JUDGES TO BE SELECTED THROUGH EXAM

IT REQUIRES MASSIVE DOSE OF REFORMS

Veerappa Moilly has taken over the guard of Ministry of Law and Justice; Bhardwaj has been changed. The message perhaps is to push some long pending reforms forward.

The reform in Judiciary is a long pending issue and no Ministry actually wanted to pursue drastic reforms because it is most of the time very contentious and invites wrath of judiciary. If fact one small amendment in the Criminal Procedure Code (section-41) invited intense wrath of one section of lawyers and protests are still going on.

Indian Judiciary is a British legacy and many remnants of this legacy still exist with meagre or naught changes. The present form of Judicial System was laid in year 1833 when Supreme Court was established in Calcutta.

The debate on Judicial Reforms has been a topic of discussion either in legal luminary or in urban middle class; therefore, it unfortunately, could not become a prime concern of common man. Discussions in public domain on this issue have also been confined to identification of problems, rather than anatomy of the system itself. It is only after plethora of instances of corruption charges in the higher judiciary, that media and Civil society took up the thread and initiated the debate and took it out of drawing room of legendary figures.

The new govt has set 100 days agenda for itself and Reforms in Judiciary is obliviously and happily one of important agenda.

ISSUES OF IMMEDIATE CONCERNS-

1. Huge pendency of cases-. The system seems crumbling when one sees the huge stockpiles of case pending at different levels of judiciary. On March 2009, as many as 50,163 cases were lying pending in Supreme Court, 38.07 lakh cases in different High Courts in January 2009. Astounding 2.64 crore cases were pending in lower courts across country on 1^st January, 2009. Huge 24,130 cases under PC Act alone are pending against govt officers on January 2009.

Obviously the system is on the verge of collapse if immediate remedial measures are not undertaken.

Pendency is perhaps first and the foremost concern because it affects general public, unfortunately the poor masses. The Cases are lying pending for decades and expenses are mounting. Justice delayed is justice denied, is an old saying but is still relevant. For many of us, these figures may be a topic of academic pursuit but for those who suffer, it is a nightmare. Hearts of any sensible human would mourn to learn that a man is languishing in Jail for decades on the charges of an offence for which maximum punishment is only few months. Such Cases erode faith in our system which many find expressions in rabid forms. It needs to be addressed immediately therefore.

2. Insufficient number of courts and judges-. In India there are 15,000 courts of which 13,600 are functional. The ratio of judges and courts to population is hopelessly less as compared to many developed countries. There are many states where full High court has not yet been started. Some experts in this field however do not share the common perception about this problem. They opine that merely by increasing the number of Judges and courts, this problem would be mitigated and pendency would be decreased. The existing system of working hours and pace of disposal have to be taken into account, they add.

3. Scope of appeals and revisions- This problem has assumed monstrous proportions. Our Judicial system in fact provides nearly inexhaustible scope of appeals, revision and many other scopes in different nomenclatures. It is mainly due to this provision, the rate of conviction is low and pendency is high. It, on the one hand, puts enormous pressure on the system and on the other hand makes moneyed people less scared about the law. Here again the poor are the most sufferers. Indian Evidence Act 1871 which is a colonial law is obsolete and time consuming. The provisions of Main examination, Cross examination and Re-examination of witnesses and accused, kill maximum time of the proceedings and delay the final verdict. The rules made by courts for conduction of proceedings are such that it favour lawyers and strain citizens. Provisions of filing petitions amidst the proceedings by lawyer are proving very disturbing as well as time consuming. The proportion has reached to such a magnitude that even Apex court has reprimanded the lawyers for these behaviours. Laws therefore, are urgently required to stop these nuisances for the sake of justice.

4. Inordinate delays in disposal of cases- the delay on the part of judges in pronouncing final judgement should be dealt with without delay. We have some provisions in Criminal Procedure Code in matters of preventive section proceedings like section 107, 144 and even 145. Similar provisions should be made in civil courts and higher judiciary that particular nature of cases should be disposed off in such and such time frame. It would help in making the courts and judges more accountable and definitely the number of disposal would accelerate.

5. Issues related to appointment of judges and Cases related to corruption to them- the provision of appointment of judges has been made under Article 124 of Indian Constitution. The provision has been made to make judiciary independent as the president has to consult the CJI before making appointment of judges in HCs or SC. In advocates on record vs Union of India case, the Supreme Court ruled that such consultation shall be concurrence. The court laid down the procedure of appointment and Collegium of judges was made to recommend to the govt appointment of judges. Thus the govt or parliament is left with virtually no role in matters of appointment in higher judiciary.

STEPS ON ANVIL TO REDRESS THESE ISSUES-

Our Judicial system is on sound footing and it second to none; nonetheless there is scope of its betterment. There is list of pending issues pertaining to reforms in Judiciary. Bills related to judges accountability, appointment procedure, reservation in appointments in higher judiciary, speedy etc are likely to come up in the next few years. Naturally the Ministry of Law and Justice would be faced with challenging tasks.

Judges accountability Bill-The corruption in Judiciary is very perturbing for all of us because for many of us Judiciary remained last hope of Redressal of grievances and protection of civil rights. This however does not mean that it is immune to all sorts of societal infections. The Judges Accountability Bill seeks to make judiciary more accountable and discourage case of corruption. This bill aims at amending some provisions of Judges Inquiry Act 1968 in order to make the process of removal of judges less cumbersome and complicated. In fact Article 214(4) of Constitution provides for removal of judges whereas; Judges Inquiry Act 1968 describes the process of removal. The process is so lengthy and slated towards the Judges that not even a single judge so far has been removed after the Constitution came in vogue. In fact one Justice Shiv Prasad SInha of Allahabad High Court was removed on the recommendation of Federal court by the then Governor-General C.Rajagopalchari in 1949.

Secondly- the appointment procedure of Judges in Higher Judiciary is also likely to come before the parliament. This has been one issue where a lot of hue and cry has been made. Many a time confrontation between Judiciary and Parliament seemed imminent, fortunately perhaps it the strength of our democratic institution that standoff has been defused and crisis has been averted.

Information available before the public domain indicate that govt is determined to introduce a bill seeking amendment to Article 124 and make appointment in higher judiciary more institutionalise and transparent. Allegations have been time and again labelled that some elite families of India have monopolised higher judiciary and it is not unfounded also. To restore pristine glory and re-shape and revamp this august institution of ours, such steps are urgently required.

Thirdly- the govt has already taken steps to ensure that assets judges are declared. The bill in this regard has already come up. Provisions should be made in such a way that they are not jargonised and very purpose made thereto is defeated. After all ours is a democracy and the principle of equality before the law has been universally accepted, therefore any attempt to make it ambiguous should not be allowed.

There are other issues also on which legislations are required. The colonial system of vacations in summer and winter should be discontinued. The working hours of courts can be increased. Some states like Gujarat has introduced evening courts, this practise may be introduced in all states. After all it is the citizen for benefit of whom, govt and other institutions have been erected. Time has come to perform or perish. Hopefully we are performing and therefore we shall continue to stand tall.