In this blog post, Pranav Rudresh, a student of Lloyd Law College, Greater Noida, and Rida Zaidi, a law student of the Faculty of Law, Aligarh Muslim University. The article tries to look into the various factors that contribute to the inefficiency of the judicial system in India.

Introduction

The Indian judicial system, a part of world’s largest democracy, is very old to follow. Right from the monarchical rule to the British era and the modern system of the independent India, the Indian judicial system has always tried to seek justice for the innocent and punishment for the guilty. The modern day judicial system administers a common law system of legal jurisdiction. The laws are codified, and different types of punishment are given depending upon the crime of the culprit.

Let’s take a look at how the Indian judiciary works. There are various levels of judicial bodies in India. If we look at the hierarchy, it is as follows:

• The Supreme Court.
• The High Courts.
• The District Courts.
• The Village Courts/Panchayats.

All these courts have their jurisdictions and are to follow the laws according to the Constitution of India. It is their duty, as mandated by the Constitution, to be its watchdog. They do so by calling into scrutiny any act of the legislature or the executive, who otherwise, are free to enact or implement these, from overstepping the boundaries set for them by the Constitution. The Indian judicial system is independent from legislative and executive bodies in India.

Issues with the Indian judicial system

Despite the independence of the judiciary from the executive and legislative bodies, the Indian judicial system faces a lot of problems. We will now discuss a few problems that the Indian judicial system faces.

The major issues that the Indian judicial system faces are:

• The pendency of cases.
• Corruption.
• Lack of transparency (particularly in the appointment of judges).
• Judicial vacancies.
• Under trials of the accused.
• Lack of information and interaction among people and courts.

Let’s now try to elaborate the following points.

The pendency of cases

“Judicial discipline requires promptness in delivery of judgments.” The courts have observed in the case of Anil Rai v. State of Bihar (2001) that delay in reasoned judgement by the courts amounts to a violation of the Right to Life as guaranteed under Article 21 of the Constitution. The Court also laid down that after the operative part of the decision is delivered, the judgement should also be delivered within 2 months from the date of delivery of the operative part. If the court fails to adhere to the following guidelines, any of the parties to the suit can file an application before the Chief Justice of the High court. If the judgment, for any reason, is not pronounced within a period of six months any of the parties of the said case become entitled to move an application before the Chief Justice of the High Court with a prayer to withdraw the said case and to make it over to any other Bench for fresh arguments.

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. According to a report of 2015, there were close to 400 vacancies for the post of judges in the 24 High Courts of the country. 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.

One of the dazzling defects of the Indian Judiciary is the huge pendency or backlog of cases at all levels of the Indian Judiciary. About four lakhs of them are cases in the High court, 65,000 in the Supreme Court. The rate of the backlog of cases is increasing with every passing day. The number of institutions of a suit is quite large in comparison to the number of judges that have to dispose of it. For 1 million people there are only 17 judges at levels of the Judiciary. The litigants have to wait for years to have their rights determined by the court of law. According to the Code of Civil Procedure 1908, in a civil suit, there cannot be more than three adjournments. According to a report of Vidhi Centre, 70% of civil cases get more than three adjournments. The infrastructure of the courtrooms is not sufficient for the delivery of quality judgements, moreover, the lower Judiciary is still not equipped with technological resources and most of the work is done through the traditional way of paperwork. The quality of the judges of the subordinate courts is also not acceptable which leads to a high rate of cases being appealed before the High courts. The Supreme court does not have any listing calendar even when a case is listed there is no certainty that the case would be heard on that particular day. There is no time fixation up to which a case has to be finally disposed of which increases the load of pendency of cases.

A large number of cases that are pending in the Supreme Court as well as the other lower courts has defeated the purpose of the 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 favour (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. According to a report, in Mumbai, India’s financial hub, the courts are burdened with age-old land disputes which act as a hurdle to the city’s industrial development. Thus, the pendency of cases and lack of lawyers and judges is a big challenge to the Indian judicial system.

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.

The Professional arrogance of the judges whereby judges do not do their homework and arrive at decisions of grave importance while ignoring precedent or judicial principle delays justice and adds to trial’s spam. In 2011, Soumitra Sen, a former judge at the Calcutta High Court became the first judge in the India to be impeached by the Rajya Sabha alleged for misappropriation of funds.

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 Judiciary is that organ of the Government which is not accountable for its actions. The Right to Information Act does not apply to the Judiciary. Under a recent judgement, the Court has held that the office of the Chief Justice of India also falls under the Right to Information Act,2002. Transparency of the Judiciary enhances the support of its citizens. Where the Judiciary is transparent, people are assured that justice is being served. There is a lack of transparency in the Judiciary as to many aspects such as the appointment of the judges and in the administration of justice. The January press conference of 2018 consisted of the then Chief Justice of India- Ranjan Gogoi and four senior judges- Justice N V Ramana, Justice D Y Chandrachud, Justice Sanjiv Khanna and Justice Deepak Gupta. It was set up regarding what extent the information about the appointment of the judges should be accessed by the general public. If the Judiciary defends its standing of not making the information open for the public to access, it means it is restricting the people’s Right to Information in the light of judicial independence. Lack of transparency in the Judiciary makes the people sceptical about the fairness of the Judiciary in carrying out its functions and their faith in the Judiciary is somewhat minimized. 

