The Advisory Council of National Mission for Justice Delivery and Legal Reforms, which met on Tuesday, has asked the Law Commission to look into the procedural reforms and suggest “structured” and “realistic” measures to improve the criminal justice system in the country.
The tenth meeting of the council, which was chaired by law minister Ravi Shankar Prasad, discussed various issues, including the need to overhaul the criminal justice system, manpower planning for subordinate judiciary, streamlining court processes and judicial database for policy formulation. However, no time period has been given to the Law Commission to submit its report.
In the matter of judicial vacancies, the council felt that the shortage of judges is not the sole problem for the increasing pendency. They deliberated over how to introduce a uniform methodology to expedite the process of filling up vacancies in the lower judiciary.
As of now, there are 594 judges in high courts and 26 sitting judges, against a maximum possible strength of 31, in
the SC, which adds up to 620 judges in the higher judiciary for a population of over 1.25 billion people. Overall, the judge-population ratio in India is way below the desired level. As per the 2011 census, there are just 16.8 judges (at all levels) per million population. The apex court, in its judgement of March 21, 2002, had directed that there should be at least 50 judges per million Indians.
Besides, the council also felt the need to find a right approach to determine case pendency in courts. One of the biggest problems facing policy makers in this field is the lack of any benchmark to determine when a case should be considered delayed. The lack of a clear criterion to determine what constitutes delay poses a hurdle to determine the policy changes needed to address the issue. “The right approach is required to see what can be termed as a pending case as the present approach is quite vague and needs clear definition. Some clarity is required to see if even a bail petition can be termed as a pendency. Currently, no realistic approach is there,” according to a source, who was part of the meeting.
Even the Law Commission of India, in its 245th Report titled “Arrears and Backlog: Creating Additional Judicial manpower” had observed that lack of scientific collection, collation and analysis of statistical data remained a serious constraint. The Commission had noted that the multiplicity of data collection prevented analysis of issues plaguing the system.
As per available data on the National Judicial Data Grid (NJDG) website as on July 31, 2016, there were a total of 2,22,37,248 cases pending across various district and subordinate courts, out of which 18,614,308 were criminal cases. Data from the National Crime Records Bureau shows that there were 2.1 million serious criminal cases pending under the IPC in 2009, and this had risen to 2.8 million in 2014.
The government is in favour of the higher judiciary strengthening the adversarial system of the criminal justice system to match the international levels where judges play a more pro-active role in securing justice for victims of serious crimes. This is in tune with the 2003 recommendations of the Justice VS Malimath committee on reforming the criminal justice system.
The Malimath panel had suggested a series of far-reaching reforms, the most important of which was to combine the best of the adversarial system that we follow in India with that of European nations like France and Germany. Besides, it had recommended that the code of criminal procedure be amended to ensure that it is the duty of ‘every functionary of the criminal justice system …to actively pursue the quest for truth’.
These deliberations followed a recent ‘Access to Justice survey’ which was conducted by Daksh, a Bengaluru-based NGO, which was engaged by the law ministry to study pendency in high courts and district courts.
Daksh had partnered with the National Law University, Delhi, to carry out the survey which started in November 2015 and concluded in February, with interviews of 9,329 litigants in both civil and criminal matters in 305 lower courts spread across 170 districts in 24 states.
The nationwide survey had thrown up some startling results: the loss of wages and business for litigants attending lower court hearings was estimated at over R50,000 crore a year at an average of R1,746 per case per day. The cost incurred by litigants in a year on payment of legal fees and other expenditure was in excess of R80,000 crore annually or 0.7% of India’s GDP (in FY16). On an average, a complainant in civil cases spent R20,000 per case till it was decided, more than the accused who incurred only R15,000 cost. The cost incurred by all litigants towards legal fees and other expenses added up to another R30,000 crore, the study stated.
“Gaining speedy access to the legal system is what is required,” experts say. This is the perfect time to revolutionise our courts, investigation, prosecution, prison administration, among other procedures, through information technology, says SC lawyer Rahul Gupta. As long as practical and pragmatic efforts are not put in practice it would take years to implement the maximum and effective use of IT in our stifled justice sector, according to him.
The Council, too, has stressed on the need for adoption of a collaborative approach by the central government, state governments and judiciary for realising the constitutional objectives of access to justice.
As part of its ongoing implementation of the second phase of the e-courts project, the Centre has asked the National Informatics Centre to work on giving a unique identification number to every judge in the country. The NIC has also been asked to work on authenticating digital signatures of judges and migrate around 17,000 courts in the country, connected to the NJDG. This will help the apex court track the performance of individual judges and make all judgements delivered through his or her career available on the website.
The idea is not only to move towards a paperless court, but will also enable disposal of disputes in a fair, time bound manner and at a reasonable cost.
“We have election law where the disputes have to be decided in six months. CPC where certain time schedule have been prescribed, many special legislation for time bound disposal of cases. These are not followed. We have enough laws and committee reports. Where is the accountability? No police officer is dismissed from service for not filing chargesheet in 90 days. No court is reprimanded for not deciding election petition in six months…,” says SC lawyer MR Shamshad.