THIS ARTICLE WAS WRITTEN BY SIDDHI SUMAN A STUDENT OF HIDAYATULLAH NATIONAL LAW UNIVERSITY.
As man progressed from an ape and evolved his own ideas and ideals for his life, a lot of new things came into existence, apart from fire and wheel and inventions of day to day growth he started a new trend, he settled down, formed a community, and became a family man, paving way from the jungle way of life to the start of the modern civilizations. We have come a long way since then, thousands of years of evolution and changes in the social and political thinking have made us more sophisticated and more intelligent in the sense of the term.
In the era of jungle, where might was right, justice was whatever the mighty wanted it to be, there could be no challenge to whatever was being said by the person in position of authority, often it was blatantly misused and moulded according to his needs and thus life was as volatile as hobbesian state of nature.
Then a little more development happened and we moved on from a jungle era to more sophistication and in the era of development of different branches of study, JUSTICE became a virtue, it became the epitome of existence, it became the interface of right and wrong, and yet it remained on papers and in the heads of philosophers and theorists.
Justice has been defined and redefined and categorized and typecast over the generations, from an idea to a reality, being distributive or commutative to both, but it has been modernized and fit into systems, from political justice, to social, economic, racial, regional, gender and universal, it has transformed itself and has become transient, so as to never confine itself into one definition, into one mould, but it always fills up the idea of fairness.
COMPARATIVE LAW SYSTEM:
India follows the common law system, borrowed from our colonial masters, of course, and as is common in “common law systems”, it follows the adversarial system of justice.
Common Law System is the system followed by UK and its former colonies, it is one of the three major systems that are followed in the world, the other two being the civil law system and the religious law system, Common law principles are in general based on good conscience and equity and justice, and laws are customs, legislations as well as precedents and are known for their complex nature, comparative law suggests that adversarial system of law is that system where judgment is delivered upon hearing both sides of the argument, the jury or the judge does not go fact finding but relies on the arguments of both sides to find the truth.
The Justice Delivery System (JDS) basically involves judges, lawyers, police officers, forensic experts and also executive officers of other wings. In other words, the judicial systems and the administrative systems of justice involve almost all the organs of the government to machinery. It is the team work of all these persons which ultimately contributes towards resolutions of disputes between the parties. It is said that justice should not only be done but it must also be seen to have been done. Such a standard of perfection can be achieved only if all the organs involved in Justice Delivery System are well equipped with infrastructures, tools and legal and scientific literature. In this regard, it would be well to bear in mind that such tools of performance, including the literature, undergo changes and even become outdated with the passage of time and need refinement, updating and replacement from time to time. As a consequence persons operating these tools and manning the different offices connected with Judicial Delivery System also need regular updating of their knowledge to keep pace with new emerging laws, changes in society, innovations in science and technologies and so on. Hence, the need for a continued legal education for the different functionaries concerned with administration of justice.
When David Easton gave the system theory, he never knew he was creating a hornet’s nest, to be kicked up in any field of study. The system theory of studying political science is basically a suggesting that in a system there is an input-output relation, similar to the one we use in computers, aided by the processing unit and influenced by the factors such as media, individuals, the pressure groups, the people involved and the demand and supply system.
The justice delivery system has the following components:
- The people
- The law enforcement(legislature, police, authorities)
- The judiciary( the prosecution, the defence counsel and the judge)
- The correctional facilty (rehabilitation centres, remand homes, prison cells, etc.)
Like the theory, the people form the environment, when a dispute/crime happens the law enforcement forms the input, which is processed by the judiciary in the courts, and then comes the settlement in the form of awards/ prison terms/ fines etc.
In India, we follow the federal system of courts, state system of police and jails and there is both central and state level of laws, making it a complex mesh of interrelated and interconnected mechanisms at work all at once, now we add to it the billion people, their numerous court related works and further numerous disputes that are not related to one person or affect the society at a large, and add to it the backlogs, a delhi high court chief justice quipped, it would take 466 years to clear just the cases of that particular court, and so we have the great jumble that makes up India. This jumble exists even in the justice delivery system and its components.
The system works is, in a civil case, a suit is filed by one of the parties and then a reply is filed by the other, each taking its due notice period and several adjournments later a rejoinder is filed and then a reply to that, then maybe an interim application and then the matter is heard in the court, then there are further several replies and arguments, and more adjournments and delays later there might be witness examination and cross examinations and their replies and then the matter is resolved, a similar process is applied in the criminal cases although they are swifter. The courts are not the first and the last steps in a criminal system though; the criminal system begins in general with the police and ends at the correctional facility, not every time but mostly so.
