THE LUMBERING JUDICIAL SYSTEM - Throw the ball to the other court

1.In all the analysis that I have read on the reform required in the Indian judicial system, some of the vital points have not been covered, presumably because the analysis were from legal profession and hence they looked only at the legal process, i.e., the process that was in force even much before Independence of the country, overlooking the ground level changes that had happed during the last over fifty years and faster changes in the years ahead.

2..In the times to come, the number of disputes seeking legal redress would go on increasing. Consider the following:

· New instruments, such as, SEZ, IT, patents, delicensing of various economic sectors, such as, internet, mobile, Insurance, Banking, acquisitions of business entities, would result in the number of disputes going up. Government is increasingly becoming a bystander in such disputes. Government used to be the arbitrator in the licensing era. Not any more. Many of such disputes are between business entities and hence the cost of pursing the matter legally would be less of an issue, as against largely Government being the arbiter on such issues during licensing era.

· Each year Parliament and Assemblies bring in a number of new legislations and many of the provisos of existing legislations are amended. Both these would also result in more and more cases being filed before the judiciary.

· In earlier times, in the hierarchical social system we had, a lower caste person would be hesitant to launch a case against

an upper caste man. Police and other Government institutions more often tend to side with the upper caste man. Classic example of this syndrome was land disputes between lower and upper castes. With the progressive empowerment of people of lower strata, the syndrome of fear and respect of lower classes for upper classes is on the wane and timidity is slowly being replaced by confidence, indirectly being prodded by visual media through actual incidents of David-vs-Goliath. The same syndrome is applicable in the case of poor-vs-rich.

· The number of NGOs are going up and so also the number of cases launched by NGOs. It is on cards that both these would go on increasing with passage of time.

· One would not err in envisaging that disputes related to marriages / families, on issues, such as, dowry, property, custody of children, divorce, etc., would increase. Reluctance to make such issues public is on the wane.

3. In brief, unless urgent measures are taken to reduce drastically the arrears of cases in courts, the legal process is made less complicated than the position at present, the number of judges / courts are increased and reform process of judiciary is taken up on an urgent basis, the situation would worsen.

4.A point to be noted in this connection is that legal profession, though has the grey matter to suggest reform measures, because of vested interested involved, they are the ones who will come as a stumbling block to reforms. It is not similar to the case of babudom, wherein despite decontrol of various activities leading to less work for them, their salaries, perks promotions and pensions


would not be affected. On the other hand judicial reform would lead to less number of hearings, shorter period frame for disposal of cases than hitherto for, etc., which would definitely impinge on the income of the legal profession.

5. There are 26.3 million cases pending before the subordinate courts, 3 million cases pending before High courts and a large number of cases pending before the Supreme Court. Many of these cases are a few years old, some even more than ten years old. The fact that we have one of the most antiquated and painfully slow judicial systems in the world is not news. ‘Fast track’ courts set up to speed up the cases also have been caught up in the inertia that pervades the judicial system.

6.Hence, metaphorically, when the house is burning, three of the highest luminaries, i.e., President of India, Chief Justice of India and Lok Sabha Speaker had thought of throwing the ball into the other’s court for finding redress to this depressing scenario.

The President stated:

“Congestion in courts has become a daunting challenge. Case disposals are excruciatingly time consuming. This agonizing delay has rendered the common man’s knock on the doors of justice a frustrating experience. This has ominous portents. We cannot allow where the common man is tempted to take law into his own hand and subscribe to the deviant culture of lynch mob. The Bar and Bench must address themselves also to the problem of prohibitive cost of legal consultation.”






The Chief Justice stated:

“ These litigations are on account of lack of proper governmental administration. If the decision making authorities take firm, independent and impartial decisions, the citizens would not normally be driven to litigation. Government is litigant in more than 50% of the cases. The lethargic and outmoded investigation carried out by the police….coupled with the weak prosecution are hugely responsible for slowing down and protracting criminal trial.”

The Lok Sabha Speaker stated:

“ The more the judges, the more the arrears. I prefer quality to quantity and a greater display of determination rather than showmanship. The arrears could instead be reduced if judges exercised ‘ greater scrutiny’ at the admission stage. It is lamentable that there is growing trend of judges admitting petitions ‘ in galore ‘ and the ‘competitive liberalism ‘ among them to entertain petitions just to pass interim orders.”

