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HindustanTimes Sat,02 Aug 2014
Fast doesn't always mean perfect
Vrinda Bhandari
April 04, 2013
First Published: 21:52 IST(4/4/2013)
Last Updated: 21:54 IST(4/4/2013)

The accused in the Delhi gang rape case are being tried in Saket's fast-track court. The decision to set up five such courts to ensure speedy justice has been praised. However, such short-term, quick-fix solutions that do not address the underlying problems plaguing the judicial system need to be carefully analysed from the access to justice point of view before we accept them. Access to justice here is understood through two lenses: that of access to courts and of the quality of justice rendered.

The issue of access can be detrimentally affected in two ways, both of which, unfortunately, exist in India. First, there are 'barriers' or 'external factors', such as monetary, institutional and geographical barriers, which fence out certain individuals and prevent them from accessing courts in the first place.

Secondly, there exists 'internal' factors that affect everyone in the system, and stem from the system itself. These arise when the legal system in question fails to satisfy what British legal scholar Adrian Zuckerman terms as the "three dimensions of justice", namely substantive justice-on-merits, timeliness, and proportionate use of resources.

Delays form a large part of this narrative, both in the civil and criminal justice system. In the criminal sphere, their effects are particularly problematic, and directly contribute to large numbers of undertrial prisoners and overcrowded prisons.

In the civil sphere, litigants are deterred by the disproportionate costs of litigation. Thus the question posed is: whether a layperson can approach the legal system, and expect an expeditious hearing, let alone a fair outcome.

The class divide becomes particularly acute when many socio-economically disadvantaged potential litigants are unable to access the judicial system to seek redress, but are forced to engage with it as accused, at the mercy of courts.

The response of successive governments has been largely instrumentalist, with a focus on filling existing vacancies, increasing the number of courts and judges and enlarging the judiciary's budgetary allocation. It has also resulted in a trend towards 'tribunalisation' of justice, with the advent of fast-track courts, jail-adalats, lokayuktas and gram-nyayalayas (especially for rural litigants).

Tribunalisation has resulted in the emergence of two distinct legal systems, one for the well-resourced urban litigator and the other more 'second hand' one for the poorer, rural litigant, a phenomenon termed by Marc Galanter and Jayanth Krishnan as "debased informalism".

However, the problem in the Indian legal system is not the vast number of cases going in. It is the relatively smaller number coming out. Consequently, we need to switch our attention from trying to divert cases away from the courts to strengthening the judiciary from within.

The third dimension of justice is premised on the limited resources available to the court and the need for judges to manage their dockets better. Undue delays are often occasioned by improper case management with judges failing to exert control over the conduct of litigation.

While it is clear that this directly affects the parties to the litigation, the adverse impact of the court's decision on its overall case load and existing cases is often missed.

Although the SC first mooted the idea of case management in Salem Advocates Bar Association vs Union of India in 2003 and the Law Commission followed it up by releasing a Consultation Paper on case management in 2003, neither the government nor the judiciary have considered these proposals seriously.

Nevertheless, injustice is more than just a fundamental question of access. It also incorporates the important notion of the quality of justice, which forms the second component of the 'access to justice' framework.

This is the problem of inconsistent and arbitrary application of the law, whether as a result of personal predilection of judges, fragmented two-judge bench decisions (which prevent the SC from speaking in one voice) or the often low quality of judging.

For the rule of law to be effective, we need a judicial system that is capable of enforcing rights in a timely and proportionate fashion and in a manner that inspires public confidence in the administration of justice. This requires more than just setting up fast-track courts in response to calls for swift dispensation of justice.

Vrinda Bhandari is a Rhodes Scholar and is currently reading for her BCL at Magdalen College, University of Oxford. The views expressed by the author are personal.


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