Janabalam March 2021

Janabalam March 2021 can be downloaded from the following link.

https://www.loksatta.org/documents/janabalam/janabalam-2021-03.pdf

జవాబుదారీతనానికి న్యాయవ్యవస్థ అతీతం కాదు

 

సుప్రీంకోర్టు ఫెడరల్ కోర్టుగా పనిచేయాలి, రాష్ట్రాల్లో హైకోర్టే సుప్రీంకోర్టు: జస్టిస్ లోకుర్

 

IDAW VALEDICTORY SESSION on RULE OF LAW

The deliberated conference on ‘Rule of Law’ concluded today after nine-day deliberations by over fifty panelists. The valedictory session was Chaired - Shri Justice Kurian Joseph, Former Judge, Supreme Court of India, and attended by Shri Prithviraj Chavan, Former Chief Minister, Dr. Jayaprakash Narayan, General Secretary, Foundation for Democratic Reforms, and Prof. K.C. Suri, University of Hyderabad, Shri. D.N.V. Kumara Guru, Director of External Relations at Indian School of Business (ISB). 

This conference on Rule Of Law was deliberated with insights from eminent panelist who are known authorities in their respective fields. This elaborate conference covered the topics of (1) Addressing Challenges of Modern Policing; (2) Strengthening Investigation and Prosecution; (3) Criminal Procedural Reforms;  (4) Civil Procedural Reforms;(5) Speedy Justice in Trial Courts; (6) Strengthening the Role of Constitutional Courts; (7) Judicial Standards and Accountability.  In addition, other critical subject matters were discussed.  They were (1) Conversation on Extraordinary Law; (2) Conversation on Weaponization of Fake News: A Threat to Democracy?; (3) Conversation on Women's Safety; (4) Conversation on Setting up Systems to deal with Cybercrime; (5) Rule of Law & Economic Growth. 

Justice Kurien Joseph presented the opening remarks for the session.  The institutions of Rule of Law are shaken when it cannot serve our fellow citizens.  The judiciary should be insulated and be independent for the institutions to serve.  All measures should be taken such that confidence in Rule of Law is retained. Rule of law entails  Legal Certainty, Equality before Law, Law must guarantee adequate protection of Fundamental Rights, Governments must exercise Limited Power, Fairness in Adjudication, Observance of International Law

Shri. Prithviraj Chavan shared his perspective from practicing politician. He complimented the document brought out by the Foundation of Democratic Reforms. Having a consistent and fair application of law to all is needed for a healthy society.  He suggested compulsory internships for law students to gain practical knowledge of their respective works. Given the literacy rates it might take more time for people to know their rights.  This means rule of law must be judiciously applied and protected. It is critical to get political parties on board to achieve this.

Dr. Jayaprakash Narayan stated that Rule of Law was chosen as the theme for the conference as it is imperative in the present times. While democracy struck roots in India, there are serious deficiencies. Justice and democracy are inseparable, and rule of law is the most vital requirement to protect citizens and accelerate democratic revolution. This conference over nine days shows optimism because we have a functioning democracy and the problems are not impossible to overcome.  He congratulated all the participants for the depth and insights they shared. There is a viable roadmap for improving rule of law in our country and resources to achieve it are also within reach.  It is critical to get all the stakeholders jurists, police, politicians and civil society on board, and convince all the interested parties of the immediate need for reforms in rule of law. On this front, a broad consensus has been reached from the deliberations in the conference and the main elements are presented in the form of Hyderabad Declaration 2021.

THE HYDERABAD DECLARATION 2021

Over the course of the past nine days, broad consensus was reached upon a set of meaningful, well-thought out reforms that can go a long way in restoring public faith in the justice system and ensuring public order and safety: 

1. The police force needs to be strengthened with adequate personnel to effectively meet the growing challenges of a modern society and enhance public trust in police, with a proportion of officers embedded in the community to promote communication and collaboration with the citizenry.

2. A professional course in policing must be developed as a mandatory requirement at the entry level for effective training, to facilitate specialized and efficient functioning of the police force. 

3. Forensic infrastructure needs to be scaled up to meet present day requirements, with adequate facilities available at each administrative level - the police circle, the subdivision, the district and the state, as well as major urban centers based on the population, crime rate, and nature of crimes. 

4. An independent, well-equipped, and accountable crime investigation agency needs to be created, separate from the law and order department, to investigate crimes above a certain threshold, such as, crimes punishable by a maximum of 3 years of imprisonment. 