7. As these were not enough, a group of retired judges, jurists and intellectuals had stated:

“The judiciary is working in the interest of wealthy corporate interests which control the entire ruling establishment. The increasingly elitist and anti poor attitude of the majority of judges, particularly of the Supreme Court, as reflected in their judgments was dangerous. A poor person accused of an offence has no hope in the present judicial system.”

8. Taking the last remarks first, this busybody is just off the mark. Nobody in his right sense would accuse judiciary of

working in the interest of wealthy corporate interests. Business entities can afford to engage top lawyers which improves their chances of success in the courts. However, when the dispute is between two business entities, both of which have the wherewithal to engage the best advocates, then the same cancels each other’s edge. Further, their cases are generally against Government, wherein the Government advocates are no match to the astute private legal luminaries and hence often the judgment is in favour the business entity. Poor drafting of laws by Government is another reason for quite often courts giving verdicts in favour of business entities.

9.The poor is in a disadvantageous position because he cannot afford to pay the fees of even middle level layers. Further, even a middle class person is also in the same position when he fights a corporate which had engaged a senior advocate. Coupled with this is corruption in the lower levels of judiciary, which, it is said, is rampant. But then the same is the plight of poor in all matters concerned where some Government body is involved. Hence it is a larger issue and not be tagged with the present matter.

10.The speech of the President is drafted by the Government and what was said was Government views. But then how could Government squarely place the blame on judiciary. Government has not initiated proposals to increase the number of judges in the courts or looking into the reasons for the slow process of fast tract courts or simplifying the court procedure. Government could ask Law Commission to come up with proposals to remove the ills besetting the judiciary. Based on the recommendations Government and Supreme Court could decide the course of action.


.A law is drafted by the Government. When the same is struck down by a High Court, more often than not the Government would appeal to the Supreme Court. If that is not done, then the motive of Government could be questioned.

12.Both the Chief Justice and the Speaker are somewhat off the mark.. Citizens go to the court not always for getting justice but also because of the hope of getting a favourable verdict, though may not be justified. Definitely more judges have to be inducted to reduce the mountain of arrears.

14.Why the enormous delay in courts. It is the frequent adjournments. This suits the legal profession since they charge fee based on appearance before courts. Secondly, the enormous paper work. Each case would have over 1000 pages of documents ( no exaggeration ). Inevitably the judges would have to spend a lot of time in reading the same, though much of the same would be trivia and repetition.

15.Second is the appeal provisions. Government / Supreme Court must decide that most of the cases should be settled finally at the level of High Courts. But here there is a problem. Most of the existing laws are drafted with a proviso of appeal provision to Supreme Court. But this could be overcome by an omnibus amendment to all such laws limiting High Court as the final destination.

16.Next is PIL. Why should Supreme Court get involved at all, except in rarest of rare cases. But in the last few years Supreme Court has shown its penchant to admit such cases. These could be disposed off at the level of High courts



17.Yes, the number of judges and even the number of courts have to be increased.

18.In brief, solutions can be found to the problem afflicting the judicial system in India, provided there is out of box thinking on the part of Government and judiciary. Objections to any simplification would be primarily raised by advocates / Bar Councils, since simplification is not in their interest. Some of the retired judges may also express reservations to the proposals, because their belief of superiority of legal system inherited from UK.

18.An action plan:

· Co-opt retired judges for a specified period for disposing of cases pending for more than an year.

· Revitalise fast track courts

· Only in rarest of rare cases PIL should be heard by Supreme Court. The same should be disposed off at the level of High Court. Supreme Court should involve only if more than one High Court gives conflicting judgments of PIL on same matter.

· Amend the provision in various laws to the effect that appeal provision shall rest with High Court instead of Supreme Court.

· Simplify court procedures. The length of any petition /appeal should not be more than, say, 20 pages.

· Reduce drastically adjournments.
A collegiums should be formed consisting of retired Justices of Supreme Court to scrutinize proposed amendments to existing provisions so that the body could give its view to Government. The views will be only recommendatory.

