Rabu, 03 Juli 2013

How to go ahead with the legal reforms in India and the connected issues?

Whenever one talks about the judicial reforms, the corruption, the technicalities, costs and the unreasonable delay in courts, there are people and professionals saying that the situation is getting exaggerated. There is a total confusion about the judicial or legal reforms and the issue is often shown as complicated. It is true that bringing reforms in our justice delivery mechanism' is a complicated exercise and it is recognized in the year 1958 itself in the 14th Law Commission Report. Public very often criticize the judiciary and even noted lawyers in this country criticize the justice delivery mechanism' in this country and they emphasize at the importance of bringing reforms in the system. The problem is that we are not looking at the whole system, need of bringing comprehensive reforms and the need of separating issues which can be addressed in short time and the issues which are really complicated. This is where the confusion and complication lies. It is very simpl e to show the numbers and say that we do not have adequate number of courts and judges suiting to the pendency of cases and growing litigation. It is very easy to say that the police take lot of time to investigate a criminal case and there is unreasonably delay in filing the charge sheet' in many cases. It is also easy to say that the government is the big litigant before courts and the government should initiate appropriate reforms in their legal departments and when it comes to appointment of professionals to defend them. What we are actually doing is confusing the entire thing and laying so much emphasis on complicated issues; and in the course the actual issues will never be addressed.

We are maintaining 8-9% GDP growth and India aims at becoming super in the world. If we can not address simple issues in this country, I don't know as to how we can aspire to become super power in the world. I don't know about the role of the people's representatives in this country who is supposed to raise their voice in Assembly and Parliament on behalf of the people and who is supposed to focus on the problems in this society. Really unfortunate! The emphasis on "Alternative Dispute Resolution Mechanism" is not the solution for reducing the delay in courts though we need to encourage "ADR" like Arbitration. The problem is that we don't know as to who is responsible for the whole mess. I can, for sure say that even if we concentrate on initiating reforms aiming reducing the delay in courts etc., on war footing, it will take so many years to correct this system. This is the result of lethargic attitude of the people, educated people, enlightened people and the people's re presentatives. If an accused is confident of getting bail for price even in a severe case under section 302 of I.P.C, how can we reduce the crime rate in this society? If a citizen is afraid to approach a Civil Courts claiming their right due to the costs involved, the delay, the corruption and the technicalities; there are people with muscle power who offer their service. In my opinion, we have allowed the system to go wrong so deeply and it will not be an easy thing now to turn the clock back. If we allow this situation to continue and if we don't focus on our "Justice Delivery Mechanism", then, there is no meaning for democracy, the fundamental rights and might becomes right. Infact, might has already become a right now. We have excellent educational institutions now, our brilliance is recognized all over the world, we have a democratic system, we have constitution, we have fundamental rights and we have seen judicial activism, we have people's representatives, but, despi te all this, we can not address the issue of delay in courts.

When we think about the legal reforms to be initiated aimed at providing speedy and cost effective justice delivery mechanism', the important thing to do is to list-out the issues and give priority. There are certain issues which can be addressed very easily and speedy. There are certain issues which takes longer time. And, there are certain issues which are complicated and require constant concentration. Let us first look at the easiest things to do and those are, in my opinion, as follows:

1. The Government should look at reforming our procedural laws and if the Government can concentrate on "ADR" and constituting special tribunals, then, I don't see as to why the Government can not think about reforming our procedural laws. This is very important step and can be done very easily now. There were agitations in the past when the Government has mooted reforms in C.P.C and just because we had to see some agitations in the past, it is not correct to neglect the important issue all together. If the professional community is worried at reforming our procedural laws, I don't understand as to why they did not protest to encouraging "ADR" or constituting special tribunals. All protests to be ignored and dealtwith in this regard. According to me, this is vital issue which can be addressed easily and which will produce good results.

2. The Union Law Ministry can take an initiative and moot the dialogue with the High Courts and Supreme Court emphasizing at the effective supervision of lower courts. A committee of eminent and committed High Courts judges should take the responsibility of supervising the functioning of the lower judiciary in the state constantly. It should really be effective. The supervising authority should take all the assistance from the law students, the departments and experts and so that they can constantly work as to how to make the system so transparent and if need be, they will make recommendations for the state government and also the central government for providing additional facilities etc. This should be done with greater co-operation and co-ordination between the judiciary and the government. The judiciary can very often say that lack of sufficient courts and the judges is the cause for delay. Instead, they should look at as to how to make the available mechanism work. Th e committee can also take the representations from the litigants and also from the professionals about the functioning of the judges and they can look into their functioning and advice their brother judges even if the same is not public. There is a need to follow the tradition in courts and if there is a Supreme Court judgment on a particular point, then, the same is to be respected. Likewise, the supervising committee can constantly look into various important issues pertaining to the administration of justice in a particular state.

