This article is written by Shubhangi Agrawal from Hidayatullah National Law University, Raipur (C.G.). This article aims at presenting decentralization as an effective measure of governance.
Table of Contents
Introduction
Decentralization is a force that requires communities’ effort to go hand in hand with it. The importance of decentralization is many which would benefit society in a greater perspective. Justice is open to everyone they say, but is it approachable by everyone is the question to be looked upon. Why is justice for the people having power and resources only? Should not the lower and lower-middle-class also be subject to the proper judicial system? Is it a truly democratic system when people don’t have a say in opinions?
India’s history of judicial structure and federalism
The courts were first established through the East India Company which followed the precedent structure of judicial systems. The ‘Mayor Courts’ were first established in the year 1726 in the three presidency towns namely Bombay, Madras, and Calcutta. These Mayor Courts were later replaced through the Apex court (now Hon’ble Supreme Court) in the year 1774 in Calcutta. The most important event in the Indian Judiciary which impacted the Indian system was the setting up of High courts in the three presidency towns by Britishers.
Independence didn’t bring any significance to the system. But certain positive changes could be noticed at least in the three aspects. Firstly, the princely states and the territory that was under British provinces were reshaped and formed in states now twenty-nine. Secondly, many changes at the district level were also done by redefining the boundaries of the various districts for better administration and a change from the British administration. Thirdly, this being the most important one was that the rule of governors and governors-general were replaced through a well-selected government at both centre and state level. The government at both the level were granted recognition through the Constitution of India.
The Constitution of India makes the Apex Court with the Chief Justice and other seven judges which could be increased or changed in number by the parliament. In the initial times when the system started working judges sat together to hear the cases but as the time passed and the load on courts increased with an increasing number of pending cases, the number of judges was increased by the parliament from eight in 1950 to eleven in 1956 to eighteen in 1978 and twenty-six in 1986. With the increase in the number of judges, it became more convenient to divide the benches into smaller numbers with two or three judges in each which in turn also proved an effective way to manage the accumulated cases to be dissolved.
The judiciary at present has one Apex court working in New Delhi and additional twenty-five High Courts situated all across the country. The Supreme Court’s practise and procedure are governed by Article 145 of the Constitution and the Supreme Court Rules, 1996 (as amended from time to time).
On the 71st anniversary of the adoption of our Constitution the Attorney General, while addressing, anticipated that there would be a large number of pending cases once courts start working again as the pandemic ends. He said that the situation will demand the setting up of National courts of appeal each of which will have fifteen judges equal to the working of the Supreme Court Judges and can decide all the appeals coming to High Courts, leaving the constitutional and national importance issues decided by the Supreme Court.
He said, “At present, the Supreme Court is hearing close to 400 categories of cases related to matrimonial disputes, bail petitions, land acquisition matters and so on when the Supreme Court is supposed to be the Constitutional Court dealing with issues of national importance. The Supreme Court must regain its stature. This does not mean cases should end at the level of the High Court. A Court of Appeal is to be constituted between Apex Court and High Courts that can give finality to all appeals”.
Decentralization of the Indian judiciary: meaning and need
Decentralization is a term assessed by many in various ways and can be understood extensively. The term ‘Decentralisation’ refers to the transfer of powers and responsibilities from an authority to lower levels. The Decentralisation in Judiciary can be explained by the distribution of powers from centre to state with a certain degree of autonomy to the states.
There were several recommendations from Law Commissions in their reports, the 14th report advised for the establishment of the well-selected tribunal at state levels. The 58th report, later on, demanded the setting up of a tribunal for service-related matters that all somehow paved the path for decentralization in the judiciary. These recommendations were not made with the intention of decentralization but instead looked upon easing out the burden on judiciary and courts but showed up as the very first step towards decentralization of the Indian judiciary.
The recommendations of the other two committees i.e. the High Court Arrears Committee (1969) and the Swaran Singh Committee (1976) are also important, both recommended the setting up of independent tribunals for the matters of service which were left pending in the High Courts and the Apex court. As a result, the Constitution (42nd Amendment) Act of 1976 was enacted, establishing administrative tribunals under Article 323-A and other tribunals under Article 323-B.
There have been arguments made both for and against the tribunal system’s effectiveness. But whether we acknowledge it or not this is the only form of decentralization that India came up with to look into the matter of pending cases and setting up benches at local and state levels. Recently, a regional NCLAT bench and the proposed CCI regional bench were established in Chennai, Tamil Nadu in a small step towards decentralization.
With the upward movement of powers from district to states, from states to union level these all didn’t serve any benefit to the planning and execution but instead affected adversely. Seeing the increasing upward trend the formulation of policies and plans lost their reality and touch from the ground level. This acted as a force for scholars and politicians to think about a way in which the planning and working can be kept more grounded so that the danger of losing credibility in the minds of people can be erased and they could also see and approach the authority in the desired manner.
The Supreme court of India is the major debate point for all Indians. The constitution of India grants every person in India justice. India is a socio-economic country with different classes and castes living together united in the same land. Many have different cultures, different backgrounds, and unique traditions of legacy. All the people in the country may have different thought processes but they all are united by the feeling of nationalism. If we live in such a democratic country, the Supreme Court also needs to function like the same where the people need it most and not like the invalid reasons which Britishers choose to locate it where it is.