· Government / Law commission should invite comments from public on the proposed amendments and also suggestions to further improve the system.

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QUOTA FOR WOMEN MEMBERS IN PARLIAMENT - Charade and self-deception to the core

Facts

· %age of women in Parliament: World average: 16%

· Highest in Scandinavian countries: 25% to 40%
(Not the result of any Act but through the route of different parties earmarking more seats for women.)

· India: 6.5% ( 39 out of 549 members )

· Proposal of Election Commission: 33% seats be reserved for women ( Is this within the scope of Election Commission?)

· Government of India proposes to reserve 30% of seats in Parliament through an Act. Congress, BJP and Communists are in Agreement. But many other parties have not been enthusiastic about this reservation of seats for women. Partly this is an election gimmick but with the two main parties agreeing to the proposal, neither of these parties will be able to garner more votes ( from women especially ) on this plank.

· There is no such reservation of seats for women in State Assemblies

· In Panchayats 30% of seats are reserved for women

· In 2004 Parliament election only 10% were women candidates

· 22% of Lok Sabha seats are already reserved for scheduled castes and tribes. Hence if seats are reserved for women as proposed, nearly 50% of seats in Parliament would be reserved, since some of those elected may be both women and members of Scheduled castes and tribes. .

Quotas: Pros and Cons according to pundits
Quotas are invariably a controversial measure. Various arguments have been set forth for and against the introduction of quotas as a means to increase the political presence of women. Some of the pros and cons are:
Pros
Quotas for women do not discriminate, but compensate for actual barriers that prevent women from their fair share of the political seats.
Quotas imply that there are several women together in a committee or assembly, thus minimizing the stress often experienced by the token women.
Women have the right as citizens to equal representation.
Women's experiences are needed in political life.
Election is about representation, not educational qualifications.
Women are just as qualified as men, but women's qualifications are downgraded and minimized in a male-dominated political system.
It is in fact the political parties that control the nominations, not primarily the voters who decide who gets elected, therefore quotas are not violations of voters' rights.
Introducing quotas may cause conflicts, but may be only temporarily.


Cons
Quotas are against the principle of equal opportunity for all, since women are given preference over men.
Quotas are undemocratic, because voters should be able to decide who is elected.
Quotas imply that politicians are elected because of their gender, not because of their qualifications and that more qualified candidates are pushed aside.
Many women do not want to get elected just because they are women.
Introducing quotas creates significant conflicts within the party organization.
This is such an emotive subject, especially for women, that pointing out flaws in the proposal is likely to be taken amiss. Yet one cannot ignore the following:
· Achieving an objective of the State through reservation should be the last resort. All other options should be tried first. Why not go by what has been done in most countries, i.e., parties voluntarily earmarking more seats for women. It could be argued that when some of the parties are not inclined to allocate a specified number of seats for women, without the legal reservation, they may not allot many seats for women. Be that as it may. The three largest parties, i.e., Congress, BJP and Communists, who are in agreement with the proposal may go ahead and implement the same voluntarily. If this is done, in the times to come women members/voters of other parties would also urge those parties to give more seats to women.

