REFORMS IN THE JUDICIARY – SOME SUGGESTIONS

GOVERNMENT OF INDIA
LAW
COMMISSION
OF
INDIA
REFORMS IN THE JUDICIARY – SOME SUGGESTIONS

Dear Dr Veerappa Moily ji,
Subject: REFORMS IN THE JUDICIARY – SOME SUGGESTIONS
I am forwarding herewith the 230th Report of the Law Commission
of India on the above subject.
2. The Law Commission has already given varied recommendations
in its earlier reports on the subject of reforms in the judiciary, which is a
subject very dear to my heart. The present Report is in the continuum of
those reports and has drawn on my very recent book titled The Judge
Speaks.
3. The recommendations in this Report are the suggestions made by
the Hon’ble Shri Justice Asok Kumar Ganguly, a Judge of the Supreme
Court, which are as under:
[1] There must be full utilization of the court working hours.
The judges must be punctual and lawyers must not be asking
for adjournments, unless it is absolutely necessary. Grant of
adjournment must be guided strictly by the provisions of
Order 17 of the Civil Procedure Code.
[2] Many cases are filed on similar points and one judgment can
decide a large number of cases. Such cases should be
clubbed with the help of technology and used to dispose
other such cases on a priority basis; this will substantially
reduce the arrears. Similarly, old cases, many of which have
become infructuous, can be separated and listed for hearing
and their disposal normally will not take much time. Same is
true for many interlocutory applications filed even after the
main cases are disposed of. Such cases can be traced with
the help of technology and disposed of very quickly.
[3] Judges must deliver judgments within a reasonable time and
in that matter, the guidelines given by the apex court in the
case of Anil Rai v. State of Bihar, (2001) 7 SCC 318 must
be scrupulously observed, both in civil and criminal cases.
[4] Considering the staggering arrears, vacations in the higher
judiciary must be curtailed by at least 10 to 15 days and the
court working hours should be extended by at least half-anhour.
[5] Lawyers must curtail prolix and repetitive arguments and
should supplement it by written notes. The length of the oral
argument in any case should not exceed one hour and thirty
minutes, unless the case involves complicated questions of
law or interpretation of Constitution.
[6] Judgments must be clear and decisive and free from
ambiguity, and should not generate further litigation.
[7] Lawyers must not resort to strike under any circumstances
and must follow the decision of the Constitution Bench of
the Supreme Court in the case of Harish Uppal (Ex-Capt.) v.
Union of India reported in (2003) 2 SCC 45.
With warm regards,
Yours sincerely,
(Dr AR. Lakshmanan)
Dr M. Veerappa Moily,
Union Minister of Law and Justice,
Government of India,
Shastri Bhawan,
New Delhi – 110 001.

REFORMS IN THE JUDICIARY – SOME SUGGESTIONS
Contents Page Nos.
I. THEMES AND THOUGHTS 9 – 35
II. RECOMMENDATIONS 36 – 37
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I. THEMES AND THOUGHTS
1.1 The formation and functioning of the High Courts in India need
drastic changes so that the people of the country may have fair and
speedy justice and more faith in the system.
Selection and appointment of High Court Judges
1.2 The post of the Judge of a High Court has importance under our
Constitution and the incumbent is supposed to be not only fair, impartial
and independent, but also intelligent and diligent. The general eligibility
criterion is that a person should have put in ten years of practice/service
in the legal/judicial field.
1.3 As a matter of practice, a person, who has worked as a District
Judge or has practised in the High Court in a State, is appointed as a
Judge of the High Court in the same State. Often we hear complaints
about ‘Uncle Judges’. If a person has practised in a High Court, say, for
20-25 years and is appointed a Judge in the same High Court, overnight
change is not possible. He has his colleague advocates – both senior and
junior – as well as his kith and kin, who had been practising with him.
Even wards of some District Judges, elevated to a High Court, are in
practice in the same High Court. There are occasions, when advocate
judges either settle their scores with the advocates, who have practised
with them, or have soft corner for them. In any case, this affects their
impartiality and justice is the loser. The equity demands that the justice
shall not only be done but should also appear to have been done. In
government services, particularly, Class II and upward, officers are not
given posting in their home districts except for very special reasons. In

any case, the judges, whose kith and kin are practising in a High Court,
should not be posted in the same High Court. This will eliminate “Uncle
Judges”.
1.4 Sometimes it appears that this high office is patronized. A person,
whose near relation or well-wisher is or had been a judge in the higher
courts or is a senior advocate or is a political high-up, stands a better
chance of elevation. It is not necessary that such a person must be
competent because sometimes even less competent persons are inducted.
There is no dearth of such examples. Such persons should not be
appointed and at least in the same High Court. If they are posted in other
High Courts, it will test their calibre and eminence in the legal field.
1.5 The post of Chief Justice should not be transferable. This practice
was introduced in our country after the ‘Emergency’ had been imposed.