The reasons why Delhi was chosen as the national capital were historical and geographical and no other claim can be found for choosing Delhi as the judicial capital also. For administration as a united nation, Delhi was found as a suitable location but now that doesn’t serve any reason why it was chosen as a judicial capital. Delhi has no special advantage in terms of any grounds to be chosen as the judicial capital.
The need for a more meaningful legal system
The meaning of the judiciary can be truly found in its working for the people. The judicial segment should be more active where the number of litigants is more. More courts should be set up where the number of litigants is large and where the people can have easy access to courts which is best facilitated. In a country like ours which has a diverse population and a huge area, where people often lack active justice delivery due to the not easy approachable system, having the highest court in the corner of the country Delhi while people live to the extreme south, east and west. Is it beneficial? Is it people-friendly? Does this serve the purpose for which it is being set up?
Various commissions have come up with a proper detailed conclusion as to why there is a need for the setting up of more benches of the Supreme Court in the country. The other parts of the country which are far from the northern part feel left out owing to the location of the Supreme Court. Is justice being delivered to limited sectors and being alienated for the population due to distance, culture, and language? The Supreme Court rules over the whole nation and it has authority over all the judicial matters all over the country. Thus owing to the factors, decentralization on the various bases is the need of the hour.
In a country having diversity and immense demographic differences, having a decentralized system of judicial working in the administration would solve the logistic differences of the people and is something we all are looking for. The filling of the gap of the justice delivery system will also benefit in filling the gap between rich and poor. The judicial reforms can be seen in the country but all the sight is just an abstract of a much-needed project. Even these abstract exercises were challenged by many which are disheartening to know. Decentralization of judiciary is of utmost importance if judiciary aspires to reach to the roots of the society and become a reality for all.
Justice a basic right
The very clear fact is that to get justice people to need to spend huge sums of money on travelling from distant parts of the country to the area of delivery. The exorbitant amount gone into drains for accommodation and prolonged stay is something which is not afforded by everyone. And the process of cases is something that lasts even more than your lifetime. The rule of law in a country must be like a rule of life, the rule of life is humanist, compassionate, and accessible to the lowest. The law should be open for all to every little member of society. If a higher court doesn’t have its lower levels on the grounds it will be very distant from the regions of the society.
Judiciary to be successful needs to be an integral part of society. The law to be applicable and work within the society it needs to set up its benches at approachable locations to all the masses. The law/ rule of land should work with the benches to provide a proper justice delivery system. The refined process of justice is called excellent only when it makes its people happy and has a progressive and peaceful living. The expensive system denies access to the people. The democracy of the country seeks an administrative judiciary system that is inexpensive, easy to reach, and travelling facilitates justice. Without all these features, justice becomes a mere complex process unapproachable by the people in a law-based society.
Given the situation, the union and the states must work a model out that the judiciary is divided among both the levels at the centre and state level with the setting of various tribunals and benches of Supreme Court across the states so that an equal amount of work is done and the pendency in cases delivered decreases which will ensure efficient and effective judiciary in India.
Changing pattern of decentralization
There has been a recent decentralization of power in the current trend. With the recent Companies (Amendment) Act, 2020, Section 418A was added which allows the setting up of tribunals and an increase in the number of benches of appellate tribunals across India. In the recent judgment by the Supreme Court in Swiss Ribbons Pvt. Ltd. v Union of India (2019), the court gave a period of six months to parliament to set up regional benches for cases under NCLAT; it was made to increase the efficiency of the system, more accountability towards the people and development at the regional level.
With the enhanced technology and urbanization, there was a report released by the department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice (Committee) titled – “Functioning of the virtual courts/court proceedings through video conferencing”. This report talks about the effects of pandemics on the justice delivery system and the creative ways which have come up in the form of virtual proceedings which turned out to be very effective. In these tough times, virtual online courts were the only system that made dispense of justice possible.
During the COVID-19 outbreak, the Supreme Court initiated a suo motu civil writ case and provided instructions for court procedures via video conferencing. This served as a guiding principle for the High Courts across the country in developing a method to provide justice even during the pandemic. This could be an initial step towards decentralization not only of the Supreme Court but also other appellate and High Courts which could be set up without any physical infrastructure.
Conclusion
A democracy having a dynamic population and law of land ruling the masses must have an administrative justice delivery system to ensure that people are willing and able to approach their grievances to the system. Having various benches of Apex court in different parts makes it easy for people to go there and is also economical. Justice must be so well delivered so that social justice is granted to all the people of the society.
Economic democracy should not be the reason for people not getting justice. If the justice is limited to political justice which is costly then the poor will be left behind and it will be only available to the rich section of the society. The right to justice is an essential right of the people of democracy and it should be made available to every person.
References
- https://www.barandbench.com/columns/divide-and-unite-decentralizing-the-judiciary
- https://www.thehindu.com/opinion/op-ed/Questions-of-judicial-access/article16812031.ece
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