The Chief Justice of India got somewhat emotional the other day while addressing a conference of Chief Ministers and Chief Justices where the Prime Minister was also in attendance. The CJ was apparently frustrated over the steep shortage of judges in the country leading to high pendency of cases, and thus showing the judiciary in poor light. He made a fervent appeal for raising the number of judges in the country from 21,000 to 40,000--the only way, according to him, to tackle the mounting pendency in courts across the country. However, the lack of judges is not the only reason for the backlog of cases. In fact it is not even the most important reason for the huge pendency of cases or the glacial pace at which administration of justice moves in this country.
What most fundamentally ails our justice system is the way we have come to operate the British common law system that we have adopted. Under this system, criminal cases have to be proved beyond reasonable doubt, with the accused being presumed to be innocent until his guilt is proved by the prosecution. There is no quarrel that this is a fair and a highly evolved system of administration of justice but it is a highly technical and time consuming one. Over the years, with concentration on procedure over delivery and legalism over justice we have let this system deteriorate to the verge of collapse.
To meet the exacting standards of evidence under the adversarial common law system, the police invest days and months of work in collecting evidence after a crime in reported. When the police investigation is complete, the case comes to court wherein the lengthy procedures of framing the charge, summoning witnesses and material evidence, examination and cross-examination of witnesses (where every word spoken is written down by the judge in long hand), examination of the accused etc follow. The lawyers from both sides then argue the case on facts and the legal points involved and finally the judgment is pronounced.
Because of the current pendency in courts, the trial starts after a gap of some years and once it starts, it takes up anywhere from several days to months and sometimes years for completion owing to adjournments, non-appearance of witnesses, judges being out on leave and trainings, court strikes, interim appeals and the like. The judge takes further time to come out with his reasoned judgment where he has to weigh the evidence presented and also take into consideration the judgments of higher courts of the country on the point of law.
Even after a judgment, the process is not complete because the accused has the opportunity to appeal before higher courts--where after some more years and several adjournments later the matter is again argued on whether the case has been proved beyond reasonable doubt and whether the lower court judge has gone wrong in appreciating evidence etc. Thus a decision in Lalu Yadav case could take 17 years, and the Jayalalithaa case 18 years and still we do not know if they are guilty or not as their appeals are pending.
Civil cases are much worse in delays as the evidence process is as rigorous as criminal cases even though the standard of proof legally required, unlike criminal cases, is only proof by preponderance of probabilities. The winning party has to then start a whole new process of execution of the court's decree, which is another time consuming and technical process.
India can ill afford such a luxurious and indulgent system of administration of justice. Along with asking for more judges, the CJ should be looking critically into court procedures and timelines. In our system there is really no control over the extent of cases, in terms of examination of witnesses, arguments and length of judgments. Lawyers generally ask several questions, many of them irrelevant, during cross-examination. Lengthy arguments are made by counsels on both sides with citation of several previously decided cases to lend force to their argument. The judge while writing his judgment refers to the various points made by either side, discusses the case law and comes out with his reasons for the view taken, again a lengthy process. In higher courts it is fashionable to refer to the decisions of foreign courts and extract lengthy quotes, thus making the decision fill several hundred pages.
In order to reduce delays and improve the justice delivery in certain specialized matters pertaining to administration, consumer grievances and environment, special tribunals with fewer procedural requirements were set up. Sadly, these tribunals too were bogged down with backlog soon after their creation. The main reason here being that the judges and lawyers in these forums imported their old familiar styles and procedures, thus plaguing them with the problems of regular courts.
Some years ago, our Criminal Procedure Code was amended to introduce plea-bargaining--a concept heavily used in the United States of America. Under this system, at a pre-trial stage the accused can negotiate with the victim to end the case after paying compensation, agreeing for a lesser sentence or accepting probation for good conduct. While this is now an opportunity available to avoid lengthy a trial process for cases punishable with under seven years of punishment--thus reducing the pressure on our criminal courts as well as bringing quick relief to victims--courts in India are hardly using it. Plea bargaining has neither picked up nor an effort made to train judges, lawyers and the general public on this new concept.
The Chief Justice and his team can make a huge difference if the flab is cut from our existing criminal justice system. There is huge scope for time limits to be prescribed by the judge in consultation with lawyers regarding the number of witnesses to be questioned, the length of time for arguments and the number of adjournments to be allowed. There needs to be a critical review of court processes and existing case management systems. Reforms must be introduced to remove bottlenecks and increase efficiency. Even existing measures like specialized tribunals and simplified processes like plea-bargaining if used optimally could help get quick relief to litigants. No doubt, more judges would help, but speedy disposal of cases will come only with efficient and time-bound processes.