If we look back, we find that the High Courts earlier had better reputation
than what they have at present. The Chief Justice, who comes on transfer
for a short period of six months, one or two years, is a new man, rather
alien for the place and passes his time anyhow. He has to depend on
others for policy decisions in administrative matters. If the Chief Justice
is from the same High Court, he will be in a better position to not only
control the lower judiciary but also to assess the persons both from the
bench and the bar for elevation to the High Court. This will also curtail
the unnecessary delay in filling up the vacancies in the High Courts. If
the functioning of the High Courts is to be improved, the policy of
transferring the Chief Justices should be given up forthwith. When the
policy of transfer of Chief Justices was finally upheld by the Hon’ble
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Supreme Court, an eminent jurist of the country commented that the
judiciary had committed suicide. Now the time has come when this
policy needs re-evaluation.
Age of retirement
1.6 When we adopted and gave to ourselves the Constitution in 1949,
the retirement age of Judges was fixed at 60 years for High Courts and 65
years for the Supreme Court. For the High Court Judges, 60 years was
increased to 62 years in 1963. At that time the normal life expectancy
was about 60 years. With the changes in social and financial set-up as
well as medical facilities, the present normal life expectancy is about 70
years. Barring few exceptions, a person is fit and fine at the age of 62 or
even 65 years. In our country, except for the judges, the retirement age in
some quasi-judicial bodies has been increased. The retirement age in
different tribunals has now been increased to 70 for chairmen and 65 for
members. In the circumstances, the constitutional provisions need a
change for enhancing the age of retirement of High Court and Supreme
Court Judges at least by three years.
Increase in number of judges and creation of new Benches
1.7 In almost every High Court, there is huge pendency of cases and
the present strength of the judges can hardly be said to be sufficient to
cope with the alarming situation. The institution of cases is much more
than the disposal and it adds to arrears of cases. The litigating citizens
have a fundamental right of life i.e. a tension-free life through speedy
justice-delivery system. Now it has become essential that the present
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strength of the judges should be increased manifold according to the
pendency, present and probable.
1.8 It is also necessary that the work of the High Courts is
decentralized, that is, more Benches are established in all States. If there
is manifold increase in the strength of the judges and the staff, all cannot
be housed in one campus. Therefore, the establishment of new Benches is
necessary. It is also in the interest of the litigants. The Benches should be
so established that a litigant is not required to travel long.
1.9 It is true that the new establishments will require money, but it is
necessary as a development measure, particularly, when efforts are being
made for all-round development of the country. Therefore, the money
should not be a problem. We have to watch and protect the interest of the
litigants. We must always keep in mind that the existence of judges and
advocates is because of the litigants and they are there to serve their
cause only.
1.10 Sometimes, some advocates object to creation of new Benches and
selection of new sites for construction of new buildings. But they raise
objections in their personal, limited interest. Creation of new Benches is
certainly beneficial for the litigants and the lawyers and a beginning has
to be made somewhere.
1.11 There is huge pendency of cases in the apex court also. Now the
time has come when not only the strength of the Hon’ble Judges in the
Supreme Court should be increased and recommendations are made to
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fill up the vacancies soon but new Benches be also established in
southern and eastern regions.
Number of working days and vacations
1.12 Considering the huge pendency of cases at all levels of judicial
hierarchy, it has become necessary to increase the number of working
days.
1.13 It has to be introduced at all levels of judicial hierarchy and must
start from the apex court. With the increase in the salaries and perks of
the Judges, it is their moral duty to respond commensurately.
Opportunities to attend conferences/legal seminars in foreign countries
should be given to all the Judges of the Supreme Court and Chief Justices
of the High Court in turn. Frequent visits by the Judges to foreign
countries at very high cost should be avoided in view of the austerity
measures by the Government of India.
Work culture
1.14 Of late, there has been a general erosion of work culture
throughout the country. Government servants avoid discharging their
duties and responsibilities. The Judiciary has also been affected by this
evil.
1.15 It is high time when all the judges at different levels of judicial
hierarchy must devote full time to judicial work and should not be under
any misconception that they are Lords or above the society. Though this
feeling should come from within, but some guidelines are necessary.
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Once judgments are reserved on constitutional matters by larger bench or
otherwise, the judgments should be delivered within a reasonable time.
There is long and inordinate delay in delivering judgments which should
be avoided in public interest. If these suggestions are implemented, the
functioning of the courts shall certainly improve.
Speedy justice
1.16 Speedy justice is the right of every litigating person. There is no
denying the fact that delay frustrates justice. In the present set-up it often
takes 10 – 20 – 30 or even more years before a matter is finally decided.
In the recent past, litigation has increased immensely. The population
growth, improved financial conditions, lack of tolerance and materialistic
way of life may be some of the causes. But the delay in dispensation of
justice has to be eliminated by taking effective steps otherwise the day is
not far when the whole system will collapse. Recently, one Hon’ble
Judge of Delhi High Court calculated that 464 years will be required to
clear the arrears with the present strength of the judges in that High
Court. The position may not be that gloomy but is still alarming.
