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Wednesday, December 08, 2021

Justice, bottom up

No amount of judicial reform is likely to yield results unless legal education is also cleaned up.

Written by Satyananda Mishra |
Updated: April 7, 2015 12:00:23 am
law759 I don’t know if/ when she was allowed to leave the jail. There are thousands, if not lakhs, of such persons in our prisons, permanently blighted.

At the recently concluded chief justices’ conference, the viability of setting up a judicial service commission for the recruitment of lower court judges was on the agenda. Reportedly, a panel of apex court judges is to look into the matter. The manner of the selection of lower judges urgently needs to be reformed and reoriented. I remember my first visit to Jabalpur Central Jail in 1983-84, when I was district magistrate there. In the section housing women undertrials, I met an unmarried 16-year-old girl who was alleged to have killed her newborn baby. She had already been in prison for more than two years. I left Jabalpur later that year. I don’t know if/ when she was allowed to leave the jail. There are thousands, if not lakhs, of such persons in our prisons, permanently blighted.

The unconscionable delays by the courts in deciding cases have come to be accepted as natural. Though we lament the delays every now and then, especially when sensational and dramatic cases come up. The public discourse on the functioning of the courts is muted and less strident than on the functioning of the government. This could be because only a small percentage of the population is directly affected by the courts. But it is also because we do not perceive the courts as instruments of service delivery, like we see the government. When the legal system and what is ailing it is discussed, the diagnosis of the problem and prescription for the cure are traced to the doors of the government.

But many of the ills afflicting the judicial system are inherent to it. Just like in the government, incompetent manpower and inefficient systems are responsible for both judicial delays and the poor quality of decision-making. Instead of confronting these core issues, the blame is focused on the lack of adequate numbers of courts and judges, making a qualitative problem a quantitative one.

Consider the manner of the recruitment of judges and magistrates who man the subordinate courts, the initial tiers of civil dispute resolution and adjudication of criminal cases. These judges are recruited through competitive examinations conducted by the state public service commissions. The inefficiency and lack of objectivity of these commissions are common knowledge — instances of corruption, nepotism and influence-peddling have frequently marred recruitment conducted by the commissions. Most law graduates who take these examinations come from colleges where there is no insistence on classroom attendance. Original law texts are rarely used and students depend on “key books” written by unknown authors to pass. Rarely do students from the leading law schools sit the entrance examinations.

Further, there is no arrangement for rigorous training to hone and improve the inadequate skills of the recruits before they start hearing and deciding cases. A majority of cases are decided in courts presided over by these judges. One can imagine why there are so many delays. It is in this area that reform is critically and urgently needed. As a first step, why not set up high-quality institutions in every state to train fresh recruits before they start hearing cases? But since it is the law colleges that provide the candidates for selection, it is also critical to ensure that there is a minimum acceptable level of education imparted there. The entire legal system is run between lawyers and judges. No amount of judicial reform is likely to yield results unless legal education is also cleaned up.

The idea of an Indian judicial service on the lines of all-India services like the IAS or IPS has been considered in the past and abandoned. It is worth considering again. For one, recruitment by the Union Public Service Commission would ensure utmost objectivity and transparency in selection. It would attract much better law students from across the country, at once improving the quality of judges. After two years of intensive training at the National Judicial Academy, which already exists, the recruits could be assigned state cadres and posted across the country. If we want to create a robust judicial system at the subordinate level and a rich pool to draw from for the appointment of high court and, later, Supreme Court judges, the constitution of an Indian judicial service is a sound idea.

Finally, there is an urgent need for the judiciary to revisit the manner in which cases are heard and decided. We need a ceiling on the time each party can be given to adduce its evidence, documentary or human. There should also be a limit on the number of adjournments each side can seek. We could even consider disallowing certain types of disputes from admission all together. For instance, all disputes below a certain pecuniary value need not be adjudicated by courts at all and could be left to other social devices and institutions. The solution to judicial delay is systemic reform. There will be strong resistance from vested interests. After all, delays benefit many actors. They will keep blaming the executive and ask for more courts, more judges.

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