The Goal of Judicial Reforms
In this article I shall confine myself to the reforms in lower judiciary and will not dare to venture in and speculate about reforms in Higher Judiciary. It is not because I hold the opinion that reforms in Higher Judiciary are not needed, but rather because I am not well equipped to comment on a subject which is alien to my experience and obviously expertize.
The basic goal of the Constitution of India as mentioned in our preamble is to achieve fraternity, wide achieving various goals one of them being the goal of justice. Justice is an all inclusive term and has been further qualified by words;social,economic, and political. Though every organ of the State shares this common dream of dispensing justice to all citizens of this Country,the organ which is primarily responsible for this task is Judiciary.
Around 60 percents of the cases are not appealed against. That is to say, sixty percent of all litigation die at trial stage itself. Around 55% of Indian Populace chooses not to approach any forum to seek redressal for the infringement of their rights. Around 35% chooses other forums, like police or mafia to seek justice. Only 10% of all people dare approach court. The reasons are well known. The delay that is caused in deciding cases, the expense involved, and the distrust that even if they are able to achieve a verdict in their favour they will not be able to get it executed. Not only this, our courts are full of examples where the very procedure that was created to ensure justice resulted in manifest injustices. The faith on integrity of judiciary is alive but the trust that it is capable of dispensing effective remedies to the aggrieved parties os surely wavering.
When we analyze these figures we are forced to come at an startling conclusion. The inference is that it is the lower judiciary which is primarily responsible for the trust of individuals on judicial system. And the judiciary is not merely overburdened, it is also excluding a great majority of individuals from its reach. In other words though the pendency of litigation has reached a proportion where it is not possible to provide timely justice to all those who come and seek it, it is simultaneously true that this lack of efficiency has given birth to an apathy and distrust of the populace towards the judicial system as such and they prefer not approaching it.
Before we bark on providing a solution it is essential to understand that in a developing country the increase in the number of cases is not necessarily a bad omen. With the increase in number of laws,in population and in number of rights, with increase in consciousness of masses litigation is bound to increase.
However our solution to this increase in number of litigation has not been fundamentally correct. Whereas a strong judicial system is necessary for the faith of public and survival of the system we chose to ignore this base by concentrating to build other forums of dispute resolutions. While the need of the hour was to do judicial impact assessment after enacting every law and to increase the infrastructure and the strength of judiciary accordingly, we opted to create shortcuts. Tribunals at first and ADRs now. We forgot that a strong and effective judicial system is indispensable. There is no substitute for a strong and powerful judicial system. Whenever a system tries to create alternative of its own basic foundation it weakens itself.
Other issue which demands careful scrutiny is the goal which we want to achive by judicial reforms. Is it to reduce the pendency of cases. An aim of reducing the pendency of cases aims at increasing efficiency without over halling the system to ensure judicial inclusion. It aims to counter docket explosion without trying to tackle docket exclusion. More efficient,strong and powerful the judicary will become, more trustworthy will it become and greater number of litigants who were untill now excluded will be attracted toward it. To deal with the explosion which will be generated by inclusion we do need other dispute resolution mechanisms. But we must remember that it is noly the fear of a sure certain and quick reprisal which can compel the wrong doer to opt for a settlements. He would prefer to live with impunity showing unabashedly his clout if he is certain to avoid any consequence of his wrong doing.
A greater emphasis on the law of torts and greater power to punish for ones own contempt is also essential.
Dream of true justice would otherwise remain a mirage