1.17 In Allahabad High Court, more than eight and a half lacs of cases
are pending. Criminal appeals of the year 1980-82, criminal revisions of
the year 1990-95 are still pending. In second civil appeals and writ
matters the position is almost same. The position is the same in all other
High Courts. Institution of cases is much more than disposal and it adds
to the arrears almost at all levels of judicial hierarchy. Even in
subordinate courts, there is huge pendency of cases.
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1.18 As stated above, in order to meet this contingency substantial
increase in the number of judges and corresponding infrastructure is
required at the earliest. Even if the judges and class III and IV employees
are appointed, say, within three to six months basic infrastructure will
need time. However, the money should be not a problem. It should be
treated as a developmental work, a work to provide justice to all, a
principle enshrined in the Preamble of our Constitution.
1.19 An effort has been made in Gujarat State and Delhi to have some
evening courts. The same system can be introduced in other States as
well.
1.20 The constitutional promise of securing to all its citizens justice,
social, economic and political, as promised in the Preamble of the
Constitution cannot be realized unless the three organs of the State i.e.
legislature, executive and judiciary join together to find ways and means
for providing to the Indian poor equal access to its justice system.
1.21 Speedy trial is guaranteed under article 21 of the Constitution of
India. Any delay in expeditious disposal of criminal trial infringes the
right to life and personal liberty guaranteed under article 21 of the
Constitution. The debate on judicial arrears has thrown up number of
ideas on how the judiciary can set its own house in order. Alarmed by the
backlog of inordinate delay in disposal of cases, Fast Track Courts or
Special Courts have to be constituted. Thus, Fast Track Courts are to
tackle the section 138 Negotiable Instruments Act cases as the graph of
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such pendency is very high and alarming. It is high time to restore the
confidence of people in the judiciary by providing speedy justice.
1.22 It is not uncommon for any criminal case to drag on for years.
During this time, the accused travels from the zone of “anguish” to the
zone of “sympathy”. The witnesses are either won over by muscle or
money power or they become sympathetic to the accused. As a result,
they turn hostile and prosecution fails. In some cases, the recollection
becomes fade or the witnesses die. Thus, long delay in courts causes
great hardship not only to the accused but even to the victim and the
State. The accused, who is not let out on bail, may sit in jail for number
of months or even years awaiting conclusion of the trial. Thus, effort is
required to be made to improve the management of prosecution in order
to increase certainty of conviction and punishment for most serious
offenders. It is experienced that there is increasing laxity in the court
work by the police personnel, empowered to investigate the case.
1.23 Judiciary today is more deserving of public confidence than ever
before. The judiciary has a special role to play in the task of achieving
socio-economic goals enshrined in the Constitution while maintaining
their aloofness and independence. Judges have to be aware of the social
changes in the task of achieving socio-economic justice for the people.
Justice at easy reach
1.24 The Indian judicial system is constantly exposed to new
challenges, new dimensions and new signals and has to survive in a
world in which perhaps the only real certainty is that the circumstances of
16
tomorrow will not be the same as those of today. The need of the hour is
to erase misconception about the Judiciary by making it more accessible
by utilizing the resources available to improve the service to the public,
by reducing delays and making courts more efficient and less daunting.
1.25 Regarding decongestion, greater responsibility lies on the
shoulders of the Governments of States or the Central Government. They
are biggest litigants in the courts. They should approach the courts or
contest cases only if necessary and not just to pass on the buck or contest
for the sake of contesting. The time consumed in most of the cases by
Courts of Sessions is somewhat under control and most of the cases are
decided in a reasonable time-schedule. Main problem is about huge
pendency in Magisterial Courts and the High Courts. It is absolutely
essential to have additional courts for specifically trying the complaint
cases filed under section 138 of the Negotiable Instruments Act. The
present state of affairs defeats the very object with which the provision
was inserted in the Negotiable Instruments Act. Further, large numbers of
petty offence cases should be taken out of the normal court channel to be
decided by the Special Magistrates by appointing retired officers as
Special Magistrates.
1.26 A speedy trial is not only required to give quick justice but it is
also an integral part of the fundamental right of life, personal liberty, as
envisaged in article 21 of the Constitution. The Law Commission is
putting forth few suggestions to identify and remedy the causes of such
delays in this Report, of course, after identifying major hurdles and
impediments which cause delay in the disposal of criminal cases.
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1.27 The Law Commission of India is of the firm opinion that
considering the alarming situation and the pendency of cases and the
constitutional rights of a litigant for a speedy and fair trial, the
Government of India should direct the State authorities to set up Fast
Track Courts in the country, which alone, in the opinion of the Law
Commission, will solve the perennial problem of pendency of cases.
Integrity, virtue and ethics
1.28 The term integrity when applied to human attributes refers to
honesty, reliability, purity, trustworthiness, incorruptibility, sincerity,
honour, decency, etc. Mahatma Gandhi at one time said that “purity of
life is the highest and truest art”.