3. The issue of appointment of judges to the High Court requires special consideration and the Government is now mooting for "Judicial Standards and Accountability" and these steps are to be pursued under any circumstances. It is no more a perceived fight between judiciary and executive and it is about the people and it is about the respect of the judiciary. I don't personally feel that the proposed "Judicial Standards and Accountability Law" will produce instant results and it is to be seen as to how the committee functions and the its effect. But, it's a good beginning and the issue of appointments and accountability in judiciary to be constantly concentrated. This is really a serious issue. The Government should not be allowed to say that they can not look into the judiciary and the judiciary should not say that the executive can not look into their function. The system is for the people and not for the few judges and few politicians. We know that there is lot of corrup tion in government, but, that can not be an excuse to the corruption or alleged corruption in judiciary. If we need to reduce the corruption in Government, then, the Judiciary should really be clean. In fact, it is very difficult to concentrate on the impartial functioning of the High Court judges though it is a fact that we have excellent judges and we have judges with great commitment even today. The Hon'ble Apex Court has recently referred about "Uncle Judge Syndrome". This is an issue which can not be addressed easily and it's a serious issue.

4. The issue of corruption in lower judiciary requires a special emphasis. In my opinion, there should be a special anti-corruption cell' at the national under the control of Central Government and the cell should have branches in each state focusing only on corruption in lower courts, the tribunals and other judicial and quasi-judicial authorities. Though, transparency can bring down the rate of corruption in lower judiciary, due to various complications, a special anti-corruption cell to be formed to deal with the corruption in lower courts and other quasi-judicial authorities in the state.

According to me, irrespective of the Governments in power, the above issues can be looked into and can be initiated on urgent basis. We should not just do an eye-wash exercise and should not tell the people that the steps are being taken to reduce the pendency in courts and to reduce the delay. We require constructive measures which can produce some results. In fact, we may not even require large funds to bring some reforms in the system. What we require is the planning and commitment to address issue and it is the responsibility of all the representatives of the people to look at this and this initiative should go forward. What we require is the meticulous planning and coordinated efforts.

Now, if we look at other issues or complicated issues which will take considerable time, few of those are, according to me, are as follows:

1. The legal education requires to be concentrated. Excepting the National Law Schools and few other colleges with good management or good people at the top, many law colleges in this country are not doing well or many law colleges are not producing the qualified law graduates. We can not completely blame the law colleges and we need to look at all issues concerning legal education and effective steps then be taken in this regard. What happens is that the law graduates without having required knowledge and standards are forced to stay in profession and practice in various courts whereas the talented are taking the opportunities in big companies or law firms. When we allow the law graduates without the required standards and knowledge to practice in courts, then, will find the ways as to how they can satisfy their clients though they lack the required ability and knowledge to convince the courts through exposing the legal position and exposing the facts before the court on behalf of their client. If we observe the practice in lower courts especially, this issue will be clearly evident and we can not deny the facts. This is a serious issue really and even if we concentrate on the legal education with meticulous planning from now, it will definitely take some time to restore the standards in profession.

2. When we talk about the disposal of cases by Magistrate Courts, then, we often listen about the role of the police or investigating authorities. When we talk about the role of the Government or Government Departments or their counsel in a case before the High Court especially where the Government is a litigant, we point-out the negligent attitude of the officers concerned. This is a larger issue and it is directly connected to the political reforms and cleaning politics itself. When we see good, clean and committed politicians, then, we will be able to see good administration in the state. As such, though this issue requires to be concentrated, we may not be probably able to address this in a short span of time and it will take considerable time infact.

I have just pointed-out few issues only. I have seen some text of "National Litigation Policy" now, I am really shocked and surprised at the issues highlighted and recommended. The Government should do a committed exercise and should bring the reforms which can produce some tangible results and we don't need eye-wash recommendations and steps. We have got "Right to Information Act" and it has produced and producing good results and all appreciate such a move. The Government is proposing to bring a law for the protection of "Whistle Blowers" and the same is appreciated. The Government now is bringing a law aimed at maintaining standards and ensuring accountability on the part of the High Court judges etc., despite the complications and the move is appreciated. In those lines, it would be great to see concrete and constructive reforms aimed at reducing delay and corruption in courts. The Government and the people occupying position at various levels should consider one-thing that it is about the people and not about the few people occupying positions. People will not buy the issues like "fight between judiciary and executive" and no one should think that they are ultimate authority and they can do anything and say anything. One should understand that it is not about the people who ask for reforms and if a person can raise his voice asking for reforms, he must definitely know as to how to survive and come-up in the society. It is about the people and I strongly feel that we can reform this system and providing speedy justice can definitely be achieved. If few Supreme Court and known advocates wants to meet our Prime Minister asking for concrete legal reforms, I hope that our Prime Minister will take the issue forward. But, the problem is that the privileged are not raising issues as required and they are very busy with their business. Even the media can take up this issue forward and conduct discussions with able people and something productive can emerge out of those discussions. Media could focus on "Ruchika's" case and many other cases, but, did not bother to concentrate as to where the problem lies. It seems they are also focused on ratings and providing breaking and sensational news with a view point or with their own internal policy, but, not concerned at the issues concerning the people.

I am beyond doubt that, we the people, has collectively failed to bring the proper "justice delivery mechanism" and we have allowed the system to go terribly wrong. Now, it will not be easy to turn the clock back. I hope that the steps will be taken to correct our system and it is for the people to pressurize the government and people occupying various positions in this regard.

Note: the views expressed are my personal and with all respect to the great judges and institution. I have no intention whatsoever to insult anyone.

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