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Court the changes

Let’s use arbitration, conciliation and mediation popular in the West to end disputes faster. It saves both time and money, writes Rahul Sharma.
Hindustan Times | By Rahul Sharma
UPDATED ON APR 02, 2008 05:13 PM IST

Some time ago a farmer in Uttar Pradesh was talking about his extended family, his cousins who lived in various parts of the country. One of them, he said, was a police inspector guarding a judge.

The inspector had not been transferred in many years because, as the farmer related in a secretive tone, he was the frontman for all the deals the judge cut with petitioners and lawyers appearing in his court. I am not sure whether to believe him, but the story definitely tells a lot about the sorry state of our judiciary.

Gone are the days when judges were considered to be clean and honest. Lawyers are seen as out to fleece the poor stuck in legal logjams for decades. Many years ago, a lawyer in Varanasi gave me his address as “Step Number 16, Main Staircase, District Court.” The staircase crowded with paan-chewing lawyers in black jackets, stained white trousers and with pens stuck on their ears, was a pathetic symbol of our judiciary.

Three crore cases are pending in Indian courts. Tens of thousands more are with various special tribunals that were created to clear the pending cases. And guess what? The Chief Justice of India is arguing that it is poor governance that has led to the way the judiciary works.

Courts have a huge role to play in bringing order to the chaos we live in, and they have indeed done some good work in the past. They themselves have held that speedy trial is part of the right to life and liberty guaranteed under Article 21 of the Constitution. But increasingly delayed justice is forcing people to take the law into their own hands. In this age, most have little time or patience to go knock at a court, knowing fully well that it amounts to a loss of at least 10 good years of life. President Pratibha Patil’s criticism of the judiciary for the huge backlog of cases, followed by questions raised by Speaker Somnath Chatterjee over the government’s decision to increase the number of Supreme Court judges point to the growing frustration with a system where millions waste their lives trying to get what should be theirs by right — justice. Patil was correct in raising the red flag over the possibility of people subscribing to “the deviant culture of the lynch mobs”. Every week there are reports of people taking the law into their hands — beating and killing others rather than handing them over to police and courts.

Our judges, who happily select themselves to the exalted positions, don’t seem to find merit in what others — including those who went before them — have to say about the mess and corruption in the judiciary. Some have chosen to wear blinkers. But let’s also be honest — the debate on the state of courts should not be seen as a blame-game between the executive and judiciary, but an opportunity for introspection for all in an attempt to find long-lasting solutions.

The judiciary has an important place in our democracy, but it should be more accountable. Like our spy agencies, should the judiciary be run like an old boys’ club, veiled forever in secrecy? Not at a time when there are open charges of corruption against some individuals who have been part of the institution. If a former chief justice of the country says that 20 per cent of the judges are corrupt, there are strong reasons to worry about the state of our judiciary.

However, the judiciary also faces hurdles. The Chief Justice of India says that the huge arrears of cases are mainly because there is no scrutiny before the government — the country’s biggest litigant — files cases. The judiciary also does not have money, and perhaps the poorest judge-to-population ratio in world.

Two decades ago, the Law Commission of India said that the judge-population ratio, which was 10.5 judges for every 10-lakh people then, should have been at least 50. It also said that by 2000 India should have at least 107 judges per 10-lakh population.

The situation today has barely improved since that 1988 report. Currently, the ratio is a dismal 12-13 per 10 lakh people. Compare that with the following international scenario 12 years ago: Australia had 41 judges for every million of its people; Canada had 75, Britain 51 and the United States 107. If we want to get anywhere, we need to increase the number of judges — but in the subordinate courts, where most cases are pending.

Governance in our country, where large swathes have no government, is definitely a worrisome issue. Over the past decades, the rot has sunk in too deep. Politicians, police and the bureaucracy are steeped in corruption. Judiciary, which was largely seen as a clean institution, also stands accused in parts. Where does that leave a common man? The joke in our country has always been that you should stay away from a police station, a government hospital and a court. Elsewhere these three institutions are not only respected but also frequently visited — by people like us who believe in a system that delivers.

This has to change. The first step towards ensuring that laws are acceptable should be to start assessing their judicial impact before enacting and notifying them. Judges should also stop taking those long vacation. In most developed countries, there is no provision for breaks. The vacation bench should have left Indian shores with the British, but unfortunately that did not happen.

New talent and new approaches are needed. The days when the same judge heard civil, criminal, matrimonial and financial cases are over. Let’s do some outside-the-box thinking and use arbitration, conciliation and mediation popular in the West to end disputes faster. It saves both time and money. Is someone listening?

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