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Insights into Editorial: Law and disorder

law_disorder

 

Context:

The citizens of the country expect the institution of Supreme Court and its constituents to be ideal, and the challenge of the Supreme Court is to come to terms with that reality.

However, it is not the Supreme Court alone that matters in the justice delivery system.

As a result of the unrelenting focus on the anguished knocks at the doors of the highest court, the other inadequacies of the system don’t get as much public attention.

A few important ones are dealt with below:

Issue of Spending on judiciary:

  1. Most often, the issue of spending on judiciary is equated with a call for increasing the salaries of judges and providing better court infrastructure.
  2. Such perceptions are unfortunate. India has one of the most comprehensive legal aid programmes in the world, the Legal Services Authority Act of 1987.
  3. Under this law, all women, irrespective of their financial status, are entitled to free legal aid.
  4. Scheduled Castes and Scheduled Tribes and children too are entitled to free legal aid. This means that a significant proportion of the population falls — or is supposed to fall under a free legal aid regime.
  5. However, in reality, this law is a dead letter. There has been little effort on the part of successive governments to provide a task force of carefully selected, well-trained and reasonably paid advocates to provide these services.
  6. In comparison, the system of legal aid in the U.K. identifies and funds several independent solicitor offices to provide such services.
  7. If support is withdrawn, many solicitor offices that provide these invaluable services would collapse and with that, the rule of law. India is yet to put in place anything similar to this.

Poor judge-population ratio:

  1. The judge-population ratio provides one of the most important yardsticks to measure the health of the legal system.
  2. The U.S. has about 100 judges per million population. Canada has about 75 and the U.K. has about 50. India has only 19 judges per million population.
  3. Of these, at any given point, at least one-fourth is always vacant. While much is written on vacancies to the Supreme Court and the High Courts, hardly any attention is focused on this gaping inadequacy in lower courts which is where the common man first comes into contact (or at least should) with the justice delivery system.
  4. These inadequacies are far more important to the common man than the issues relating to the apex court that are frequently highlighted in the public space.
  5. In All India Judges Association v. Union of India (2001), the Supreme Court had directed the Government of India to increase the judge-population ratio to at least 50 per million population within five years from the date of the judgment. This has not been implemented.

Access to justice

  1. Though ‘access to justice’ has not been specifically spelt out as a fundamental right in the Constitution, it has always been treated as such by Indian courts.
  2. In Anita Kushwaha v. Pushpa Sadan (2016), the Supreme Court held unambiguously that if “life” implies not only life in the physical sense but a bundle of rights that make life worth living, there is no justice or other basis for holding that denial of “access to justice” will not affect the quality of human life.
  3. It was for the first time that the Supreme Court had attempted a near-exhaustive definition of what “access to justice” actually means.
  4. Further, the court pointed out four important components of access to justice.
  5. It pointed out the need for adjudicatory mechanisms. It said that the mechanism must be conveniently accessible in terms of distance and that the process of adjudication must be speedy and affordable to the disputants.
  6. It is of course a paradox that this judgment, which emphasises the concept of speedy justice, was passed in 2016 in a batch of transfer petitions that were filed between 2008 to 2014.

These are other issues crying for attention:

  1. Increasing tribunalisation of the justice delivery process;
  2. The extortionate court fees payable to access justice in civil suits in some States;
  3. The poor integration of technology into the system are some issues that readily come to mind.

Solution: All India Judicial Services (AIJS):

Recently, the proposal of the All India Judicial Services (AIJS), has been revisited by the legal think tank Vidhi.

The  idea  of  creating  an  All  India  Judicial Services  (AIJS)  was  first  introduced  by  the 14th Report of the Law Commission in 1958.

It aims at creating a centralized cadre of District Judges who   will   be   recruited   centrally   through   an   all-India examination and allocated to each State along the lines of the All India Services (AIS).

It has been pitched as a solution to judicial vacancies, lack   of   representation   for   the   marginalised   and   the failure to attract the best talent.

  1. There is need to ensure that service is insulated from the influence of both the Central Government and State Government, right from the process of appointment to the process of removal.
  2. The 116th report of the Law Commission recommends that appointments, postings and promotions to the AIJS be made by a proposed National Judicial Service Commission consisting of retired and sitting judges of the Supreme Courts, members of the bar and legal academics.
  3. Any change in the judicial set up of the country must be concurred in by the States and the High Courts as also members of the legal fraternity.
  4. It may be more prudent to investigate the reasons and causes for the large number of vacancies in the poorly performing States.
  5. Intensive training can imparted to the recruits for picking up one more language would certainly provide adequate and effective knowledge of the local language of the State to which he or she is allocated.

Conclusion:

A disproportionate amount of attention that is given to the functioning of the Supreme Court, important as it is, distracts from these and similar issues.

Let us assume that the apex court achieves the distinction of being “ideal” in the near future, of being all things to all people.

Still, a fine mind alone is of little avail if the rest of the body lies disabled, as the justice delivery system is today.

The state in all its glorious manifestations — the executive, judiciary and the legislature — there is a need to draw out a national policy and road map for clearing backlogs and making these concepts real.