1.29 And in the words of Marcus Aurelius, “a man should be upright,
not be kept upright”. A person of integrity will do the right thing even
when nobody is watching. Mahatma Gandhi said that “the truest test of
civilization, culture and dignity is character and not clothing”.
Governance
1.30 The term ‘governance’ is derived from a Latin term that literally
means steering. It refers to the processes and systems by which an
organization or society operates; the processes by which decisions are
made that define expectations, grant power, or verify performance.
1.31 The ideal concept of public officer, expressed by the words ‘a
public office is a public trust’, signifies that the officer has been entrusted
18
with public power by the people; that the officer holds this power in trust
to be used only for their benefit and never for the benefit of himself or of
a few; and that the officer must never conduct his own affairs so as to
infringe the public trust.
1.32 Citizens have a legitimate expectation that the public servants will
serve the public interest with fairness and manage public resources
properly on a daily basis. The increased democratization and
globalization has resulted in increased visibility of the public officials.
Critical questions are nowadays asked about the way in which cases have
been dealt with, the justice of the decisions, the exercise of discretions,
and the morals of public servants. Leaders are increasingly being called
upon to account for their actions by the communities affected by those
actions.
Anti-corruption
1.33 Corruption in reference to public office has been defined as the
abuse of power for purposes of private gain.
1.34 In public affairs, there often arises a conflict between private
wealth and public power. This is often the result of selfishness and greed.
Mahatma Gandhi said that the earth provides enough to satisfy every
man’s needs, but not enough to satisfy every man’s greed. The conflict
needs to be mediated upon. Institutions that fail to mediate between
private wealth and public power run the risk of becoming dysfunctional
and trapped by wealthy interests. Corruption is one symptom of such
failure whereby personal interests overcome public goals.
19
1.35 Fighting corruption is one of the facets of promoting good
governance. But governance issues are far much broader than anticorruption
alone. For example, a public officer may be honest and yet
inefficient or incompetent. Efforts to promote good governance must
therefore be broader than anti-corruption campaigns.
1.36 Article 14 of the ‘Basic Principles on the Role of Lawyers’
adopted by the Eighth United Nations Congress on the Prevention of
Crime and the Treatment of Offenders, Havana, Cuba, in 1990 states:
“Lawyers, in protecting the rights of their clients and in promoting
the cause of justice, shall seek to uphold human rights and
fundamental freedoms recognized by national and international
law and shall at all time act freely and diligently in accordance
with the law and recognized standards and ethics of the legal
profession.”
1.37 Continuing professional development is necessary for all legal
practitioners, State law officers and judicial officers to improve and
sustain their proficiency. There should be put in place mechanism for
refresher courses and attendance at them as a pre-condition for renewal
of practising certificates for advocates.
1.38 The Indian Constitution is the source of every law that was and is
prevalent in our society. The Constitution guarantees to all Indian
citizens equal protection of public as well as personal rights. But these
rights are of no avail if an individual has no means to get them enforced.
The enforcement of the rights has to be through the courts, but judicial
20
procedure is very complex, costly and dilatory putting the poor at a
distance from justice.
1.39 The Britishers established the current pattern of legal system
present in India today, after the establishment of the English rule in the
country. In the year 1857, the first step was taken in the direction of
imparting formal legal education in the country. The Britishers began
enacting statutes, after the revolt of 1857, which resulted in the
introduction of a legal system that was moulded along the lines of the
legal system then prevailing in the United Kingdom with an exception to
laws pertaining to religious denominations in India.
Access to justice
1.40 Traditional concept of “access to justice” as understood by
common man is access to courts of law. For a common man, a court is
the place where justice is meted out to him/her. But since the laws
enacted were in English and the proceedings of all the courts were highly
complicated, confusing and expensive for the Indian public, the ‘English’
illiterate Indian public found it difficult to get access to the justicedelivery
system. As a solution, the need to have lawyers was felt as an
effective mediator between the legal world and the common man.
Therefore, we can see that a lawyer in addition to being champion at the
various laws also has a social responsibility of helping the ignorant and
the underprivileged to attain justice.
1.41 The State in contemporary scenario is welfare-oriented. It is one of
the most important duties of a welfare state to provide judicial and non-
21
judicial dispute resolution mechanisms to which all citizens have equal
access, for the resolution of their legal disputes and enforcement of their
constitutionally guaranteed fundamental rights. Poverty, ignorance or
social inequalities should not become barriers to it.
1.42 Article 39A of the Constitution provides for equal justice and free
legal aid. The said article obligates the State to promote justice on a basis
of equal opportunity and, in particular, provide free legal aid by suitable
legislation or schemes or in any other way, to ensure that opportunities
for securing justices are not denied to any citizen by reason of economic
or other disabilities.
1.43 Lok Adalats, Nyaya Panchayats, Legal Services Authorities are
also part of the campaign to take justice to the people and ensure that all
people have equal access to justice in spite of various barriers like social
and economic backwardness.
