IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO 295 OF 2016
IN THE MATTER OF:
Ashwini Kumar Upadhyay …Petitioner
Verses
Union of India & Another ...Respondents
PAPER BOOK
[FOR INDEX KINDLY SEE INSIDE]
(ADVOCATE FOR PETITIONER: R.D.UPADHYAY)
RECORD OF PROCEEDINGS
Sr.No. Date of Record of Proceedings Pages
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
INDEX
S.No. PARTICULARS PAGES
1. Listing Performa A-A1
2. Synopsis and List of Dates B-E
3. Writ Petition and Affidavit 1-
4. Annexure P-1:
Copy of Law Commission Report -221
Need for Speedy Justice-Some Suggestion
5. Annexure P-2:
Copy of Law Commission Report -230
Reform in the Judiciary-Some Suggestion
6. Annexure P-3:
Copy of Law Commission Report -245
Arrears and Backlog-Creating Additional
Judicail Manpower
PERFORMA FOR FIRST LISTING
Section: PIL
The case pertains to (Please tick / check the correct box):
Central Act: N/A
Section: N/A
Central Rule: N/A
Rule No: N/A
State Act: N/A
Section: N/A
State Rule: N/A
Rule No: N/A
Impugned Interim Order: N/A
Impugned Final Order / Decree: N/A
High Court: N/A
Name of Judges: N/A
Tribunal / Authority Name : N/A
Nature of Matter: Civil
(a) Petitioner / Appellant : Ashwini Kumar Upadhyay
(b) Email ID: aku.adv@gmail.com, aku.aor@gmail.com
(c) Phone No: 08800278866, 09911966667,
3. (a) Respondent: Union of India and Another
(b) Email ID: N/A
(c) Phone No: N/A
4. (a) Main Category: 08 PIL Matters
(b) Sub Category: 0807 Others (Matters related to Speedy Trial)
5. Not to be listed before: N/A
6. Similar / Pending matter: N/A
7. Criminal Matters:
(a) Whether accused / convicted has surrendered: N/A
(b) FIR / Complaint No: N/A
(c) Police Station: N/A
(d) Sentence Awarded: N/A
(e) Sentence Undergone: N/A
8. Land Acquisition Matters:
(a) Date of Section 4 Notification: N/A
(b) Date of Section 6 Notification: N/A
(c) Date of Section 17 Notification
9. Tax Matters: State the Tax Effect: N/A
10. Special Category: N/A
11. Vehicle No in case of motor accident claim matters): N/A
12. Decided Cases with Citation: N/A
Date: 27.04.2016
Advocate for Petitioner
(R.D.Upadhyay)
Advocate-on-Record
Registration Code No-0589
rajdeoupadhyay@ymail.com
011-23070343, 9891050515
SYNOPSIS
Every accused is entitled to fair trail and speedy justice. Unexplained and inordinate delay of the trial for no fault of the accused is clearly a violation of the Article 21. Expeditious trial is a basic right of every accused, which cannot be trampled upon unless it can be shown that the accused itself is responsible for the delay. Fair trial and speedy justice is component of personal liberty and a procedure is void if it does not provide a fair trial and speedy justice. Inordinate delay in bringing an accused to trial or in preferring an appeal against his acquittal, are violative of the Article 21. Undue delay in execution of death sentence is also violative of the Article 21. It has been recognized that the constitutional guarantee of a fair trial and speedy justice is an important safe guard (I) to prevent undue and oppressive incarceration prior to trial, (II) to minimize anxiety and concern accompanying public accusation, and (III) to limit the possibilities that long delays will impair the ability of an accused to defend himself. The right to fair trial and speedy justice is necessarily relative; it is consistent with delays; whether delay in completing a prosecution amounts to an unconstitutional deprivation of rights depend upon the circumstances and delay must not be purposeful.
Eminent Jurist and former CJI Justice Verma says: “In a criminal trial it is the society’s interest that the trial concludes early and if the accused is guilty, he is duly punished. If the accused is not guilty, an early conclusion of trial is necessary to reduce him from ordeal of trial and vindicate his honour as soon as possible. Speedy criminal trial is, therefore, necessary in the interest of both, the accused and the society. Delay frustrates this objective and his detrimental to interest of every one. Delay is the enemy of justice. The object of punishing the guilty at the earliest also has a chastening effect as the others like-minded and has a preventive element to improve this crime graph. Delay in the trial frustrates this object even when the prosecution is justified because of the waning interest of not merely the society, but also of the witness with the passage of time, which ultimately dilutes the prosecution evidence and facilities the acquittal of the guilty. It is not unofficial that the usual delay in conclusion of the trial reduces the fear and subconsciously provokes crime because of the fair chance of avoiding punishment.” It is constitutional obligation of the court and the prosecution to prevent unreasonable delay. Purpose of right to fair trial and speedy justice is to avoid oppression and prevent delay by imposing an obligation to proceed with reasonable dispatch.
Hon’ble Supreme Court has reiterated the proposition that the right to fair trial and speedy justice is a fundamental right implicit in the Article 21. No procedure can be fair unless it ensures a fair and speedy determination of the guilt of the accused. There is a difference between fair trial and speedy justice although both are integral parts of the Article 21. Fair trial is one of the essences of criminal justice and there can be no doubt that delays in trial by itself constitutes denial of justice. Fair trial and speedy justice has been recognized as an inherent and implicit aspect in the spectrum of the Article 21. The whole purpose of fair trial and speedy justice is intended to avoid oppression and prevent delay. It is the sacrosanct obligation of all concerned with the justice dispensation system to see that the administration of criminal justice becomes effective, vibrant and meaningful. The concept of fair trial and speedy cannot be allowed to remain a mere formality. The Law Commission has submitted many reports to Union Government in this regard. In order to make the administration of criminal justice effective, vibrant and meaningful, the Union, the State and all concerned authorities must take necessary steps immediately so that the important constitutional right of the accused of fair trail and speedy justice does not remain on papers or as a mere formality.
LIST OF DATES
12-08-1986: Law Commission submitted its 114th Report on the topic of ‘Alternative Forum for Resolution of Disputes at Grass Root Level’ to Union of India, and recommended to establish Gram Nyayalaya on priority.
27-11-1986: Law Commission submitted its 116th Report on the topic of ‘Formation of an All India Judicial Service’ to Union of India, and recommended to establish the AIJS.
30-04-2009: Law Commission submitted 221st Report on the topic of ‘Need for Speedy Justice’ to the Union and recommended necessary amendments in CPC, CrPC and TPA-1882.
05-08-2009: Law Commission submitted its 230th Report on the topic of ‘Reform in the Judiciary-Some Suggestions’ to the Union of India, and recommended important measures, to ensure fair trial and speedy justice.
07-07-2014: Law Commission submitted its 245th Report on the topic of ‘Arrears and Backlog: Creating Additional Judicial Manpower’ to the Union of India, and recommended very important suggestions, necessary to ensure fair trial and speedy justice to the citizens.
27-04-2016: Judicial Reform is not only necessary to secure fundamental right of fair trial and speedy justice under the Article-21 to every citizen but also essential to control the prevailing Corruption, Crime, Casteism and Communalism, hence this writ petition.
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO … OF 2016
IN THE MATTER OF:
Ashwini Kumar Upadhyay
S/o Sh. Suresh Chandra Upadhyay
Office: 15, M.C. Setalvad Chambers Block
Supreme Court of India, New Delhi-110001
Residence: G-284, Govindpuram, Ghaziabad-201013 …Petitioner
Verses
Union of India
Through the Secretary,
Ministry of Law and Justice,
Shastri Bhawan, New Delhi-1100001 ...Respondent-1
Union of India
Through the Secretary,
Ministry of Finance,
North Block, New Delhi-1100001 …Respondent-2
ISSUE A DIRECTION OR ORDER OR WRIT INCLUDING WRIT IN THE NATURE OF MANDAMUS OR AN APPROPRIATE WRIT, ORDER OR DIRECTION AS MAY BE NECESSARY, DIRECTING THE RESPONDENTS TO DOUBLE THE NUMBER OF JUDGES, AS RECOMMENDED BY THE LAW COMMISSION IN ITS 245TH REPORT, WHICH IS ESSENTIAL TO SECURE THE FUNDAMENTAL RIGHT OF FAIR TRIAL AND SPEEDY JUSTICE TO THE CITIZENS.
To,
THE HON’BLE CHIEF JUSTICE OF INDIA
AND HIS LORDSHIP’S COMPANION JUSTICES
OF THE HON’BLE SUPREME COURT OF INDIA.
THE HUMBLE PETITION OF
THE ABOVE-NAMED PETITIONER
MOST RESPECTFULLY SHOWETH:
That Petitioner is a Law-abiding citizen of India and member of the Supreme Court Bar Association. Besides practicing in Law before this Hon’ble Court, Petitioner is a Social and Political worker, contributing his best to the development of the socially and economically down trodden people of the country and ameliorating their condition. Petitioner is Official Spokesperson of BJP Delhi. Petitioner firmly believes that to achieve the golden goals as set out in the Preamble of the Constitution; the Union Government and the State Governments should urgently take necessary steps to do the Five Reforms, namely Electoral Reform, Education Reform, Judicial Reform, Administrative Reform and Police Reform. These Five Reforms are essential to control the prevailing Corruption, Crime, Casteism and Communalism.
That judiciary plays an increasingly important role in life and the governance of this country. However, anyone who has any experience of the courts is aware of the serious problems that beset the judicial system. The issue of Judicial Reforms has been discussed many times among various Commissions and Committees. Now there is an increasing realization that this issue needs to be discussed among common people of the country who are the real stakeholders of the system and they need to get involved in this issue. To enlist what judicial reforms India needs, we need to first enlist the problems plaguing the judicial system. There are three major problems plaguing the judiciary. First, one is judicial backlog and accessibility to justice for a common man. Huge numbers of cases are pending in the courts, which are just lingering along and not reaching their logical conclusion. Most of these cases are trivial matters such as property disputes, theft, slap incidents, etc. There are three main reasons for this menace: (i) Lack of judicial infrastructure i.e. lacks of district courts, staff etc. (ii) Archaic laws and sections in the CrPc and IPC (iii) Crafty and cunning lawyers and incompetent and inexperienced judges and judicial staff. More investment is needed in judiciary to tackle the above-mentioned problems. Union Governments and State Governments should do the judicial Reform on priority.
That creation of a large number of Nyaya Panchayats and Nyaya Samitis in rural and urban areas both as mandated by the Nyaya Panchayat Act-2009 but probably on a larger scale. Government is also a big stakeholder in the judicial arena. It must withdraw most of the unneeded and petty cases and look for out of court settlement. The archaic laws and sections in the CrPc and IPC should be permanently be amended and left behind moreover judicial practices that are time consuming should be given up. Court proceedings are also delayed due to many cunning lawyers who hijack the court proceedings for their own benefits and take advantage of the leniency and inexperience of the judges. The public prosecutors are also inefficient and have lack of legal knowledge due to which there are regular delays. We need to recruit experienced, well-trained and competent judges and judicial staff. This can be done by reforming the recruitment system. Judges need to be stricter and should ensure that the court time is not wasted. A major reform would be enhancing the retirement age of judges of for High Courts upto 70 years. This will also ensure more experience in the judiciary. At present Judiciary is inaccessible for 75-80% of the people because of various reasons.