This brings me to the factors that we have as a nation, we have a dynamic population, although one of the largest in the world, which is now radically changing its outlook towards how justice is to be perceived and attained, it is however ironical that this country does not have anything even in terms of manforce, we lack police officers, constables etc,.
India has the lowest citizen to police ratios in the world. The recommended average is a policeman for every 200 citizens. In India, the ratio is close to 700. If one takes into account those tied up for ‘VIP security’, the ratio will probably be close to 1 policeman for every 1000 citizens., we lack court clerks, we lack bailiffs, we lack in judges, we lack remand home officials, we have vacancies for every post, there are not enough people in any post apart from maybe lawyers because they seem to swarm every court, “There is a backlog of 30 million cases in India. Even if no new cases are filed, it will take about 350 years to dispose of them all”, adding to that we lack facilities, we lack training institutes for policemen, we lack judicial training institutes, it is an established fact which the Govt. of India accepts that there is 40% shortage of judicial staff and we lack prisons, we house inmates with the under trials and we lack detention centers, India’s prisons are seriously overcrowded, prisoners are given better or worse treatment according to the nature of their crime and class status, sanitary conditions are poor, and punishments for misbehavior while incarcerated have been known to be particularly onerous.
Prison conditions vary from state to state. The more prosperous states have better facilities and attempt rehabilitation programs; the poorer ones can afford only the most bare and primitive accommodations. Women prisoners are mostly incarcerated in segregated areas of men’s prisons. Conditions for holding prisoners also vary according to classification. India retains a system set up during the colonial period that mandates different treatment for different categories of prisoners. Under this system, foreigners, individuals held for political reasons, and prisoners of high caste and class are segregated from lower-class prisoners and given better treatment. This treatment includes larger or less-crowded cells, access to books and newspapers, and more and better food, we lack infrastructure and we lack money and we lack good educators and we lack good policy makers and we lack legislators.
We now turn to a relative neglected area of justice reform, that of criminal justice. In some ways, the right to a speedy trial is even more important in a criminal case than a civil one, since there are restraints imposed by arrest and consequent incarceration. criminal cases remain the bane of the Indian judicial system.
This is despite statutory provisions that permit speedy trial of criminal cases. For instance, Section 309 of the Code of Criminal Procedure gives considerable powers to courts. In a succession of judgements, the Supreme Court has reaffirmed the importance of speedy trials, interpreting it as a right enshrined in Article 21 (right to life).This is not to deny that the accused is often responsible for delaying the proceedings, since the onus of proving the guilt vests on the prosecution. It is not always practical to prescribe a time limit across all criminal cases. However, it is somewhat bizarre if there are under-trials in prison who have been awaiting trial for more than the maximum stipulated sentences for petty crimes. “It is a matter of common experience that in many cases where the persons are accused of minor offences punishable not more than three years – or even less – with or without fine, the proceedings are kept pending for years together. If they are poor and helpless, they languish in jails for long periods either because there is no one to bail them out or because there is no one, to think of them. The very pendency of criminal proceedings for long periods by itself operates as an engine of oppression. Quite often, the private complainants institute these proceedings out of oblique motives. Even in case of offences punishable for seven years of less – with or without fine – the prosecutions are kept pending for years and years together in criminal courts. In a majority of these cases, whether instituted by police or private complainants, the accused belong to poorer sections of the society, who are unable to afford competent legal advice. Instances have also come before courts where the accused, who are in jail, are not brought to the court on every date of hearing and for that reason also the cases undergo several adjournments.” The police are a key element in ensuring criminal justice reform, since investigations are a police subject. Investigations, under norms stipulated by the Code of Criminal Procedure, lead to a final report that can either lead to a no-offence situation or a charge-sheet.
There are some generic solutions that one should mention first.