5. A strong system of prosecution, at the district level, must be instituted such that the competence, stature of prosecution, independence, public trust and coordination of investigator, prosecutor and the judge are assured. 

6. Criminal Procedural Laws must be amended to rationalise and simplify trial procedures, ensure effective investigation with transparency and accountability, protect the rights of victims, enhance the role of the judge in the trial process, and recognize non-custodial punishments when appropriate. 

7. Measures to reform the civil justice system must be based on an empirical analysis of both the supply and demand side of the ecosystem. On the supply end, increasing the judicial resources is necessary. The demand side of the spectrum calls for limiting the scope for appeals, adjournments, and interim orders, and introducing a case management system to ensure speedy and efficient trial through mechanisms such as a sunset clause on interim orders and ‘outcome date certainty’. 

8. Adequate resources, including more, well-trained judges and sufficient physical infrastructure, must be allocated and effectively utilized to make the judiciary accessible to the ordinary citizens, in terms of proximity, cost of litigation, and summary disposal of cases. Local courts with summary procedures dealing with simple cases as an integral part of the independent justice system will make justice accessible and affordable to the bulk of the poor, and ensure speedy delivery of justice, relieving the higher trail courts of excessive case load and pendency.

9. The efficiency and efficacy of the District Courts and the Constitutional Courts can be enhanced by setting up a robust court administration system, including appointment of highly competent judicial managers and judicial clerks, allowing judges to focus on matters of adjudication and improving professionalism in the administrative functions.

10. The Constitutional Courts must be strengthened by limiting their jurisdiction to their primary role, that is the interpretation of the Constitution and substantial questions of law. This may be achieved by setting up Permanent Constitutional Benches in courts, reducing the number of appeals and revision petitions, and prioritizing clearing the current backlog. Ad hoc judges may be appointed according to Article 224A of the Constitution to dispose of the backlog.

11. There is a need to attract best talent into the judiciary at the Trial Court level and the Constitutional Courts. Therefore, remuneration for judges, the service conditions and the prestige of office, all should be significantly enhanced to make judgeship aspirational for bright young lawyers. A nationwide competitive, meritocratic recruitment with an assured fast track for elevation based on performance would go a long way in attracting talent. 

12. A permanent mechanism for ensuring judicial standards and accountability in the higher courts must be established to address issues of misconduct. Guidelines for the same have already been laid down in the Judicial Standards and Accountability Bill 2010, which lapsed in 2012. 

Prof. K.C Suri congratulated the organisers for the conference.  This is another great endeavour in our country to achieve Rule of Law. Any rule by the discretion of the ruler is not in the interest of the society and for which rule of law is important.  Rule of law is also necessary for nation building and national unity.  

Shri. Kumara Guru of ISB congratulated the team for organizing this important and urgently needed conference.  Education and research institutions should encourage such deliberations for well-being of the society. 

IDAW SESSION on Judicial Standards and Accountability

The eighth session of the Indian Democracy at Work Conference 2021 on Rule of Law saw a distinguished panel deliberate on Judicial Standards and Accountability. Justice B. N. Srikrishna, Former Judge, Supreme Court of India chaired this session. The other panelists were Justice Jasti Chelameswar, Former Judge, Supreme Court of India, Dr. G. Mohan Gopal, Former Director, National Judicial Academy and Shri Harish Narasappa, Co-founder Daksh and Dr. Jayaprakash Narayana, Retd. IAS and founder of Foundation for Democratic Reforms.

Justice B.N. Krishna opened his remarks by stating that Indian Judiciary is limping with shortage of Judges and not filling the much required appointments and this leads to shortage of Judges.  Each state has its own peculiarity, and having judicial cadre from Indian Judicial Service might not work as because of language barriers. In Israel and Japan common language and system helps with its national judicial service. Another important point to consider is to whom is Judge accountable to and how will one make them accountable. The best option is to have a judicial committee that oversees the working of the Judiciary. Personnel Management can be done with professional management staff with proven management skills. Teaching or training on the latest developments in the society including technology are important.

Justice Chelameswar stated that judicial selection process must be done with clarity and transparency. Judicial Accountability Act envisaged the problems and addressed them, unfortunately the Bill was allowed to lapse. Efficiency is what is needed to be focused in the judicial system. Bringing in more transparency in the court management process will help in decrease of the backlog of cases.

