Judicial Reforms in India: Transforming Accountability and Access to Justice- (Part 02)

The Indian judicial system is undergoing significant reforms to enhance its efficiency and accountability. Key initiatives, such as the proposed All India Judicial Service (AIJS) and the National Courts of Appeal (NCA), aim to address the challenges of case backlog and judicial independence. Additionally, measures like live-streaming court proceedings seek to promote transparency and access to justice for all citizens. These reforms are essential for building public trust and ensuring timely delivery of justice.

Comprehensive Reforms in the Indian Judicial System: Addressing Accountability, Recruitment, and Access to Justice

Judicial Accountability

• • Definition of Judicial Accountability: It is defined as the set of mechanisms that aims at making judges and courts personally or institutionally responsible for their behaviours and decisions contrary to constitutional or legal standards. 
  • The Role of the Judiciary: As the Judiciary is the protector of Fundamental Rights and interpreter of the Constitution, it is required to be independent and outside influence of political and economic entities. 
  • Constitutional Provisions for Accountability: Within the Constitution, as per Article 235 it provides for ‘control’ of the High Court over the subordinate judiciary, which clearly indicates  the provision of an effective mechanism to enforce accountability
• Need Of Judicial Accountability
  • To reduce the pendency of cases.
  • To ensure faith and trust of citizens in democratic institutions.
  • Improve efficiency and transparency in delivering quality judgements.
  • Lack of effective mechanism to enforce accountability among judges of  Supreme Court
• Implications of lack of Judicial Accountability
  • Allegations of Misconduct: Judges have been alleged to have indulged in corruption, sexual harassment, post retirement jobs, etc.
  • Exemption from the RTI Act: Judges have virtually kept themselves out of the ambit of the RTI Act.
  • Rising Pendency of Cases: Due to lack of accountability measures, pendency across all courts grew by 2.8% annually between 2010 and 2020.
  • Judicial Overreach: Judicial Overreach violating the principle of separation of power.
  • Opacity in Judicial Functions: Opacity in the functioning of the judiciary such as allocation of judges, judicial appointments, disciplinary actions, etc.
  • Concentration of Power in the Collegium System: Collegium system has led to concentration of immense power in the hands of judges, promoting nepotism.

Steps taken to promote Judicial Accountability 

• Contempt of Courts (Amendment) Bill, 2003: Initially, it was introduced in the Lok Sabha and referred to Parliament Standing Committee on Home Affairs.
  • At present, this Act should be amended to remove the words, ‘scandalising the court or lowering the authority of the court’ from the definition of criminal contempt. 
• In-house Procedure: Formulation of this procedure helps to inquire into any allegation of misbehaviour or misconduct against them, which is considered fit for inquiry by the Chief Justice of India and also some of his senior colleagues. 
• Publication of Asset Declarations: The Supreme Court and the high courts resolved to publish voluntary declarations of assets by their judges in 2009.
• Bangalore Principles of Judicial Conduct: The Bangalore Principles of Judicial Conduct were adopted in 2002, recognizing six core values: independence, impartiality, integrity, propriety, equality, and competence and diligence.
• Memorandum of Procedure, 2016: This procedure helps to bring transparency in judicial appointments and also sets up a permanent secretariat in the Supreme Court for maintaining records of High Court judges.
• Judicial standard and Accountability Bill, 2020: This bill requires judges to declare their assets, lays down judicial standards, and establishes processes for removal of judges of the Supreme Court and High Courts. 
• Use of technology: To digitise the legal process and monitor the entire life cycle of a case. 
  • LIMBS (Legal Information Management & Briefing System): It is  a web-based application to monitor cases in a more effective and transparent manner where the central government of India is involved.
•  Comprehensive Code of Conduct and Accountability Reports: It should be a more formal and comprehensive Code of Conduct for Judges that will be enforceable by law. The  annual reports on functioning and efficiency should be published to foster accountability, as it has been done by the Orissa High Court.

All India Judicial Service (AIJS)

• Objective of AIJS: AIJS is an attempt to reform the judiciary by making the recruitment of judges at district levels uniform for all states. 
• Model of Centralized Recruitment: This initiative follows the same model as the All India Services like IAS and IPS, where a central recruitment process is conducted and successful candidates are allocated to different states. 
• Central Recruitment for Lower Judiciary Judges: This proposal aims to recruit lower judiciary judges centrally and assign them to states. 
• Current Recruitment Practices: Currently various High Courts and State service commissions hold separate exams to recruit judicial officers. 