That Justice Verma said that he cannot say with full surety that there is no corruption in the judiciary. This shows that corruption in the judiciary has reached at every level. According to Transparency International, judicial corruption in India is attributable to factors such as “delays in the disposal of cases, shortage of judges and complex procedures, all of which are exacerbated by a preponderance of new laws”. Some analysts feel a bigger reason for corruption is opaque judicial appointments through collegiums system. This system has led to sycophancy in the judiciary and a servile attitude. Another worrying thing is ex-judges getting jobs after retirement which has questioned their neutrality. Moreover, many people say that judiciary is not accountable to anyone and corruption charges against members of judiciary cannot be probed easily. Many people feels that judiciary over reaches its authority and goes into matters which are not under its jurisdiction but petitioner feels that major reason for this outreach is the incompetency of other institutions, which forces the judiciary to go into these matters. Once the other institutions start functioning normally then judicial overreach will also stop. Common man needs fair and speedy justice.
That Hon’ble President of India Sh. Pranav Mukherjee said: “In order to provide speedy and quality justice accessible to the ordinary citizens, there is urgent need to reform our judicial system. An effective justice delivery system requires that justice should not only be delivered on time, but should also be easily accessible to people, particularly people from vulnerable sections of society. A thorough understanding of current shortcomings and future needs of the system must guide the approach to reform. The process of reform must begin with an assessment of the country's needs that the legal profession seeks to fulfill, namely the requirements across various levels of the judiciary, gaps in the criminal justice system, specific areas within the law which will require an increased number of practitioners in the near future etc. As part of judicial reforms, the lawyer community, which has often been ignored, should also be considered. Legal education and continuing professional development must create a socially sensitive lawyer of conscience, for whom justice delayed is not an opportunity but a blemish on one's professional persona and a failure of the system of which one is an integral part”.
That Hon’ble President further said: “The ideal Indian lawyer must not only have excellent legal skills, but also embody social responsibility and strong professional ethics. The efficacy of the rule of law depends largely on the integrity of lawyers who are the link between the citizen and the system of justice. First generations of judicial reforms in the country established the National Law Schools and demonstrated that India also have institutions that impart affordable excellent legal education. The second generation of reforms should now focus on continuing legal education of lawyers, judges, judicial officers, bureaucrats and academics. There is need for seminars, conferences and lectures to be organized in a systematic manner, first making continuing legal education accessible for all and then making it mandatory, as is the practice in many countries of the world. Establishing a comprehensive system of continuing legal education will enhance professionalism, accountability and public respect for lawyers. It is also imperative that continuing legal education centers such as Judicial Academies be set up for enabling the Judges to keep abreast with emerging areas of law, such as Cyber Laws and Intellectual Property Law etc”.
That Hon’ble President further said: “It would be also useful in this regard for the Bar Council of India to consider setting up a world class institution for continuing legal education similar to the National Law Schools. Due to globalization and opening up of various sectors for foreign direct and indirect investments, new challenges in legal field are emerging. India has ratified, signed or adopted various international instruments and has made variety of commitments in different international agreements, treaties and conventions. Cases relating to our obligations and commitments made in these agreements are also reaching the courts of law in international as well as domestic arbitral tribunals”. Petitioner feels that complete overhaul of the laws needed for removal of all anomalies, ambiguities and alternate interpretations. Further, appeals for clemency, where a death sentence is awarded should be decided within a period not exceeding one year. The High Court, Supreme Court, Government and President should give their individual decisions within a specific period where the collective period does not exceed one year. Presently, Death Row convicts are in their Death Throes for the balance of their lifetime.
That Petitioner also feels that most of the victims do not get the speedy justice, because of which their faith in the justice system, in the Judges and in the government authorities is completely shattered. Judicial terms and sentences should be very clearly defined and not left to the court only or to the individual Judges to decide. In many cases, trial court pronounces a sentence, which is overturned by the High Court, whose decision is then overturned by a bench of the Supreme Court, whose decision is finally overturned by the larger bench. It means that the judges at different stages interpret the same laws differently. If that is so then it is even more reason that to remove the ambiguities and other infirmities/loopholes in the law so that no Law is capable of more than one interpretation. An independent and impartial judiciary and a speedy and efficient system are the very essence of democracy. However, our judiciary, by its very nature, has become ponderous, excruciatingly slow and inefficient. Imposition of an alien system, with archaic and dilatory procedures, proved to be extremely damaging to our governance and society. This needs to be changed; as soon as possible otherwise, such a judicial system will create havoc.
That eminent jurist Nani Palkhiwala observed once, that the progress of a civil suit in our courts of law is the closest thing to eternity we can experience. Our laws and their interpretation and adjudication led to enormous misery for the litigants and forced people to look for extra-legal alternatives. Any one, who is even remotely exposed to the problem of land grabbing in our cities, or a house owner who finds it virtually impossible to evict a tenant after due notice even for self-occupation; can easily understand how the justice system failed. In the process, local hoodlums in almost all of our cities and towns, and increasingly in recent years in rural areas have set up a completely new industry of administering rough and ready justice by using strong-arm tactics to achieve the desired goals. The influence and money these hoodlums acquire makes sure that they are the ones who later enter political parties, and eventually acquire state power. There are countless examples in almost all the States in India of slumlords, faction leaders, and hired hoodlums acquiring political legitimacy. Most of them started their careers attempting to fill the vacuum created by judicial failure through extra-legal and often brutal methods. This should go as sooner the better.
That courts have tended to condone delays and thus encourage litigation and a spate of appeals even on relatively trivial matters. Higher courts have taken on themselves too much, making it impossible for them to be able to render justice speedily and efficiently. Writ jurisdiction became pervasive and everything under the sun is somehow made a subject matter of the writ. For instance, the transfer of an employee of public sector undertaking has become a matter of writ jurisdiction by very involved and dubious logic. Such absurdities undermined the authority of judiciary and caused enormous damage to public interest. The courts have repeatedly ruled that cooperatives are public institutions, and are creatures of State, whereas in fact cooperative theory and practice throughout the world clearly envisage that cooperative is a collective private body, created to further economic interests of the members in accordance with the principles of cooperation. The mind-set that State could intervene everywhere and such intervention is good, ensured that the people’s institutions could not flourish in an atmosphere of freedom, self-governance, autonomy. State’s power even to control its own employees and enforce discipline has been severely eroded.
That right to fair trial and speedy justice guaranteed under the Article 21 is not adequately safeguarded. Judiciary is over-burdened and rendered ineffective with unnecessary litigation, delayed procedures, obsessive concern with the livelihood of Advocates at the cost of justice to litigant’s, public and indiscriminate application of writ jurisdiction. Excessive caseload means that most orders emanating from courts would be by nature of granting stays instead of adjudication. Local people, who know all the facts, have neither the means nor access to go through complicated, incomprehensible court procedures. Touts flourished and justice suffered. As a result, most citizens avoid courts except in the most extreme circumstances, when they have no other recourse available. Essentially, the failure of the civil and criminal justice system is manifesting in abnormal delays in litigation and huge pendency in courts. Approximately 30 million cases are pending in various courts all over the country. Approx 15 million cases are pending in higher courts and 15 million cases are pending in lower courts. In 1995, it was estimated that around 58 lakh criminal cases were pending and only 17.3 lakh cases were disposed during the year accounting for 23% only.
That in 1994, disposal of cases in courts was around 17% and conviction rate was abnormally low with only 6% cases resulting in conviction. Even in cases involving extremely grave offences with direct impact on public order and national security, there are abnormal delays. For instance, it took our criminal justice system more than seven years to convict the murderers of former Prime Minister of India Sh. Rajiv Gandhi in Sriperumpudur in 1991. There are harrowing tales of innocent citizens accused of petty offences languishing in jails as under-trial prisoners for decades. Most often, the time spent in prison during trial exceeds the maximum punishment permissible under law even if the person is proved guilty. The delays, the habitual use of English as language of discourse even in trial courts and the extreme complexity and the tortuous nature of our legal process made justice highly inaccessible to a vast majority of the people. India has only about 11 judges per million populations, which is among the lowest ratios in the world. The cases pending exceed about 30 thousand per million populations. Obviously, it is unrealistic to expect the law courts to deal with this abnormal caseload or to be accessible to people of India.
That delays, complexity and unending appeals make litigation inordinately expensive in India. While astronomical fees are charged for legal consultation by high-priced lawyers practicing in the higher courts, even in the lower courts cost of litigation is prohibitive and beyond the reach of most citizens. The failure of the justice system has several disastrous implications in society. As Gladstone observed, the proper function of a government is to make it easy for the people to do good and difficult for them to do evil. The only sanction to ensure good conduct and to prevent bad behavior in society is swift punishment. In the absence of the state’s capacity to enforce law and to mete out justice, rule of law has all but collapsed. Even in civil matters, the sanctity of contracts and agreements has lost its relevance because of the courts incapacity to adjudicate in time. Equality before law, though constitutionally guaranteed, has remained a notional concept on paper. In reality, the vast masses of the poor and illiterate people are relegated to the margins of society in the absence of a fair trial and speedy justice system. As a result, an extra-legal mechanism for redress of grievances and for providing rough and ready justice has sprung up in our country.
That the foremost cause for increasing criminalization of society and politics is the failure of the criminal justice system. The Election Commission estimates that more than 20% of the legislators in all the states have serious criminal records. Even if heroic and successful efforts are made to disqualify all these persons with serious criminal record from contesting, the problem will continue to grow unless justice administration improves dramatically. While a section of criminal gangs indulges in violent crime and graduates into politics using the money power so acquired, most organized crime in recent years is involved in informal adjudication of disputes backed by a threat of brute force and violence. As the courts have failed to deliver justice, there is a growing demand for such gangs, which can enforce rough and ready justice. In a large measure, the failure of justice system meant that no entrepreneur or business-man or even ordinary citizen could rely on law courts to enforce contracts and agreements. The undermining of the sanctity of contracts and agreements has had a very debilitating impact on investment production and economic growth. The failure of the criminal justice system has led to the near break-down of public order in many pockets of the country.
That arbitrary and unaccountable functioning of the police has led to complete alienation of many citizens from the state. Complete politicization of the police force led to highly partisan crime investigation. Elected governments have been habitually abusing their powers to drop serious criminal charges against their supporters and to foist false cases against their opponents. The broad nexus between the politician, criminals and police-men has come to stay, vitiating the governance process and undermining social stability and harmony. This alarming situation calls for speedy remedial matters. These measures should be practical and effective while they are in consonance with the basic features of the Constitution. The Judicial Reforms as envisaged should be capable of providing fair trial and speedy justice accessible to the ordinary citizens. Union and State Government should respect and protect the independence of the judiciary. Measures should be taken to enforce accountability of the judiciary. Several Law Commission reports have eloquently made out a case for many specific and practical judicial reforms. However, no effort has been made to implement these recommendations religiously.
That a lot has been, and is being said about the failure of the justice system, precious little has been attempted to address this growing crisis. Perhaps the most important practical reform would be constitution of rural courts for speedy justice. As already stated, the number of judges in our society is slightly over 11 per million populations. This density is roughly ten percent of the density of judges (per unit population) in more advanced and law-abiding societies. What is needed is a substantial increase in the number of judges at the District and local level giving access to the ordinary people. In addition to the number and access, the procedures of these courts should be simple and uncomplicated giving room for sufficient flexibility to render justice. These courts should use only the local language and they should be empowered to visit the villages and hear the cases and record evidence locally. Above all, they should be duty bound to deliver the verdict within the specified period. There could be several models like the ‘Gram Nyayalaya’ advocated by the Law Commission in its 114th report. Essentially, there should be such rural courts with special magistrates with jurisdiction over a town, or a part of a city or a group of villages.