Dr. Mohan Gopal said that there is a massive body of information in the world on judicial accountability standards.  The legal profession is insulating itself from standards. The Justice Rankin Committee of 1920s has put down several techno-managerial standards which are valid even now. He added that we have enormously powerful judiciary with limited accountability standards. We need to democratize the judiciary and let standards and accountability flow from the overall values in the system. Lot of people are ‘Docket Excluded’ i.e cannot approach the court. There are 300 new cases in USA per thousand population and only in 3 to 5 cases per one thousand population in Bihar and Jharkhand.  We need to rethink and must understand that judiciary accountability in socio-political framework. The political class must take initiative to hold the Judges accountable using constitutional means.

Shri. Harish Narsappa agreed with what Mr. Mohan Gopal and suggested that Judge to Population ratio is not a relevant measure to evaluate judiciary and must be reconsidered.  He expressed displeasure that Judiciary seems to have lost the concept of time.  What is the point of serving justice after the time for justice has elapsed? Judges in our country work hard, but it does not translate into efficiency as judicial system is unaccountable.  Not a single innovation in the Judicial system has taken place since 1950 and we need an institution that cares deeply. The office of Chief Justice is transitory post and for a short time and justices want to move on to higher courts.  Subsequently, due to their short tenure, there is no ownership and accountability. In addition, there is no skill development of the judges to deal with the complex court management system.  Mr. Narsappa added that we need specialized staff to manage the court management system to dispose cases.  Accountability from a citizen’s perspective and not from Judiciary perspective is the need of the hour. 

Dr. Jayaprakash Narayan clarified that the prestige about the All India Services attracts the best talent. The hope is that the proposed the proposed Indian Judicial Service will attract some of the best minds to join the service and add value to the system. Democratization offers the best solution, but currently the constitutional judges are not accountable in any meaningful way.

IDAW SESSION on STRENGTHENING CONSTITUTIONAL COURTS

The Seventh session of the Indian Democracy at Work Conference 2021 on Rule of Law saw a distinguished panel deliberate on ways to Strengthening Constitutional Courts. Justice Madan B. Lokur, Former Judge, Supreme Court of India chaired this session. The other panelists were Shri V. Sudhish Pai, Lawyer and Jurist, Shri Alok Prasanna Kumar, Co-Founder and Lead, Vidhi Centre for Legal Policy, Karnataka, Ms. Cathy Catterson, Former Clerk of Court of Appeals, Ninth Circuit, USA and Dr. Jayaprakash Narayan, Retd. IAS and the founder of Foundation for Democratic Reforms also participated.

Justice Madan B. Lokur opened his remarks by stating that Supreme Court should be in the nature of the federal court with its limits and restraints. It should not intervene in High Courts decisions and let High Court of a state decide on matters of its state law.  The necessary interventions should be cautiously and judiciously done. The Supreme Court should also take up issues which have all India impact and not just impacting individual state issues. For this it is necessary to use filters given in constitution. He added that it is also necessary to have time bound High Court decisions and they should have the final word in interpretation of the law in the state. He added that more emphasis should be given to imparting constitutional vision to lower courts so that most of the workload coming to constitutional courts can be reduced.  He also suggested the ideas of increasing the number of benches in high courts in different areas of the state must be evaluated with caution. In addition, he gave an example of case management in USA that brought down the case load by 90% in three years such case management strategies must be applied to our courts also. Strong effort has to be made to achieve reforms working with in the system and using the resources of the system. 

Mr, Sudhish Pai stated at the outset that the primary role is to uphold the constitutional values and not mere dispute resolution. Supreme Court should work mostly with definition of fine nuances of constitutional charter and this is where the intellect and integrity of the judges comes into play. However, it looks like Supreme Court has turned into final court of appeals and it appears that the Court does not have time for serious constitutional issues. He wondered as to what is the appropriate number of Judges in the SC and increasing the number might be good.  He also added that increasing the number of judges in constitutional courts indiscriminately will dilute their role and prestige. He mentioned that the constitutional courts cannot just be a court of error correction from its lower courts.  He was confident that once we strengthen high courts, workload in SC will decrease. A quality that is most important is that statesmanship, legal balance, scholarship and integrity of judges in SC will go a long way in reforming the system.

