ON REFORMS IN INDIAN JUDICIAL SYSTEM
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-By Hon’ble Mr. Justice Khem Karan,
Former Judge of Allahabad High Court
“There is no better test of excellence of a government than the efficiency of its judicial system, for nothing more nearly touches the welfare and security of the average citizen than his sense that he can rely on the certain and prompt administration of justice. Law is respected and supported when it is treated as the shield of innocence and the impartial guardian of every civil rights….. If the law be dishonesty administered, the salt has lost its flavour, if it be weakly or fitfully enforced, the guarantees of order fail… If the lamp of justice goes out in darkness, how great is the darkness…”
- Lord James Bryce pp. 421-22 of his “Modern Democracy”
- All of us may be in agreement on the point that none of the countries of the world can claim with confidence that its judicial system is perfect and needs no reform. So is the case with our judicial system. The question of reforms in Indian Judicial system, has had been engaging all enlightened citizens from the very inception of the establishment of our republic on Jan 26, 1950. By now, several judicial pronouncements of the apex court ( see, Hussainara Khatoon and Others v. State of Bihar AIR 1979 p. 1360, Khatri and others v. State of Bihar, 1981 SCC (1) p. 627, Olga Tellis and others v. Bombay Municipal corporation AIR 1986 SC p. 180 and People’s Union of Democratic Right and other v, Union of India and other, AIR 1982 SC p. 1473 and so on) have come, besides several legislative and other exercises undertaken by the respective legislature and the governments, introducing certain innovative measures such as Alternative Dispute Resolution (ADR) in the shape of section 89 of the Code of Civil Procedure, 1908 (far short the Code of 1908), Lok Aadalat under legal services authority Act, 1987. Not only this, Gram Nayalayas under the GramNyayalayas Act, 2008 have also come in the rural areas, to enable the people to have easy and cheaper access to justice delivery system, at least in petty matters. But the cry for further judicial reforms is going on, unabated, rather becoming louder and louder. We will have to introspect quite in depth, as to why all such measures taken so far, have failed to bring the desired reform in our system and why people in general and persons belonging to the weaker sections in particular, have started losing faith in the efficacy of our justice delivery system.
- It would be pertinent to have a glimpse of recently released Indian Exclusion Report 2016, by Centre for Equity Studies. According to this report (gist of which could be seen on page – 7 of The Hindu, in its issue dated May 2, 2017), historically disadvantaged groups like Dalits, Aadavasis, and Muslims, are most excluded, from access to public good, such as pension for the elderly, digital access, agricultural land and legal justice for undertrials. It went on to add that these groups continued to be severely and consistently excluded from provisioning and steps taken for land reforms, have not benefited them. According to it, land distribution reflects socio-economic hierarchy – large land holders invariably belong to upper castes, cultivators to the middle castes and agricultural workers, are largely Dalits and Aadivasis. Furthermore, in an article titled, “Freeing the Undertrial” penned by Prof. Sudhir Krishna Swamy and Shishir Bail, published on Page – 8 of The Hindu, in issue dated Nov. 22, 2014, it is stated that in the year 2012, close to 74% of the population of Indian Jails, was either illiterate or hailed from scheduled Castes, Scheduled Tribes and minorities.
- The above is sufficient enough to say that issue of judicial reforms, should be looked into, keeping in view overall socio-economic conditions and mind set of the people concerned. The problems of hunger, poverty, illiteracy, lack of shelter, lack of basic amenities, existing inequality etc. have to be addressed, simultaneously with the judicial reforms, else the same will hardly yield the intended results. All aspects of human life are closely interlinked and ought to be kept in mind accordingly. To divorce, access to justice from poverty, or from illiteracy, will not be the correct approach.
- Suggestions of the various participants and other Hon’ble Judges, research scholars, learned advocates, professors in the field and other intellectuals, are valuable and worth consideration. In brief, these include (i) recourse to have full use of ADR methods, (ii) liberal use of digital techniques, (iii) to increase the number of regular courts by accelerating the process of their appointments and by providing required infrastructure, (iv) to curve unnecessary adjournments, (v) to root out corruption and (vi) to minimise inordinate delay being caused in disposal of cases. I do agree with the proposition that such steps as suggested above will bring considerable reform, in our justice delivery system.
- In addition to the above, I am venturing to put following few suggestions, for consideration of all concerned and the same are:
A –Trial of suits in Civil Courts
In absence of express provision in the Code of 1908, hardly any trial judge applies, its judicial mind, to the averments made in the plaint, till the defendant appears and files his written statement or files his objection, against application for temporary injunction etc. Consequently, the matter remains on board, for a year or so, without application of a judicial mind. According to the settled legal position (see, Salim Bhai and others v. State of Maharashtra and others, AIR 2003 SC p. 759) the Court is not precluded from rejecting the plaint even before appearance of defendants, on any of the grounds, enumerated in Rule 11 of Order VII of the above Code, 1908.