That certain civil disputes arising out of implementation of agrarian reforms and allied statutes, property disputes, family disputes and other disputes as recommended by the Law Commission could be entrusted to these rural courts. In civil cases, there should be only a provision for revision by the District Judge on grounds of improper application of law and on no other ground. In criminal cases where imprisonment is awarded, there could be a provision for appeal to the Sessions Judge. The procedures must be simplified and these courts should be duty bound to deliver a verdict within a specific time from the date of complaint. In the subordinate courts, there have been inordinate delays and varying levels of efficiency. It is high time that Indian Judicial Service (IJS) is created as an All India Service under the Article 312. Persons recruited to such a service after adequate training and exposure should hold the offices of the Additional District and Sessions Judges. Such a meritocratic service with a competitive recruitment, high quality uniform training and assured standards of probity and efficiency would be able to ensure fair trial and speedy justice. 50% of the High Court Judges should be drawn from the All India Judicial Service.
That Law Commission in its 221st Report suggested amendments in CPC and CrPC to meet the requirements of modern judicial administration. While the principles underlying the procedural law are valid even today, in actual practice several procedures have become cumbersome, dilatory, and often counter-productive. Simultaneously in all trial courts, the local language should be the only language used. There should be time limits prescribed for adjudication. Stays and endless adjournments should be curbed. Right to get justice within 02 year in criminal case and within 03 years in civil case should be constitutionally guaranteed and Procedural laws should be suitably amended. There should be strict limitation of appeals and only one appeal should be permitted in civil cases. Appeal should be heard and verdict delivered within one year in criminal cases and within two years in civil cases. Stays should be prohibited except in exceptional circumstance for reasons specifically recorded in writing and no stay should exceed 15 days. The time limits for adjudication should be strictly adhered to even in cases involving stay orders. Copy of the Law Commission Report No-221 (Need for Speedy Justice-Some Suggestion) is annexed as Annexure:P-1 (Page
That Law Commission in its 230th Report suggested important reforms in judiciary. Number of judges in the higher courts should be substantially increased and their appellate jurisdiction should be severely restricted. Jurisdiction of the Supreme Court should be limited only to matters involving interpretation of the Constitution or disputes between two States or Union and States. The Supreme Court should function only as a Constitutional Court and a Federal Court. The High Courts should not have the power to interpret the Constitution except in matters involving the State legislation. The appellate powers of High Courts should be severely restricted in order to reduce the caseload and ensure the sanctity and authority of the High Courts. Matters relating to taxation, disciplinary action against employees and labour disputes should be entrusted to the special tribunals with provision for only one appeal to High Courts except on grounds of interpretation of the Constitution. Writ jurisdiction should be strictly focused on Right to Life, Liberty and Equality before Law. Creative expansion of writ jurisdiction should be firmly curbed. Copy of the Law Commission Report No-230 (Reforms in the Judiciary-Some Suggestions) is annexed as Annexure: P-2 (Page ).
That Law Commission submitted its 245th Report (Arrears and Backlog: Creating Additional Judicial Manpower) to Union of India. The report is largely driven by Hon’ble Supreme Court, when in the matter of Imtiyaz Ahamad v State of UP and Others, AIR SC (2012) 642; it directed Law Commission to undertake an inquiry and submit recommendations in relation to the following: (I) Keeping in view that timely justice is an important facet to access to justice, the immediate measures that needs to be taken by way of creation of additional Courts and other allied matters (including a rational and a scientific definition of “arrears” and delay, of which continued notice needs to be taken), to help in elimination of delays, speedy clearance of arrears and reduction in cost. It is trite to add that the qualitative component of the justice must not be lowered or compromised; and (II) Specific recommendations whenever considered necessary on the above aspects in relation to each State be made as a product of consultative processes involving the High Courts and stake holders, including the Bar”. Copy of the Law Commission Report No-245 (Arrears and Backlog: Creating Additional Judicial Manpower) is annexed as Annexure: P-3 (Page ).
That the present mechanism for appointment of judges of higher courts has become very dilatory and ineffective. The Supreme Court’s judgment arrogating to itself the complete power of appointment of judges has made the remedy worse than the disease. It is absurd to assume that in a democratic society any organ of state should perpetuate itself without any degree of accountability to the people as the ultimate sovereigns. Nowhere in the democratic world, have the executive and legislature been made so utterly impotent in matters relating to judicial appointments as in India. This incestuous practice of judiciary being managed entirely by it is self-serving and often counterproductive. Society has great stakes in judicial appointments, and judges, however exalted their position is, are mere mortals and servants of the public. It is high time that an independent Judicial Commission like UPSC be constituted and their recommendation is made binding on the President in appointments to the higher judiciary. Provision for removal of a judge of higher courts under the Article 124(4) has become inoperative in practice. As Justice Ramaswamy’s impeachment case has amply proved, the Parliament has lost the capacity to act as a court in such impeachment trials.
That under the present dispensation, a judge is appointed solely on the recommendation of the judiciary, and no judge can ever be removed in practice no matter how horrendous his conduct is or how inefficient his functioning is. Such situation leads to strange and result in unmitigated disaster to the governance and society. An independent Judicial Commission like UPSC should be empowered to try an errant judge and upon the recommendations of the Commission, the President should be empowered to remove the judge held guilty. The combination of several functions including crime investigation, riot control, intelligence gathering, and security of state properties and protection of important citizens – all in a single police force has had a devastating effect on criminal justice system. Police forces have become inefficient and increasingly partisan. Government has complete powers over the crime investigation machinery as well as the legal authority to drop criminal charges against the accused; crime investigation has become a plaything of partisan politics. It is essential to create an independent wing of police force fully in charge of crime investigation and functioning under direct control of independent Prosecutor appointed as constitutional functionaries.
The criminal courts should hold the prosecutors and the crime investigation police force accountable to them in their overall functioning. Only when crime investigation is thus insulated from the vagaries of politics, then there can be fairness and justice to ordinary citizens. Equally important, only when crime investigation machinery is accountable to judiciary, then the obnoxious and inhuman practice of torture, third degree and extra judicial executions in fake encounters can be stopped. As can be seen, there is an extremely strong case for urgent and far-reaching reforms in our judiciary. For about two decades after independence, most people reposed their faith in the political class to govern wisely and to ensure freedom and justice to all. Over the next two decades, as politicians have become the objects of scorn and ridicule, the public relied heavily upon the higher civil services for ensuring probity, efficiency and impartiality in administration. As the bureaucracy has lost the trust of the public in a large measure in recent years the people have come to recognize the judiciary as the last bulwark against the abuse of executive authority and for providing justice. However, the judiciary is collapsing under the weight of the caseload.
That there are serious questions about the efficacy, impartiality and integrity of judiciary at certain levels. There is an increasing unease and disquiet about the functioning of the judiciary and the character, competence and commitment to public service of several judges, particularly in the subordinate judiciary. If these challenges are not recognized immediately and if far-reaching judicial reforms are not initiated with a great sense of urgency and devotion, the judiciary may also fall in public esteem endangering the whole civil society and adversely affecting the public good. The judiciary should recognize that it is an organ of state with the sole objective of serving the public in a fair, efficient and accountable manner. Its loyalty should only be for public good and speedy justice and not to the convenience of Advocates, Politicians or bureaucrats. We have been singularly fortunate that several outstanding judges over the decades have ensured that judiciary can function in an independent and fearless manner. The time has now come when concerted efforts should be made to make judiciary, one of the most important Pillar of the democracy, more efficient and more effective without usurping the functions of the other organs of the State.
That judiciary in our country is a sacred cow. If we change our perspective for a moment and look beyond the sacred cow in the judiciary, we will realize that it has a tremendous potential for acting as a positive force for the economic development of the country. The enormous delay in our judicial system and the humongous number of three crore cases pending are the perennial points of complaints against our judiciary. One of the Chief Justices of India pointed out in a talk a few years ago how the ratio of the judges and the courts to the number of cases or population is very low in India compared to other countries where the judicial system works much faster. More than three decades ago it was pointed out that judiciary could provide employment opportunities to educated unemployed youth. Unfortunately, as expenditure on the judiciary is not considered as plan expenditure. There is a problem in providing more funds for the basic infrastructure to the judiciary. If the current impasse in the judicial system is the result of an imbalance between the demand for judicial services and the actual strength of the courts, the simplest thing to do is to increase the judicial infrastructure to meet the demand fully and adequately. Here the numbers can be daunting.
That it is said that if the courts stop registering new cases and start disposing the cases only on hand, it may take 100 years for all cases as of today to be disposed of. If we are able to find some way by which the judicial infrastructure can be enhanced by orders of magnitude, then we may not only have speedy disposal of cases but also give a boost to the economy. The creation of jobs and the policies of economic growth, stifled at present by judicial delays, will be the immediate benefits. Late Justice Verma, the former Chief Justice of India, once pointed out that many of the cases could be traced to the reluctance of the industry to pay their dues to the government. They resort to litigation as a tactic. Crores of rupees, which the government should get and which are held-up because of litigation, can be released if we can speed up the pace of disposal in our judiciary. Incidentally, the ways and means position of the Government can also improve. How can this change be brought about? If, at the present pace of disposal it is going to take 100 years to dispose of cases the logical answer would be to enhance the infrastructure for judiciary covering all Courts from the lowest to the highest so that within a period of five years, all cases will be disposed off.
That basic issue of physical infrastructure can be tackled by two methods. The first would be to consider the judicial expenditure as a part of the plan expenditure. The second would be to tap the resources of agencies created for infrastructure development like IDFC or ILFS so that within a period of 24 months the additional physical facilities needed could be set up. Incidentally, this much of construction activity will also have its spin off benefit in terms of employment generation in the construction industry. The main resistance to any effort to speed up the judicial process comes from the Bar. When Law Minister Mr. Jethmalani tried to bring in changes in the Civil Procedure Code the bar stalled him. If we enhance the judicial infrastructure without disturbing the present legal procedures, at least the Bar cannot object. To get the quality man-power needed to manage enhanced judicial infrastructure, Article 312 should be implemented. With so much of unemployment in our country, it should be possible to tap the best brains and draw them into the judicial framework. For achieving this, we need the co-operation of Union and State Governments and other related authorities to speed up the selection process through All India Judicial Service.
That the concept of removal of subsidies, which is today the mantra for economic reform, must be applied to the judiciary also. We will have to look at the cost of the judicial process and see to what extent the concept of self-financing can be introduced. One of the former Chief Justices of India has pointed out that perhaps a substantial part of the revenue expenditure of the judiciary today is met from the system of the court fees, etc. The court fee structure should be revised so that frivolous litigation does not clutter the judicial system. The principle of earmarking the funds generated for the judicial process, which can be kept in a separate account may be adopted so that the funds do not automatically go into the Consolidated Fund of India. The advantage of this model is that there will be no resistance from the Bar, there will be a significant degree of employment generated in the judicial system and the judiciary will contribute to the services sector in a significant way. Fair trial and Speedy Justice would lead to better and early realization of dues by Government and also where policy issues are involved. This will be a win-win exercise, in which the citizens, the Government, the Bar and unemployed youth will all stand to benefit.
That petitioner met many victims of delayed justice, Advocates, Judges and Members of Bar Associations among others. Wherever petitioner went, people highlighted inequality in justice, which is against fundamental rights. Judicial Reform needs to be taken up on war footing. Petitioner personally met and discussed the urgent need of judicial reform with many senior political leaders across the party including the Law Minister. To simplify processing and expedite case management, improvement in the Criminal Procedure Code and Civil Procedure Code, Video recording of the Court functioning and video-conferencing between courts and prisons needs to be done. Already Five Courts are running the video conferencing facility. This needs to be extended to 500 Courts on priority. The Negotiable Instruments Act needs to be amended to make all Cheque bounce cases to be decided through Lok Adalats. All verdicts given by Lok Adalats should be made binding and final on disputing parties. The Motor Vehicles Act should be amended and all the cases related to traffic challans should be tackled only through alternative dispute resolution forum. Petitioner believes that the above-mentioned changes are likely to reduce the pendency list by at least one-third.
