms has thus given the deserved importance and to be the ideal judicial system where the innocent are exonerated, the guilty is punished, rights of each citizen are maintained and where no victim would hesitate to fight back for atrocities and claim justice and thus India in light of judicial reforms has taken the necessary initiative that would ensure the judicial advancement in time.
Moreover, Lok Sabha had proposed various recommendations in reference with Judicial Reforms in consultation with three renowned jurists Shri Justice M N Venkatachaliah, (late) Shri Justice JS Verma, and (late) Shri Justice V R Krishna Iyer that included the establishment of an All India Judicial Service (AIJS) to ensure quality and excellence in subordinate judiciary and National Judicial Commission (NJC) to enhance accountability, equal participation of Judiciary and Executive, to ensure greater transparency and objectivity in the appointments to the higher judiciary and thus the initiative has proved to be a tremendous step in the field of law.
What is the History of the Reforms in the Indian Judicial System?
The Indian judicial system has emerged and evolved from the times of the Vedic period of religious prescription to the times when the law has constitutionally been codified judging parameters of every possible situation.
The Indian judicial history has been recorded since Vedic times to the British Raj era to the times when the independent Constitution had been introduced and vis a vis fundamental reforms can be seen with the dynamic scenario.
The court system of India envisions that particular areas for the reforms that include proper codification of law rather than common law system, alteration of judicial administration, shifting from an inquisitorial system to an adversarial system, judicial selection, and retention, compensatory mechanism, enhancement in appointment procedure, prosecution independence or mandatory retirement age for judges and magistrates.
In the period of the Mughal era, the judicial system of the country was neither adopted legitimate procedures nor there was formulation and establishment of any legal organization i.e. there was no codified legal system.
The litigation process was either managed by the caste elders, Panchayats, Zamindars, Muslim Qazi, Rajas, or Badshahs.
The commencement of the Indian common law system has to be traced back to 1726 when the East India Company well-established the Mayor’s Court in Madras, Bombay, and Calcutta.
This was the first sign of the judicial reform that transformed the trading company into the ruling power with certain elements of the judiciary.
For more than the last 300 years, reforms in the legal justice system have been seen as a continuous process. The reforms have even been made in ancient history where the customary laws were in the process and no codification had been done, however, the reforms were impromptu and thus not institutionalized via duly constituted legal reform agencies.
However, after the ancient era, during the British Raj from the year, 1786 to 1793 Lord Cornwallis was Governor-General and had made many changes in the criminal judicature. Several legal reforms were constituted in the years 1787, 1790, and 1793 which was known as Judicial Reformation Plan.
Furthermore, with uninterrupted happenings in the British era, the need for reform was perceived and various law commissions were established by the government to codify or consolidate certain branches of law.
The first such commission was constituted in 1834 for the codification of criminal manuals like the Criminal Procedure Code, Indian Penal Code, etc.
After the success of the first Law Commission, various commissions were established which codified other essential statutes that were then prevailing the English laws but were constituted as per the Indian conditions namely the Indian Code of Civil Procedure, the Indian Contract Act, the Indian Evidence Act, the Transfer of Property Act, etc.
The structure of the Indian government changed from unitary to federal type. The powers were distributed between the Centre and the provinces that lead to the establishment of the Federal Court in 1937 with appellate and advisory jurisdiction that extended to civil and criminal cases.
Its appellate jurisdiction was extended to both civil and criminal cases. The distributed powers between the Centre and the Provinces are to be harmonized to avert disputes, which would have arisen between the constituent units and the Federation.
Hence, in a nutshell, the Indian law system was commenced with the customary law system which was evolved to the secular legal system, and the common law which with evolving times and changing era got constitutionally codified.
It is noteworthy that the entire legal system was matured over time and reformed for the best.
What is the Need for Judicial Reforms?
With the rapid developments in the nation, there arises an immense need to improve the judicial system as well. If the foundation of the legal system is weak, there are chances that the whole country would suffer and face repercussions even after its tremendous advancements in every sector and it can be seen from the current situation that the same has precisely been happening in India.
The key problem in India related to the lagging legal system is the free flow of adversarial litigation.
According to the reports, there is a significant number of cases that are pending before several courts of the country and most of them have not even been given dates for hearing.
