July , 2019
Judicial reforms – the need of the hour
16:36 pm

Sunil Kanoria

The judiciary of our country is highly respected across the world for its path-breaking judgments and fearlessness. But one scathing criticism against it is the glacial pace at which it functions. The judicial infrastructure is extremely inadequate to deal with the massive backlog of cases. There are around 3.93 million pending cases in the Supreme Court and the 24 High Courts and 29.7 million pending cases in the lower courts. The adage ‘justice delayed is justice denied’ sums up the state of our judiciary. Court cases often stretch for years and this encourages potential law breakers as they know that even if they do wrong, they are unlikely to get punished in the near future. Things have come to such a pass that there is a growing reluctance towards filing civil cases and people prefer settling cases out of court. This is not only detrimental in terms of mass erosion of faith in the nation’s judicial system, but it also impacts India’s appeal as a destination for foreign investment.

Judicial reforms are needed on multiple fronts. First and foremost, it is unfair to expect global levels of efficiency unless the judiciary is supported with global standards of infrastructure and remuneration. A major revamp of the court infrastructure is needed. Many court buildings have not experienced any expansion ever since they were built. Capacity addition through new buildings and renovation of existing ones can make a significant difference.

Commercial disputes are growing alongside the country’s growing economy. Taking inspiration from best practices in jurisdictions such as the United States, the United Kingdom, Australia, and Singapore, the Commercial Courts, the Commercial Division and Commercial Appellate Division of High Courts Act, 2015, was enacted to establish special commercial courts for speedy disposal of ‘commercial disputes’ and to reduce the existing workload of Indian courts. The law enabled the creation of commercial courts in districts in various states. However, the law puts the onus of providing an enabling framework and infrastructure for commercial courts on the respective state governments. The state governments are also to establish necessary facilities providing for training of Commercial Courts Judges because the business expertise of the judges that preside over such courts is a major issue.

The legal curriculum must be made multi-disciplinary, dynamic, and flexible. The need for speedy and quality justice delivery should be inculcated among law students. The law schools / institutions should have regular interactive sessions with eminent practitioners of law and experts from various fields so that students’ perspective does not get limited by academics only. There is also a need for organising regular training sessions on commerce for the judges. This will help them become more aware of the commercial implications of their decisions.

To expedite justice delivery, the lower courts, i.e., the district and session courts and also the various tribunals and appellate boards need to be strengthened. Criminal cases, especially cases related non-cognisable offences, should be tried and heard in a time-bound manner.

The number of judges is also a major issue. The sanctioned strength of High Court judges, as on December 2018, stood at 1,079. But the current working strength of judges is just 679, with 37% of the sanctioned strength vacant. This shortage can be plugged to an extent by raising the retirement age of judges. The current age of retirement for Supreme Court judges is 65 years while that for High Court Judges is 62 years. With rapid progress in medical sciences and general increase in life-expectancy and fitness levels, this age-limit can be easily raised to 70. On the other hand, the minimum age for becoming eligible to be a judge may be brought down to 40 from 45 – especially for judges for commercial courts.

For a country like India where the number of pending cases runs into millions, courts remaining closed for long periods is not a viable option. The policy of our courts remaining closed for fixed periods every year needs to be reviewed. In this context, it is worth considering the suggestion made by former Chief Justice of India, R.M. Lodha. He said that courts should function throughout the year. But this does not mean any curtailing of vacations available to judges. Judges would be entitled to as many days of holidays as they are entitled to, but it should be whenever they choose, rather than on fixed days and at fixed periods of the year. The Registry will then finalise the sittings. However, keeping in mind the total number of days, the various categories of courts remain closed during the year (that is a minimum of almost 150 days each year for the lower courts and much more for the higher courts), there’s a need to review the annual holiday calendar of each category and rationalise the lists.

The author is the Vice Chairman – Srei Infrastructure Finance Ltd.


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