That software, as already running in Tihar jail, should be installed in all prisons across the country. This software records data on all prison inmates with classified case history and date of their release.
The software will alert both the prison authorities and a central monitoring agency on the under trials who must be released based on the amendments made in the 436A of CrPC. The Law allows compulsory bail to under trials who have served half the prison term if they were to be convicted. Vacancies in subordinate and high courts are a major concern. The government should implement the recommendation made by the Law Commission on requirement of additional courts. There are 19,518 judges’ posts for the subordinate courts while the existing strength is around 15,000. Of the total pendency of 3.2 crore cases, pendency in subordinate Courts is around 2.8 crore. High Courts have pendency of about 44 lakh cases. Judiciary is our most trusted and valued institution. However, the mechanisms for judicial appointments have proved to be inadequate in attracting and elevating the best and brightest talent to the Bench. In addition, the existing arrangements to hold erring judges to account have failed.
That Petitioner proposes few recommendations for Judicial Reforms including the creation of an All India Judicial Service (like IAS / IPS) and National Judicial Commission (like UPSC), towards ensuring quality and excellence in subordinate judiciary and enhancing accountability in the higher judiciary, respectively. Usurpation of the power to appoint judges by the Supreme Court itself is plainly unconstitutional, and violates the principle of checks and balance in relation to organs of the State. This system has been found to be unsatisfactory and undermining the quality and credibility of the judiciary. Thus, Article-312, which make the appointment process more accountable, ensure greater transparency and objectivity in the appointments to the judiciary, and do away with the present system, will be a good step. Similarly, the Judicial Standards and Accountability Bill- 2013, which seeks to create a permanent and credible mechanism to inquire into complaints against judges, as well as create other mechanisms of judicial accountability, which has been lapsed with the dissolution of 15th Lok Sabha, should be passed by the Parliament as soon as possible and must be implemented without further delay.
That competence and quality of judges in trial courts is critical for the integrity and credibility of the whole justice system. There is a strong case for creation of an AIJS, in line with the IAS and IPS. On creation of AIJS, the three eminent jurists - Justice MN Venkatachaliah, Justice JS Verma, and Justice VR Krishna Iyer gave their joint view in 2010 as thus: “We agree with the urgent need to constitute the All India Judicial Service envisaged by Article-312 of the Constitution of India, at par with the other All India services like the IAS; to attract the best available talent at the threshold for the subordinate judiciary, which is at the cutting edge of the justice delivery system, to improve its quality. Moreover, the subordinate judiciary is important feeder-line for appointments to the High Court. The general reluctance of competent lawyers to join the Bench even at the higher levels adds an additional urgency to the problem. In due course of time, All India Judicial Service will also help to improve the quality of the High Courts. The modalities for creating the All India Judicial Service to achieve its avowed purpose, and the necessary constitutional changes and the legal frame-work can be worked out after acceptance of the proposal in principle.”
That Article 312 of the Constitution provides for the creation of an All–India Judicial Service (AIJS) common to the Union and the States. Such a service can be created and regulated by the Parliament by Law, provided that the Council of States has declared by resolution supported by not less than two-thirds of the members present and voting that it is necessary or expedient in the national interest to do so. Union Government through the President’s address to Parliament gave a commitment to make dispensation of justice simpler, quicker and more effective, and to double the number of courts and judges in the subordinate judiciary in a phased manner. The government also announced its commitment to a policy of zero tolerance for violence against women and to strengthen the criminal justice system for its effective implementation. Many cases do not even reach the courts because of inaccessibility, cost and delays and people suffer injustice silently. To tackle this problem, Parliament has enacted the Gram Nyayalayas Act 2008, providing for rural local courts for fair trial and speedy justice through summary procedure, which is an integral part of justice system. Under the Act, local courts could be appointed at Panchayat level.
That Local Courts with summary procedures can provide fair trial and speedy justice in many cases at a low cost. However, as of December 2013, only 172 Gram Nyayalayas have been notified in nine states, only 152 have been functional. Even at one local court per block, we can create 5000 courts at a low-cost in rural areas. In addition, there is increasing petty crime in urban areas, including harassment of women. Growing urbanization and impersonal lives are eroding social and family controls. Young men who behave obediently at home often become a menace to women in public places. Daily harassment, inappropriate remarks, touching without permission in public transport vehicles – all these have become increasingly common. For women to be safe it is not enough to impose severe punishment, instead we need to create a culture and climate of complete safety from daily taunts and humiliation. When routine daily insults and humiliation are unchecked, serious crime against women becomes much more likely. By expanding local courts, especially in urban areas, we can create acceptable, simple mechanism for ensuring speedy justice in cases of ill-treatment of women, as well as many simple civil and criminal cases.
That swift punishment and assured follow up will have great deterrent effect. If a person is held guilty of eve teasing or harassment in a bus or train the trial in a local court can be completed within 2-3 days. Such person, in case of first offence can be imposed a fine and the conviction can be entered in his academic and employment record, with the condition that the entries can be deleted by the court after three years of good conduct. A second minor offence can lead to a month’s jail term, rustication from college and a permanent entry of conviction in his records. Such swift and sure action with follow up will create a culture of zero tolerance of all forms of harassment of women, ensuring women’s safety and dignity. Provisions may be made in the criminal law for providing for summary trial and speedy justice in local courts in all minor cases of sexual harassment like eve-teasing etc. Justice delayed is justice denied. Nowhere this rings truer in India where a staggering 30 million cases are pending in the Court. In addition, to tackle these intimidating problems requires comprehensive judicial reform, more judges of quality and competence and overall improvement of the judicial infrastructure.
That we need competent judges who should be appointed through a transparent selection process and who are accountable for their actions. Until June 2012, nearly 14924 subordinate courts were burdened with nearly 30 million cases, 74 % of which were pending for at least five years. Apart from these, fresh cases continue to be filed every day. The problem of the pendency of such a large number of cases is a combination of a number of factors, coupled with the lack of seriousness in dealing with the problem. Judicial officers alone could not be blamed for the huge backlog. A trial court judge has a daily list of around 25-30 cases, and at times, even 40 cases. The time available, in reality, is enough to deal with only 7-8 cases. Without substantially increasing the judicial infrastructure, including the people operating it, the backlog of cases would continue to rise. A serving prosecutor in Delhi blamed the misuse of some judicial provisions by various stakeholders for the mounting delays. At the root of this huge number of pending cases are the frequent adjournments. There are loopholes in the provisions and the system that recommends the examination of witnesses, once it commences should preferably be conducted daily and without a break.
That some provisions allow the prosecution and the defence to misuse the adjournments in process. There are 100 grounds for interrupting the statutorily mandated continuous examination of witnesses and the system can't remove even one. The intent and scope of Section 309 is one thing and the court procedures are altogether different. Delay in a trial invariably works in favour of the defence as there was always a possibility of witnesses disappearing, getting compromised or turning hostile. It is a combination of factors that have contributed to the present state of the subordinate judiciary, wherein justice is denied in nearly every case due to delays. Sometimes it is the defence, which seeks an adjournment on another occasion it is the prosecution. Instances of witnesses not being present in court, forcing a postponement of the hearing, are also frequent. A public prosecutor in Delhi is assigned three sessions courts and since he cannot be present in all the courts at the same time, he is forced to seek adjournments. The provisions of Section 309 CrPC are more a myth than a practical reality. It is possible that once the examination of witnesses starts then it could go on uninterrupted but for that, we need more judges, more judicial infrastructure and trained manpower.
That “Justice delayed is justice denied” is the maxim visibly felt in our vast country with enormous backlog of litigation. From the highest court to the lowest courts, pendency of large number of cases has been a matter of serious concern. Central and most of the State Governments do not understand the fact that judiciary’s failure is the biggest cause of corruption. Reform judiciary first, and 80% of government corruption will disappear. Today if a common man wants a lawyer to represent him in either the Supreme Court or a High Court, he needs lakhs of rupees to afford legal representation. Justice in India is so expensive that it is out of reach for a common-man. The only way a poor person can appeal to the highest judicial courts is if some lawyer agrees to fight the case at nominal cost. This means that justice depends on mercy of lawyer, but not as a right. This is not the justice for all that is envisioned in the Preamble to the Constitution. Access to the highest level of justice is a fundamental right of every Indian and should be made easily available to the common-man. Our aim should be to implement long overdue judicial reforms in order to create a judicial system easily accessible and affordable for all Indians including the common-man.
That the first Law Commission, headed by the learned MC. Setalwad, with the benefit of the opinion of the then Chief Justices of India Sh. KN Wanchoo and Justice MC Chagla, and Eminent Jurist Nani Palkhivala among others, had made a strong recommendation for the constitution of an All-India Judicial Service, like the IAS and IPS. The felt need for such a service increased several fold in the last 57 years since that recommendation. Subsequently the Article-312 was amended in 1976 to specifically provide for creation of All India Judicial Service but unfortunately, it is still a dream due to non-seriousness of the consecutive Union Governments. Three Chief Justices’ conferences in 1961, 1963 and 1965 favoured this recommendation. In 1972, the then Chief Justice of India again endorsed the creation of All India Judicial Service. Later, the 8th Law Commission in its 77th Report recommended creation of All India Judicial Service. In 1986, Law Commission of India in its comprehensive 116th report again examined the entire issue in detail, and recommended the formation of an All-India Judicial Service. The Hon’ble Supreme Court considered this issue in the All-India Judges Case in 1992, and endorsed the creation of the AIJS.
That the attitude, aptitude and competence of the judges in trial courts is very critical for the integrity and credibility of the entire justice administration system. In 2010 the three Eminent Jurists - Justice V.R. Krishna Iyer, Justice J.S. Verma and Justice M.N. Venkatachaliah gave their joint view on the constitution of All India Judicial Service as thus: “We agree with the urgent need to constitute the All India Judicial Service envisaged by Article-312 of the Constitution of India; at par with the other All India services like the IAS, to attract the best available talent at the threshold for the subordinate judiciary; which is at the cutting edge of the justice delivery system to improve its quality. Moreover, the subordinate judiciary is important feeder-line for appointments to the High Courts. The general reluctance of competent lawyers to join the Bench even at the higher levels adds an additional urgency to the problem. AIJS will in due course of time, also help to improve the quality of the High Courts and the Supreme Court. The modalities for creating the AIJS to achieve its avowed purpose, and the necessary constitutional changes and the legal frame-work can be worked out after acceptance of the proposal in principle”.
That on 24-10-2009, the then Hon’ble Chief Justice of India endorsed the All India Judicial Service in his inaugural address in a high level Conference “National Consultation for Strengthening the Judiciary towards Reducing Pendency and Delays”. The then Union Minister for Law and Justice, Attorney General of India, Solicitor General of India, Union Home Secretary, Union Law Secretary, many Eminent Jurists, Prominent Judges, Academicians, Social Activists, Senior Advocates, Leaders, Members of Parliament, and many dignitaries attended the seminar. Union Minister for Law and Justice presented a Resolution, which were adopted by the entire Conference unanimously. Much awaited establishment of All India Judicial Service and increase in the strength of judges by 25% was part of the Resolution. Union Law Minister presented a vision document to the Chief Justice of India for reducing the pendency of cases from 15 years to 3 years. Union government framed a National Litigation Policy 2009 with a view to ensure conduct of responsible litigation by the central government and urged every state government to evolve similar policies however; this policy is not being adhered in letter and spirit by Union and State Governments.