The reports cited that, “there are 3, 33, 17,006 cases (91, 97,386 civil cases and 2, 41, 19,620 criminal cases), which are pending before the District and Taluka courts of India. Out of this, 77.4% of the cases are more than one year old. Even before the various High Courts, the total number of pending cases is 41, 47,518 (29, 55,942 civil cases and 11, 91,576 criminal cases), with approximately 83.46% of the cases being more than one year old.”
There is no authentic data that has been updated about the cases that are pending before various tribunals. Moreover, the data of only five tribunals were documented and analyzed in the 272nd Law Commission Report titled ‘Assessment of Statutory Framework for Tribunals’ that stated the stats about 3.5 lakh pending cases before those five tribunals.
However, the number of pending cases before the authorities and investigating agencies has not been recorded till now as it is extremely difficult to access such a huge number.
The pendency rate of the cases portrays the immediate need of the reforms in the Indian judiciary for assured delivery of justice within an abbreviated time as according to the current records, delivery of justice in certain cases has taken more than 10 awaiting years and an example of such case can be ‘Nirbhaya Kaand’ which took 7 prolonged years to hang the criminals to death.
In the recent past, there have been various such cases that took more than regular period to deliver justice, be it a civil case, property case or a criminal case, etc., every field has somehow lacked in the execution of final decisions and due process of justice and thus the need for the essential reform has to be justified.
Due to the result of the overburdened judicial system because of the number of pending cases mainly criminal and slow procedures and inaccessibility of justice, the accused languish behind bars not because they are condemned to prison but because they are being prosecuted for a crime that is either too serious to deserve parole or too vulnerable and disempowered to secure parole.
Many of the accused who have been wrongfully and illegally prosecuted had to spend the crucial years of their lives behind bars before they are finally exempted for which even compensations by the government are not adequate or acceptable.
Furthermore, in most of the pending cases, it can also be seen that the wrongdoer has not been punished due to the prolonged pendency of their case.
The reform of the executive branch, local government, several economic reforms, and the administration has to be seen as a part of a well synchronized and integrated complementary reform project that assures the enhancement of the judicature.
Most importantly, the reforms in the judicial system of the country cannot be made without institutional balance, de-partisanship, and the scope of the state to perform a regulatory function, supervisory function, economic enhancement, civil society development, and public democratic control.
However, the reform of the judicial system being at the utmost urgency as per the current situation must be in line with the legislative amendments and according to the organizational, consequential, and human resource essentials to function the executive and administration duties efficiently and effectively.
The judicial system reform encompasses reforms in substantive law, procedural law, and structural law that cover the parameters of particular institutions and internal organizations within the judicial system.
The reform in the substantive law aims at setting up a foundation of a new legal framework and an advanced legal system that protects human liberties, the rights that citizens are entitled to, democratic society principles, and the rule of law.
On the other hand, the reform is necessary for the judicial procedures to ensure the basic tools for smooth functioning of the judiciary with the motive to access timely justice, the exercise of the rights, control the crime rate efficiently, and interests of citizens and legal entities.
The reforms in the judicial procedures would also guarantee the preservation of human rights through the mechanisms of the justice system.
The direct effects of the reforms in the judicial system would at times increase the efficiency of the judicature and decrease the rate of the cases that are pending in the courts.
The reforms would give special attention by strengthening the independence of the judiciary and the Public Prosecution procedures regarding the selection and election process and the system for dismissals and promotions, and the salary system.
Other factors that have proved to be the reason for an urgent need for judicial reforms can be:
- Unorganized case management has however lead to the pendency of the case.
- Heightening rates of under-trial cases .
- Obsolete IT equipment and insufficient use of the same.
- The justice system has been poorly financed.
- Need of increased number judges to help smooth dismissal of the pending case.
- The Indian judicial system lacks detailed scenarios of financing courts and criteria of public prosecution.
- Lacking infrastructure .
- There is inefficient coordination between the various courts of India .
- The continuous education system for judges, public prosecutors, and other authorities of the judiciary and the public prosecution is lacking.
- Cases of corruption in the system have also been the reason for the reform in the judicial system.