1.44 Large population, more litigation and lack of adequate
infrastructure are the major factors that hamper our justice system.
Regular adjudication procedures through the constant efforts of Legal
Services Authorities will act as catalysts in curing these maladies of our
system.
1.45 Disposal of legal disputes at pre-litigative stage by permanent and
continuous Lok Adalats would provide expense-free justice to the
citizens of this country. It also saves the courts from additional and
avoidable burden of petty cases enabling them to divert their court-time
to more contentious and old matters. Legal literacy and legal awareness
22
are the principal means to achieve the objective for ensuring equality
before law for the citizens of our country.
1.46 Legal profession of the country, as we know it today, is more than
two centuries old. We can legitimately expect that the future of this
profession ought to be very bright, particularly in the context of the
enormous strides our country is making in various fields and human
rights awareness. Public interest has to be its motto and service in the
cause of justice its creed. Mahatma Gandhi was a barrister who practised
law without compromising truth. Abraham Lincoln said: “Discourage
litigation, persuade your neighbours to compromise whenever you can.
Point out to them how the nominal winner is often a real loser in fees,
expenses and time”.
1.47 A stark reality that stares at our face is the fact that more than 70%
of the people of this country are illiterate. The noble objective flowing
from the Preamble of the Constitution and the earnest wish and hopes
expressed in the Directive Principles shall remain on paper unless the
people in this country are educated.
Alternate Dispute Resolution
1.48 With the march of time, new demands emerge, which sometimes
make the existing system outdated or non-functional, requiring it to be
replaced by a new one. Law should also respond to the demands of the
society. The alternate dispute resolution methods have evolved as a result
of this vision.
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1.49 The first avenue where the conciliation has been effectively
introduced and recognized by law is labour law, namely, the Industrial
Disputes Act, 1947. Conciliation has been statutorily recognized as an
effective method of dispute resolution in relation to disputes between
workers and management. The only field where the courts in India have
recognized Alternate Dispute Resolution (ADR) is in the field of
arbitration. Another area where ADR is recognized in India is family law.
The legislation which emphasizes ADR is the Legal Services Authorities
Act 1987.
1.50 Provisions have been made in the Legal Services Authorities Act
for settling cases through Lok Adalats; a Lok Adalat generally comprises
a judicial officer, serving or retired, a lawyer, and a person of a social
welfare association, preferably, a woman. Power has been given to Lok
Adalats to dispose of disputes referred to them by arriving at a
compromise or settlement between the parties; awards of Lok Adalats are
deemed to be decrees of civil courts or orders of other courts or tribunals;
every award made by a Lok Adalat is treated as final and binding on all
the parties to the dispute, and no appeal lies to any court against the
award.
Advantages of ADR
1.51 Advantages of ADR are many – it is less expensive, less timeconsuming,
free from technicalities vis-à-vis conducting of cases in law
courts, parties involved are free to discuss their differences of opinion
without any fear of disclosure before any law courts, and the last, but not
the least, there is no winning or losing for any of the parties involved; so,
24
their grievances are redressed without causing any damage to the
relationship between them.
1.52 Another right and welcome step taken was the enactment of the
Consumer Protection Act 1986 (CP Act) for settlement of consumer
disputes and for matters connected therewith. The aim of the CP Act is to
provide for an effective, inexpensive, simple and speedy redressal of
consumer grievances, which civil courts are not able to provide.
1.53 The Family Courts Act 1984 (FC Act) was enacted to provide for
the establishment of Family Courts with a view to promote conciliation
in, and secure speedy settlement of, disputes relating to marriage and
family affairs and for matters connected therewith.
1.54 The Law Commission of India in its 59th Report (1974) had also
stressed that in dealing with disputes concerning the family, the court
ought to adopt a humane approach different from that adopted in ordinary
civil proceedings, and that it should make reasonable efforts at settlement
before commencement of the trial.
Appointment of judges
1.55 In selecting persons for appointment as judges, every endeavour
should be made to ensure that persons committed to the need to protect
and preserve the institution of marriage and to promote the welfare of
children and qualified by reason of their experience and expertise to
promote settlement of disputes by conciliation and counselling are
selected. Justice in all its facets – social, economic and political – is to be
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rendered to the masses of this country without any further loss of time –
the need of the hour.
Three players in Judiciary
1.56 The first player is the Government. The Government is mostly at
fault by not filling up vacancies which they know well in advance. The
Government fails in appointing quality judges and providing proper
infrastructure, including the basic things like a good library, typists, etc.
1.57 The second player is the lawyers. We should realize that
adjournments, even if they are in favour of clients, are not in favour of
the system. In a number of regulatory cases, there is no real need for
appeals or adjournments. Given the huge backlog of cases, practical ways
and means need to be thought of, to solve such problems. Ethics of
lawyers has also become questionable. There is a Bar Council that has to
look after ethics of lawyers, but it has rarely taken action against tainted
lawyers. Everything becomes customary and loses meaning.