The ultimate purpose of framing the National Litigation Policy-2009 was to minimize the pendency of cases and ensure fair trail and speedy justice to all citizens. Parliament Standing Committee endorsed All India Judicial Service in its 64th report. “All India Judicial Service has been envisaged under Article 312 of the Constitution. The Committee expresses its concern over the delay in its creation. The Committee insists that All India Judicial Service may be created without further delay to attract best talent to the subordinate judiciary from where 50% of the judicial officers are elevated to the Bench of High Courts. Reservation as per existing policy of the Government may be made applicable in All India Judicial Service”. The 41st Chief Justice of India Hon’ble Justice R.M. Lodha, before assuming charge, reiterated need of All India Judicial Services and very categorically said: “Setting up of an All India Judicial Service, being planned by the government on the lines of the IAS and IPS for recruiting judges for subordinate courts, should be given serious thought. A national consensus is lacking as some States have raised reservations on the framework of the All India Judicial Service. Those States should also be brought on the board”.
That on 14-09-2015, the Hon’ble Supreme Court noticed to the Union and the State Governments and Registrar General of all the High Court’s on a PIL filed by the All India Judges Association. Petition sought setting up an All India Judicial Commission to review the service conditions of the judicial officers of subordinate judiciary, including but not limited to pay scale, retirement age, pension and other emoluments from time to time for the subordinate court judges. Petitioner is also prayed to initiate the AIJS common to the Union and the States under the Article 312. Such a service can be created and regulated by the Parliament, provided that the Council of States has declared by resolution supported by not less than two-thirds of the members present and voting that it is necessary or expedient in the national interest to do so. The Union Government through the President’s address to the Parliament, gave a commitment to make dispensation of justice simpler, quicker, effective, and to double the number of courts and judges in the subordinate judiciary in a phased manner. The Government also announced its commitment to policy of zero tolerance for violence against women; and to strengthen the criminal justice system for its effective implementation.
That it is well settled that the right to fair trial and speedy justice in all criminal prosecutions is an inalienable right under the Article 21. This right is applicable not only to the actual proceedings in Courts but also includes, within its sweep the preceding police investigation as well. The right to fair trial and speedy justice extends equally to all criminal prosecutions and not confined to particular cases. Undoubtedly, our judge’s population ratio is too low, and we need many more trial courts. However, as many Jurists have pointed out, mere increase in the number of Judges without improvement in their competence is of no benefit. The quality of justice administered critically depends on the process of the Judges recruitment. Clearly, there is a compelling case to create a highly competent, meritocratic AIJS. By this, Judges can be recruited at a young age, very much similar to officers like IAS and IPS. Provisions can be made for adequate experience in trial courts below district level as part of mandatory training or by repealing article 312(3) and providing for posting of AIJS officials below the district level for 3-4 years. Creation of AIJS is low-cost, high-impact and long overdue. This is essential to make the justice system effective.
That improving the quality of judges, enhancing the prestige and dignity of judicial service, and promoting competition for recruitment is a relatively simple measure around which there is impressive consensus. It is time to create AIJS, 57 years after the 1st recommendation by the LCI, and nearly 40 years after the 42nd Constitutional Amendment. Failure of the justice system specially the criminal justice system has several disastrous implications in society. As Gladstone observed - the proper function of a government is to make it easy for the people to do good and difficult for them to do evil. The only sanction to ensure good conduct and to prevent bad behavior in society is swift punishment. In the absence of the State’s capacity to enforce the rule of law and to mete out justice, rule of law has all but collapsed. Even in civil matters, the sanctity of contracts and agreements has lost its relevance because of the courts incapacity to adjudicate in a time bound manner. Equality before law and Equal protect of the Law, though constitutionally guaranteed, has remained a notional concept on paper. In reality, the vast masses of the poor and illiterate people are relegated to the margins of society in the absence of a fair trial and speedy justice.
That foremost cause for increasing criminalization of society and politics is the failure of the criminal justice system. Fair trial and speedy justice is the very essence of civilization. However, our judiciary, by its very nature, has become ponderous, excruciatingly slow and inefficient. Imposition of an alien system, with archaic and dilatory procedures, proved to be extremely damaging to our governance and society. As Nani Palkhiwala observed once, the progress of a civil suit in our courts of law is the closest thing to eternity we can experience. Our laws and their interpretation and adjudication led to enormous misery for the litigants and forced people to look for extra-legal alternatives. Any one, who is even remotely exposed to the problem of land grabbing in our cities, or a house owner who finds it virtually impossible to evict a tenant after due notice even for self-occupation; can easily understand how the justice system failed. Election Commission estimates that more than 20% legislators have serious criminal records. Even if heroic and successful efforts are made to disqualify all these persons with serious criminal record from contesting, the problem will continue to grow unless justice administration improves dramatically.
That failure of justice system means that no entrepreneur, businessperson, or even ordinary citizen could rely on law courts to enforce contracts and agreements. The undermining of the sanctity of contracts and agreements has had a very debilitating impact on investment production and economic growth. The failure of the criminal justice system has led to the near break down of public order in many pockets of the country. This, coupled with the many inadequacies of functioning of the police has led to a crisis of governability in India. The arbitrary and unaccountable functioning of the police has led to complete alienation of many citizens from the state. Added to this, the complete politicization of the police force led to highly partisan crime investigation. Elected governments have been habitually abusing their powers to drop serious criminal charges against their supporters and to foist false cases against their opponents. The broad nexus between the politician, criminals and policemen has come to stay, vitiating the governance process and undermining social stability and harmony. The alarming situation calls for fair trial and speedy justice. Measures should be practical and effective while they are in consonance with the basic structure of the Constitution.
That in Brij Mohan Lal v Union of India (2012) 6 SCC 502, (Para 137) this Hon’ble Court said: “Article 21 takes in its sweep the right to expeditious and fair trial. Even article 39A of the constitution recognizes the right of citizens to equal justice and free legal aid. It is the constitutional duty of the Government to provide the citizens of the country with such judicial infrastructure and means of access to justice so that every person is able to receive an expeditious, inexpensive and fair trial. The plea of financial limitations or constraints can hardly be justified as a valid excuse to avoid performance of the constitutional duties of the Government, more particularly, when such rights are accepted as basic and fundamental”. The Court further observed (Para 145): “The state cannot be permitted to advance an argument of financial constraints in such matters. The policy of the state has to be in the larger public interest and free from arbitrariness. Ad hocism and uncertainty are the twin factors, which are bound to adversely affect any state policy and its result. The state cannot, in an ad hoc manner, create new systems while simultaneously giving up or demolishing the existing systems when the latter have even statistically shown achievement of results”.
That in Hussainara Khatoon (1) v State of Bihar (1980) 1 SCC 81, the Apex Court held: “Speedy trail is implicit in the broad sweep and content of Article 21 of the Constitution”. Subsequently, in a serious of judgments, the Court has held that a “reasonably” expeditious trial is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. The Court made it clear that the guarantee of the speedy trial is intended to avoid oppression and prevent delay by imposing on the Court and the Prosecution and obligation to proceed with the trial with a reasonable dispatch. The guarantee serves a threefold purpose. Firstly, it protects the accuse against oppressive pre-trial imprisonment, secondly, it relieves the accused of the anxiety and public suspicion due to unresolved criminal charges and lastly, it protects against the risk that evidence will be lost or memories deemed by the passage of time, thus, impairing the ability of the accuse to defend him or herself. Stated another way, the purpose of both the criminal procedure rules governing speedy trials and the constitutional provisions, in particular, Article 21 is to relieve an accuse of the anxiety associated with a suspended prosecution and provide reasonably prompt administration of justice.
That in Mohd Hussain v State (2012) 9 SCC 408, the Apex said: “Speedy Trail” and “Fair Trial” to a person accused of a crime are part of the Article 21. There is, however, qualitative difference between the right to speedy trial and the accused’s right of fair trial. Unlike the accused’s right of fair trial, deprivation of the right to speedy trial does not per say prejudice the accused in defending himself. The factors concerning the accused’s right to speedy trial have to be weighed vis-à-vis the impact of the crime on society and the confidence of the people in judicial system. Speedy trial secures rights to an accused but it does not preclude the right of public justice. Nature and gravity of crime, person involved, social impact and societal needs must be weighed along with right of the accused to speedy trial. If the balance tilts in favour of the former, the long delay in conclusion for criminal trial should not operate against the continuation of prosecution and if the right of the accused in the facts and circumstances of the case and exigencies of situation tilts the balance in his favour, the prosecution may be brought to an end. These principles also apply when the Appeal Court is confronted with the question whether or not retrial of an accused should be ordered. (Para 40)
That in Rajinder Singh v Prem Mai (2007) 11 SCC 37, the Apex Court observed- “People in India are fast losing faith in judiciary because of the inordinate delay in disposal of the cases. The authorities concern should do the needful in the matter urgently to ensure speedy disposal of cases if people’s faith in the judiciary is to remain”. (Page 11)
That in Imtiyaz Ahamad v State of UP (2012) 2 SCC 688, the Apex Court said- “Unduly long delay has the effect of bringing about blatant violation of the rule of law and adverse impact on the common man’s access to justice. A person’s access to justice is guaranteed fundamental. Denial of this right undermines public confidence in the justice delivery system and incentivizes people to look for shortcuts and other for a whether they feel that justice will be done quicker. This weakens justice delivery system and poses a threat to the rule of law. Access to justice is an egalitarian democracy must be understood to mean qualitative access to justice as well. Access to justice is, therefore, much more than improving an individual’s access to courts, or guaranteeing representation. It must be defined in terms of insuring the legal and judicial outcomes are just and inequitable. (Para 25-26)
That Hon’ble Supreme Court further said - the judges should deliver the judgment immediately upon the closure of argument. It is almost of as much importance that the court of first instance should decide promptly as that it should decide right. It should be noted that everything, which tends to prolonged or delay litigation between individuals, or between individual and State or Corporation, is a great advantage for that litigant who has the longer purse. The man whose rights are involved in the decision of the legal proceeding is much prejudiced in a fight through the Courts. If his opponent is able, by reason of his means, to prolonged the litigation and keep him for years out of what really belongs to him. Dispatch in the decision making process by court is one of the great expectation of the common man from the judiciary. Delay in disposal would destroy the confidence, and do incalculable damage to the society. People would had long been exploited in the small transaction of the daily life come to believe that Courts cannot vindicate their legal rights against fraud overreaching and the law in the larger sense cannot fulfill its primary function to protect them and their families in their homes, at their work place and on public streets. (Para 28-29)
That in the subordinate courts, there have been inordinate delays and varying levels of efficiency. It is high time that the Indian Judicial Service is created under the Article 312. Persons recruited to such a service should hold the offices of the Additional District and Sessions Judges. Only such a meritocratic service with a competitive recruitment, and equal uniform and comprehensive training and assured standards of probity and efficiency would be able to ensure fair trial and speedy justice to citizens. Minimum 50% of the High Court Judges should be drawn from the All India Judicial Service.
That the civil, criminal procedure codes, and the laws of evidence have to be substantially revised to meet the requirements of modern judicial administration. While the principles underlying the procedural law are valid even today, in actual practice several procedures have become cumbersome, dilatory, and often counter-productive. There should be time limits prescribed for adjudication. The stays and endless adjournments should be firmly curbed. The right to get justice within two year in a criminal case and three years in a civil case should be constitutionally guaranteed and procedural laws should be amended accordingly.