With a view to save the valuable time of the regular courts and with a view to screen out non-entertainable or non-maintainable cases at the earlier stage of the litigation, It seems beneficial to make a law, providing for establishment of a Forum at district level, to be manned by retired civil judicial officers and other law knowing suitable persons, to examine each and every plaint as soon as the same is presented, in the light of the provisions contained in rule – 11 of Order VII of the above Code, and transmit it to the regular Court, annexing thereto, its report of preliminary examination. If found proper, this Forum may also be invested with the powers, to issue a commission under Order XXVI, of the Code, 1908, in cases relating to immovable property or easementary rights, for visiting the disputed property, preparing a site plan on scale, for getting the site photographed etc. , and submitting the report. Such a report of the commissioner may help the trial Court, in appreciating the evidence that may be adduced by the parties, during the course of trial or may otherwise help it, in passing suitable orders on merits, on applications for temporary injunctions. Such Forum may also be assigned certain other additional or ancillary duties such as securing the attendance of the defendants under Order V of the above Code.
B – Civil Appeals
To reduce the burden of High Courts, the provision of second appeal under section 100 of the above Code, may be limited to specified cases only, by making suitable amendments in part VII and the corresponding Orders of the first Schedule of the Code. It may be provided in the Code that first appeals from original decrees, that lie to district judge or to any civil judge (senior division), will be heard and decided by division benches. There is provision in section 98 of the Code, for hearing of appeal by division benches. It may be provided that in cases where the division bench, affirms the original decrees unanimously, there will be no second appeal to the High Court. The jurisdiction of the Hon’ble High Court under Article 226/227 is there to take care of rarest of rare cases, where failure of justice has taken place.
C – Civil Revisions u/s 115
Earlier to the commencement of Act No 46 of 1999 with effect from 1/07/2002, proviso to sub-section (1) of section 115, stood as under:
“Provided that the Court shall not, under this section, vary or reverse any order made or any order deciding an issue, in the course of a suit or other proceeding, except where –
- the order, if it has been made in favour of a party, applying for revision, would have finally disposed of the suit or other proceeding or
- the order, if allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it was made.”
Apparently clause (b) to the proviso to sub-section (1) of section 115, was the flood gate for multiple revisions, on the ground of failure of justice or irreparable injury. Our Parliament, in its wisdom, omitted the same, by Act no. 46 of 1999. But the state of Uttar Pradesh has retained the same, giving rise to avoidable civil revisions. This may be examined and steps taken accordingly.
D – Criminal Cases
- Lodging of Fist Information Reports, with the police station concerned, is still a difficult task for even well-educated and well versed person, in spite of clear mandate of section 154 of the Code of Criminal Procedure, 1973 and the recent judicial pronouncement of the Apex Court [Lalit Kumari v. Government of UP and others, 2014 (84) SCC p. 719], where several valuable directions have been given. My suggestion is that the government and all police officers concerned, be impressed upon, to follow the same in letter and spirit.
- It would be better if the investigating wing of the police is separated or it is not assigned the duties, relating to law and order etc. so that those investigating the cases, can devote full time and energy to the job of investigation and place the result before the court in shortest possible time.
- Many a views and reports on the topic of taking care of the victims, their dependents and payment of compensation etc. to them, have come in one form or the other. Undoubtedly the problems of the victims and their dependents deserve to be addressed properly. Our parliament has recently inserted Chapter IV- A in Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, vide the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015. This Chapter captioned “Rights of victims and witnesses” contains almost all necessary provisions, in the context of ‘Restorative Justice’ and those provisions can be characterized as “victim – centric”, in the sense to restore the confidence of victims. Among others, sub-section (6) of Section 15A of this chapter, casts a duty on the court, to provide to a victim, his/her dependents, informant, and witnesses (a) a complete protection to secure ends of justice, (b) the travelling and maintenance expenses, during investigation, inquiry and trial, (c) the social-economic rehabilitation during investigation, inquiry and trial, (d) relocation and sub-sections (3),(4) and (5) provide a scheme, where the victim will have right to have his or her say in all court proceedings, such as bail etc. My suggestion is that similar provisions should be made in relation to the victims, their dependents and witnesses of serious crimes, not coming under this Act of 1989. However, mere making of provision such as in chapter IV-A above, will not restore the confidence of the victims and others, unless the same are implemented in letter and spirit and for that vigorous efforts, including change of mind set are required on the part of the government, Courts and all others.