1.58 The third player, of course, is the judges. Unless they display
work-ethics, no recommendations can be of use to them. Fairness, speed
and quality should be key values for the judiciary, as for all other sectors.
1.59 The Judiciary is under great pressure. We have about 10-11 judges
per million population right now. The Supreme Court has recently
directed that we should have 5 times the number of judges we currently
have.1
1 All India Judges’ Association v. Union of India, (2002) 4 SCC 247
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Reforms
1.60 All reforms need to take place in an integrated manner. The police,
prosecution, lawyers and courts, must be thought of as being cohesive.
The topic of judicial reforms has of late become very important because
the public has lost faith in the system. Judicial accountability is
connected with the larger area of judicial reforms. Everyone is concerned
about the large delays in disposal of cases, and the agenda for judicial
reforms must first tackle the problem of this backlog. We have seen a lot
of Law Commission Reports and various suggestions – one of which is
the formation of tribunals to take away some of the workload of High
Courts, but still, High Courts are burdened with a large number of cases.
Increasing the manpower in judiciary is the need of the hour. Also, the
problem faced by the judiciary can be solved, if we have scientific data
about the cases that clog the dockets.
Pendency
1.61 Pendency is a normal feature of any system but is assuming great
proportions in courts. This will necessitate courts to prescribe time-limits
for all cases. To deal with this, there can’t be one prescribed limit, but the
kinds of cases need to be identified and prioritized. So setting timestandards
is essential and it will vary for different cases, and also for
different courts depending on their disposal-capacity. This will be
necessary to assess the performance of the courts and judicial
accountability.
Technology
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1.62 We have modern technology, which facilitates us to collect a lot of
information and making it available to Chief Justices, so that they are
able to allocate their manpower efficiently. Digital techniques and tools
are at our disposal, to collect information from an entire database from
the time a case is instituted in a court of law to the final stages of appeal.
Building up a judicial database will enable us to assess the performance
of the courts as an institution, and the Chief Justices will be able to use it
to assess the individual performance of judges. This will go a long way in
identifying what the backlog is, what types of cases are clogging the
dockets, etc.
1.63 As a part of digital resource management, we have home pages and
websites, where judgments of courts can be instantly posted. At the
moment, it takes a long time for courts to give copies of judgments; with
being instantly posted on the home page, they will be easily and readily
available to everyone. This is an important step for using the technology
effectively, to expedite the process of judgments being accessible.
1.64 Now, digital technology offers us new packages like database, ERP
tools, court management practices – these will help in increasing the
productivity of courts; video-conferencing – through which we can
record evidence. There is, therefore, vast technology available for the
courtroom, for enhancing the quality of justice, and finding the truth –
after all, justice is the finding of truth. Coming back to accountability,
like any institution, judiciary is not devoid of vices, but still they are akin
to temples of justice. But still, corruption cannot be acceptable. How does
one deal with corruption? Impeachment was thought to be the remedy to
28
deal with errant judges, but we found that it is not working well; we have
to find some internal institutional mechanism, a sort of peer committee,
enabling judges to deal with such issues. We are not very sure that
increasing number of courts and judges will ameliorate the situation,
unless there is a simultaneous productivity increase in courts! We feel
strongly about the issue!
1.65 Judicial reform, as is being looked at, is essential for the country’s
overall development, not just economic; in India, the problem is more
human than economic. Ninety per cent of the litigation is by rural people;
parties are fighting for even half an acre of land; families are being
ruined. Therefore, there has to be an overall solution.
Computerization of lower courts
1.66 The government has proposed to computerize the lower courts in
future. A scheme for computerization of all the 13,000 district and
subordinate courts, prepared in accordance with the National Policy and
Action Plan, has been approved by the government on 8th February, 2007
with National Informatics Centre (NIC) as the implementing agency.
The coverage of the project includes Information and Communication
Technology (ICT) enablement of all the district and subordinate courts
and upgrading of the ICT infrastructure of the Supreme Court and all the
High Courts.
1.67 The first phase of the project is being implemented in all the States
and Union territories at an estimated cost of Rs.442 crores. All the lower
29
courts in the country including the courts in the States of Chhattisgarh,
Madhya Pradesh, Orissa and Uttar Pradesh have been taken up for
computerization in the first phase.
1.68 Court records can be digitized to improve the productivity and
efficiency of the courts. Computerization of the Registry of the Supreme
Court has had its beneficial effects in slashing down arrears and
facilitated scientific docket management.
1.69 E-filing and video-conferencing by dispensing with physical
appearance saves precious time and resources and makes justice more
easily accessible and a less expensive option.
Fast Track Courts
1.70 The government has already taken several initiatives on the path of
judicial reforms. 1562 Fast Track Courts have been set up which have
disposed of more than 18 lakh cases transferred to them. 190 Family
Courts, established in various parts of the country, have speedily settled
matrimonial disputes through reconciliation.