Background of AIJS

• Origin of the Centralized Judicial Service: The idea behind centralised judicial service was first mooted in 14th Law Commission’s 1958 ‘Report on Reforms on Judicial Administration’
• Constitutional Amendment for All India Judicial Service: Thereafter the 42nd Constitutional amendment Act amended Article 312 (1) which now empowers Parliament to make laws for creation of one or more All India Services including an AIJS which is common to Union and the States. 
• Ensuring Uniformity and Attracting Talent: This amendment helped to ensure uniformity in standard of selection and to attract bright and young talent in judiciary so that fair trial and speedy justice was made available to every citizen throughout the country. 
• Parliamentary Support for AIJS: The 15th report of the Parliamentary Standing Committee on Personnel, Public Grievances Law and Justice which was held in 2006 backed the idea of a pan-Indian judicial service. 

Judiciary’s View on AIJS

• Supreme Court Directive for AIJS: The Supreme Court  in All India Judges Association v. Union of India (1992) directed the Centre to set up an AIJS. 
• Recommendation by the National Judicial Pay Commission: The creation of the AIJS was subsequently considered and recommended by the first National Judicial Pay Commission, also known as the Justice Shetty Commission.
• Review of Judgement by the Supreme Court: Later, judgement was reviewed by the Supreme Court in 1993 where the court gave liberty to the Centre for this  initiative.
• Central Selection Mechanism Proposal: Consequently, the Supreme Court in 2017 took suo-motu cognizance of the issue of appointment of district judges, and mooted a “Central Selection Mechanism”. 

Need Of AIJS

• Promotion of National Integration: It helps in promoting national integration.
• Reduction of Corruption and Nepotism: It ends corruption as well as nepotism.
• Improvement in Judicial Efficiency: It helps to improve the efficiency of judicial Administration.
• Induction of Fresh Legal Talent: It helps to induct qualified fresh legal talent.
• Enhanced Representation of Marginalized Communities: It enhances representation of marginalised and deprived sections of society.
• Reduction of Case Pendency: It helps to fill-up vacancies of judges to reduce pendency of cases.

Challenges in creation of an AIJS 

• Vacancies of Judiciary are Unique in Every  State: The AIJS fails to address the issue of vacancies adequately because  most of the vacancies are present at subordinate level and not at the level of district judges. 
• Structural Issues: The structural issues will plague the lower judiciary by the creation of AIJS. 
  • It  may not address systematic problems like low pay and inadequate infrastructure.
• Language Barrier: The states have highlighted concerns of language and representation. 
• Threatens judiciary’s Independence: The creation of AIJS would lead to an erosion of control of the High Court over subordinate judiciary which would in turn affect judiciary’s independence. 
• Against Federalism: The creation of AIJS will be against the fundamental power of States to make rules and govern the appointment of district judges. 
• Restrict Promotional Avenues for State Officers: The promotional avenues would be curtailed for those who had already entered through state services if officers at senior levels are recruited through AIJS, which will affect the manner of State Judicial Service. 

Suggestive Measures For Creation of AIJS

• Funds to be Raised: Additional funds are required to implement an AIJS system.
• Engaging Stakeholders: The government should involve in a consultative process with the stakeholders to arrive at a common ground. 
• Career Growth Prospects: Creation of career growth expectations for lower court judges.
• Capacity Building: Capacity Building of lower court judges in the form of continuing legal education is essential.
• Improve the Language Barrier Issues: The  applicants shall be able to fulfil the desired listing of the state that they need to join along with  small language-associated checking  must be taken earlier than or in  the duration of the interview.
• Addressing Case Backlog through AIJS Implementation: Huge number of pending cases will be solved by recruitment of efficient judges in large numbers for speedy dispensation of cases. It can only be done if  AIJS  will get a legislative framework by building consensus. 

National Courts of Appeal (NCA) 

• Advocacy for National Courts of Appeal: The Attorney General of India (AGI) has pushed the demand for creation of National Courts of Appeal (NCA) to relieve pressure on the Supreme Court. 
• Role of National Courts of Appeal: It would act as intermediate appellate courts between the State High Courts and the Supreme Court. 
• Function of the National Courts of Appeal: It will act as the final court of justice where  appeals from  the decisions of High Courts and tribunals within their region for civil, criminal, labour and revenue cases have been done.
• Origin: This idea was earlier addressed by the Supreme Court itself in 1986 and also by the Law Commission in its 229th report.  But its establishment will require a constitutional amendment.
• Composition: It consists of 15 judges each.

Significance 

• It will help to reduce the pendency of cases in the judiciary.
• It helps to settle matrimonial disputes, rent control and other cases  which clogs the Supreme Court.
• It allows the Supreme Court to focus on interpreting constitutional questions of law, references, death sentence cases.

