Part 9: Judicial System

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Fifty years after independence, the entire judicial system is on the verge of collapse. While the superior courts have earned praise from citizens for intervening in citizenís concerns raised through public interest petitions, only those with resources or cunning can hope to get ordinary justice. Over three crore cases are presently pending in various courts. In most cases, citizens have little hope of getting justice in their lifetime. Corruption and abuse of court processes are rampant.

The main reason for this state of affairs is that we are still wedded to the centralised judicial system based on colonial practises. The local courts are under the administrative control of the state high courts that obtain budget for them from the state governments. State governments appoint local judges in state cadres, and transfer them on the recommendation of high courts. There is thus no local accountability in the administration of justice.
 
The courts still follow Anglo-Saxon jurisprudence, totally ignoring jurisprudence developed in India over ages. Traditionally, village court settled village disputes. Deprived of this facility, the village community now suffers abuse, delays and high lawyer costs in local courts. The chief district or city judge has no method of redressing genuine grievances of local communities.
 
Similarly, the high courts are under the administrative control of the Supreme Court. The Supreme Court now also transfers high court judges from one state to another, often on corruption charges, in effect merely transferring corruption, not a healthy practise. All know that pending cases will keep building up but have no solution to offer.
 
Article 9.1 Democratising judiciary
The judicial system, like the rest of public management, needs to be democratised urgently. The local judiciary should be a part of local governance with superior courts functioning only as appellate authority. Chief district and city judges will draw budget from their respective governments but since they can be impeached only by the district/city parliament, they shall be directly accountable to the people of the district or city.
 
Thus the local judiciary will be under the appellate jurisdiction of the high court but not under its administrative control. Similarly, the high courts will be under the appellate jurisdiction of the Supreme Court but not under its administrative control.
 
Article 9.2 Local judiciary
The city/district Appointments Authority for Independent Functionaries shall identify the chief district/city judge and other judges for appointment and refer them to the city/district parliament for approving the appointment. A joint committee of the city/district assembly and council will interview them and approve the appointment. On approval, the city/district government will issue the appointment order. The appointment shall be till the age of 70 years with total ban on extension or appointment on any other paid, honorary, or elective assignment in the government. Serving judges can, if needed, be seconded to various independent commissions and such other assignments.
 
If there are complaints against a judge that warrant an enquiry, the city/district assembly shall request the concerned judge to clarify the matter. On receipt of his report, he will be requested to appear before a committee of the city/district assembly. If, on considering the report of the committee, the city/district assembly is of the opinion that impeachment is called for, it shall refer the matter to the city/district council. Thereafter, on a date intimated to the judge, he will appear before the city/district council and himself, or through a counsel, explain his position. The city/district council shall thereafter take such decision, as it deems fit.
 
It shall be the personal responsibility of the chief city/district judge to ensure that citizens are not harassed due to delays, adjournments and petty corruption. If cases accumulate, he will hold consultations with the city/district governor and eminent citizens for additional budget, appointment of honorary judges and innovations such as setting up of temporary courts.
 
Article 9.21 Appointment of judges through nonpolitical elections
If the people of any local jurisdiction, through referendum, vote that the appointment of local functionaries such as the city or district chief judge, attorney or chief of police shall be through election, they shall be elected for four years along with the general election and can be reelected once. Those seeking election shall not be, nor have been, a member of a registered political party.
 
Article 9.22 Village courts
The chief city/district judge shall hold consultation with gram panchayats and encourage them to take responsibility for dealing with certain types of cases. They will organise training courses for the sarpanch and panchs in villages and, based on evaluation, empower selected panchayats to exercise jurisdiction over specified criminal and civil cases. The jurisdiction can be enlarged as they gain experience. Similar initiative can be taken in regard to urban neighbourhoods. Senior citizens with appropriate background can be invited to assist.
 
Article 9.3 Jury trial
It is usual in democracies to associate citizens as jury in certain types of trials. City/district governors and chief judges shall organise seminars on jury trial and introduce it in a phased manner. When its usefulness becomes a felt need, it can be gradually phased in. It will be particularly useful in cases such as dowry harassment and other social ills.
 
Article 9.4 Honorary judges and police officers
The city/district governor, chief judge and police chief shall examine the usefulness of appointment of honorary judges and police officers to deal with problems faced by citizens. In many cities, security agencies set up by retired army and police officers have come up and provide security guards to neighbourhoods. Such security guards, appointed honorary police officers, can become a useful extension arm of the police. Such local innovations can promote better understanding between the government and citizens.
 
Article 9.5 Superior courts
The provisions of Article 8.1 regarding appointment of city/district judges shall mutatis mutandis apply to appointment of judges of the superior courts. They too will have their tenure till the age of 70 years and thereafter cannot hold any paid, honorary or elective assignment, in any government organisation.
 
Article 9.6 Jurisprudence
The courts in India are still governed by Anglo-Saxon jurisprudence introduced by the colonial rulers. India has sound concepts of jurisprudence developed over its long civilisation. While it may not be desirable to totally discard Anglo-Saxon jurisprudence at this stage, it will be appropriate to enrich it by integrating useful provisions from Indian jurisprudence. Private jails, especially for under trial prisoners who can afford them, prevalent in many countries, may be promoted. The sovereign rights commissions may organise consultations on such issues and propose how useful elements of Indian as well as progressive contemporary jurisprudence and practices can be adopted.
 
Article 9.7 Dress code
The dress code introduced by the colonial rulers is still in vogue. It may suit air-conditioned superior courts but is totally unsuited for local courts, especially in summer months. The National Sovereign Rights Commission shall get the dress code reviewed by design professionals and propose dress code options suiting the local climate, and the culture in different parts of India.
 
Article 9.8 Discarding summer vacation
The colonial practice of closing courts during summer, designed to enable the British judges to vacation in Britain or hill resorts in India, is still in vogue. It increases litigation costs, delays and harassment to citizens. Even foreign investors have criticised this colonial practise and the delay, harassment and cost associated with it. Since most public and private offices function during the summer months, there is no reason why courts should close during summer.
 
As soon as this Constitution comes into force or earlier, the colonial practice of vacation for courts during summer shall be discontinued. Judges shall then be entitled to earned leave in manner similar to other public servants.
 
Article 9.9 Contingency litigation
In view of high cost of litigation and delays, citizens are reluctant to seek relief in bona fide cases. Contingency litigation, that is, lawyers bearing expenses and accepting pre agreed share from the compensation awarded by courts may be introduced, to begin with, in selected cases, such as, dowry and sexual harassment, nonpayment of statutory wage or boned labour. If it serves the people well, it can be extended to other types of litigation. The sovereign rights commissions may examine and recommend that it be approved in selected local jurisdictions, through referendum.

 

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