That the courts in India cannot be faulted for the failure of justice system. In fact, the judges are bearing an enormous burden with inadequate resources and manpower. There are only about 11 judges in India per million populations, which is among the lowest ratios in the world. In contrast, the OECD countries have 113 judges per million population on an average. A country like Germany, with only about 80 million population, has nearly 35,000 judges of all varieties put together, almost three times the number we have in India with over a billion population. Law Commission in its report on manpower planning (1987) pointed out that the Indian judge – population ratio was 10.05 per million people as against 50.09 in the UK, 57.07 in Australia, 75.02 in Canada and 107 in the US. The sanctioned strength of judges in India is only 13,000, as against the requirement of 75,000 judicial officers. Out of this, 1874 posts are vacant. The statistics relating to pendency of cases in various courts are revealing. With the exception of the Supreme Court, where the pendency is decreasing in recent years, courts at all other levels are overburdened with case load. Some cases have been pending for over 15 years. The situation in subordinate courts is unfortunate.
That certain efforts were made to improve the situation in recent years. The Supreme Court’s skillful use of information technology and bunching of similar cases and faster disposals have reduced the case load in the Apex Court. Similarly, Lok Adalats have made some dent in adjudicating matters relating to public utilities, where the face value of the claim is under Rs 10 lakhs. These Lok Adalats, constituted under the Legal Services Authorities Act – 1987, have been particularly successful in dealing with land acquisition cases and compensation claims under Motor Vehicles Act. However, many routine matters including torts and criminal cases cannot be addressed by Lok Adalats. 10th Finance Commission had taken note of the large pendency of criminal cases in sessions courts, and proposed a centrally funded scheme for speedier disposal of such serious criminal cases. The Union Government launched the fast-track-courts scheme and proposed 1734 such Courts at a total cost of Rs 5.03 billion. So far 980 such courts have been established and another 295 notified. An amount of Rs. 3.19 billion has been released, and these courts disposed of 77,000 of the 1,88,271 criminal cases transferred to them.
That the litmus test of any justice system is the access provided to average citizens, facing simple, day-to-day disputes. Unless suitable mechanisms are evolved the justice system cannot enforce rule of law. Access to justice system is dependent on several factors including number of judges. As we have seen, our judges: population ratio is less than one-tenth of that in many advanced democratic societies. Even this limited number is skewed, as trial courts are particularly depleted. Access to justice system is also dependent on Physical proximity. In a vast country with high degree of poverty, illiteracy or semi literacy, and ignorance, a law court, to be accessible, should be physically close to people. The poor in India are among the most immobile people in the world. A large proportion of our rural people would never have stirred out of their village or a group of villages constituting a revenue circle for a whole life-time, with the exception of a once-in-a-life pilgrimage to a place of worship, or seasonal group migration in search of wage labour. In such circumstances, a court in a big town or taluka is much too remote and inaccessible to most people. Therefore, many civil wrongs, disputes and torts remain unaddressed through the formal system of justice.
That access to justice system is also dependent on Procedures. The more formal and rigid the procedures adopted by a court, the more inaccessible it is to most semi-literate and poor people. Written submissions, necessity of skilled lawyer’s intervention even for simple cases, compulsion of legal representation, need for legal language or justification in different stages of the process, the level of complexity involved in the service of process or summons or notification of final judgment, lack of effective mechanism for speedy enforcement of court decree or order – all these make the judicial process remote, incomprehensible and inaccessible. Access to justice system is dependent on language also. Only about 3 percent of Indians can understand English well. The use of English as the language of the courts, coupled with unintelligible laws and procedures, has made the justice system beyond the reach of most people. In some countries, disposal of a commercial dispute takes only a few weeks. For instance, it takes 35 days for adjudication in Singapore, 90 days in Norway and 60 days in Japan. Delayed justice deters a large number of ordinary people from approaching courts for simple disputes or minor offences.
That access to justice system is dependent on Costs also. Delays, procedural complexity and use of alien language escalate the costs of litigation enormously for most people, deterring them from seeking intervention of courts. This prohibitive cost is particularly detrimental to judicial redressal in simple cases of torts, commercial disputes, or civil or criminal wrongs. Access to justice system is dependent on perjury also. The more remote a judicial system is, the more difficult it is to get reliable evidence. Witnesses far removed from their natural surroundings often tend to lie under oath, as there is no peer pressure to speak the truth. Many witnesses in fact go to great extents to avoid being summoned before a court. A system of false witness perjuring himself or herself for a price has been established as a profession in most of our courts. Perjury laws are violated with impunity, as there is no social sanction against lying under oath. Access to justice system is dependent on fairness too. The degree of perceived fairness of justice system determines its accessibility and acceptance. Given the deficiencies listed above, an ever increasing number of the poor and illiterate Indians are wary of approaching the Courts.
That several measures has been taken worldwide. In the US, small claims courts, better known as people’s courts with limited jurisdiction at municipal, city, or regional level are usually confined to civil suits involving relatively small amounts of money and to minor violations of law. For instance, cases involving minor traffic violations are heard in these trial courts. The procedures are simple with very little formality, and those involved in litigation normally present their cases to a judge, magistrate or court commissioner. The maximum amount involved in a suit in these courts varies from state to state, ranging from $1000 to $15,000, but limited to $5000 in most states. In most states the parties can be represented by a lawyer if they so wish. In a few states, including California, Nebraska and Michigan, parties come to appear on their own. About 100 million cases go through these courts annually. In the UK, lay and unpaid justices of the peace (JPs) handle over 90% of all criminal cases and many civil cases. As Lord Phillips of Sudbury states (The observer, 02-12-2002), local justice, presided over by JPs dates back well beyond 1361 AD, when the first JP Act was passed, and even today a JP is placed much higher than an MP in official rankings.
That World Bank report (May-2000) points out: "The litmus test of any civil justice system is whether it provides the average citizen, facing simple everyday legal disputes with mechanisms through which he or she is able to secure redress. Considerable progress has been made in England and Wales, and in many other countries, in providing access to civil courts to those involved in such disputes. Adaptations to traditional litigation procedures seem largely to have succeeded in allowing laypersons to present their cases in a satisfactory and competent manner. If greater access to justice is the objective, the key is to design a civil justice system that provides costs and procedures that are realistic and proportionate to the issue in dispute. Calls from legal purists for an unrealistic level of legal refinement should be ignored, as they will restrict access to the courts to the wealthy. For most lay litigants, the alternative to cut-price solutions is not Rolls Royce Justice: it is no access to justice at all." There is need for significant increase in the number of trial courts at the lowest level, with the adoption of simple, informal procedures for adjudication. The honorary second-class magistrate system, which operated successfully working in some states.
That the quality of justice administered depends on the quality of those who administer it. Quality of judges is clearly of paramount importance. Unlike the executive branch of government, the judiciary is completely independent and invulnerable to the vagaries of politics and partisan pulls. The High Court has complete control over the conduct and functioning of subordinate courts. In addition, there are established procedures for elevation to High Court and Supreme Court. Therefore, once recruitment practices are sound, there are incentives for better performance and effective monitoring at least until a judge is elevated to the High Court. It is very dissimilar to the administrative services in the executive branch. Take for instance the IAS and IPS. There is fierce competition for entry into these elite services. Annually, thousands of bright youngsters compete in a grueling examination. There is central recruitment to meet all the States’ requirements. The selection procedure is transparent and highly meritocratic, giving due allowance to affirmative action policies. Unquestionably, highly competent, intelligent and well-qualified youngsters join the civil services and they are put through a two-year rigorous training, including a year at the field level.
That if we ensure that there is a meritocratic recruitment through the nation-wide competitive examination and if judicial officers are accorded the prestige and respect that all-India services enjoy, then the best talent can be tapped for the judiciary. The prospects of elevation to High Court ensure high quality performance in district and other subordinate courts. The current procedures to enforce accountability in higher judiciary are unsatisfactory, but that problem needs to be dealt with separately. At the very least, formation of an AIJS for judiciary would ensure a high level of competence and skills in our justice administration. Article 312 of the Constitution provides for the creation of AIJS. It can be created and regulated by the Parliament by law, provided the Council of State has to declare by resolution supported by not less than two-thirds of the members. In the absence of sensitive and citizen-friendly mechanisms, people are forced to swallow injustice. Often their lives are shattered, and poverty is perpetuated with little hope of climbing out of the deep hole of misery and injustice. In this climate, a market-demand is created for those who can apply coercion and violence to deliver “rough and ready justice” for a price.
That judicial backlog and accessibility to justice for a common man are interconnected problems. Huge number of cases are pending in the courts, which are just lingering along and not reaching their logical conclusion. Most of these cases are trivial matters such as property disputes, theft, slap incidents, etc. There are many reasons for this menace. Some of them are: Lack of Judicial infrastructure i.e. lack of district courts, lack of staff etc. More investment is needed in judiciary, which should be government top priority. Creation of a large number of Nyaya Panchayats and Nyaya Samitis in rural and urban areas both as mandated by the Nyaya Panchayat Act, 2009 but probably on a larger scale. Government is also a big stakeholder in the judicial arena. It must withdraw most of the unneeded and petty cases and look for out of court settlement. Judicial backlog is also due to Archaic laws and sections in the CrPc and IPC
These laws should be permanently be amended and left behind. Moreover, judicial practices that are time consuming should be given up. It is need of the time to not only reform the recruitment system but court proceeding too. Judges need to be stricter and should ensure that the court time is not wasted.
That the retirement age of the Judges from District Court up to the Supreme Court should be increased. This will also ensure more experience in the judiciary. Petitioner feels that retirement age of the Judges of the District Court, High Court and the Supreme Court should be 60, 65 and 70 years respectively. All the Courts including High Court and the Supreme Court must function at least 1500 hours every year without fail means at least 6 hours a day and 250 days in a year. Collegiums system has come in for a lot of criticism because it lacks objectivity and transparency. As a solution, the executive sought to bring in the National Judicial Appointments Commission, which the Hon’ble Supreme Court has struck down. However, the cure does not lie in restoring the balance in favour of the executive, but in putting in place a system that is objective and transparent. Thus, the All-India Judicial Service assumes significance. This old demand has always been shelved because of vested interests masquerading as judicial independence hence such a model is well functioning in many countries. Petitioner argued for implementation of AIJS, when the Constitution Bench asked for suggestions after striking down the NJAC Act.
That we can adopt the French model, where the judiciary is manned by a career judicial service. France’s experience is quite satisfactory compared to the UK, where judges are chosen from the legal profession, or the US, where judges need not necessarily come from a legal background. The process of selecting a good judge cannot be left to the wisdom of a few, however sagacious - be it a collegiums or an NJAC.
That National Judicial Service Commission a body like the UPSC needs to be established, to conduct examination for the recruitment of members to the AIJS. The AIJS officers could start their careers as Additional District Judges after 3-4 years comprehensive training in National Judicial Academy and eventually rise up to become the High Court and Supreme Court Judges. As against nebulous accountability and lack of transparency in the functioning of the judiciary, the AIJS can be governed by a well-laid system of discipline and service accountability like the existing All-India Services. Disciplinary and Service matters of the AIJS could be managed by a NJSC. The executive should have no control over such matters. AIJS will make the judiciary more accountable and professional.
That few High Courts and State Governments have raised objections to creation of AIJS. Why would they agree when they would no longer be in a position to push in their candidates? Prior to the collegiums, politicians could quietly sneak in their candidates. After the collegiums system the higher judiciary became party to that. An important objection to the AIJS by the States and the judiciary is local language requirements. This is a feeble argument. When IAS and IPS officers can be allotted state cadres and adjust to local requirements, why can’t AIJS officers? Every organ of the democracy including the judiciary needs to be accountable to the public. People need to know how judges are appointed, what criteria they have been evaluated on. Many judges appointed by the collegiums or by political intervention may have been brilliant, yet their recruitment process is questionable. Judiciary should reflect social reality and the country’s diversity. It can only happen if a fair transparent and uniform system of recruitment is put in place in accordance with Article 312 read with Article 14 and 16. All India Judicial Service is not only a sine qua non for good governance in the judiciary but also an essential prerequisite for India to become a mature democracy.
