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