The current government led by Prime Minister Modi states that 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.

Well, let’s say on this matter the government and the supreme court stand face to face, but the fact is still unanswered whether the stated amendment or even the current proposal bring transparency in the selection of judges and make the framework clear to the common public?

Judicial vacancies

Judicial vacancies have always been one of the most serious concerns of the Judiciary. The pendency of the cases is also a result of the judicial vacancies not being filled. A total of 454 posts of High court judges are lying vacant in all 25 High courts across the country against the sanctioned strength of 1098 judges. The Apex court alone has 8 vacancies against the sanctioned strength of 34 judges. Earlier this year the country was in a ‘state of crisis due to the increased number of vacancies and directed the Central Govt to make notifications regarding the appointments within 3-4 weeks. The Government has also made the Chief justices aware regarding the appointments to be made of judges from varied social backgrounds such as the scheduled caste, scheduled tribes, minorities, women, etc. Recently, the Ex-Chief Justice of India Justice Dipak Mishra made a remark regarding the gender imbalance in the judiciary and he desired to have 50% reservation for women in the Judiciary at all levels. This proposal reflects the concern of the representation of women in the Judiciary which is very poor. There is only 1 woman judge in the Supreme Court against 27 male judges. There has never been a woman Chief Justice of the Supreme Court of our country. Out of 25 high courts in India, there is only one woman Chief Justice that is of Telangana High Court. There has been an alarming increase in judicial vacancies by 40% after the pandemic normalised. The Government is taking every measure to cope up with the vacancies yet the problem continues.

Accused under trial

Another drawback that  arises from the above-stated drawbacks is the under trials of the accused. Precisely, for those who have committed a crime, it is OK, but is it fair for an innocent to spend more time in jail just for waiting for his trial? The Indian jails are full of people under trials; they are confined to the jails till their case comes to a definite conclusion. Mostly, they end up spending more time in the jail than the actual term that might have had been awarded to them had the case been decided on a time and, assuming it was decided against them. Moreover, all the expenses, pain and agony that are used by them to defend themselves in courts are worse than serving the actual sentence. Under trials are not guilty till convicted. On the other hand, the rich and powerful people can bring the police to their sides, and the police can harass or silence inconvenienced and poor persons, during the long ordeals in the courts.

The prisoners who are undertrials face several hardships. They spend more time in jail before being proved as guilty compared to the situation where the convicted is proved guilty for an offence by the court of law. The main factor behind this is that the offences are classified into bailable and non-bailable offences. The majority of prisoners are not financially well off and are illiterate or if they are literate there is no awareness about their fundamental rights. The undertrials undergo physical and psychological torture as they are confined within four boundaries of a prison cell and are cut off from their families. The condition of the prison cells in which these undertrials are confined is pathetic and this adversely affects their health resulting in some health problems. The Judiciary is quite inefficient in aiding these undertrials for a speedy trial.

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.

Reforms to be made in the working of the judiciary

The Judiciary needs to take measures to strengthen its shortcomings and to be capable enough to perform all its functions. The reformative measures are as follows-

Switching to the hybrid mode

The COVID-19 pandemic has made the courts switch to a new way of functioning which is the hybrid mode. The working of the courts through the virtual mode has presented several obstacles and thus through the hybrid mode where one party can appear through the way of video conferencing and the other party can appear in the physical courts, the obstacles could be reduced.

Increase in the strength of judges

The executive and legislature should take steps to fill the judicial vacancies so that the pendency of the cases is reduced. There should be a system that fills the vacancies as and when it is notified to the people. There should not be any delay in the appointment after the notification is made and names are advanced before the collegium system. A commission should be set up for appointing competent and skilful judges who would give judgements in one go and the remedy of review and revision is not consumed. The judges should be appointed from varied social backgrounds. 

Strengthening the disposal of the tribunals

One of the reforms which should be initiated in the Judiciary is to make the tribunal courts well organised by having systematic case hearings, time-fixation of the cases to be heard within a particular time frame, providing requisite edifice, and assisting and monitoring their case-load.

Establishment of fast track courts

The fast-track courts were established in the year 2000 for trying the backlog of cases before the Judiciary at all levels. The Government should establish fast-track courts in all districts which would give speedy trials and would prevent the aggrieved party from being harassed till the time the final decision is delivered. Fast-track courts should also be established for serious offences like offences against children and women where the judgement ought to be decided as soon as possible.

The appointment of judges should be transparent

The system of appointing judges should be done by a judicial commission that would appoint judges. The commission would comprise impartial persons and the entire process should be open and accessible for the general public to scrutinize. The information regarding the judges should be disclosed up to the extent that their privacy has not trespassed. 

Conclusion

There is no doubt upon the credibility of the Indian judiciary system. It is one of the largest judicial systems around the world having a law for almost all sorts of criminal activities. If we look at the history, the Supreme Court, since its inaugural sitting on 28^th of January 1950 has delivered over 25000 reported judgments. But the issues of corruption, pending cases, lack of transparency in the judiciary cannot be avoided. Thus if the judicial system removes these backlogs, we might see Indian judicial system as the best judicial system in the world. Also, the faith of the common person in judiciary may be restored before it’s completely lost.

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