That the proposal of AIJS on the lines of IAS, IPS was under active consideration of the Government. This measure was long overdue and has been hanging fire for over five decades now. While most government departments have all India service recruits, selected after a competitive examination by the UPSC every year, the judiciary is the only set up that does not have a national-level selection process of its own to attract the best available talent. The Law Commission has thrice - in its 1st, 8th and 116th reports - called for such a service. The Supreme Court first in 1991 and then in the all-India judges case (1992) has endorsed the creation of an AIJS. In its 15th report, the Parliamentary Standing Committee on law and justice too recommended for its establishment and directed the Union Law Ministry to take immediate steps. The first National Judicial Pay Commission and the National Advisory Council to the Centre have also supported the AIJS. Over and above, Article 312 explicitly provides for the creation of a national level judicial service. However, the proposal could not get far in and mere opposition by few state governments and High Courts to the reform gave a lame excuse to successive governments at the centre to sleep over the matter.
In the absence of a body like AIJS, it is becoming increasingly difficult to maintain the required judge strength at all levels of courts. Country's 21 High Courts with sanctioned strength of 895 are managing with 604 judges and thus account for 291 vacant positions. Similarly, the Supreme Court had only 26 judges, including the Chief Justice and five vacancies are to be filled to maintain the full strength of 31. This means that 15-20 % of the Courts, where the aggrieved go for justice, are headless. Consequently, the available judges are unable to clear the huge backlog of over 30 million cases, leave alone handle new ones. Situation in subordinate court is more pathetic. If the Article 312 implemented in conformity with Article 14 and Article 16, the scheme will have its own distinct advantages. Primarily, the recruitment of judge’s right from the entry level will be handled by an independent and impartial agency National Judicial Service Commission through an open competition thereby ensuring fair and uniform selection of incumbents. Initiating the AIJS would naturally attract brightest and the best law graduates to the judiciary, who otherwise prefer immediate remunerative employment in the government and the private sector.
That recruitment by National Judicial Service Commission and uniform and comprehensive 2-3 years training in National Judicial Academy would ensure equal and uniform service conditions besides providing them wider field to probe their mettle. The measure of uniformity in standards for selection will improve the quality of personnel in different High Courts, as about 50% of Judges come there on promotion from the subordinate courts. Similarly, judges of the Supreme Court are drawn from the High Courts. In this process, only persons of proven competence will preside over the benches of superior courts, thereby minimizing the scope of partiality, arbitrariness and aberrations in judicial selection. Simultaneously, the quality of justice dispensation will also improve right from subordinate court to the Apex Court. The reform would help considerably in toning up the judicial administration by throwing open appointments to talented persons across the country. In addition, the objective of introducing an outside element in High Courts can be achieved better and more smoothly because member of AIJS will have no mental block about interstate transfers. AIJS will definitely enrich the competence and experience and make them better judges.
That it is the duty of the Union Government to constitute the AIJS as per decision of the Supreme Court in the All India Judges' Case 1. The Apex Court observed as thus: "We are of the view that the Law Commission's recommendation should not have been dropped lightly. There is considerable force and merit in the view expressed by the Law Commission. An All India Judicial Service essentially for manning the higher services in the subordinate judiciary is very much necessary. The reasons advanced by the Law Commission for recommending the setting up of an All India Judicial Service appeal to us. Since the setting up of such the service might require amendment of the relevant Articles of the Constitution of the Service Rules operating in the different States and Union Territories, we do not intend to give any particular direction on this score, particularly when the point was not seriously pressed but we would commend to the Union of India to undertake appropriate exercise quickly so that the feasibility of implementation of the recommendations of the Law Commission may be examined expeditiously and implemented as early as possible. It is in the interest of the health of the judiciary throughout the country that this should be done”.
That on 10-02-1997, the Government submitted status report on the proposal of constituting the AIJS as thus: "The Supreme Court of India in the WP (C) 1022 of 1989, All India Judges Association v Union of India, in its judgment dated 10-04-1995 has given the direction to Union of India to take immediate measures for the implementation of the direction, to achieve the objective of setting up of All India Judicial Service. Since a Resolution will have to be moved in the Rajya Sabha, in this regard the Government has sought the views of the State Governments and High Courts in the matter”.
That the union government received comments from 23 States. Eight state governments i.e. Goa, Uttar Pradesh, Mizoram, Punjab, Kerala, Tripura, Sikkim and Orissa agree with the setting up of an All India Judicial Service. Eight state governments i.e. Himachal Pradesh, Haryana, Tamil Nadu, Madhya Pradesh, Maharashtra, West Bengal, Assam and Rajasthan gave conditional approval to the proposal. Seven State Governments i.e. Arunachal Pradesh, Nagaland, Karnataka, Gujarat, Jammu & Kashmir, Manipur and Andhra Pradesh have not favoured the setting up of All India Judicial Service. Two state governments i.e. Meghalaya, Bihar not responded.
That of the total 18 High Courts, Union Government received the views and comments of the 16 High Courts. Four High Courts - the High Courts of Allahabad, Patna, Guwahati and Rajasthan have favoured the setting up of an All India Judicial Service. Four High Courts- the High Courts of Orissa, Sikkim, Andhra Pradesh and Kerala have given their conditional approval to the proposal. Five High Court - the High Courts of Mumbai, Karnataka, Gujarat, Delhi and Madhya Pradesh have no views to offer in this regard in the light of Supreme Court judgment. Three High Courts - the High Court of Himachal Pradesh, Punjab and Madras have not favoured the setting up of All India Judicial Service. Two High Courts - the High Court of Calcutta and the High Court of Jammu & Kashmir not responded.
That in the light of the recommendation of the Law Commission of India, direction of the Hon’ble Supreme Court and views/comments of the State Governments and High Courts, the question of setting up All India Judicial Service through a resolution of the Rajya Sabha and an enactment of Parliament under Article 312 of the Constitution was under consideration.
That although it has been close to four decades since the idea for creation of All India Judicial Service was incorporated in our Constitution, yet successive dispensations at the Centre have hitherto adopted a lackadaisical attitude towards this vexed issue notwithstanding the fact that during all these years not only the Supreme Court but even various Parliamentary Committees and allied bodies have vociferously exhorted the political executive to take a final call over the same.
That in June 2014, All India Judges Association passed a resolution seeking creation of AIJS to reduce discrepancies in subordinate judiciary. The executive body of the AIJA, an association comprising 15,000-odd lower court judges from across the country as its members, unanimously endorsed that in order to maintain the dignity of trial judiciary, AIJS needs to be created which is also very much provided under the provisions of the Constitution. The Constitution (42nd Amendment) Act, 1976 had, inter-alia , amended Article 312 dealing with All-India Services by inserting an explicit phrase viz . “All-India Judicial Service” is still pending.
That noteworthy to mention here that at the outset, it was the first Law Commission of India, which in its 14th report recommended the creation of an AIJS. It opined that such a course is necessary in the interest of efficiency of the subordinate judiciary. Then the 8th Law Commission while examining the problem of arrears in trial courts, too, endorsed the same idea in its 77th report. Thereafter, it was the 11th Law Commission in its 116th report (1986) explicitly dealt with the issue threadbare. It held that a member of the AIJS would be required to learn one more language over and above his mother tongue and once he is allotted to a State keeping in view the said fact, no problems would arise on the ground of language. Reference was made to members of IAS in this behalf. It further observed that in as much as according to the present rules in force in various States, approximate 50% vacancies in the cadre of District Judges are reserved to be filled by promotion from the lower cadres and because the members of AIJS will be allocated only against the vacancies to be filled by direct recruitment, the promotional prospects of judicial officers (below District Judge level) will, in no way, be affected.
That the control of the High Court will, in no manner, be diminished or curtailed because on allotment to a State, the members of AIJS would become members of the State Judicial Service for all practical purposes with the difference that while at present, the High Court recommends various things such as promotion or disciplinary action to the Governor, it would be recommending the same to the National Judicial Service Commission, which, in turn, would make necessary recommendation to the President but the President will act in the same manner as at present it is done by the Governor, having regard to the almost binding character of the recommendation of the High Court.
That first-ever National Judicial Pay Commission (NJPC), headed by Justice K. Jagannatha Shetty, a former Judge of the Supreme Court, which submitted its report in November-1999, recommended constitution of All India Judicial Service in the cadre of District Judges as per provisions of Article 312(3) of the Constitution of India. He suggested that the District and Session Judges should be directly recruited through the All India Judicial Service.
That there are few obstacles in the path of constituting an All India Judicial Service on the lines of IAS and IPS, but these can be easily tackled after completing certain modalities. The first and foremost would be establishment of National Judicial Service Commission like UPSC, as a central and nodal body for making selection through All India Judicial Service. Once selected, when the successful candidates would be allotted a State cadre, they would automatically come under the disciplinary control of the concerned High Court and hence there should be no apprehension that High Court’s control over officers of All India Judicial Service would be minimal. As far as question of different state languages used in subordinate courts of different states is concerned, NJPC or Shetty Commission proposed the best remedy, which recommended that recording of deposition in Courts, should be in two languages - one in regional to be recorded by a Court officer and the other in English by the Presiding Officer. Moreover, as in every State, the eligibility conditions and criteria for selection of District Judges is almost the same, there is no question why these cannot be integrated to form a unified national cadre.
That the idea of AIJS has been discussed, debated and deliberated at different conclaves and conferences but ultimately kept in abeyance on the pretext of certain avoidable legal roadblocks. The August 2009 Chief Justices (CJs) conference failed to arrive at a conclusion although the idea was very much in the agenda of the meeting, but it was merely shown as “Discussed” in the list of resolutions. Even, in just followed joint conference of CJs with Chief Ministers of all the States, though they agreed in-principle to the proposal but once again impressed upon the need for further deliberations on this subject. Unfortunately, this issue did not even figure in the minutes of the next CJs conference (April 2013) as evident from the available records. One wonders if both the higher judiciary and political executive are indeed serious over this issue. Hon’ble Supreme Court since 1989 in “All-India Judges Association v. Union of India” and has been seized of the issues and has been passing various directives and orders for the safeguarding the dignity and independence of the country's subordinate judiciary vis-à-vis political executive but it’s very unfortunate that AIJS not turned into reality till date.
That critics of All India Judicial Service may say that a district judge coming from a different linguistic region will face the problem of language in assessing and tackling the critical legal and other issues of facts, which will affect the quality of justice. Language may be a problem but that should not be an argument for straightaway rejecting the idea. Young recruits from outside can easily learn the local language and adapt themselves to local conditions unlike older people. Nor should the finances involved in the formation of such a judicial service pose any problem. In fact, the amounts collected as court fees, at least, should be spent for this purpose instead of being utilized as a source of general revenue of the States. Figures from the Ministry of Law and Justice show that the income generated from court fees is more than the expenditure incurred on the administration of justice. AIJS should be set up and the Union of India should take appropriate steps in this regard without further delay. Steps should be taken to bring about uniformity in designation of officers both in civil side and criminal side; proper accommodation and a working library at the residence of each judicial officers has to provided.