National Litigation Policy (NLP)

• Recognition of Government as a Major Litigant: The National Litigation Policy is based on the recognition that the Government and its various agencies are the predominant litigants in courts and tribunals in the country. 
• Objective of the National Litigation Policy: Its aim is to transform Government into an Efficient and Responsible litigant. 
• Government’s Responsibility in Protecting Rights: This policy is also based on the recognition that it is the responsibility of the Government to protect the rights of citizens, to respect fundamental rights and those in charge of the conduct of Government litigation should never forget this basic principle.

Background

• Formulation of the National Litigation Policy: This policy was formulated by the Ministry of Law and Justice in 2010 to bring down the litigation from government agencies by making them more responsible in filing cases and also the government should not involve in frivolous litigation, especially where the stakes are not high.
  • Pending Legal Cases in 2010: In 2010 it was seen that 2.5 crore (25 million) legal cases were pending at various levels of the judiciary across the country.
• Objective: It lays down guidelines for preventing, controlling and reducing litigation, keeping in view the policy and  plans of the Government, in a cohesive and organised manner, Litigation Policy is under consideration.

Salient Features of the National Litigation Policy

• Responsibility in Filing Cases: It ensures government agencies to be responsible while filing cases.
• Accuracy and Transparency: It directs to place correct facts, all relevant documents before the court and not to mislead them.
• Priority Review of Pending Cases: The pending cases with the government as party to be reviewed on priority basis to enable quick disposal.
• Monitoring and Review Mechanisms: It proposes to monitor and review mechanisms to sensitise government in important cases and avoid delay and neglect of the same.

 Steps taken to reduce litigation 

• Legal Information Management & Briefing System (LIMBS): It is a web-based platform which helps to monitor litigation.
• Administrative Mechanism for Resolution of Disputes (AMRD): For the resolution of Inter-Ministerial Departmental disputes. 
  • The Commercial Courts Act, 2015 was amended in 2018 for Pre-Institution Mediation and Settlement (PIMS) mechanism. 

Live-streaming of Court proceedings

• Unrealized Potential of Live-Streaming: The central idea of live-streaming court proceedings as an extension of the ‘open justice’ and ‘open courts’ principle remains largely unrealized in India.
• Current Implementation Status: Currently, only nine out of the 25 High Courts in the country have implemented live streaming, while the Supreme Court restricts it to Constitutional cases.

Background

• Supreme Court’s Ruling on Live-Streaming: The Supreme Court through Swapnil Tripathi vs the Supreme Court of India (2018) had ruled in favour of opening up the apex court for the common public through live-streaming.
• Live-Streaming and Access to Justice: It held that the live-streaming proceedings are part of the right to access justice under Article 21 (Protection of Life and Personal Liberty) of the Constitution
• Pioneering Efforts in Live-Streaming: Gujarat High Court was the 1st High Court to livestream court proceedings followed by Karnataka High Court

Significance of Live Streaming

 Concerns

• Misinformation Spread via Social Media: Video clips of proceedings from Indian courts which are already on YouTube and other social media platforms with sensational titles are leading to the spread of misinformation among the public.
• Concerns over Unauthorized Reproduction: The unauthorised reproduction of live-streaming videos is another cause for concern as its regulation will be very difficult at the government’s end.
• Issues with Commercial Agreements: Also, the commercial agreements with broadcasters are also concerning.

Recommendations of the Attorney-General of India

• Pilot Project Introduction: It must be introduced as a pilot project in Chief Justice of India’s (CJI’s) court, and only in Constitution Bench cases. The success of this project will determine whether or not live streaming should be introduced in all courts.
• Guidelines Approval: A set of guidelines suggested by the A-G was approved by the SC. 
• Power to Withhold Broadcasting: However, the AG suggested that the court must retain the power to withhold broadcasting, and also not permit it in cases involving:
• Matrimonial matters
• • Matters involving the interests of juveniles or the protection and safety of the private life of the young offenders
  • Matters of National security
  • To ensure that victims, witnesses or defendants can depose truthfully and without any fear.
  • Special protection must be given to vulnerable or intimidated witnesses.

Conclusion

The ongoing reforms in the Indian judicial system are crucial for improving its effectiveness and accountability. 

• By addressing issues like case pendency, transparency, and judicial integrity, these initiatives aim to create a more just and equitable legal system. 
• Ultimately, strengthening the judiciary will foster greater public confidence and uphold the fundamental rights of all citizens in India.

DOWNLOAD PDF