First, there is the natural conclusion that the number of judges and courts needs to be increased. At a Chief Justices’ conference in 2004, a committee was constituted to get a fix on the recommended judge/case ratioand a figure of 500 to 600 was suggested for district and subordinate courts.Working with the pendency figures, this translates into an additional 35,000 courts or so, depending on how one derives the number. As mentioned earlier, the total number of courts right now is 12,148. Alternatively, one can work with the judge/population ratio. In its 120th report (1987), the Law Commission stated that the number of judges per million population should increase from 10.5 to 50.66 These targets were repeated by the Supreme Court. That figure of 10.5 is often quoted, but is somewhat suspect. On 31st December 2007, the sanctioned strength in district and subordinate courts was 15,917. Because of a large number of vacancies (with large numbers in UP, Andhra, Maharashtra, West Bengal and A& N Islands, Gujarat, Karnataka, MP, Bihar and Uttarakhand), the working strength was only 12,549. However, even if one works with the sanctioned strength, the judge/million population ratio is a shade lower than 7, not 10.5. If the 50 target is accepted, this works out to an additional 98,000 judges. On 22nd April 2008, the High Courts had a sanctioned strength of 876 judges and a working strength of 594. Vacancies were concentrated in Allahabad (with a very high number of 92), Bombay and Punjab & Haryana. In similar vein, one requires additional High Court judges. One might argue that the judge load can be higher than 500 to 600 and fewer courts and judges will suffice. However, a judge load of more than 3000 is unlikely to be realistic. Working with working strengths rather than sanctioned strengths, the point is that every High Court except Delhi, Karnataka, Gujarat and Sikkim has a judge load higher than 3000. Orissa has a staggering figure of 13,568 and Madhya Pradesh, Allahabad and Chhattisgarh also have numbers more than 9000. For lower courts, the number is more than 3000 in Gujarat, Calcutta and Allahabad. The upshot is that even if one does not require 98,000 judges, one probably requires around 50,000. Per new judge/court that amounts to fixed investments of Rs 2 crore and running expenses of Rs 1 crore a year. Hence, there is a colossal figure of Rs 150,000 crores, with annual recurrent expenditure of Rs 50,000 crores.
Second, this raises the issue of financial autonomy for the judiciary. The point about planning and budgetary exercises being undertaken without consulting the judiciary is a valid one, though since 1993, the expenditure on judicial administration has become a Plan subject Since 1993, there has also been a centrally sponsored scheme (CSS) for improvement of infrastructure. The National Commission set up to review the Constitution also flagged paucity of funds, both through the Planning Commission and the Finance Commission, and recommended planning and budgetary exercises through a national and State-level Judicial Councils. However, accepting that there is a financial problem is one thing. Arguing that there should be complete financial autonomy is another. Without firm evidence that the judiciary has sought to reduce pendency, the argument for financial autonomy will have few takers. For instance, the judicial appointment and promotion process is de facto in the hands of the judiciary.
Third, there are procedural improvements required. While the Code of Civil Procedure was amended in 2001 and 2002, there is still scope for improving orders issued under the code for issues like written statements, costs, examination of parties, framing of issues, evidence on affidavits and ex-parte injunctions. More importantly, these orders grant discretion to judges and there is scope for better use of this discretion. Since two-thirds of the backlog consists of criminal cases, amendments to the Code of Criminal Procedure and the Indian Evidence Act are long overdue. Consequently, there are problems with lack of pretrial hearings, service of summons, delays in supplying copies to the accused, exempting the accused from personal appearances, delays in framing charges, repeated adjournments, nonavailability of witnesses and compounding, not to speak of lack of public prosecutors and problems with the police. But it is necessary to mention that the average conviction rate is not six percent, as is commonly believed to be the case. It is between 80 and 82 percent for SLL laws and around 41 percent for IPC crimes.
Fourth, while the three points made above are generic, there is a case for focusing on certain types of cases. For instance, the government litigation policy for civil cases crowds out citizens from using the court system, though Section 80 of the Code of Civil Procedure allows for out-of-court settlements. That apart, specific focus on the Negotiable Instruments Act, Motor Accidents Claims Tribunal (MACT) cases, petty cases, old cases and cases related to excise is possible. Fifth, generic improvements require large sums of money. Experiments like Lok Adalats, fast track courts, Family Courts, mobile courts, Nyaya Panchayats, Gram Nyayalayas, People’s Courts and Women’s Courts can accordingly be perceived as driven by the motive of getting a bigger bang for the buck.
 Walker, Samuel (1992). “Origins of the Contemporary Criminal Justice Paradigm: The American Bar Foundation Survey, 1953-1969”. Justice Quarterly 9 (1): 47
 Abdul Rehman Antulay v. R.S. Nayak, (1992), 1 SCC 25.
 Common Cause, a Registered Society through its Director v. Union of India 1995 (6) SCALE 45.
 “Contemporary Views on Access to Justice in India,” Justice G.C. Bharuka, in Arnab Kumar Hazra and Bibek Debroy edited, Judicial Reforms in India, Issues and Aspects, Rajiv Gandhi Institute for Contemporary Studies and Academic Foundation, 2007.
 This is actually not a judge/case ratio, but its inverse. It is the case/judge ratio, or the judge load.
 All India Judges Association v. Union of India, 2002(4)SCC 247.