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What most fundamentally ails our justice system is the way we have come to operate the British common law system that we have adopted...
Fundamental flaws
What most fundamentally ails our justice system is the way we have come to operate the British common law system that we have adopted. Under this system, criminal cases have to be proved beyond reasonable doubt, with the accused being presumed to be innocent until his guilt is proved by the prosecution. There is no quarrel that this is a fair and a highly evolved system of administration of justice but it is a highly technical and time consuming one. Over the years, with concentration on procedure over delivery and legalism over justice we have let this system deteriorate to the verge of collapse.
To meet the exacting standards of evidence under the adversarial common law system, the police invest days and months of work in collecting evidence after a crime in reported. When the police investigation is complete, the case comes to court wherein the lengthy procedures of framing the charge, summoning witnesses and material evidence, examination and cross-examination of witnesses (where every word spoken is written down by the judge in long hand), examination of the accused etc follow. The lawyers from both sides then argue the case on facts and the legal points involved and finally the judgment is pronounced.
Along with asking for more judges, the CJ should be looking critically into court procedures and timelines.
Because of the current pendency in courts, the trial starts after a gap of some years and once it starts, it takes up anywhere from several days to months and sometimes years for completion owing to adjournments, non-appearance of witnesses, judges being out on leave and trainings, court strikes, interim appeals and the like. The judge takes further time to come out with his reasoned judgment where he has to weigh the evidence presented and also take into consideration the judgments of higher courts of the country on the point of law.
Even after a judgment, the process is not complete because the accused has the opportunity to appeal before higher courts--where after some more years and several adjournments later the matter is again argued on whether the case has been proved beyond reasonable doubt and whether the lower court judge has gone wrong in appreciating evidence etc. Thus a decision in Lalu Yadav case could take 17 years, and the Jayalalithaa case 18 years and still we do not know if they are guilty or not as their appeals are pending.
Civil cases are much worse in delays as the evidence process is as rigorous as criminal cases even though the standard of proof legally required, unlike criminal cases, is only proof by preponderance of probabilities. The winning party has to then start a whole new process of execution of the court's decree, which is another time consuming and technical process.
Even existing measures like specialized tribunals and simplified processes like plea-bargaining if used optimally could help get quick relief to litigants.
India can ill afford such a luxurious and indulgent system of administration of justice. Along with asking for more judges, the CJ should be looking critically into court procedures and timelines. In our system there is really no control over the extent of cases, in terms of examination of witnesses, arguments and length of judgments. Lawyers generally ask several questions, many of them irrelevant, during cross-examination. Lengthy arguments are made by counsels on both sides with citation of several previously decided cases to lend force to their argument. The judge while writing his judgment refers to the various points made by either side, discusses the case law and comes out with his reasons for the view taken, again a lengthy process. In higher courts it is fashionable to refer to the decisions of foreign courts and extract lengthy quotes, thus making the decision fill several hundred pages.
Special tribunals and plea bargains
In order to reduce delays and improve the justice delivery in certain specialized matters pertaining to administration, consumer grievances and environment, special tribunals with fewer procedural requirements were set up. Sadly, these tribunals too were bogged down with backlog soon after their creation. The main reason here being that the judges and lawyers in these forums imported their old familiar styles and procedures, thus plaguing them with the problems of regular courts.
No doubt, more judges would help, but speedy disposal of cases will come only with efficient and time-bound processes.
Some years ago, our Criminal Procedure Code was amended to introduce plea-bargaining--a concept heavily used in the United States of America. Under this system, at a pre-trial stage the accused can negotiate with the victim to end the case after paying compensation, agreeing for a lesser sentence or accepting probation for good conduct. While this is now an opportunity available to avoid lengthy a trial process for cases punishable with under seven years of punishment--thus reducing the pressure on our criminal courts as well as bringing quick relief to victims--courts in India are hardly using it. Plea bargaining has neither picked up nor an effort made to train judges, lawyers and the general public on this new concept.
Retraining focus
The Chief Justice and his team can make a huge difference if the flab is cut from our existing criminal justice system. There is huge scope for time limits to be prescribed by the judge in consultation with lawyers regarding the number of witnesses to be questioned, the length of time for arguments and the number of adjournments to be allowed. There needs to be a critical review of court processes and existing case management systems. Reforms must be introduced to remove bottlenecks and increase efficiency. Even existing measures like specialized tribunals and simplified processes like plea-bargaining if used optimally could help get quick relief to litigants. No doubt, more judges would help, but speedy disposal of cases will come only with efficient and time-bound processes.
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