· Reservation for women in Panchayat is there already. It is proposed to do the same in Parliament. But then why leave out State Assemblies. Logically from Panchayat the scheme should be extended to State Assemblies and then to Parliament.
· Parties would find it extremely difficult to identify enough number of women candidates to fulfill the quota.
· Should not first the political parties introspect why the number of women is a miniscule percentage in various services and professions even now, when they are not discriminated at the entry level. I am talking of various services, such as, IAS/IFS/IPS/IES/IRS, etc., and in professions,suchas,banking/legal/Accountancy/Advertisemet/Journalism/Professors/Lecturers, etc., The position in Medical services is slightly better. Women can sit in for the examinations of various services and study for various professions. Yet the fact is that the number is small. Even at the lower level of services, be it in Government or private sector, it is only in recent times that the number of women has started increasing.
· When it comes to membership of political parties, the number of women is small. Will the parties be able to get the required number of women for contesting the elections.
· Without making any value judgment for this impasse or state of affairs, the fact is that this country, and so also many other countries, had patriarchal society for millennia. The dictum is that women’s place is in the home. Emancipation of women and women movements in some of the developed countries had made a dent to this concept during the last few decades. Otherwise, the position in those countries were also the same as in India. We have only made tentative progress in this respect in the recent years. We have to go far. Hence is not the proposal similar putting the bull behind the cart.
· The rough and tumble of Indian politics ( same is the case in many other countries ) is not an inviting place for women, especially those in villages. Initiation in politics start with organizing people to attend the meetings of the netas, organizing processions, agitations, rowdyism against the activities of rival parties, coercing people to donate, participating in processions and agitating against other parties, etc., By far Indian women are less suited for these roles.
· How many educated women would jump into politics in India, given the present state of ground level reality of activities of political parties.
· Hence, if reservation is implemented, willy nilly many a woman would be cajoled to adorn the politician’s cap. Would not the same affect the quality of political activity including participation in Parliament, which has become already at the nadir.
· Those advocate for reservation of seats in Parliament for women, would quote similar reservation for scheduled castes to improve their lot. But the position or situation is not comparable. With the strong hold of caste in the thinking of Indian people, there was (and still is) unspoken yet tacit understanding among the upper echelons or higher caste people, irrespective their occupations, to discriminate against members of scheduled castes. In the case of women, while many Indians would like to continue women’s role to that of being in the home and kitchen, yet on the whole the position of women in the society or the perception of men-folk of women is not as inferior to that of males. For example, a woman holding the position of a Collector or Doctor. She is not viewed inferior to that of male. But that is not the position when it comes to scheduled castes.

· Societal changes take place because of the shift in thinking and approaches of a large mass of people to such matters or by diktat of the State, the latter option not working when society is not prepared for such change. Take the case of Family Planning. The thrust given by Government on the matter during the last few decades had only a supporting role to the attitudinal changes of people. Middle and upper classes are now wedded to the concept of not more than two children. Slowly this concept is being embraced by the poor also. In respect of the current issue also, State should give a supporting hand only when the society is prepared for such a change instead of the State taking the lead.
· To quote another example, in which the State had not played fortuitously any role, is the increasing number of women entering the white collar work force. Increasingly girls and their parents are not opting to early marriage, as was the position earlier, and instead they are joining the work force. Also after marriage and in many cases even after child/children are born, woman continue to work, and that too often not because the income from the husband/father is insufficient to make both ends meet. These are societal changes.
· The number of women in politics even from the States/ cities with higher level of education of women has not increased during the last few decades, though in such States/cities a woman standing for election does hardly face any gender inequality in the matter of voting. What this means is that the society is yet to reach that stage of increasing empowerment of women in the political arena.
· The Parliament, by all reckoning, is not doing a decent job with what it has in its hands. Let the Parliament turn its attention to this area instead of making moves which society has not yet reached the stage of accepting wholeheartedly.

Post-script
That politicians in India have alienated themselves from the people is amply evident from the fact that the above mentioned landmark political move has hardly evoked interest among the people of India. Even media has only cursorily dealt with the subject. Yes, there are women busy-bodies to whom this may be a do or die issue. Same was the scenario when a woman was elected as the President of India for the first time. Politicians went wild. Women movements hailed. But most of the people just took note of the fact and went on with their jobs. Yes, such a reservation will add strength to our interlocutors with foreign countries to hold their head high and enable them to do some thumping of the chest. The point is people don’t care whether their legislators are white, black, yellow, purple, green, short, baldy, man, woman, transvestite, etc., People want them to do a reasonably good job to which they are assigned to. With both Congress and BJP backing the move, discernible voters know that the same would cancel any advantage which either party can gain from taking the stand.
The speaker of Lok Sabha has been continuously bemoaning at the hours lost in the Parliament due to disruptions of discussions by MPs and the free for all approach increasingly being resorted to by those worthies. Hopefully more women members means less noisy scenes. But on the other side, in the past excepting a few, most of women MPs have been silent spectators in the Houses of Parliament. Higher numbers would not change the scene because many of the elected under the new dispensation ( if it is passed ) would be novices to the scene and hence may adopt the dictum of ‘ silence is golden.’