That judicially engrafted bars of limitation, no doubt meant to provide a solution to the long delay problem but this gives rise to greater problem like scuttling a trial without adjudication, stultifying excess to justice and giving easy exit from the portals of justice. If a person is deprived of his liberty under a procedure which is not Fair and Fast, such deprivation would be violative of his fundamental right. If the period of deprivation pending trials becomes unduly long, fair and fast justice under Article 21 would receive a jolt. The Apex Court has advanced a step further and said-“The provision of speedy justice is an obligation of the state, otherwise the operation of the legal system would not promote justice, which is assured in preamble of the Constitution”. Parliament enacted the All India Service Act 1951, for creating certain All-India Services in addition to the IAS and IPS. The 1951 Act was amended in 1963 to create 3 more All-India Services. However, AIJS not created in spite of the Constitutional provision under Article-312 and despite the Apex Court expressing itself strongly in favour of AIJS. [AIJA v. UOI, AIR 1992 SC 165: (1993) 4 SCC 288; (1997) 8 SCC 520; AIR 1999 SC 1555]
That in Nimeon Sangama v Home Secretary (1980) 1 SCC 700: AIR 1979 SC 1518: 1979 Cri LJ 941, Hon’ble Supreme Court said: “It is unfortunate that there is considerable delay in investigations by the Police in utter disregard of the fact that a citizen has been deprived of his freedom on the ground that he is accused of an offence”.
That in Hussainara Khatoon v Home Secretary AIR 1979 SC 1360: (1980) 1 SCC 81, the Apex Court said- Speedy trial is of the essence of criminal justice and there can be no doubt that delays in trial by itself constitutes denial of justice. Speedy trial though not specifically enumerated as basic right, is implicit in the broad sweep and content of the Article 21.
That in Madhu Mehta v Union of India (1989) 4 SCC 62: AIR 1989 SC 2299, Hon’ble Supreme Court said that Speedy trial in criminal cases is implicit in the broad sweep and content of the Article 21. It is part of one’s fundamental right to life and liberty.
That in Kartar Singh v State of Punjab (1994) 3 SCC 569, Hon’ble Supreme Court said that Speedy trial is one of the facets of the fundamental right to life and liberty enshrined in Article 21.
That in A.R. Antulay v R.S. Nayak (1992) 1SCC 225: 1992 Cri LJ 2717, Hon’ble Supreme Court said that fair, just and reasonable procedure implicit in the Article 21 creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible.
In Usha Ahuja v State of Haryana (1999) 7 SCC 486, the Apex Court said: “It is of utmost importance that criminal cases be disposed of expeditiously as right of an accused to have speedy trial is a right, which flows from Article 21 of the Constitution.
That the Apex Court reminded the Union and the State of constitutional obligation to strengthen the judiciary on the ground that root cause for delay in dispensation of justice in our country is poor judge population ratio. [P. Ramchandra Rao v State of Karnataka (2002) 4 SCC 578]. Court said: “The right to speedy trial encompasses all the stages, namely, stages of investigation, enquiry, trial, appeal, revision and retrial. Each case has to be decided on its own fact.” Mahendra v State of Bihar (2002) 1 SCC 149.
That speedy trial is fundamental right implicit in the broad sweep and content of Article 21. If the period of deprivation of personal liberty, pending trial becomes unduly long, the fairness assumed by Article 21 receives a joint. Bail granted to a convict who suffers a sentence of life imprisonment since he is in custody for more than six years pending appeal. [Surinder Singh v State (2005) 7 SCC 387].
That emphasizing the need for speedy justice the Apex Court said: “The present case is a typical illustration. A suit filed in 1957 has rolled on for half a century. The people in India are simply disgusted with this state of affairs, and are fast losing faith in judiciary because of the inordinate delay in disposal of cases. We request the authorities concerned to do the needful in the matter urgently to ensure speedy disposal of cases if the people’s faith in the judiciary is to remain.” [Rajindra v Prem (2007) 11 SCC 37]
That in Vakil Prasad v State of Bihar (2009) 3 SCC 355, the Court said: “It is well settled that right to speedy trial in criminal prosecutions is inalienable right under the Article 21. This right is applicable to actual proceedings in Court and Police investigations.
That in Pankaj Kumar v State of Maharashtra (2008) 16 SCC 117 (Paras 22-23), Hon’ble Supreme Court once again reiterated the need of time bound justice delivery system and observed as thus: “Right to speedy trial in all criminal prosecutions is an inalienable right under Article 21 of the Constitution. This right is applicable not only to the actual proceedings in court but also includes within its sweep the proceeding police investigation as well. In every case, where the right to speedy trial is alleged to have been infringed, the court has to perform the balancing act upon taking into consideration all the attendant circumstances and determine in each case whether the right to speedy trial has been denied. Where the court comes to the conclusion that the right to speedy trial of an accused has been infringed, the charges or the conviction, as the case may be, may be quashed unless the court feels that having regard to the nature of the offence and other relevant circumstances, quashing of the proceedings may not be in interest of justice. In such a situation it is open to the court to make an appropriate order as it may deem just and equitable including fixation of time for the conclusion of trial”.
That right to fair trial and speedy justice is not only the creation of law but also a natural right and spirit of Article 21 and preamble of the Constitution. In a democratic setup, intrinsic and embed faith in adjudicatory system is of seminal and pivotal concern. Unnecessary delay gradually declines the citizenry faith in the judicial system. Fragmentation of faith has the effect potentiality to bring in a state of cataclysm where justice may become causality. A litigant expects a reasoned verdict from a highly competent and temperate judge but does not intent to and, rightly so, to guillotine much of time at the altar of reasons. Fair fast equal and uniform justice keeps the people’s faith engrained and establishes the sustained stability. Access to fair fast equal and uniform justice is deeply rooted in the concept of democracy and regarded as a basic human right. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible. Myriad facts and situations, bearing testimony to denial of the fundamental right of the fair trial to the accused persons and failure on the part of prosecuting agencies have persuaded the Apex Court in devising solutions like bars of limitation.
That petitioner’s full name is Ashwini Kumar Upadhyay. Petitioner is an Advocate, practicing in this Hon’ble Court and Spokesperson of BJP Delhi. Contact: 8800278866, aku.adv@gmail.com, Income: 06 LPA, PAN-AAVPU7330G, Aadhar-659982174779.
That petitioner has not filed any other writ petition either in this Hon’ble Court or in any other High Court in India seeking same and similar directions as prayed in the present writ petition.
That facts constituting cause of action accrued on 07-04-2014 and every subsequent date, when Hon’ble Prime Minister of India, while launching his party manifesto, promised that his government will reform the judicial system and ensure fair trial and fast justice to every citizen of India in a time bound manner. It is necessary to state that fair trial and speedy justice is fundamental right of every citizen of the country under Article 21 of the Constitution. Unfortunately the Union of India not taken appropriate action till date to enhance the strength of judges, which is very necessary to provide fair trial and speedy justice to the citizens of this country and also essential for reducing the very long pendency of criminal and civil cases.
That Hon’ble Supreme Court has reiterated in a catena of decisions that in absence of fair trial and speedy justice, the fundamental right under the Article 21 of the Constitution, is not available to the every Indian citizen, which is creating injustice to Indian Citizens in many forms thus causes injury.
That there is no civil, criminal or revenue litigation, involving petitioner, which has or could have a legal nexus with the issue involved in the present writ petition. This writ petition is completely bonafied and with the sole purpose of public interest.
That there is no requirement for moving concerned government authority for relief sought in the present writ petition. There is no other efficacious, economic and alternative remedy available to the petitioner except for approaching this Hon’ble Court by way of this prerogative writ petition. Petitioner craves leave to add, amend or alter the grounds during the course of pendency of petition.
That Petitioner has no personal gain, private motive or oblique reasons in filing this writ petition. The writ petition is totally bonafied and purely in larger interest of the citizens of our country.
GROUNDS
That petitioner begs to file the present writ petition inter-alia on the following grounds.
Because it is constitutional obligation of the Union of India and States to secure the fundamental right of fair trail and speedy justice to all the Indian citizens in spirit of the Article 21 and Preamble to the Constitution. People’s faith in judicial system could not be maintained without providing fair trial and speedy justice uniformly to all the Indian citizens.
Because Article 39A of the Constitution inter-alia says: The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
Because citizens are losing their faith due to long pendency of cases in Courts, especially in the subordinate courts and the way our criminal justice system is working. There is danger to the very idea of the Welfare State, the Rule of Law, Equality before the Law and Equal Protection of Laws.
Because Judicial Reform is very necessary not only to secure fundamental right of fair trial and speedy justice and to achieve the golden goals as set out in Preamble of the Constitution but also essential to control the prevailing four evils namely, Corruption, Crime, Casteism, and Communalism.
Because many Commissions, Expert Committees, Eminent Jurists and Judges; from the learned first Attorney General of India to previous Chief Justices of India, reiterated the importance and urgent need of judicial reform. The Law Commission of India submitted its detailed Report No-114 (Alternative Forum for Resolution of Disputes at Grass Root Level) on 12-08-1986, Report No-116 (Formation of an All India Judicial Service) on 27-11-1986, Report No-221 (Need for Speedy Justice-Some Suggestions) on 30-04-2009, Report No-230 (Reform in the Judiciary-Some Suggestions) on 05-08-2009, Report No-245 (Arrears and Backlog: Creating Additional Judicial Manpower) on 07-07-2014 to the Union of India, and recommended a lot of important measures, essential to secure the fundamental right of fair trial and speedy justice to the Indian citizens but the Union of India not taken appropriate action, to implement these suggestions and to reform the judiciary.
PRAYER
For the reasons stated above, it is the most respectfully prayed that this Hon’ble Court may be pleased to:
Issue a direction or order or writ including writ in the nature of mandamus or an appropriate writ, order or direction as may be necessary, directing the Respondents to double the number of judges, as recommended by the Law Commission in its 245th Report, which is essential to secure the fundamental right of fair trial and speedy justice to the citizens;
Issue a direction or order or writ including writ in the nature of mandamus or such other writ, order or direction as may be necessary; directing the Respondents to expedite the Judicial Reform as suggested by the Law Commission in its 221st and 230th Report and implement the Resolution of the Advisory Council of the National Mission for Justice Delivery and Legal Reforms and the Resolution of the Chief Justices and Chief Ministers Conference 2013;
Issue such other writ, order or directions as may be necessary to secure the fundamental right of fair trial and speedy justice and allow cost to the petitioner.
(R.D. UPADHYAY)
Advocate for Petitioner
Drawn by: Ashwini Kumar Upadhyay
Drawn on: 17.04.2016
Filed on: 27.04.2016
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO 295 OF 2016
IN THE MATTER OF:
Ashwini Kumar Upadhyay …Petitioner
Verses
Union of India & Another ...Respondents
AFFIDAVIT
I, Ashwini Kumar Upadhyay S/o Sh. Suresh Chandra Upadhyay R/o G-284, Govindpuram, Ghaziabad-201013, at present at New Delhi, do hereby solemnly affirm and declare as under:
That I am petitioner in the above-mentioned matter and I am well acquainted with the facts and circumstances of the case and as such, I am competent to swear this affidavit.
That I have read and understood the contents of accompanying synopsis and list of dates pages ( ) and writ petition paras (1- ) pages (1- ) and total pages (1- ) which are true and correct to my personal knowledge and belief.
That there is no personal gain, private motive or oblique reasons in filing this writ petition. This writ petition is completely bona-fide and with the sole purpose of larger public interest.
That the Annexure filed along with this writ petition are true copies of their respective originals.
That the averments made in this affidavit are true and correct to my personal knowledge and belief. No part of this affidavit is false nor has anything material been concealed there from.
DEPONENT
VERIFICATION
I, the Deponent do hereby verify that the contents of above affidavit are true and correct to my personal knowledge and belief. No part of it is false nor has anything material been concealed there from.
I solemnly affirm today i.e. Wednesday, the 27th day of April 2016 at New Delhi.
DEPONENT
No comments:
Post a Comment