Mr. Alok Prasanna Kumar stated at the outset that all courts are and must be essentially constitutional courts not just the High Court and Supreme Court. He stated some glaring problems in the High Courts and should be immediately addressed. Bureaucratic stubbornness in not implementing the High Court orders is very common.  He also said that High Courts are too concentrated in big cities in the state and so most of the cases are from urban areas.  He suggested that they should have more benches of high courts in different areas of the state. Criminal cases appeals are also not disposed off quickly sending wrong signals in the society and a special bench must be quickly constituted to quickly dispose the back logs. In addition, excessive number of bail petitions are taken up in the High Courts as lower courts simply deny bails, this must be urgently looked into. Another important concern is that there is a bias towards appointment of judges from bar and not from subordinate judiciary and this needs to change so that there is about fifty percent selected from lower benches.  This adds experience to the depth of the benches in the High Court.  In the short term, the High Court should prioritize and dispose of cases of 10 years or more pendency with clear deadlines. In the long term, Mr. Alok Prasanna suggested that software and artificial intelligence should be used to manage the voluminous material that needs to be reviewed in the courts. He finally added that the Supreme Court is apex civil, criminal and constitutional court and it may serve us well to be divides it into three such specialized courts.

Ms. Cathy Catterson stated that workload and case management, in addition to important reforms is critical. She pointed that Judges should be appointed for longer terms as they can provide lot of institutional knowledge. She pointed out that it is critical to have management and staff work with administrative matters and save time of judges so that they can concentrate on adjudication.  She suggested that the courts can have staff  lawyers that can look into jurisdictions and also have a preliminary review of the cases. These staff attorneys are centralized and work under the Chief Justice with supervisory guidance. Role of mediation in civil cases can also be considered to reduce the workload in the courts. To eliminate the delay, the contesting parties should be given strict deadlines to file all their information, counters, and evidence. She suggested a court management system where in simple cases can be disposed off with briefs and allot less time of judge and the complex cases more time. Ms. Catterson emphasized on the role of court staff which is professional with appropriate training and taking the services of paralegal staff.

గ్రామన్యాయాలయాల చట్టం ద్వారా స్థానిక కోర్టులతో సామాన్యుడికి న్యాయం: జేపీ

 

IDAW SESSION on SPEEDY JUSTICE IN TRIAL COURTS

The sixth session of the Indian Democracy at Work Conference 2021 on Rule of Law saw a distinguished panel deliberate on ways to get Speedy Justice in Trial Courts. 

Justice G. Raghuram, Director, National Judicial Academy was the chair for this session.  Dr. Jayaprakash Narayan, General Secretary, Foundation for Democratic Reforms, Justice R. C. Chavan, Vice Chairman, E-Committee of Supreme Court and Shri Atul Kaushik, Chief of Party, Asia Foundation. The main topics covered in this session were: 1. Establishing local courts in rural and urban areas 2. Building capacity - Increasing the judge to population ratio and strengthening use of technology and court administration 3. Clearing arrears in trial courts 4. Reinforcing the authority of the trial courts - contempt of court and perjury provisions

Dr. Jayaprakash Narayana set the agenda for discussion and said that he is concerned about need for fair, quick and affordable justice. There are 35 million cases pending in courts we have 18 judges per million population as opposed to 50 in many countries, only 14 are available. He added that people suffer injustice silently and the political discourse is only about vote-gathering and justice delivery is not given priority. He stated that local courts with summary procedures can render speedy justice at low cost, and can reduce burden on trial courts.  Dr. JP drew from examples of USA and UK about small claims courts.  Local courts can take care of 80% of the cases with some pecuniary and penal jurisdictions.   

Justice G. Raghuram gave direction to the discussion. At the outset he said there are 2 kinds of people, one that come to the court and another that are brought to the court.  The ones that come to the court seem to be more troublesome and ones brought to the court seem to be the victims, and this is not how it should be. A democracy must have robust justice delivery, failing which people lose faith. Reforms in the Judicial system starts with legal education and judicial recruitments. Justice Raghuram outlined the many failings in our judicial systems. He also suggested the need for psycho-social evaluations in recruitment of judges and other critical positions in the judicial system. He also emphasized that a complex society requires specialized knowledge and expertise in personnel working in the judicial system. An average law graduate is not competent enough to function as a lawyer, let alone be a judge. Training should be enhanced qualitatively. Faculty to judicial academies should be selected based on rigorous quality standards.  Justice delivery must be seen as a service and must be subject to quality and efficiency standards. Currently, there are no consequences to making false statements and this should be changed where in false statements and perjury should be punished. He also added that Media trials also hampers the investigation process and trials.  