Reforms at the village level
1.71 The Gram Nyayalayas Bill has been enacted to set up more trial
courts at the intermediate Panchayat level. The welcome feature is that
the procedures have been kept simple and flexible so that cases can be
30
heard and disposed of within six months. It is also envisaged that these
courts will be mobile, to achieve the goal of bringing justice to people’s
doorsteps. Training and orientation of the judiciary, especially in frontier
areas of knowledge, like bio-genetics, IPR and cyber laws, need
attention.
1.72 The Constitutional promise of securing to all its citizens, justice,
social, economic and political, as promised in the Preamble of the
Constitution, cannot be realized, unless the three organs of the State i.e.
legislature, executive and judiciary, join together to find ways and means
for providing the Indian poor, equal access to its justice system.
1.73 However, we are of the view that not an inch of change can be
brought about if the advocates do not work in accordance with the
responsibility that is cast upon them by the Constitution. Every lawyer is
vested with the responsibility to foster the rule of law and dominance of
the Constitution.
1.74 Thus, it cannot be gainsaid that economic development and law go
hand in hand. We can’t think of economic progress, unless changing
needs of the society are supported by appropriate law.
1.75 We need:
· Speedy justice
· Reduction in costs of litigation
· Systematic running of the courts
· Faith in the judicial system
31
1.76 The Indian Constitution provides a beautiful system of checks and
balances under articles 124(2) and 217(1) for appointment of Judges of
the Supreme Court and High Courts where both the executive and the
judiciary have been given a balanced role. This delicate balance has been
upset by the 2nd Judges’ case (Supreme Court Advocates-on-Record
Association v. Union of India)2 and the Opinion of the Supreme Court in
the Presidential Reference (Special Reference No.1 of 1998)3. It is time
the original balance of power is restored. The Law Commission has in its
214th Report (2008) recommended accordingly.
1.77 The above recommendation for the need for an urgent and
immediate review of the present procedure for appointment of judges is
further fortified by his forthright views expressed by Shri Justice J. S.
Verma, a former Chief Justice of India, who had written the lead
judgment in the 2nd Judges’ case, expressed in an interview to the
Frontline Magazine published in its issue of October 10, 2008. When
asked: “You said in one of your speeches that judicial appointments have
become judicial disappointments. Do you now regret your 1993
judgment?” Justice Verma responded: “My 1993 judgment, which holds
the field, was very much misunderstood and misused. It was in that
context I said the working of the judgment now for some time is raising
serious questions, which cannot be called unreasonable. Therefore, some
kind of rethink is required. My judgment says the appointment process of
High Court and Supreme Court Judges is basically a joint or participatory
2 1993 (4) SCC 441
3 1998 (7) SCC 739
32
exercise between the executive and the judiciary, both taking part in it.
Broadly, there are two distinct areas. One is the area of legal acumen of
the candidates to adjudge their suitability and the other is their
antecedents. It is the judiciary, that is, the Chief Justice of India and his
colleagues or, in the case of the High Courts, the Chief Justice of the
High Court and his colleagues (who) are the best persons to adjudge the
legal acumen. Their voice should be predominant. So far as the
antecedents are concerned, the executive is better placed than the
judiciary to know the antecedents of candidates. Therefore, my judgment
said that in the area of legal acumen the judiciary’s opinion should be
dominant and in the area of antecedents the executive’s opinion should
be dominant. Together, the two should function to find out the most
suitable (candidates) available for appointment.”
1.78 The views of the Parliamentary Standing Committee on Law and
Justice which has recommended scrapping of the present procedure for
appointments and transfers of Supreme Court and High Court Judges are
of great relevance in this context. The Hindustan Times of October 20,
2008 reported: ‘The Law Ministry has agreed to review the 15-year-old
system after the Parliamentary Standing Committee on Law and Justice
recommended doing away with the committee of judges (collegium).
Presently, the collegium decides the appointments and transfer of judges.
Interestingly, the recommendations come close on the heels of recent
cases of corruption against judges of the top courts in the country. Law
Minister H. R. Bhardwaj told Hindustan Times that the House
Committee’s recommendation had been accepted, and an action-taken
report prepared by the Ministry would now be placed before Parliament.
33
“Collegium system has failed. Its decisions on appointments and transfers
lack transparency and we feel courts are not getting judges on merit.
(……) The government cannot be a silent spectator on such a serious
issue”, Bhardwaj said. The House Committee had said: “Through a
Supreme Court judgment in 1993, the judiciary wrested the control of
judges’ appointments and transfers. The collegium system has been a
disaster and needs to be done away with”. H. R. Bhardwaj, Minister for
Law and Justice, said “It is the right time to review this important
matter”. “There was no problem till 1993 when the judiciary tried to rewrite
the Article of the Constitution dealing with appointments. They
created a new law of collegium which was wrong. In a democracy, the
primacy of Parliament cannot be challenged”, he said.’