Thus it can be concluded that partial solutions according to each situation are not enough for the development of the country as a whole rather there must be certain complex framework and comprehensive strategies, measures, and actions for the reforms of the Indian judicial system that on one hand ensures the advancement of the country and also relief from the problems arising due to lacking pillar of the judicial system.
What would be the Future of the Reformed Judicial System?
The urgent need for the reforms in the judicial system of the country has arisen due to the certain dysfunctional mechanisms within the system due to which several cases are in the backlog, pending, convicts are under trial and the percentage has rapidly been increasing with years.
The necessity to bring certain judicial reforms in our country is not just because of social welfare but also economic welfare as it would attract more foreign investors as well.
With all the reforms that are needed for the advancement of the judicial system i.e. the need to increase the working hours of the courts and at the same time more efficient one where the judgments are not held up for the next hearing without reasonable cause and thus the long working hours would at an extent decrease the number of pending cases and under trial convicts.
The accused that have wrongly been prosecuted and are in jail for no reason would be adjudicated as not guilty if the fast track courts work accordingly and backlogs are cleared with the regular and efficient working of the courts.
The reform that suggests the need for the increase in the number of judges, prosecutors, in line judicial officers with sufficient qualifications would help in the future by decreasing the number of pending cases.
The decisions and orders must be passed following the provisions of ‘Order 17 of the Civil Procedure Code’ to avoid unnecessary delay in delivering justice to the aggrieved party.
Thus it’s time that the judiciary must take some strong steps to ensure the efficient functioning of the system.
The recommendations made by the Law Commission Reports like 230th and 245th must be followed to ensure that certain cases should be tried as soon as possible and the victims should not be in the spotlight of the media and the whole country for prolonged years for example the sufferer of rape cases or terrorists case victims where the chances of wrongful prosecution may occur and thus the victims under such circumstances should not have to wait for 10 to 20 years for justice.
According to the current situation due to the pandemic, the whole world has moved to digitalization where technology is playing a major role.
The Indian judicial system as to ensure that justice should not be held back due to the sudden coronavirus has also started working through online means to deliver justice from any part of the country to any part of the country.
The virtual hearings have been tried and there is no further reason for not institutionalizing the virtual judicature in the future. Thus the reform in reference to the acceptance of the advent of technology by the bar is very important.
The future of the judicial system can be IT-based automation where the petitions can be registered online (followed by authenticated and verifiable copy presentations at the hearing stage) and the copies of every court order that have been digitally signed can be uploaded and thus this can be a remarkable reform for the technology developed nation.
However, the digitization of the justice system is not a new concept in India and began somewhere in the 1990s with mechanization and the crucial step was taken by “National Policy and Action Plan for Implementation of Information and Communication Technology in the Indian Judiciary-2005” but due to various reasons, the online judicial system had been working at a slow pace which has now boosted again during the pandemic.
The honorable justices of the Supreme Court have also pointed out the judicial reform urgency and stated that the matters presented by the lawyers should be “crisp, clear and precise judgments” that the common man can also coherent to as “it is for ‘the common man’ that the judicial system exists” quoted by justice Kaul.
It has also been observed that “Delay in judicial proceedings has been the bane of our country and there cannot be a refusal to part ways from old practices especially when they have outlived their purpose. It is the litigants who bear the costs of our complex and prolonged adjudicatory process.”
Thus as of now the hearings are done through videoconferencing and the online judicial system would soon be accepted by the general public as well and with various other reforms that are needed for the development of the judiciary and the country as a whole, this would also be a phenomenal and noteworthy reform.
Conclusion
With the advancing times, reforms are desired in every sector of the country to ensure the continuous growth of the society.
The developing country India, with an aim to be improved in all aspects, has been up to several reforms in various areas and thus there is a need for the reformation of the Indian judicial system as well for the overall expansion of the country as the judiciary is the paramount pillar and the foundation of the Constitution and the country has been laid down on that organ of the government.
India has been part of the reforms for 300 years from the old religious period to the constitutionalized and codified law era and thus has been through a lot of remarkable reforms. For the ensured improvements, certain reforms are necessary for today’s era as well where everything has been done through technological means.
Thus there is the need to reform the judicial system to ensure the decreased rate of pending cases even if they are being tried through online modes and the solutions of the obstacles arising due to such pendency.
References