Justice Chavan started with agreeing with all problems stated and some of the solutions proposed. He also added that adjudications must be evaluated for quality and be audited regularly. Political interference in charge-sheets and case filing disturbs the justice delivery of trial courts are not alert in these matters, it  leads to injustice.  There is also neglect of procedures by courts at all levels.  He added that Interminable appeals and revisions are an issue and they delay the process. Adjudications at the trial courts are not complete and thorough and this does not build confidence in the system. 

Mr. Atul Kaushik pointed out that the investment in the justice system is low with respect to the GDP of our country. He pointed out that we should ask a deeper question as to what our objectives should be for our justice system.  On that front he suggested 4 interventions for speedy justice in trial courts: 1. Application of technology; 2. Process Reengineering; 3. Alternate Dispute Resolution and mediation and 4. Having specialized Court Managers and Court Clerks. He further explained that Technology application from document management to content management with transparency, efficiency and will build trust in the system. Process reengineering has to take 2 components: efficient case management and abandonment of legacy and redundant procedures that delay trials. Mr. Kaushik stated that alternative dispute resolution and mediation for simple cases ensure speedy justice.

నామమాత్ర సంస్కరణల్ని క్రియాశీలకంగా మార్చాలి

 

IDAW SESSION on CIVIL PROCEDURE REFORMS

The Fifth session of the Indian Democracy at Work Conference 2021 on Rule of Law saw a distinguished panel deliberate on ways of challenges in civil procedures and reforms needed. 

Shri N. L. Rajah, Senior Advocate, Madras High Court chaired the session. Dr. Sudhir Krishnaswamy, Vice-Chancellor, NLSIU, Bengaluru, Justice (Dr.), Shalini Phansalkar Joshi, Former Judge, Bombay High Court, and  Mr. Hiram E. Chodosh, President, Claremont McKenna College, USA and Dr. Jayaprakash Narayana, (Retd. IAS) and founder of Foundation for Democratic Reforms served as panelists. The main topics covered in this session were: 1.Institutionalizing case management in civil courts 2. Mitigating challenges in the functioning of Commercial Courts and 3. Updating pecuniary jurisdictions of civil courts

Shri N.L Rajah opened the session with welcoming all the panelists and complimented all for this much needed conference. Numerous commissions were set up to address this issue, however, much needed action is not coming forth.  The main problems in the system are lower amount spent on judiciary as a ratio of GDP, low judge to population ratio, lack of prioritization of cases, and need for trained paralegals and more training of judges. He opened the discussion for panelists. Justice Shalini Joshi suggested that we should have Procedural bench and Trial benches for quicker disposal of cases. She also suggested introduction of managerial approach in the courts to quickly evaluate the complexity of cases and prioritize to process them. Classification of cases with respect to pecuniary and other jurisdictions will go a long way in helping the cases.

Dr. Sudhir Krishnaswamy complimented the organizers for selecting the critical topic and timely debate.  He suggested that the problems should be measured not just in GDP and other indicators but also with more qualitative indicators. Problems are only evaluated from supply side and from the state side, and the demand side must also be looked into. Empirical grounded discourse with legal background and demand side analysis is also especially important. He gave an example that commercial dispute resolution slowdown in New Delhi courts is a classic example of how the delays have not be decreased by the Act and its amendments have failed to do the needful. We need to rethink of how our systems fundamentally. Handling Interim Orders, Interlocutory Orders, Setting Outcome Dates have shown good track record of clearing out cases quickly in common law countries.

Mr. Hiram E. Chodosh stated that all policy interventions still have limited impact and modest outcomes persist. We should look at structures and seek structural solutions in addition to procedural and systemic solutions commonly suggested. Most reforms are too little and too late and critical errors happen in diagnosing the problem. We need to start with having a clear vision of what to achieve and work towards it. Dr. Choodosh suggested we need to closely look at incentives and values the reform promotes and that previous reforms must be closely evaluated, and that we should monitor and analyze data more closely to get effective reforms. 

Justice Shalini Joshi said that justice delivery in civil cases is simpler than in criminal cases. In criminal cases the investigative and prosecuting agencies have a vital role, and the court alone cannot render justice. But in civil cases the Judge can make a vast difference. She onlined a series of practical and effective steps to render speedy justice in civil cases. Enhancing the pecuniary jurisdiction of trial courts as in Maharashtra, minimizing appeals, applying a sunset date so that the parties do not seek postponement indefinitely, and a competent case management system are at the heart of speedy and efficient justice in civil cases.