Indian Judicial System: The infamous legacy

Indian Judiciary has come a long way from being a colonial institution to one that serves as the guardian of the Constitution of a sovereign India. The journey hasn't been easy and it's only imperative for us to judge one of the pillars of our democracy at a time when the distrust between executive and judiciary is paramount.

Indian Judiciary has no doubt done a commendable job but it faces certain inherent problems, which show the weaknesses and defects of the system, and which require immediate reforms and accountability.

Challenges faced by the Judiciary

  • Judicial Backlog: A mindboggling 3 crores cases are pending at different courts in India. Over 21 lakh cases being at least 10 years old. This doesn't inspire confidence in a judiciary which is the hope to many in a country marred by corruption, inequalities and what not.
  • Vacancies: With so many pending cases, it's only logical to believe there must be lot many vacancies in the courts which indeed is the case. The approved strength of the country's 24 high courts stands at 1,079, of which 464 posts or 43% are vacant. In the lower courts, the picture isn't very rosy either, where around 21% posts lie vacant.
  • Complex process of litigation: Let's face it. Innocents dread the courts, while convicts thrive on it. Surviving through the process of litigation in India is as cherishable a goal as finally winning it. 
  • Lack of transparency and accountability: The judges of the High Courts and the Supreme Court of India are currently appointed by a collegium of senior most Judges of SC. As much as one would languish the vacancy in the courts, the current system of appointment isn't very transparent either.  It is seen as a closed-door affair with no prescribed norms regarding eligibility criteria or even the selection procedure. There is no public knowledge of how and when a collegium meets, and how it takes its decisions. 
  • Corruption: Given the opaque nature of Indian Judiciary, it would hardly be a guesswork to speculate the prevailing corruption. There can be no definite proof as well in such circumstances. However, the line is definitely crossed when there is a direct conflict of interest. Charges of nepotism in appointments aren't very uncommon either. 


  • Funding:  Although Judiciary is independent in its functions, it is dependent on Legislature for fulfilling its financial needs.  Also, India currently spends about 0.01% of the GDP on the Judiciary which in now way is sufficient given the vast structure it is. 

The ideals of our Constitution and democracy would be marred if the Judicial System isn't overhauled. Certain measures have been voiced repeatedly and not all of these have any perceived roadblock apart from sheer negligence. 

Some possible solutions:

  • Indian Judicial Services: The proposal for an All India exam along the lines of Civil Services has been mooted many a time, the first instance being 1960. An amendment of the Constitution was sought in 1976. With immediate benefits, AIJS would go on to cater to the vacancies in a big way, without compromising on either independence or merit.  
  • National Judicial Appointments Commission: NJAC act was passed by the Parliament in 2014 which proposed a body to oversee the judicial appointments. The body was to consist of the Chief Justice, two senior most judges of SC, Union Law Minister and two eminent persons which were to be appointed by the government. It has already been discarded by the Judiciary citing the interference of Executives with Judiciary. However, this doesn't mean that there is no need of a body to oversee the appointments. While the central government and the SC figure out the Memorandum of Procedure, the suggestion of a search cum evaluation commission to aid the SC collegium by the central government should definitely be adopted by the Judiciary. It would let the collegium focus on broader issues.

  • Hire Judicial Staff in appropriate numbers: Usually, the judges appoint one or two law clerks under them. Given the huge workload, the number can definitely be increased. As pointed out in a study, the number of judicial assistants has a positive influence on court productivity, and the number of assistants mitigates the positive relationship between court caseload and court productivity.
  • Use of Technology:  Mr. C P Gurnani, CEO of Tech Mahindra made the bold assertion that with ICT, India's 300-year case backlog can be reduced to three years, in a span of only three years. This sounds utopian, but Information and Communications Technology will increase access to justice, incorporate the marginalized into the law-making process, and increase judicial transparency and accountability. Accepted ICT would have to be complemented by judicial will and executive support but the expected outcomes will far outweigh the initial push required.

  • Associations to check Corruption: To ensure judicial independence without compromising on the issue of corruption, NJAC (if constituted, else collegium) can also appoint an independent body along the lines of Central Vigilance Commission to investigate the charges of corruption and nepotism. The body should be quasi-judicial in nature with final power resting in the hands of courts itself. This should strike a perfect balance. 
  • Funding: “Report of the Task Force on Judicial Impact Assessment” had asked that a judicial impact office be created in Delhi and state capitals to estimate the extra expenditure on the courts to be incurred by Central and state legislation respectively. This arrangement would help undercut the financial dependencies of the Judiciary. 

References:
1. http://timesofindia.indiatimes.com/india/24-high-courts-have-a-total-of-43-judicial-vacancies/articleshow/55192912.cms
2. http://indianexpress.com/article/india/india-news-india/lower-court-judges-vacancy-pending-cases-supreme-court-3017409/
3. http://www.livemint.com/r/LiveMint/Period1/oldpdf/8f771b83-547a-4758-ba01-0c2c57b70065.pdf
4. http://www.livemint.com/Opinion/b1DNafTIUNGtzY3IR8gtbI/Examining-the-funding-deficit-of-the-judiciary.html
5. http://epaper.timesofindia.com/Repository/getFiles.asp?Style=OliveXLib:LowLevelEntityToPrint_TOINEW&Type=text/html&Locale=english-skin-custom&Path=TOIKM/2010/11/27&ID=Ar00101
6. http://www.iacajournal.org/articles/abstract/10.18352/ijca.214/
7. http://cis-india.org/internet-governance/blog/what-will-be-the-role-of-ict-in-indias-judical-reform-process

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