1.79 Dr. E. M. Sudarsana Natchiappan, Member of Parliament and the
Chairman of the Department Related Parliament Standing Committee on
Personnel, Public Grievances, Law and Justice, in its 28th Report
presented to the Hon’ble Chairman of Rajya Sabha on 4th August, 2008,
has stated thus:
“I would like to conclude by saying that the Government should
expeditiously see to it that appointments of Judges in High Courts
and Supreme Court are done in a transparent way. We have
recommended in two ways: One is, we have to see to it that the
collegium system has to be done away with. Instead we have
suggested that an Empowered Committee, which comprises
representatives of the Judiciary, the Executive and Parliament,
should be set up. That was our recommendation in the Judges
(Inquiry) Bill. And, subsequently, since appointments will be
delayed, we have said that from the very beginning of identifying
the eligible persons, the various places of recommendations, be it
at the level of the High Courts, or, at the Governor’s level or at the
level of the Departments, and finally be the Supreme Court, should
34
be transparent, and this should be put up in the web site then and
there so that the person, who is going to occupy the Constitutional
place, is known to the public, and their background should be
allowed to be discussed by the public and, finally, it has to go
through the process of issuing warrant by the President of India.
But, what is happening presently is that from the day one of
identifying the person till the issuance of the warrant, nothing is
known to anybody except to the persons who are involved in it.
Even the persons, who are identified and who are going to be made
as judges of the High Court or of the Supreme Court, may not
know about it. This type of secrecy is not good for democracy.”
1.80 It may be noted in this context that in every High Court the Chief
Justice is from outside the State as per the policy of the Government. The
senior-most Judges who form the collegium are also from outside the
State. The resultant position is that the judges constituting the collegium
are not conversant with the names and antecedents of the candidates and
more often than not, appointments suffer from lack of adequate
information.
1.81 As recommended in the Law Commission’s 214th Report, two
alternatives are available to the Government of the day. One is to seek a
reconsideration of the three Judges’ cases by the Hon’ble Supreme Court.
The other alternative is to enact a law restoring the primacy of the Chief
Justice of India and the power of the Executive in making the
appointments.
II. RECOMMENDATIONS
2.1 Hon’ble Shri Justice Asok Kumar Ganguly, a Supreme Court
Judge, in his article titled “Judicial Reforms” published in Halsbury’s
35
Law Monthly of November 2008 has suggested a few norms, which the
judges and lawyers must agree to follow very rigorously, in order to
liquidate the huge backlog. The suggestions are quoted below:
‘[1] There must be full utilization of the court working hours.
The judges must be punctual and lawyers must not be asking
for adjournments, unless it is absolutely necessary. Grant of
adjournment must be guided strictly by the provisions of
Order 17 of the Civil Procedure Code.
[2] Many cases are filed on similar points and one judgment can
decide a large number of cases. Such cases should be
clubbed with the help of technology and used to dispose
other such cases on a priority basis; this will substantially
reduce the arrears. Similarly, old cases, many of which have
become infructuous, can be separated and listed for hearing
and their disposal normally will not take much time. Same is
true for many interlocutory applications filed even after the
main cases are disposed of. Such cases can be traced with
the help of technology and disposed of very quickly.
[3] Judges must deliver judgments within a reasonable time and
in that matter, the guidelines given by the apex court in the
case of Anil Rai v. State of Bihar, (2001) 7 SCC 318 must
be scrupulously observed, both in civil and criminal cases.
[4] Considering the staggering arrears, vacations in the higher
judiciary must be curtailed by at least 10 to 15 days and the
court working hours should be extended by at least half-anhour.
[5] Lawyers must curtail prolix and repetitive arguments and
should supplement it by written notes. The length of the oral
argument in any case should not exceed one hour and thirty
minutes, unless the case involves complicated questions of
law or interpretation of Constitution.
36
[6] Judgments must be clear and decisive and free from
ambiguity, and should not generate further litigation. We
must remember Lord Macaulay’s statement made about 150
years ago.
“Our principle is simply this –
Uniformity when you can have it,
Diversity when you must have it,
In all cases, Certainty”
[7] Lawyers must not resort to strike under any circumstances
and must follow the decision of the Constitution Bench of
the Supreme Court in the case of Harish Uppal (Ex-Capt.) v.
Union of India reported in (2003) 2 SCC 45.
Things I know are easier written, than done and for all these
reforms, what is required is a lot of discipline and introspection
and a realization that without these reforms, the present system is
under threat. Both, judges and lawyers, have to change their
mindsets. Unless our mental barriers to reforms are mellowed, all
doses of external remedies are bound to fail. We must remember
what Gandhiji said: “If you want to change anything, you be the
change”.’
2.2 We adopt the above suggestions and recommend accordingly.
(Dr Justice AR. Lakshmanan)
Chairman
(Prof. Dr Tahir Mahmood) (Dr Brahm A. Agrawal)
Member Member-Secretary

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Author: savedaughters19

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